Summary: The Ombudsman found fault by the Council on Ms K’s complaint about how it responded to her reports of noise nuisance. It failed to: respond to her query about a breach of bylaw: give her examples of her behaviour it was concerned about either in its first email or in the initial warning letter; deal with her formal complaint under its complaints procedure properly. The agreed action remedies the injustice caused.

The complaint

1. Ms K, who is represented by Ms L, complains about the Council:
1. failing to properly investigate her reports of noise nuisance from outdoor daily exercise classes at a nearby sports centre;
2. failing to keep her updated about progress on her reports; and
3. issuing her with a warning letter about her unreasonable behaviour towards its staff.
2. As a result, she suffered the distress of frequent noise nuisance affecting her quality of life at a time when she was confined to her home because of her need to shield due to her health and the risk of catching Covid-19. In addition, she was upset when she received the warning letter.

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The Ombudsman’s role and powers

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)
4. 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)
5. 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)

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Unreasonable Complainant Behaviour Procedure (March 2017)

6. The Council’s policy explains it will not tolerate unreasonable complainant behaviour. This includes behaviour that is abusive, offensive, threatening, deceitful, and vexatious (behaviour that deliberately tries to cause annoyance, frustration or worry) or any other form of unacceptable complainant behaviour. It will address this behaviour with appropriate action to protect the well-being of its staff, its limited resources, and the integrity of its processes.
7. Unreasonable, and unreasonably persistent complainants are those who, because of the nature of their behaviour, and/or frequency of their contact with the Council, hinder its consideration of its own and/or other people’s complaints. It includes harassment or verbal abuse which seeks to intimidate staff dealing with their complaint.
8. The Council will first try to resolve the unreasonable behaviour locally. This may include taking reasonable steps to engage with the complainant. Officers can also send the complainant a copy of the procedure/sign post them to it online. The Council will write to the complainant to outline and warn them about their behaviour and consequences of further action. This is formal warning 1. The issuing of this is the decision of the relevant head of Services. Depending on the circumstances, it may be appropriate to issue a further formal warning 2.

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How I considered this complaint

9. I considered all the information Ms L sent about Ms K’s complaint, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Ms L and the Council. I considered their response.

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What I found

10. Ms K, a pensioner, lives in a flat she rents from the Council. She has various health problems which means she is a vulnerable person and needed to shield at home during large parts of the Covid-19 pandemic. After a hospital admission in March 2021, Ms K returned home to find the partial lifting of restrictions meant a nearby sports centre (the centre) was using an outdoor area for exercise classes. This involved loud music and instructors shouting commands.
11. From April, the centre held one class a day in the area lasting 40 minutes. The classes would start as early as 7.30am on a Friday. The latest class started at 5pm. At the weekend, they started at 10am. Despite trying to speak to the instructors, and emailing the centre, problems with noise continued.
12. I now examine each of her complaints:

Complaint a) and b): Investigation of reports and updates

13. On 11 April, Ms K contacted the Council about the noise. Hearing nothing, she contacted the Council again ten days later. The Council told her to contact the sports centre which she had already done. After her councillor became involved, the Council emailed her the following day saying the Noise and Pollution team (the team) would be in touch.
14. The team contacted her the next day. The record shows an officer saying he could not stop the activity unless it could be shown it was causing a statutory nuisance. He would contact the centre to discuss her report. The officer explained why the team could not visit the site at 730am the following morning. While he explained the team did not work at that time, he also said the team would visit out of hours but, this needed arranging due to staff commitments. The officer recorded Ms K laughing and mocking the team’s working hours and making sarcastic comments.
15. The officer emailed the centre after learning it was not taking calls. He explained he needed to discuss the noise report.
16. The next day, Ms K emailed the Council about the noise starting at 730am. She said she needed a ‘grown up’ to visit to see the problem. She sent a further email about the conversation she had with the team. This said it was good to know some people are not woken so early. This was in response to being told no officer could visit early the following morning. She again said what was needed was a ‘grown up’ to speak to the centre.
17. The Council advised Ms K about the team investigating her report and it making arrangements to visit out of hours.
18. Ms K replied saying the email was ‘extremely lame, in fact it’s pathetic’ and asked how dare the Council ask her to wait. In an email to a councillor the same day, Ms K again repeated the need for a ‘GROWN UP in possession of commonsense to demand its implementation not the lame, protracted, faffing about that this council is offering’. This was received three days after her initial report.
19. On 22 April, an officer visited the site at 5pm and noted a stereo in the outside area but did not consider this a statutory nuisance. The officer spoke to the centre’s manager who said he would ensure the music was not a nuisance.
20. The following day Ms K emailed the Council again about the visit, which she says she later learned took place at 5pm. She pointed out playing music there was against a local bylaw.
21. On 25 April, an officer arranged to visit the site out of hours. The records show this was also done just after 5pm. There was no music playing, no shouting, with the instructor talking to the class. Ms L pointed out this was a Sunday and the only class that took place was in the morning. An internal email confirmed the centre saying the outdoor classes were a temporary measure because of Covid-19 restrictions and from mid-May, all classes would return inside.
22. An email to Ms K the following day advised her about the visit carried out and the contact with the centre which had put in steps to reduce the nuisance. It explained all classes would end mid-May. The officer said the case would now be closed. In reaching this decision, the officer noted an email from Ms K which he believed confirmed the situation was resolved. In it, she said one class held on a Saturday was a great improvement. She noted some shouting the following day but, confirmed it was ‘greatly improved’.
23. Ms K replied, confused by this email. She considered the problem ongoing. She asked the officer ‘apologise for your impertinence’. She believed the Council failed to take account of evidence from her and her witnesses.
24. An officer visited on 29 April, again just after 5pm but witnessed no music.
25. In July, her councillor emailed the team about Ms K’s claim music was still a problem. The centre told the Council the hirer of the pitch played music without its knowledge, and it had stopped its outdoor classes about 4 weeks before.
26. The Council confirmed to the councillor it had now written to the centre implementing a blanket ban on the playing of music outside. It also told Ms K. The Council explained it decided to suspend these activities to allow time to investigate a technological solution that would allow the delivery of classes soundlessly. This new system will be used with classes over the summer months.
27. In its response to my enquiries, the Council said when officers assess for statutory nuisance, they take several factors into account including the location, time, and character of the area. Officers noted the outdoor space has a central location with high levels of background traffic noise.

