Summary: Mr Y complains about the Council’s handling of his reports of noise nuisance from his neighbour. Mr Y says this caused stress and distress, and affected his ability to sleep and work. We do not find fault in the Council’s decision that there was no evidence of a statutory noise nuisance. However, we find the Council at fault in how it handled Mr Y’s requests for reasonable adjustments. This caused Mr Y distress and uncertainty. To remedy this, the Council has agreed to apologise to Mr Y and make him a payment as well as several service improvements.

The complaint

1. The complainant, who I shall refer to here as Mr Y, is Deaf and a British Sign Language (BSL) user. Mr Y complains about the Council’s handling of his reports of noise nuisance, which he says he could feel as vibrations, due to his neighbours playing loud music. (part a of the complaint)
2. Mr Y complains the Council failed to fully accommodate his communication needs and provide reasonable adjustments under the Equality Act 2010 when handling his reports of noise nuisance. He says the Council refused to communicate with him in BSL, instead communicating with his brother (who does not speak BSL) or in technical written English, which Mr Y finds harder to understand. (part b of the complaint).
3. Mr Y says this meant he could not understand the process or findings of an investigation into his noise nuisance complaint. He said he felt he could not be involved in the process.
4. Mr Y says he continues to experience disturbances and distress from the noise issues. Mr Y says this has impacted his mental health and ability to sleep. He says he has had to sleep in his car on several occasions to avoid the vibrations through the night.

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What I have investigated

5. I have investigated action taken by the Council’s environmental protection team when it responded to Mr Y’s complaints about noise.
6. I did not investigate action taken by the Council’s housing management service in its role as the landlord of Mr Y’s neighbours.

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The Ombudsman’s role and powers

7. 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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
10. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
11. 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

12. I considered the information and documents provided by Mr Y and the Council. I spoke to Mr Y about his complaint.
13. Mr Y and the Council had an opportunity to comment on my draft decision. I considered all comments before making a final decision.

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What I found

What should have happened

Statutory noise nuisances

14. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
15. 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.

16. 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.

17. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
18. In investigating reports of problem noise, councils should follow non-statutory guidance issued by government on “Neighbourhood Noise Policies and Practice for Local Authorities”. The government guidance says, when deciding whether a noise problem amounts to a statutory nuisance, regard should be had to a number of factors, including:

• the level and type of noise and its duration;
• the time of day or night when the noise occurs;
• any particular sensitivity of the complainant; (Councils cannot take account that certain individuals affected by unwanted noise may have a greater sensitivity to it); and,
• the number of persons affected.

19. Once the evidence-gathering process is complete, the environmental health officer(s) (EHO) will assess the evidence. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
20. 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.

Section 82 of the Environmental Protection Act 1990

21. A member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it.
22. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

Equality Act 2010

23. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
24. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
25. The ‘protected characteristics’ referred to in the Act includes disability.
26. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Reasonable adjustments for people with disabilities

27. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to councils. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
28. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
29. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

30. Mr Y is a private occupier. Mr Y is Deaf and a British Sign Language (BSL) user. BSL is Mr Y’s first language. His complaint concerns his neighbour, who is a housing association tenant.
31. In June 2020, Mr Y began reporting noise issues to the Council’s environmental protection team and the housing association. He said his neighbours were playing loud music during the night. He asked the Council to arrange a meeting with a BSL interpreter to help him communicate and understand the process better.
32. At the end of July, the Council’s environmental protection team agreed to carry out a joint investigation with the housing association. A Council Environmental Health Officer (EHO) emailed Mr Y to explain this. It asked Mr Y to send dairy sheets.
33. Between August and December 2020, the following took place:

• Mr Y was in regular contact with the Council’s environmental protection team. He sent diary sheets when requested to by an EHO as well as noise app recordings. He made various request for a meeting with a BSL interpreter to help him understand the process and communicate with the Council. However, a Council EHO refused these requests;
• the Council sent two warning letters to Mr Y’s neighbour.
• after reviewing Mr Y’s diary sheets and noise app recordings, two Council EHOs visited Mr Y’s home for an hour during the night to monitor the noise. A Council EHO refused Mr Y’s request for the support of a BSL interpreter during this visit.
• Following this visit, in mid-October, the Council decided to close Mr Y’s case. The Council wrote to Mr Y explaining it had found no evidence of statutory noise nuisance.
• In several emails, Mr Y told the EHO he was not happy with its response. He said he did not think the Council understood the impact of the noise and vibration on someone who was Deaf. He said he felt discriminated against as he needed to communicate in BSL, not English.
• A mediation meeting took place between Mr Y and his neighbour with the assistance of a BSL interpreter. Mr Y had privately arranged this meeting.
• The Council refused Mr Y’s request that the Council cover the costs of the private mediation and BSL interpretation services he had arranged. An EHO wrote to Mr Y to say the Council would not take part in the process as it was an independent arrangement between Mr Y and his neighbour.
• after the mediation meeting, an EHO wrote to Mr Y to ask him to complete diary sheets over the following two weeks. After reviewing the completed diary sheets, an EHO told Mr Y that the Council would install a noise meter in his property for one week to monitor noise.

34. In January 2021, the Council installed a noise meter for eight days. Mr Y requested the assistance of a BSL interpreter during the visit, but a Council EHO refused this request.
35. In February, the Council wrote to Mr Y after reviewing a sample of the noise meter recordings. It said the meter had also continuously monitored baseline noise levels. It said there was no evidence of statutory noise nuisance so Mr Y’s case remained closed.
36. In March, Mr Y complained to the Council.
37. At the beginning of April, the Council sent Mr Y its stage one complaint response. It did not uphold Mr Y’s complaint about its handling of his reports of noise.
38. Regarding reasonable adjustments, the Council said:

• it first became aware that Mr Y’s brother could not sign proficiently in March 2021. It said Mr Y told the Council, prior to the Council’s visit in January, that he was happy for his brother to assist with communication. It said it was satisfied Mr Y’s brother had been able to communicate the officers’ findings to Mr Y and explain to Mr Y how to use the noise meter. The Council said it believed in good faith that, until March, Mr Y was happy for his brother to support him.
• It explained that, since June 2020, the Council had received a large volume of correspondence from Mr Y. Given the frequent email communication from Mr Y, the Council said it was appropriate for the EHO to have corresponded with Mr Y by email also.

39. Later in April, Mr Y requested the Council consider his complaint under stage two.
40. Towards the end of June, the Council sent Mr Y its stage two complaint response. It did not uphold Mr Y’s complaint. It said, following Mr Y’s complaint, there was some learning around arranging BSL interpreters and possibly improving its service for Deaf customers or those with hearing difficulties. However, it found the Council had appropriately accommodated Mr Y’s needs throughout its noise nuisance investigations and his subsequent complaint.

Analysis – was there fault by the Council causing injustice?

