Summary: Ms X complained about the Council’s investigation into noise nuisance from a neighbour. She said the Council issued an abatement notice but failed to act quickly enough after the notice was breached, meaning it ran out of time to prosecute. The Ombudsman found the Council was at fault when it missed two deadlines to prosecute Ms X’s neighbour.

The complaint

1. Ms X complained about the Council’s investigation into noise nuisance from a neighbour. She said the Council issued an abatement notice but failed to act quickly enough after the notice was breached, meaning it ran out of time to prosecute.
2. Ms X said the noise nuisance has continued and she is unhappy the Council asked her to go through the same reporting process again.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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),
6. 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)
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

8. As part of the investigation, I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• Environmental Protection Act 1990.
• The Council’s Statutory Nuisance Procedure.
9. Ms 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

Noise nuisance

10. Councils must investigate complaints about noise that could be a statutory nuisance. For a noise to be classed as a statutory nuisance it must either:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other premises, or
• Injure health or be likely to injure health.
11. 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.
12. If an officer decides a statutory nuisance is happening, councils must serve an abatement notice under the Environmental Protection Act 1990 (EPA). This requires the responsible party to stop or restrict the noise.
13. If someone does not comply with a notice under the EPA they can be prosecuted and fined.
14. For summary offences, such as failure to comply with an abatement notice under the EPA, a prosecution must be commenced within six months of the commission of the offence.

The Council’s nuisance procedure

15. The Council will respond to nuisance complaints within three working days, except where an immediate response is needed.
16. There is not set time in which the Council will fully investigate and a resolve a nuisance complaint. However, the case officer should keep the complainant updated.
17. The Council will ask complainants to resolve the problem themselves initially. If this is not possible, and the Council considers the complaint is justifiable, it will write to the alleged offender.
18. If the Council needs to take further action the case officer will try to witness the nuisance. If the nuisance is happening outside office hours the Council should offer the complainant noise recording equipment.
19. The case officer also has discretion to give the complainant details of its out of hours service if they feel this will better progress the complaint.
20. If an abatement notice is served, the case officer must produce a witness statement straight away detailing their findings. They should also take a witness statement from the complainant.
21. The case officer should ask the complainant to continue to keep a diary of the nuisance and contact the Council if the offender breaches the abatement notice.
22. If the nuisance continues, the case officer should try to witness it or arrange an out of hours visit.
23. If a breach of the abatement notice is recorded the Council will consider prosecution.
24. The Council may seize equipment which has caused the noise nuisance if there have been one or more serious breaches of the enforcement notice, or if the noise is likely to continue over time and there is little chance prosecution will stop it.
25. For safety reasons, the Council will not normally seize equipment without police help.

The Council’s out of hours noise monitoring service

26. The Council does not provide its own out of hours service, it contracts Coventry City Council (CCC) to do it. CCC provides this service to its own residents, as well as the Council and another local authority.
27. The service operates from 6:00pm to 3:00am the following morning. Only two officers are on duty at any one time covering the three authorities.
28. The service agreement is that if a call is made to the Council’s own emergency number, and that caller is on the call out list, the details are provided to CCC.
29. CCC should provide a call back with one hour to assess whether a visit is necessary. At times of high demand this is not always possible.

Ombudsman guidance

30. The Ombudsman recognised the pressures the COVID-19 pandemic placed on councils and how this affected their resources.
31. We therefore published updated guidance in May 2020 on the principles of good administrative practice during COVID-19. This includes:
• The importance of record keeping for key decisions and changing from normal practice.
• Ensuring frontline staff understand new and adapted policies.
• Explaining the reasons for delays and changes from normal processes.
• Planning ahead for a phased return to normal working, considering a triage approach rather than first in first out.