Analysis

28. I make the following findings on this complaint:
1. Although the Council did not respond to her initial report until prompted by Ms K, I am satisfied it advised her correctly that an officer needed to witness a statutory nuisance and went on to investigate her concerns.
2. The team also told her officers needed to arrange a site visit outside of normal office hours. The team did not say such a visit could never be done, only that it needed to be arranged with more warning to allow staff time to cover it.
3. The team contacted the centre about the problem and were in discussions about what action the centre could take to reduce noise problems for surrounding residents.
4. I understand two site visits were done before the Council decided to close the case. Neither was done at the weekend or at 730am. Importantly, neither witnessed activities amounting to a statutory nuisance. The team decided it could close the case after visiting the site, contacting the centre, which said what steps it would take to ensure noise levels were not excessive, and after receiving Ms K’s email. The team emailed Ms K explaining what action it had taken and why it was closing the case. This was because the evidence did not support the existence, likely occurrence, or recurrence, of a statutory nuisance. If the situation changed, she could contact the Council.
5. I read the email the Council says it took in to account from Ms K. It noted an improvement after a Saturday session. It also noted while the Sunday session resulted in shouting, the music level was the same as the previous day.
6. I am satisfied it was not fault for the Council to reach the decision to close her case. It explained what evidence it took in to account when reaching it. We cannot challenge the merits of a properly taken decision.
7. I am also satisfied the evidence shows the Council kept Ms K updated about progress on her reports.
8. I saw no evidence of the Council responding to Ms K’s query about the use of the outdoor area, and the noise created, breaching local bylaws. She raised this several times in her correspondence. An internal email in April asked an officer to explore this but, there is no evidence this was done. This is fault. The Council should have addressed this point with Ms K. I consider this caused her an injustice. The distress to Ms K included the frustration of making repeated requests about it and the uncertainty of not knowing whether the Council could have taken action on it.
9. I note once Ms K told the Council she did not agree her email showed she thought the situation resolved, a member of the team again visited the site 3 days later. The team found no statutory nuisance.
10. In July, Ms K sent a further report of noise which the Council investigated. The Council contacted the centre about it which explained what had happened. As a result of this, and the investigation of a soundless musical system, the Council issued a ban on any outdoor music at this location.

