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London Borough of Waltham Forest (21 003 304)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 01 Nov 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council delayed investigating her complaint about noise nuisance from her neighbours and did not act when it had enough evidence to do so. We found fault as the Council delayed starting an investigation which caused Mrs X frustration. The Council had already remedied this injustice by apologising to Mrs X.

The complaint

  1. Mrs X complained the Council delayed investigating her complaint about noise nuisance from her neighbours and did not act when it had enough evidence to do so. Mrs X stated this caused her and her family distress and affected their health and wellbeing.

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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. 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. 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 read Mrs X’s complaint and discussed the matter with her on the telephone.
  2. I read the Council’s responses to Mrs X’s complaint and its policy on statutory nuisance investigations.
  3. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making my final decision.

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What I found

Legislation

  1. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance could be caused by a number of things and includes noise from premises or vehicles. 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.
  2. 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 a noise-monitoring device, 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.
  3. Once the evidence-gathering process is complete, the environmental health officer will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.

Council policy

  1. The Council’s Statutory Nuisance Policy states that once it begins its investigation into a statutory nuisance it will update the complainant on its progress at least once a month. It states it aims to complete most investigations within two months although there may be good reasons to extend. If it has not established a statutory nuisance after two months, it is unlikely that it will be possible to do so.
  2. The Council prioritises the investigation of complaints which are having a serious adverse impact. There are four priority categories, and nuisances occurring on an intermittent basis are priority three.
  3. To investigate an intermittent nuisance the Council will carry out up to three visits or monitoring sessions or assessments by other methods. If it is clear from the first visit the matter complained about could not amount to a statutory nuisance no further visits will be completed. If at the end of the investigation a statutory nuisance has not been established the Council will inform the complainant and advise them of alternative avenues to address the concern. The Council will close the case and will not reinvestigate for three months or until significant new evidence is presented.

What happened

  1. In December 2020 Mrs X complained to the Council’s Environmental Health Team about noise from her neighbours. Mrs X stated they were shouting, arguing loudly and playing music through the night. Mrs X said it was disturbing her and her family during the night. The noise was intermittent and did not occur in a regular pattern.
  2. Two weeks later the Environmental Health Team responded to Mrs X, and it agreed to begin a statutory nuisance investigation into the noise. It said it would install a monitoring device in Mrs X’s home to record the noise she had reported to identify if there was a statutory nuisance.
  3. Six weeks later the Environmental Health Team installed the monitoring device in Mrs X’s home. The device recorded for seven nights before the Environmental Health Team collected it. The Case Officer listened to the recording and analysed it.
  4. One week later the Case Officer informed Mrs X she would discuss the findings with her manager and would then write a report, after which she would contact Mrs X.
  5. Before the Case Officer wrote her report Mrs X complained to the Council. She complained there was a delay in the Environmental Health Team installing the monitoring device and the Case Officer took longer than two weeks to write a report.
  6. The following week an Environmental Health Officer informed Mrs X the Case Officer decided the recording did not provide enough evidence to prove a statutory nuisance. He said the Case Officer would continue the investigation and reinstall the monitoring device in Mrs X’s home to gather further evidence.
  7. The Council responded to Mrs X’s complaint. It said it had already acknowledged the delay in providing the monitoring device in a previous complaint. It did not uphold the rest of the complaint as it said Mrs X was receiving regular updates from the Environmental Health Team.
  8. Mrs X raised a stage 2 complaint with the Council. She complained:
    • there was a six-week delay in installing the monitoring device;
    • the Case Officer had taken 13 working days to write a report on the content of the recording; and
    • she disagreed with the Case Officer’s analysis there was insufficient evidence to support a statutory nuisance.
  9. Mrs X sent a similar email to the Environmental Health Officer. He responded and provided an explanation of the Case Officer’s considerations, the different types of noises and the standard measurements of noise. He stated the Case Officer’s professional judgement was that the recording was not strong enough evidence to show a statutory nuisance. He said the Case Officer wanted to complete further investigation by reinstalling the monitoring device. The Environmental Health Officer asked Mrs X to contact the Case Officer if she was willing to have the monitoring device reinstalled in her home.
  10. The Environmental Health Officer continued to correspond with Mrs X and he provided further explanations of the evidence gathering process. The Environmental Health Officer asked Mrs X on four separate occasions to contact the Case Officer if she was willing to have the monitoring device reinstalled to continue the investigation. Mrs X requested the device and it was installed three weeks later.
  11. The Case Officer reviewed the recording, analysed it and produced her report within two weeks. She decided there was still insufficient evidence to show that a statutory nuisance was occurring.
  12. Four weeks after it received the stage two complaint the Council responded to Mrs X. It stated:
    • it accepted there was a delay in installing the monitoring device due to its annual calibration and apologised;
    • it accepted its communication about that matter was poor and apologised for it;
    • the Environmental Health Team was providing regular updates to Mrs X in line with its investigation policy;
    • it apologised to Mrs X if she felt the time between updates was unacceptable; and
    • it stated the Environmental Health Team had investigated in a reasonable and appropriate manner in line with its policy.
  13. Mrs X declined to allow the Environmental Health Team to install the monitoring device for a third time. The Environmental Health Officer provided Mrs X with information about her right to apply to the Magistrate’s Court about the matter and closed the case.
  14. Dissatisfied with the Council’s response Mrs X complained to us. She stated there had been delays in the investigation, despite having evidence the Council would not issue an abatement order to her neighbour, and it had told her she could apply for an abatement order herself through the Magistrate’s Court

My findings

  1. When Mrs X complained to the Environmental Health Team about the noise from her neighbour it responded and agreed it would begin an investigation. It decided the most suitable method to gather evidence would be to use a noise monitoring device installed in Mrs X home. The Environmental Health Team did not install the monitoring device for six weeks. The delay was fault and caused Mrs X frustration. However, the Council has already provided Mrs X with an explanation and apology which is sufficient to remedy the frustration caused to Mrs X.
  2. After the Council installed the monitoring device it recorded for one week. The Case Officer reviewed and analysed the recording, made a professional judgment and wrote a report on her findings. The Council’s policy states it should keep complainants updated at a minimum of once a month and does not prescribe a timescale on Case Officers producing reports. The Case Officer took thirteen working days to complete her report which is not excessive. During that time the Environmental Health Team contacted Mrs X three times. The second time Mrs X requested the monitoring equipment it was installed within three weeks and the Case Officer provided her report within two weeks. There was no fault in the Council’s actions as it was in line with its policy.
  3. We are not an appeal body. We cannot question a professional judgement or decision unless there was fault in decision making process. The Case Officer decided, based on the information she had that there was insufficient evidence to substantiate a statutory nuisance. She identified further monitoring may provide enough evidence and discussed it with Mrs X. There was no fault in that decision therefore I cannot question the merits of it.
  4. When the Council provided its stage two complaint response to Mrs X the Environmental Health Team was still investigating the statutory nuisance complaint. Subsequently it continued its investigation until Mrs X declined further monitoring. At that point the Environmental Health Officer provided Mrs X with alternative routes to address the matter before closing the case. There was no fault in the Council’s actions as they were in line with its policy.

Final decision

  1. I have completed my investigation. I found fault leading to injustice and the Council has already remedied that injustice.

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Investigator's decision on behalf of the Ombudsman

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