What happened

32. I have detailed below some of the key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
33. Ms X complained to the Council about loud music from her neighbour on 27 June 2019.
34. The Council sent Ms X an advisory letter and diaries on 1 July. It also wrote to Ms X’s neighbour.
35. Ms X returned completed diary sheets to the Council on 6 August. The Council then gave Ms X noise recording equipment, which Ms X used between 12 and 28 August.
36. Loud amplified music was captured by the recording equipment. The case officer considered this amounted to a statutory nuisance.
37. The Council served an abatement notice on Ms X’s neighbour on 3 October.
38. Ms X called the Council’s out of hours service to report noise from her neighbour on 5, 6 and 16 October but then cancelled the visits because the noise stopped.
39. An officer from the Council’s out of hours service visited Ms X’s house on 17 October but did not witness a noise nuisance.
40. An officer from the out of hours service visited again on 2 November. There was noise present, but they did not consider the noise breached the abatement notice.
41. An officer from the out of hours service did witness a breach of the abatement notice on 1 February 2020. They heard amplified music which they considered to be a statutory nuisance.
42. The Council sent a warning letter about the breach to Ms X’s neighbour on 4 February. It gave Ms X noise recording equipment again and she remained on the out of hours contact list.
43. Ms X took recording of the noise between 5 and 24 February but the Council did not consider the noise was enough to demonstrate a further breach.
44. Ms X called the out of hours service twice on 1 March but cancelled both times as the noise stopped.
45. An environmental health officer visited Ms X’s house on 19 March, but the noise had stopped by the time they arrived.
46. The Council could then only assess noise from outside, due to COVID-19 restrictions. The Council therefore gave Ms X noise recording equipment again.
47. Ms X took noise recordings between 25 and 30 March. An environmental health officer reviewed the recordings and considered the abatement notice was breached on most of those days.
48. The case officer completed a witness statement on 19 April, detailing Ms X’s neighbour’s breaches of the abatement notice.
49. The Council then prepared a file to obtain a warrant to confiscate the equipment. It would normally go to Court to get the warrant, but the Court was not sitting due to COVID-19.
50. The Council made an online warrant application on 28 April. The Court refused because it did not consider the application was urgent enough.
51. The Council made a second warrant application on 1 May with supporting information from the police. This time the application was successful, and the Court sent a warrant to the Council on 12 May.
52. The Council confiscated equipment from Ms X’s neighbour on 1 June.
53. The Council then started preparing a file to prosecute Ms X’s neighbour for breaching the abatement notice.
54. An environmental health officer completed a further witness statement about the breaches of the abatement notice on 27 July and sent instructions to the Council’s legal department.
55. An officer in the legal department collected the prosecution file, but the Council cannot say exactly when as the legal department was working remotely.
56. The legal department opened a prosecution file on 1 September. By then the Council was already out of time to prosecute the first breach and the second breach had only little time to run.
57. The case officer updated Ms X that the case was with the Council’s legal department. They also told Ms X there was a chance the Council could not prosecute her neighbour because there was six-month time limit and the breaches of the abatement notice happened in February and March.
58. Ms X replied on 2 September and expressed her dissatisfaction. She said the Council had more than enough evidence and the last breach was on 11 April when the police arrested her neighbour. She said they witnessed the noise. She said she felt let down. She appreciated COVID-19 held things up but said the prosecution should still be followed up otherwise her neighbour will think he can do what he likes.
59. The case officer apologised Ms X still experienced noise. They said the Council explained the options to Ms X when her neighbour breached the notice: that the Council could confiscate equipment, which it did, and then pursue a prosecution, which it was doing. The case officer said the Council’s service was affected by COVID-19 and it was not possible to progress the case faster. They said the case was with the Council’s solicitors, but some breaches may expire before the case can be presented in Court. They said Ms X can continue to use the out of hours service if the nuisance continues. The case officer also told Ms X about her right to take private action in the Magistrate’s Court, and about her right to raise a complaint.
60. A manager reviewed the file on 29 September 2020. By then there was not enough time to submit the case to the Magistrate’s Court so the Council could not prosecute the second breach either.
61. Ms X reported more noise in late December 2020 and early January 2021. She said her neighbour appeared to have replaced the equipment which the Council confiscated.
62. The case officer contacted Ms X on 8 January. They said the Council’s legal team was unable to progress with the prosecution because the breaches were now more than six months old. The case officer explained the Council therefore had to gather more evidence to progress a prosecution. They asked Ms X to use the out of hours service so the Council could witness the noise.
63. Ms X complained to the Council on 19 January 2021. She said the Council removed her neighbour’s equipment but could not prosecute because of how long the case took. She said her neighbour was still playing loud music and the Council told her she has to go through the whole process again. Ms X said that was unacceptable.
64. The Council responded on 2 February, setting out what had taken place. It said:
• It prioritised seizing her neighbour’s equipment as that was often the quickest and most effective way to deal with noise cases. This was delayed slightly by lack of police support.
• It submitted a case file for prosecution after the seizure. However, staff shortages, a significant increase in workload, and changes to working arrangements due to COVID-19 meant the breaches fell outside the six-month prosecution window. The Council said this was an unprecedented situation.
• The abatement notice from 3 October 2019 remained in force. It encouraged Ms X to use the out of hours monitoring service to gather evidence of any new breaches.
65. Ms X asked the Council to escalate her complaint on 3 February. She said the Council’s legal department did not act quickly enough.
66. The Council sent its final response on 19 February. It said:
• It was clear there was a failure to progress Ms X’s case in a timely manner, resulting in legal proceedings becoming time barred. It apologised for this.
• Legal officers were working remotely due to the COVID-19 pandemic and did not pick up her file in good time.
• It had adjusted its working practices to allow for remote working and arrangements were in place to ensure prosecution files get to the right person in good time.
• The matter is not closed, and the Council can pursue proceedings if there are further breaches.
67. Ms X brought her complaint to the Ombudsman on 1 March 2021.

