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Manchester City Council (20 010 070)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 18 Mar 2022

The Ombudsman's final decision:

Summary: The Council failed properly to investigate Mr X’s complaints about noise from a neighbouring House in Multiple Occupation (HMO). The Council has agreed to apologise, pay Mr X £500, and act to improve its service.

The complaint

  1. Mr X complains that the Council failed properly to investigate his reports of noise nuisance and licensing issues about an HMO near him.
  2. As a result, Mr X says he endured repeated and extended noise nuisance.

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What I have investigated

  1. Mr X says the Council does not take proper enforcement action against landlords of HMOs in his area.
  2. I have not investigated this part of Mr X’s complaint. The section at the end of this decision explains why.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered the complaint and the information Mr X provided.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  4. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisance

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
  2. Typical things which may be a statutory nuisance include:
    • noise from premises or vehicles, equipment or machinery in the street
    • smoke from premises
    • smells from industry, trade or business premises
    • artificial light from premises
    • insect infestations from industrial, trade or business premises
    • accumulation of deposits on premises
  3. For the issue to count as a statutory nuisance, it must:
    • unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and / or
    • injure health or be likely to injure health.
  4. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  5. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  6. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

HMO

  1. An HMO (House in Multiple Occupation) is a property rented out by at least three people who are not from one household but share facilities like the bathroom and kitchen.
  2. Private landlords must hold a licence to rent out a large HMO. A large HMO is a building, or part of a building, occupied by five or more people forming two or more households who share facilities.
  3. Some local authorities may also use their discretionary power under the act to designate certain areas to be subject to additional licensing, which would require smaller HMOs in the designated area to be licensed.

Council’s policy

  1. The Council has a policy about how it investigates noise nuisance.
  2. The policy says that initially the Council will:
    • Speak to the complainant to get details of the case
    • Send the alleged perpetrator a warning letter
    • Write to the complainant and provide diary sheets
  3. If the Council has not witnessed noise following the initial complaint, it will assess the diary sheets. If it decides that further investigation is needed it will:
    • Send the alleged perpetrator a second warning letter to advise of a formal investigation
    • Visit the complainant or the area based on the times suggested by the diary sheets
  4. If, following further investigation, the Council confirms a statutory nuisance, it will serve an abatement notice.
  5. If it has not confirmed a nuisance following visits, it will close the case and write to the complainant.
  6. However, the policy also says:

“In cases where several site visits have already been made unsuccessfully to witness an occurrence, and when a case would normally be closed, but the complainant insists on more action, then an installation of the MATRON could help progress the case to a conclusion.”

  1. MATRON is equipment usually installed in a complainant’s home to record noise.

What happened

  1. Mr X lives in a residential area. The area has several HMOs, mainly used as accommodation for students.
  2. In November 2019, Mr X reported issues of noise from a neighbouring property to the Council. The Council did not send Mr X any diary sheets to complete, although its automated email response says this will happen.
  3. Mr X told the Council that he would try to resolve the matter informally with the occupants by writing them a letter.
  4. A few days later, Mr X called the Council again. He said his informal approach had been unsuccessful and that he had received verbal abuse from the occupants.
  5. The Council visited the alleged perpetrators of the noise in December.
  6. After the visit, the Council gave Mr X the contact information for the Out of Hours team to report any noise.
  7. The Council says Mr X next reported noise from the property in February 2020.
  8. Mr X made two further reports in March and April.
  9. Mr X kept a log of his experiences from September 2019 to August 2020. He says the Council never asked to see this, despite it having failed to send him diary sheets.
  10. Mr X began reporting noise from the property again in July. However, as these were new tenants, he asked the Council not to intervene immediately.
  11. Mr X reported further issues in October. The Council did not respond to his report until mid-November. This was despite the Council’s automated email response saying Mr X could expect a response within 5 days.
  12. In response to Mr X’s complaint, the Council accepted that:
    • it should have sent him diary sheets and failed to do so.
    • it should have asked Mr X for his records of noise, in particular before visiting the alleged perpetrators.
    • when it visited the alleged perpetrators, it should have raised the abuse Mr X had reported receiving.
    • it should have provided the contact information for the Out of Hours service at the outset.
    • it should have provided an outcome letter when Mr X asked for one.
    • it should have explained to Mr X its process for dealing with noise with tenants and landlords when Mr X asked about how to complain about the landlord.
  13. The Council apologised for these faults and agreed to remind staff to:
    • send out diary sheets;
    • ensure visits are based on up-to-date information;
    • give the Out of Hours details to all new complainants;
    • request diary logs or other records from complainants;
    • respond to requests for correspondence in a timely manner.

My findings

  1. The Council has accepted fault in this case. However, it considers that it nonetheless responded to Mr X’s reports in a timely way in line with its processes. Mr X says that despite the Council’s commitments to improve its service, many of the same faults occurred when he reported noise from the new tenants in October 2020.
  2. I do not consider an apology to be a suitable remedy for the injustice to Mr X. I have also identified additional fault by the Council.
  3. The Council had failed to send diary sheets, provide Mr X with the Out of Hours number, or ask for any records or log Mr X had kept. Therefore, it had no way of assessing the extent of the noise Mr X was alleging before visiting the perpetrators in December 2019.
  4. Mr X says he did not always contact the Out of Hours service, especially if the noise was very late at night while he was in bed. Mr X also says that he would often go out to get away from the noise.
  5. On at least one occasion, Mr X called before the Out of Hours team came on duty. The Council asked him to call back at 8.45pm if the noise was still ongoing. Mr X told the Council he was going out and so would not be able to do so.
  6. As a result of the above, the Council says it could not witness the noise Mr X reported. In such cases, the Council’s policy says that it may install noise monitoring equipment. There is no evidence the Council considered whether, in Mr X’s case, it should do so.
  7. In the circumstances, I find the Council should have considered installing noise monitoring equipment. It’s failure to consider whether it should do so is fault.
  8. As the Council’s policy says, installing such equipment can “help progress the case to a conclusion.” It would have given Mr X confidence that his concerns were taken seriously and his experience accurately recorded.
  9. I cannot say whether Mr X’s neighbours were causing a statutory noise nuisance. But the Council’s failure to provide diary sheets and subsequent failure to consider installing recording equipment means Mr X must live with this uncertainty. This is an injustice to Mr X.
  10. When a new set of tenants moved into the property, Mr X asked the Council not to pursue matters initially. However, in October 2020, he reported further issues. The Council failed to respond until November. This is well outside the five days the Council says it will respond within. This delay is fault.
  11. Given Mr X’s already poor experience with the service, this added to his sense of frustration and further damaged his trust in the Council. This is an injustice to Mr X.

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Agreed action

  1. To remedy the injustice to Mr X from the faults I have identified the Council has agreed to:
    • Apologise to Mr X in writing
    • Pay Mr X £500 in recognition of his avoidable uncertainty and time and trouble
  2. The Council should take this action within four weeks of my final decision.
  3. The Council should also take the following action to improve its services:
    • Provide more detailed guidance to staff on when to install noise monitoring equipment.
    • Remind relevant staff to ensure records detail any decision not to install noise monitoring equipment when the Council has been unable to witness reported noise.
  4. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

  1. I have completed my investigation. There is fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Parts of the complaint that I did not investigate

  1. Although the property Mr X complained about is an HMO, the Council’s records show that it checked whether the property needed a licence and was satisfied that it did not.
  2. Mr X also complained about other HMOs in his area, and the concentration of them. However, Mr X did not make noise complaints or report other anti-social behaviour from any other property in the area besides his neighbour.
  3. Mr X did provide the Council a document signed by many local residents detailing their experiences with specific properties. None of these individuals have complained to the Ombudsman, however, and Mr X does not have consent to complain on their behalf. I have not, therefore, investigated the Council’s involvement with properties other than that complained about by Mr X himself.

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Investigator's decision on behalf of the Ombudsman

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