Summary: Mr X complains about the Council’s handling of concerns about anti-social behaviour and noise nuisance from a care home. We find fault with the Council for not taking all reasonable steps to investigate Mr X’s reports of alleged noise nuisance. We have made recommendations to remedy the injustice caused to Mr X.

The complaint

1. Mr X complains about the Council’s handling of concerns about anti-social behaviour and noise nuisance from residents of a care home for people with mental health problems. He says the behaviour of the residents are significant impacting him and his family.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Environmental Protection Act 1990

8. Statutory nuisances are defined in section 79 of the Act 1990. A statutory nuisance could include noise emitted from premises so as to be prejudicial to health or a nuisance.
9. Under the Act, councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances. To be considered a statutory nuisance, they must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or
• injure health or be likely to injure health.
10. Under the Act, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
11. There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity, and location of a nuisance when deciding if it is a statutory nuisance.

The Ombudsman’s Principles of Good Administrative Practice

12. The Ombudsman has published guidance on the standards we expect when we investigate the actions of local authorities.
13. One principle is being service user focused. This means ensuring councils tell service users about what they can expect and what the council expects of them. We note that an example of what good looks like is setting expectations for service users by having and communicate appropriate guidance.
14. Another principle is being open and accountable. It is being open and clear about policies and procedures, and ensuring information and advice provided is clear, accurate and complete. We also highlight it is about stating the criteria for decision making and giving reasons for decisions.

Council’s Anti-social behaviour procedure

15. This procedure details how the Council will manage cases of anti-social behaviour (ASB). It notes the procedure is a guide and that officers should use their professional judgement to decide the best course of action in each case.
16. The procedure is split into five parts:
• Report – steps to take when a report of noise is made.
• Investigate – actions to take to investigate a report.
• Assessment and action – steps and considerations when deciding whether there is enough evidence to act and what response to take.
• Monitor – steps to take to ensure action has resolved the issue
• Close – how a case should be closed
17. Paragraphs 9 and 10 detail that on receiving a report, an officer should contact the complainant to discuss the report. They should agree with the complainant an overview of the actions the officer will take, and any actions needed of the complainant.
18. Paragraphs 11 and 12 notes that where the report is about a one-off issue of noise, the Council will close the matter until the complainant makes a further report. If the Council decides to close the case, the Council may send an advisory letter to the alleged perpetrator to provide advice and guidance to try and prevent a reoccurrence of the issue.
19. Paragraphs 15 and 19 note where the report consists of noise nuisance, the officer should review the noise app recordings and/or the incidents they have professionally witnessed and decide whether the threshold for statutory nuisance has been met.

What happened

20. In February 2021, Mr X sent the Council an email raising about the behaviour of residents of a care home near to his property. Mr X asked the Council what it would do about the concerns raised.
21. In March 2021, Mr X made a complaint about the care home. He said he did not feel safe due to the residents’ behaviour.
22. Mr X raised four reports of noise nuisance with the Council in March 2021. The Council’s records showed it took the following action on each report:
• 7 March – the Council contacted Mr X on 12 March to discuss but Mr X asked the Council to call back. When the Council tried to call back, it could not reach Mr X.
• 8 March – the Council sent an advice letter to the care home on 10 March. The letter noted the Council had received a complaint about noise nuisance from the premises. The Council asked the care home to consider their actions but the Council intends to take no action. The letter notes that if another complaint is received, the Council is likely to investigate the matter.
• 14 March – the Council contacted Mr X on 16 March. The Council told Mr X it needed to attend his address to witness and establish the level of noise. The Council said Mr X was not happy with the Council visiting his address. The Council told Mr X this would make it difficult to gather an assessment of the impact of the noise on his life. The Council gave Mr X a direct number to call to report noise when it happened, and Mr X told the Council he would call if the noise continued.
• 16 March – The Council said it tried multiple times to contact Mr X on 21 March. The Council said it left a voicemail for Mr X explaining he needed to contact the Council through the direct line so officers could attend and assess the noise. The Council sent another letter to the care home which was identical to the letter sent on 10 March.
23. Mr X told us an officer did contact him on 16 March and provided him with a direct number. Mr X also told us the officer told him the Council needed to attend his property to assess how the noise affected him. Mr X accepted he was concerned about retaliation and so he was unsure about the approach.
24. Mr X also told us he did try to contact the Council using the direct number given to him. However, he said no one picked up the phone when he called.
25. In June 2021, Mr X said he tried to call the Council’s enforcement team on the direct number to report a noise nuisance but there was no answer. He said the Council called back two hours later while he was at work.
26. The Council wrote to Mr X near the end of June to confirm it needed to witness the noise and again provided the direct number to report the noise when it happened. The Council said it has not received any further reports from Mr X or received any calls to attend to witness the noise nuisance.
27. Mr X told us he stopped trying to call the Council’s enforcement team as he did not want the landlord of the care home to think he was harassing them.
28. Mr X said he tried to call the Council’s enforcement team direct number in September 2021 due to loud music coming from the care home. He said the Council did not attend.
29. There is no evidence Mr X reported any anti-social behaviour, other than noise nuisance, from residents of the care home to the Council.

