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Bracknell Forest Council (21 010 249)

Category : Environment and regulation > Noise

Decision : Upheld

Decision date : 14 Mar 2022

The Ombudsman's final decision:

Summary: The complainant said the Council failed to investigate a noise nuisance correctly which caused her distress. She said the noise from her neighbour’s flat affected her health. She also complained about the way the Council dealt with her complaint. We found fault only with the way the Council handled this complaint. We have made recommendations.

The complaint

  1. The complainant, who I refer to as Ms X, complains about the way the Council addressed her concerns about the noise nuisance coming from the flat upstairs. Her main concerns:
    • The Council’s alleged lack of action to deal with the noise;
    • Notifying the neighbour in advance of installing monitoring equipment;
    • Installation of monitoring equipment for 10 rather than 14 days;
    • Disclosing complainant’s identity to the neighbour;
    • Council’s false statements about content of the recording; and
    • Qualifications and experience of Council’s officers dealing with her noise report.
  2. Ms X also says the Council failed to adequately communicate with her during its complaint handling and there were many mistakes in the Council’s correspondence.

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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 considered Ms X’s complaint and the information she provided. I also considered her comments to my draft decision.
  2. I made enquiries with the Council and considered the documents provided, including Domestic Nuisance Guidance v 1.3 issued by the Public Protection Partnership (‘Guidance’). I considered the Council’s comments to my draft decision.
  3. I referred to the relevant legislation and considered the Ombudsman’s “Principles of Good Administrative Practice”.

What I found

Legislation and Guidance

  1. Under the Environmental Protection Act 1990 (EPA), 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.
  2. For a council to consider something a statutory nuisance, it 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.
  3. Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
  4. 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.
  5. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.

Council’s procedure for investigating noise nuisance

  1. The Council’s officer will make first contact with the person reporting nuisance within 10 working days.
  2. If the Council’s officer considers it is necessary to investigate the matter, they will send letters to the source of the nuisance. The complainant’s correspondence will also include log sheets to record incidents, if appropriate.
  3. Following receipt of the completed log sheets the Council’s officer with other team members will decide whether they should take further action.
  4. If the case merits further investigation, within 10 days from the receipt of the log sheets the Council’s officer will either arrange a visit to witness the nuisance or arrange to install the nuisance monitoring equipment.
  5. There should be no more than three visits arranged at times corresponding to the instances detailed on the log sheets. If no statutory nuisance is witnessed during these visits, the matter will be closed with no further action.

Council’s complaint procedure

  1. In accordance with the information on the Council’s website complaints should be acknowledged within three working days and response provided by the head of the relevant service within 10 working days. This time might be extended to 20 working days for more complex complaints.
  2. In the Stage 2 the timescales are the same as for Stage 1 but the complaints are considered by the director, senior officer or another appropriate officer.
  3. If the complainant is still not satisfied, they have 10 days to refer their case to the Chief Executive who might consider whether the complaint has been dealt with properly either personally or appoint another senior officer who has not already been involved, to investigate.

What happened

  1. At the end of March 2021 Ms X reported to the Council incidents of the noise nuisance from the flat above hers. She reported that from the early morning hours to late at night, and often throughout the night, she could hear loud noise of the clocks being repaired and tested by her neighbour.
  2. Within a few days the Council contacted Ms X and sent her log sheets to complete. It also sent a letter to the neighbour upstairs informing him of the complaint. The letter did not disclose the complainant’s identity.
  3. In the beginning of April 2021 Ms X returned completed log sheets to the Council, informing it of the decreased noise from upstairs and expressing her gratitude for its intervention.
  4. Over a month later Ms X again reported to the Council the noise nuisance which she found unbearable. Subsequently the Council installed monitoring equipment in Ms X’s flat, which operated for 10 days.
  5. The Council arranged three monitoring visits to Ms X’s property in June and the first part of July 2021; each of them 45 – 90 minutes long.
  6. Taking account of all the evidence including noise recordings and the monitoring visits, the Council established the matter did not merit further action and sent relevant correspondence to Ms X advising her on the ways to challenge this decision.
  7. Ms X lodged her Stage 1 complaint against the Council’s handling of her noise nuisance case in mid-August 2021. The Council acknowledged this complaint in the beginning of September 2021 and responded a few days later.
  8. Not satisfied with the Council’s response, Ms X filed her Stage 2 complaint in mid-September 2021.
  9. A month later, with no Stage 2 response provided by the Council, Ms X complained to the Ombudsman.
  10. In the middle of October 2021 the Council told us it was still preparing its response to Ms X’s Stage 2 complaint, which was eventually provided in mid-December 2021 as a Stage 3 response. The Council did not uphold Ms X’s complaint about its alleged failings when considering her noise nuisance service request but apologised for the significant delays within its complaint handling.