Council’s handling of reports of noise issues

41. Mr Y complains about the Council’s handling of his reports of noise nuisance (part a of the complaint).
42. Based on the evidence I have seen, I do not find fault in the Council’s decision that there was no evidence of a statutory noise nuisance. This is based on the following:
1. Mr Y began reporting noise issues in June 2020. Initially, the housing association took action to see if matters could be resolved through its role as landlord of Mr Y’s neighbour. As explained below, I cannot consider the actions of the housing association. However, we would not expect the Council’s environmental protection team to duplicate any action taken during this time.
2. Towards the end of July, when the housing association’s action did not appear to resolve matters, the Council’s environmental protection team told Mr Y that it would jointly investigate his reports. I find the environmental protection team acted without undue delay here.
3. In August and September, an EHO sent out two warning letters to Mr Y’s neighbour after reviewing Mr Y’s diary sheets.
4. An EHO spoke with Mr Y’s neighbour in September who disputed creating noise issues.
5. Following this, the EHO reviewed the noise app recordings from Mr Y and decided there was no evidence of a noise nuisance. Nevertheless, the EHO decided to visit Mr Y’s property to verify these findings with the assistance of a noise meter.
6. In October, two EHOs visited Mr Y’s property for an hour during the night and at a time when Mr Y regularly reported noise issues.
7. However, during the visit, the officers detected no noise issues that amounted to a statutory noise nuisance, including through the noise meter. Following the visit in October, an EHO wrote to Mr Y explaining this. This is in line with the Council’s policy on statutory noise nuisance, which states: “Case officers should aim to make a decision about whether something is or is not a nuisance within 12 weeks.” The EHO also signposted private mediation and Mr Y’s right to take private action under section 82 of the EPA, which is good practice. There is no duty on the Council to arrange the mediation; it is sufficient to have suggested this to Mr Y.
8. After receiving further diary sheets from Mr Y, the Council environmental protection team installed a noise meter in January 2021 to monitor noise over an eight-day period. However, after reviewing the results of the noise meter, including a representative sample of 86 recordings, the officers still found no evidence of statutory noise nuisance. Instead, the majority of recordings were considered everyday general living sounds (such as a smoke alarm, microwave, footsteps and cars passing).
43. The evidence shows Council officers took Mr Y’s reports of noise nuisance seriously and investigated these fully. The Council’s decision letters to Mr Y from October 2020 and February 2021 explain that the officers had found no evidence of noise or vibration that met the threshold of a statutory nuisance. This meant it had no legal basis to take enforcement action against Mr Y’s neighbour.
44. The Council explained that it did not dispute that Mr Y, as someone who is Deaf, was particularly sensitive to low level frequency noise or vibrations. However, it correctly explained that caselaw has decided that councils cannot take account that certain individuals affected by unwanted noise may have a greater sensitivity to it. It said: ‘Statutory Nuisance cannot be used to make people do more than can be reasonably expected of them because someone else may be more sensitive than the average person.’ The Council explained this decision to Mr Y with the assistance of a BSL interpreter during its stage two complaint investigation.
45. I understand Mr Y feels the Council should have considered his sensitivity to noise differently. Mr Y said he had a greater sensitivity to noise and vibrations and the Council could not ignore that. However, I find no fault in the Council’s consideration of that matter because it must retain objectivity in reaching its decision. In deciding what is a statutory nuisance the Council must consider what an average person may experience, not one who has a greater or lesser sensitivity to noise.
46. The Council cited other reasons it could not conclude the noise Mr Y experienced was a statutory nuisance. This included that the recordings reviewed mainly showed everyday domestic noise, which would not amount to statutory noise nuisance or anti-social behaviour. I understand that Mr Y disagrees with the Council’s decision, but this is not evidence of fault by the Council. Without evidence of fault in how the Council made its decision, I cannot question its content.

Council’s handling of reports of alleged drug use

47. Mr Y has made several reports to the Council of alleged drug use by his neighbours. He has explained how this negatively impacts him. He raised this in his complaint to the Council.
48. Councils have certain powers to tackle anti-social behaviour (ASB) under the Anti-social Behaviour, Crime and Policing Act 2014. ASB can take many different forms, and may include street-level drug dealing or drug use. Councils should make informed decisions about which of their powers is most appropriate for any given situation. For example, they may investigate a complaint as part of their duties as a social landlord, where the alleged perpetrator is a council tenant and/or by using their powers under the 2014 Act.
49. The Council’s ASB policy says the Council will investigate “drug related issues (which cause significant ASB)”.
50. In comments received by the Council about my draft decision, it said that an ASB officer had told Mr Y that he should report any alleged ASB to the housing association to investigate as the alleged perpetrator was a Council tenant. The officer also said Mr Y should report concerns to the Police, particularly if he had concerns about his safety. The Council sent me evidence supporting this. This included an email from the housing association confirming it had investigated Mr X’s reports, but found no evidence to support the reports.
51. I cannot comment on the housing association’s action in its role as the landlord of the alleged perpetrators of noise. However, we would not expect the Council to duplicate the action it has taken following Mr Y’s reports of ASB. In my view, the Council is satisfied, based on the housing association’s investigation, that the reports do not amount to significant ASB that the Council would separately investigate using its general powers under the 2014 Act.
52. While it would have been good practice for the Council to have explained this in writing to Mr Y, I do not find that this amounts to fault causing Mr Y significant personal injustice.