Analysis

30. The Council’s policy notes that if a report is about a one-off issue of noise, the Council will close the matter until the complainant makes a further report. The Council may also send an advisory letter to the alleged perpetrator.
31. The Council first did the above after receiving the first report from Mr X in March 2021. Therefore, it acted in line with its policy.
32. However, Mr X later raised at least four reports online with the Council alleging noise nuisance. Mr X also says he has tried to call the Council’s enforcement team on the direct number to report the noise nuisance as it happens. Therefore, I am satisfied Mr X’s reports were not a one off as he has contacted the Council about several incidents of noise nuisance.
33. The Council’s policy highlights that on receiving a report, an officer should contact the complainant and agree with them an overview of the actions the Council will take, and any actions required of the complainant.
34. There is evidence the Council did contact, or tried to contact, Mr X following his reports. There is also evidence the Council did tell Mr X that it would need to attend his address to try and witness the noise. However, Mr X was reluctant to agree with this.
35. We accept it is likely Mr X declined to allow officers to attend his address to try and witness the noise. However, there is no evidence the Council considered whether there were other ways of witnessing the noise. For example, the Council’s policy refers to noise app recordings. This suggests there was another way for the Council to investigate the alleged noise nuisance but there is no evidence the Council asked Mr X to take this route.
36. Under the Environmental Protection Act, the Council has a duty to take all reasonable steps to investigate potential statutory nuisances. Since there is evidence there were potentially other options available to the Council to investigate the alleged noise nuisance, we would expect to see evidence of some consideration by officers as to why these options were not viable. Therefore, we are not satisfied the Council has taken all reasonable steps to investigate the alleged noise nuisance. This is fault.
37. Further, if the Council was satisfied it could not take any further action to investigate the alleged noise nuisance because Mr X declined to allow officers to attend the property to witness the noise, the Council should have explained this to Mr X and provided its reasons for reaching the decision.
38. We acknowledge the Council told Mr X that not attending his property would make it difficult to gather an assessment of the impact of the noise on his life. However, the Council did not clarify this meant it could not investigate the noise nuisance at all. This is not in line with the Ombudsman’s principles of good administrative practice to be service user focused. This is fault.
39. Since the Council failed to clearly tell Mr X what it expected him to do, Mr X could not be expected to know what evidence to submit to the Council to progress an investigation. Mr X also could not have known that declining an officer’s visit meant the Council would take no further action since the Council never explained this to him. This caused Mr X some frustration and distress.
40. We do not consider there was any fault by the Council with how it investigated Mr X’s reports of anti-social behaviour. This is because there is no evidence to suggest Mr X reported any anti-social behaviour, apart from noise nuisance, to the Council.

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Agreed action

41. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Apologise to Mr X for the distress and frustration caused by the faults identified.
• Contact Mr X to confirm whether there is ongoing noise nuisance. If there is, the Council should take all reasonable steps to investigate the alleged noise nuisance. The Council should write to Mr X with its decision once the investigation is complete. The Council should provide clear reasons to Mr X for its decision.
42. The Council should complete the above within four weeks of the final decision.

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Agreed decision

43. I find fault with the Council for not taking all reasonable steps to investigate Mr X’s reports of alleged noise nuisance. The Council has accepted my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman