• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to act on his complaints about noise nuisance from a neighbour. We do not intend to investigate this complaint as we have seen no evidence of fault in the way the Council responded to the complaint. And we cannot consider complaints about how the Council manages its tenants as this is outside our jurisdiction.

The complaint

1. The complainant, I shall call Mr X, complains the Council:
   • has not taken any action against his neighbour for noise and anti-social behaviour
   • sent officer to his home during the COVID-199 pandemic, knowing they could not help; and
   • failed to act on his report of drug dealing close to his home.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate complaints about the provision or management of housing let on a long lease by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5B, schedule 5, as amended)

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How I considered this complaint

4. I considered Mr X’s complaints to the Council and its responses to him. He commented on the draft version of this decision.

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What I found

Background

5. Councils must take such steps as are reasonably practicable to investigate complaints about noise that could be a “statutory nuisance” (covered by the Environmental Protection Act 1990). The noise complained about might be loud music, barking dogs, noisy neighbours, rowdy pubs, or noise from industrial, trade or business premises.
6. For a noise to count as a statutory nuisance, it must do one of the following:
   • Unreasonably and substantially interfere with the use or enjoyment of a home or other premise.
   • Injure health or be likely to injure health.
7. The statutory nuisance must be witnessed by an Environmental Health Officer, who will come to an independent judgement. The process of deciding what level of noise forms a nuisance can be subjective. Officers may take account of factors such as the level of noise, its length, timing, location, and the view of the average person in deciding whether a statutory nuisance has occurred.
8. If an officer decides that a statutory nuisance is happening, or will happen in the future, councils must serve an “abatement notice”. This requires whoever is responsible to stop or restrict the noise. If someone does not obey an abatement notice they can be prosecuted and fined. The abatement notice can be delayed for up to 7 days while the council tries to get the person responsible to stop or restrict the noise.
9. Those served with an abatement notice can appeal to a Magistrates Court. In certain cases, people who have used the best practicable means to stop or reduce the noise nuisance may be able to use this as grounds for appeal or a defence if prosecuted. Best practicable means involves considering local conditions and circumstances, the current state of technological knowledge and financial implications.
10. It is also open to members of the public to bring their own case to the Magistrates Court and ask it to serve an abatement notice.
11. Councils can also decide to take informal action if the noise complained about is causing a nuisance but is not a statutory nuisance. They may meet with or write to the person causing the nuisance or suggest mediation. Councils should have a policy or procedure to explain what it will do.

What happened

Noise complaint

12. The Council received a complaint from Mr X that a tenant in an upstairs flat was making a noise. It says officers spoke to Mr X on the telephone several times and visited his home twice.
13. Mr X told the Council he would have difficulty complete diary sheets to record when the noise occurred. The Council gave him a Dictaphone to use instead. Because of the restrictions on visiting people’s homes during the COVID-19 pandemic, the Council could not install noise recording equipment in Mr X’s home until November.
14. The Council says the recordings from Mr X’s home were inconclusive. It says it was concerned about the lack of noise in any recording in the 30 seconds before the trigger being pressed. This is usually the prompt for the recording button to be pressed to make the recording by the resident. Because of this irregularity, the Council tested the equipment but found no explanation for the anomaly. It decided to reinstall noise recording equipment in Mr X’s home.

15. Officers installed equipment in Mr X’s home on 11 December. However, on the same day Mr X contacted the Council and asked it to remove the equipment. He says this was because his neighbour was aware the equipment had been installed and therefore it was pointless.
16. Mr X complained to the Council about its failure to stop the noise from his neighbour. The Council wrote to him explaining what it had done. It also told him that his neighbour had made complaints about noise from his flat which it had a duty to investigate.
17. It confirmed it had installed noise monitoring equipment in his neighbours flat. The recordings of this evidence noise, including a song which was loud enough for officers to identify the lyrics. The Council told Mr X this was evidence that music, from whichever source, was being played at a level which was excessive and unacceptable. It offered Mr X the opportunity to listen to the recordings.
18. I appreciate that Mr X does not feel the Council has dealt with his complaints about noise nuisance. However, officers have:
    • responded to his concerns calls either by telephone or by visiting
    • provided Mr X a Dictaphone so he could record the dates and times the noise occurred instead of him having to use diary sheets
    • installed recording equipment on two occasions, although Mr X demanded the equipment be immediately removed after the second installation: and
    • confirmed to Mr X that without evidence such as an officer witnessing the noise or a recording of the noise it cannot act
19. I consider officers have responded appropriately to Mr X’s reports of noise. It has explained that it cannot take any action against his neighbour without evidence. The original recordings were inconclusive and further recording are needed. However, Mr X has chosen not to allow the noise monitoring equipment to be installed. I see no evidence of any significant fault in the way the Council’s s responded to his noise reports.
20. I understand Mr X is unhappy with the Council’s investigation of complaints made against him. However, the Council is obliged to consider all reports received. It installed noise monitoring equipment in his neighbour’s home and wrote to him when recordings revealed music being played at an excessive volume.
21. Mr X has further concerns. He says the Council sent 2 housing officers and 2 police officers to his home during the lockdown because his neighbour had complained that Mr X had turned the electricity off. The Council says it was appropriate to send housing officers to inspect and attempt to identify any potential issues.
22. He also complains the Council has failed to do anything about his reports about anti-social behaviour by his neighbour or about drug dealing close to his home.
23. The Ombudsman cannot investigate the actions of the Council when dealing with its tenants. Such matters are outside our jurisdiction.
24. Nor can we investigate allegations of criminal activity, such as drug dealing. These are matters for the police.

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Final decision

25. I should not investigate this complaint. I have not seen any evidence of fault in the way the Council responded to Mr X’s reports of noise. Or in the way it contacted him about reports of noise coming from his home.
26. We cannot investigate his complaints about the actions of the Council when it is dealing with its tenants. Such issues are outside our jurisdiction.
27. Finally, we cannot consider allegations of criminal activity such as drug dealing in the locality. These are matters for the police.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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