Response to enquiries

68. The Council told me Ms X continued to report noise from her neighbour after it served an abatement notice. However, the Council did not witness a breach of the notice until 1 February 2020. The Council sent a warning letter to Ms X’s neighbour (as per its procedure), reminding them the notice was still in force.
69. Soon after the warning letter, the COVID-19 pandemic hit. Officers were working from home, and most did not live locally. That meant restrictions on the Council’s out of hours service attending to witness further noise.
70. Instead, the Council gave Ms X noise recording equipment. Recordings taken between 25 and 30 March 2020 gave the Council enough evidence to decide a second breach of the notice had occurred. The Council would normally then consider prosecution, but Ms X said she could not tolerate the noise while a prosecution case was ongoing.
71. The Council therefore decided to confiscate Ms X’s neighbour’s equipment which caused the noise. It needed a warrant to do this, but this was delayed as the Courts were closed.
72. The Council wanted the police to help it seize the equipment, as it was concerned Ms X’s neighbour may be volatile. This caused a delay as no police officers were available. The Council decided to carry out the confiscation without police help on 1 June 2020.
73. The Council then started working on a prosecution file. Officers were under pressure from increased workloads and the Council had to prioritise staff to respond to the COVID-19 pandemic. The Council also received an increase in complaints to the environmental health team during the COVID-19 national lockdown.
74. The legal department was working from home and remote procedures were not fully in place at the time.
75. The Council asked Miss X to continue to use its out of hours reporting service, as most incidents took place outside normal working hours. If Ms X had done this, the Council could have commenced a prosecution because it would have had a new six-month window to take a new breach to Court.
76. The last evidence of a breach the Council has was in March 2020. Due to the time elapsed since the notice was served in October 2019, the Council does not consider it would be reasonable to act on it. As noise nuisance is a criminal offence, the Council would need to confirm a statutory nuisance still exists.
77. If the Council witnesses noise again, in view of the history, it will serve a new abatement notice. If a new notice is breached the Council will consider removing equipment again. The Council will engage with Ms X if she follows the Council’s reporting procedure.
78. The Council said the failure to progress the matter to prosecution was an unfortunate result of circumstances. It wished to apologise to Ms X and assure her that, now restrictions have lifted, and the Council has new procedures in place, it will not happen again. Any future reports of nuisance will be actioned promptly in accordance with the Council’s policy.
79. Since the COVID-19 pandemic, the Council told me it has adjusted working practices with its legal department to ensure files get to the right person in good time. This includes:
• Submitting files electronically and in hard copy where possible.
• Sending an email to the departmental email address informing them a file has been submitted for action, rather than to a specific individual so that it can be picked up by the administrative assistants and passed to any member of the team available at the time.
• Allocating matters on receipt of instructions to enable prioritisation and progression in a timely manner.
• The Administrative Team attend the offices regularly and informs the Legal Services Manager of all incoming matters.