 

Analysis

  1. The Ombudsman cannot question the merits of a decision about whether a noise is a statutory nuisance unless there is evidence of fault in the way it was reached.
  2. In this case, the officers addressed Ms X’s noise nuisance report within the required timescales. There was a gap in communication from the Council after Ms X’s submissions of the log sheets in April 2021 but it is justified as at this stage Ms X seemed to be satisfied the noise levels decreased. The Council took further action to investigate the matter after Ms X’s contact in May 2021.
  3. There is no evidence the Council advised Ms X’s neighbour of her identity. Following its guidance the Council notified the source of noise of the investigation and monitoring taking place but did not suggest the identity of the complainant.
  4. Case notes suggest that before contacting the Council Ms X tried to resolve the matter by discussing it with the neighbour’s friend, which might explain why the neighbour knew who complained about the noise.
  5. There is no prescribed time for monitoring equipment to record noise, therefore installing it for 10 days rather than 14 was within the remit of the Council’s discretion.
  6. I am satisfied the Council managed to get recordings of the noise from the neighbour’s flat as the Council provided written records of the recordings. This suggests the equipment was installed properly and there are no reasons to query qualifications of the Council officers.
  7. There is no evidence the officers who carried out monitoring visits at Ms X’s flat lacked skills to perform the required actions. There were two of them every time they recorded their findings.
  8. Following the investigation the Council’s officers reached a professional judgement the noise was not a statutory nuisance. I can see no fault in the way this decision was reached. This means I cannot question the Council’s assessment the noise disturbance was not a statutory nuisance. Where a Council has not found a statutory nuisance, it cannot serve an abatement notice.
  9. The only fault found when considering Ms X’s noise complaint was the Council’s failure to explain in the final letter the reasons for deciding the noise coming from Ms X’s neighbour’s flat did not meet the threshold of a statutory nuisance. This failing, however, did not have an adverse impact on Ms X. Therefore there are no grounds to consider any remedies for this departure from the required standards of the good administrative practice.
  10. I am satisfied that any mistakes within the Council’s complaint correspondence are not significant enough to change the outcome of the process or a final decision. Therefore, it has not caused Ms X any injustice.
  11. There were serious delays in the Council’s complaint responses and the lack of response to the Stage 2 complaint. This was fault and caused Ms X frustration and possibly delayed undertaking an alternative action. In its Stage 3 response the Council apologised for the delays. I have recommended the Council makes a financial payment to Ms X to recognise the impact of its delays and reminds its staff of the timescales when handling complaints.

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Agreed action

  1. To remedy injustice caused by the Council’s fault in the way it dealt with Ms X’s complaint we recommend the Council within four weeks of the final decision:
    • Apologises to Ms X for the delays in her complaint handling; and
    • Makes a payment of £100 to recognise Ms X’s frustration and uncertainty.
  2. We recommend the Council ensures that all its senior officers handling Environmental Health complaints are trained or re-trained in the complaint handling. This should be achieved within four weeks of the final decision by providing them with the Council’s complaints policy and the Ombudsman’s ‘Effective Complaint Handling for local authorities’ guide.

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Final decision

  1. We do not find fault in the way the Council carried out its noise nuisance investigation. We find fault in the way Ms X’s complaint was handled by the Council. The fault identified has caused Ms X injustice. The Council has accepted our recommendations. Therefore, we have now completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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