The Council’s handling of Mr Y’s reasonable adjustment requests

53. Mr Y complains the Council failed to fully accommodate his communication needs and provide reasonable adjustments under the Equality Act 2010. He says the Council refused to communicate with him in BSL, instead communicating with his brother (who does not speak BSL) or in technical written English, which Mr Y finds harder to understand. (part b of the complaint).
54. In my view, Mr Y has consistently and regularly requested the Council consider providing a BSL interpreter to accommodate his disability-related communication needs. As early as August 2020, Mr Y explained to the Council that BSL is his first language and that the grammar and sentence structure of BSL and English were different. He said this meant, without the support of a BSL interpreter, he was finding communication with the Council difficult and was struggling to fully understand and feel involved in the process. In comments on the draft decision, Mr Y explained to me that, as someone who is Deaf, face-to-face communication is particularly important as this allows him to visually gauge tone and intonation, which is lost through written English.
55. However, in the investigation of Mr Y’s reports of noise nuisance, I find the Council failed to have due regard to its duties under the Equality Act when considering and responding to Mr Y’s requests for BSL support as a reasonable adjustment. This is based on the following:
1. The Council’s duty to make reasonable adjustments only applies to disabled people. In my view, the Council’s guidance to staff on translators and interpreters, as contained in its procedure for investigating nuisances (as updated May 2021), provides general guidance only on situations when there is a language barrier. However, it is not clear from this how staff are expected to apply this guidance when individuals, like Mr Y, request BSL translation or interpretation services as a reasonable adjustment to meet their disability-related needs. This is fault.
2. The Council sent me its guidance to staff on reasonable adjustments that exists outside this procedure. This provides internal guidance on considering reasonable adjustments for Council employees and job applicants. I do not find this provides sufficiently clear guidance to staff on how and when to make reasonable adjustments for services users reporting noise issues and making complaints. As explained above, the duty to make reasonable adjustments is anticipatory. The Council should proactively take steps to remove or prevent obstacles to disabled people accessing their service. If the adjustments are reasonable, the Council must make them. I have seen no evidence the Council routinely and actively assessed whether Mr Y or any other service user requires any reasonable adjustments and, if so, how the Council decides whether the specific needs can reasonably be accommodated. This is fault.
3. On balance, I find the Council’s lack of clear guidance to staff on reasonable adjustments contributed to the confusing and unclear decisions made by the EHO in response to Mr Y’s requests for reasonable adjustments. In September, the EHO said that she would look into providing a BSL interpreter for Mr Y as she intended to visit his home to monitor the noise. I have seen evidence the EHO made these enquiries. However, the EHO then refused Mr Y’s request for an interpreter as she said the visit was only to monitor the noise with a meter and not to discuss the case. The visit was expected to last between thirty minutes to an hour. In my view, the EHO did not consider or tell Mr Y how she intended to accommodate Mr Y’s needs and communicate with Mr Y without the support of a BSL interpreter when the EHOs were in his home. This is fault. This caused Mr Y distress and uncertainty as it was not clear how or whether his communication needs could be accommodated.
4. When the EHOs visited Mr Y in January 2021 to install noise monitoring equipment, the Council again refused Mr Y’s request for a BSL interpreter. She said this was due to COVID-19 concerns to ensure social distancing could be maintained. This visit took place during a national lockdown and, in comments on the draft decision, the Council explained it was trying to take steps to protect people during this time. The EHO said the visit was simply to install the equipment, not to discuss his case. She considered other instructions could be provided to Mr Y to help him use the noise meter. The EHO provided Mr Y with written instructions and a link to a video with subtitles describing the noise meter.
5. Before the visit, the EHO sent Mr Y instructions around COVID-19. This included that the EHOs would be wearing masks and visors, other household members should keep a two-metre distance and stay in a different area of the house. She asked Mr Y to let the EHO know if he could hear the noise when they arrived and direct the EHOs to Mr Y’s room. In my view, the EHO failed to consider what obstacles these instructions presented to Mr Y without the support of a BSL interpreter. I have seen no evidence that the EHO considered whether, for example, a BSL interpreter could assist virtually during the visit. In the end, Mr Y told the Council his brother would be present to assist with communication. However, the duty lies with the Council, not the service user, to assess and decide what support as a reasonable adjustment should be put in place. I find, on balance, if the Council had fully assessed what reasonable adjustments could have been put in place at an early stage, the Council would have discovered sooner that Mr Y’s brother was not a proficient BSL user and could have decided whether expecting his brother to assist him was reasonable.
6. In its stage one complaints response, the Council told Mr Y, due to the large volume of correspondence received, it would not be a good use of the Council’s resources to respond each time using a BSL interpreter. I find the Council explained sufficiently to Mr Y the reasons why it could not make this reasonable adjustment when responding to all of Mr Y’s contact. This is a decision the Council was entitled to make. However, in the Council’s stage two complaint investigation, it also acknowledged “part of [Mr Y’s] complaint may – in hindsight - have been overcome by undertaking an early meeting with a BSL interpreter, virtually, to provide reassurance that the [noise] issue was understood.” On balance, I find this an implicit acceptance of fault. The Council missed several opportunities where it could have considered providing a BSL interpreter or BSL translation of key decisions. This could have avoided much of the confusion and uncertainty caused to Mr Y.
56. Due to the large volume of contact from Mr Y, the Council has also considered limiting contact to achieve a fair and proportionate use of resources when handling Mr Y’s complaint and reports of noise nuisance. This is not a criticism of Mr Y or finding of fault with the Council. The Council is entitled to take steps to manage contact when someone sends excessive volumes of communication. However, we would expect the Council to consider whether all appropriate reasonable adjustments were in place and, if not, whether this may be contributing to the level of contact before putting in place any significant contact restrictions.
57. The Council provided a BSL interpreter during stage one and stage two of Mr Y’s complaint, which is evidence of good practice. I find the associated meetings between Mr Y and the Council, with a BSL interpreter, were sufficiently detailed so that they went someway to remedying the injustice caused to Mr Y. However, I do not find this fully remedies the uncertainty and distress caused and have recommended suitable remedies for this below.

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Agreed action

58. Within four weeks, the Council has agreed to:
1. apologise in writing to Mr Y. The Council should consider whether a BSL translation or interpreter may be provided as a reasonable adjustment. The Council should provide Mr Y with its decision on this; and
2. make Mr Y a payment of £300 to recognise the significant time and trouble he was put to asking the Council to consider making reasonable adjustments without a satisfactory response. This payment is in line with the Ombudsman’s published guidance on remedies.
59. Within three months of my final decision, the Council has also agreed to make the following service improvements:
1. produce clear guidance to staff on how and when to consider whether they need to make any reasonable adjustments for service users. This should include, for example, asking the service user if the Council needs to make any adjustments in the way it communicates with them to ensure the complainant can fully access its service. It should include the process for considering when BSL interpretation and translation may be considered reasonable. This guidance should be clearly embedded in the Council’s guidance on handling complaints and its procedure on investigating noise nuisances; and
2. share this decision with relevant staff members.
60. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

61. I have completed my investigation.
62. I have not upheld part a of Mr Y’s complaint. This is because I have seen no evidence of fault by the Council.
63. I have upheld part b of Mr Y’s complaint because there was fault by the Council causing injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Parts of the complaint that I did not investigate

64. I did not investigate the actions of the housing association in its role as the landlord of the alleged perpetrators of noise. The housing association provides and manages certain social housing on behalf of the Council. We have no jurisdiction to investigate for the reasons given in paragraph ten above.

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Investigator's decision on behalf of the Ombudsman