Analysis

80. Ms X understandably wants the Council to prosecute her neighbour in the hope this will stop the noise. That is for the Council to decide, based on the evidence and circumstances. My role is to assess whether the Council followed relevant legislation, guidance, and procedures when investigating the noise.
81. The Council’s nuisance procedure (the procedure) states officers must make a witness statement straight after issuing an abatement notice. On the evidence seen, that did not happen. Officers did not draft witness statements until after they witnessed a breach and when preparing a case file for prosecution. This did not adhere to Council procedure and was therefore fault.
82. The procedure does not have set timescales once an investigation starts. I do not criticise the Council for the time taken to confiscate Ms X’s neighbour’s equipment, given the closure of the Courts. The Council asked the Court for a seizure warrant within a month of the second breach. I do not consider that was fault.
83. The Council confiscated equipment on 2 June. It then took almost two months, until 27 July, to complete a case file for prosecution. That left only a few days before the six-month deadline elapsed for the first breach. If the Council had taken witness statements promptly at each stage, in line with the procedure, it could have completed a prosecution file sooner. However, there was still over a month left to run on the second breach.
84. I found the Council failed to make its legal department aware of the deadline. By the time the legal department looked at the case, the Council was out of time to prosecute either breach.
85. I consider the Council failed to put remote working procedures in place for its legal department quickly enough. The file went to the legal department at the end of July, several months after the pandemic started. I consider the Council had enough time to adapt working procedures and should have done so quicker.
86. The Ombudsman issued guidance to councils about principles of good administrative practice during the pandemic. I consider the Council fell short of those principles here.
87. I found the Council did not properly consider how its legal department would respond to service requests while staff were working from home.
88. It is common for legal matters to have strict deadlines. The Council should therefore have considered how it would ensure deadlines were still met with the disruption of remote working. I consider it failed to do that. It has considered this now and has put measures in place to prevent a recurrence.
89. Ms X is unhappy at what she sees as having to start the noise reporting process again. If the Council is to take action in future, or prove her neighbour has breached an abatement notice, it needs evidence. The initial evidence cannot be used, as time ran out, so it needs evidence of another breach and that may require a new abatement notice. I appreciate it is frustrating for Ms X and must feel like starting the process again, but that cannot be helped if she wants the Council to prosecute her neighbour. The Council must follow the correct procedure and obtain the necessary evidence. The Council is therefore entitled to ask Ms X to continue reporting new noise incidents.
90. It is up to the Council to decide how it investigates nuisance and proves the offence for a prosecution. It was therefore entitled to ask Ms X to use its out of hours witnessing service, rather than relying solely on noise recordings.

Injustice

91. I have considered what impact the Council’s failings had on Ms X. She suffered distress in terms of raised expectations and frustration. She thought her neighbour would be prosecuted and she will now have to go through the evidence gathering process again.
92. However, the impact of the noise nuisance itself is less clear. Despite the failure to prosecute, I cannot say the Council took no action. It did work with Ms X to witness breaches of the enforcement notice and then to seize equipment in an attempt to stop the noise. If the Council had prepared a prosecution in time, the noise may have continued while the Council waited for the case to be heard in Court.
93. Additionally, I cannot say what action, if any, the Court may have taken. In that respect, Ms X has suffered uncertainty about the outcome. It is possible a prosecution could have stopped the noise, which instead has continued.

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Agreed action

94. Within four weeks of my final decision, the Council agreed to:
• Apologise to Ms X for missing deadlines resulting in the failure to prosecute her neighbour.
• Pay Ms X the sum of £300 to recognise the distress, frustration, and uncertainty its faults caused.
• Remind officers of the procedure for nuisance complaints, including when to complete witness statements and the time limit for prosecutions.

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Final decision

95. I have completed my investigation. The Ombudsman found the Council was at fault when it missed two deadlines to prosecute Ms X’s neighbour.

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Investigator's decision on behalf of the Ombudsman