Complaint c): Warning letter

29. In April, an officer emailed Ms K after an officer visited the site. The email ended by saying while the officer understood her frustration with the noise, abuse towards Council staff is not tolerated. The officer wrote instances of written, verbal, or physical abuse towards staff are documented and used under its unreasonable behaviour policy which might severely limit the way it communicates with her in the future.
30. In May, the Council wrote to Ms K warning her about her unreasonable behaviour. This was a first formal warning under its procedure. It explained due to her persistent and abusive contact, it considered its unreasonable behaviour policy. It asked her to stop communicating this way. It warned if she continued, it may take action to restrict her communication which would severely limit the way it corresponded with her in the future.
31. An internal review of the case had prompted the Council to send her the warning letter. It was based on 6 emails she sent to the team, along with a conversation with the head of a service who also confirmed his team was subject to abuse from Ms K. This, and the large number of staff she contacted, was the reason for the warning letter. These included her comments about an email being lame, needing a grown up to deal with the issue, asking where the Council in this outrage was, the team not working early enough, and again, saying there was a need for a grown up to speak to the centre.
32. In June, the Council sent Ms K an email which ended by warning her that abuse towards staff would not be tolerated. Any written, verbal, or physical abuse towards staff will be recorded and used under its unreasonable behaviour policy which could restrict how it communicates with her in the future.
33. The same month the Council sent her another email. This was in response to her complaint. It explained it does not tolerate unreasonable behaviour towards staff and attached a copy of its unreasonable behaviour policy, a copy of which I have seen.
34. In July, Ms K replied. She was unhappy because the warning letter failed to give examples of her behaviour causing concern. Also, the letter said the procedure was only followed as a last resort. She claimed she received nothing from the Council before this expressing concern. She also claimed she did not receive a copy of its unreasonable behaviour policy.
35. The Council sent a record of contact with Ms K. This shows she sent 18 emails between 11 April to the date the warning letter was sent. The majority of these were copied in to anywhere between 3-10 other people. Ms L pointed out Ms K was given the incorrect email address for one officer which meant that was returned undelivered.
36. After sending the warning letter, the officer became aware of correspondence she sent to the parks’ team. This correspondence said the Council failed to show it has any control over this open space, the parks department did not function at all, asked whether an officer was turning a blind eye because he did not live there, and what was holding the Council back from acting.
37. The Council explained when she tried to complain about the warning letter, it allowed her to do so under the complaints process. Usually, it deals with challenges under the policy instead.

Analysis

38. I make the following findings on this complaint:
1. I am satisfied the Council sent Ms K a warning about her behaviour which might fall within its unreasonable behaviour policy before it sent the initial formal warning letter. This followed its procedure.
2. Neither the initial warning letter, nor the email sent before this about her behaviour, gave Ms K examples of the type of communication it received from her which it considered abusive. This would have clearly set out to her what the Council found unacceptable. I consider this is fault. The injustice to Ms K includes possible uncertainty.
3. The Council provided a copy of an email which said it attached a copy of the policy. On balance, therefore, although this could have been sent to her at an earlier stage, I am satisfied Ms K was sent a copy of it.
39. While Ms K does not consider the sending of the initial warning letter justified, I found no fault with the Council’s decision to issue it. The Council had evidence of inappropriate and insulting communication with various officers. It also had evidence of the volume of emails she sent along with the number of different officers copied in to them. It was entitled to reach the decision it did on the evidence.

Complaint process

40. Ms K is unhappy with the way the Council dealt with her formal complaint about its actions. In July, she asked the Council to escalate her complaint.
41. The Council provided a copy of the response it sent Ms K towards the end of September. This was in response to her complaint about the first warning letter. This apologised for taking ‘longer than intended to respond’ to her complaint. It did not uphold her complaint and advised her about her right to challenge it within 20 working days to the complaints team.
42. Ms K challenged the decision, and the Council sent its response in October. This did not uphold her complaint about the issuing of the initial warning letter either. This was the final stage in its complaints process.
43. In January 2022, the Council considered her complaint about how it dealt with her noise reports. It apologised for poor communication which could have been better during this time. It also apologised for taking three months to complete the noise investigation in 2021.
44. In response to my draft decision, the Council explained complaints about warning letters are not usually dealt with under its complaints procedure as this would bypass the unreasonable behaviour process. It explained by allowing it to be dealt with this way, it showed the Council’s willingness to work with her to avoid any further action under the unreasonable behaviour process.

Analysis

45. I found fault on this complaint. The evidence shows Ms K asking for her complaint about the warning letter to be escalated in July 2021. While her email was mainly about the issuing of the warning letter to her, it ended by saying the noise nuisance had not been resolved.
46. The Council responded to this towards the end of September. No explanation is given for the delay responding to her complaint. This is fault. This is because under stage 2, the response to her complaint is sent within 25 working days. The evidence shows this response missed this timescale by about 30 working days.
47. In its second response to her complaint, sent in January 2022, the Council also looked at her complaint about the way it dealt with her noise reports. It apologised for poor communication.
48. The identified fault caused her avoidable injustice. It caused her some frustration and inconvenience.

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Agreed action

49. I considered our guidance on remedies.
50. The Council confirmed it:
1. sent Ms K a written apology for its failure to: respond to her query about whether there was a breach of a local bylaw; give examples in its warning letter to her of the types of her abusive behaviour it was unhappy with; respond properly and promptly to her formal complaint under its complaints procedure;
2. will send Ms K a copy of the bylaws with an explanation of how it applied relevant ones to the neighbouring site with her concerns;
3. reminded officers of the need to fully respond to queries raised in noise reports by members of the public;
4. reviewed the initial warnings, and the first warning letters it sends out, so they now give examples of the person’s behaviour the Council is concerned about;
5. accepts dealing with complaints was severely impacted by the Covid-19 pandemic but, work was done by her ward councillor and a service manager to resolve her concerns; and
6. introduced a new case management system for logging and processing complaints which has improved its complains handling from January 2022.

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Final decision

51. I found fault on Ms K’s complaint against the Council. The agreed action remedies the injustice caused

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Investigator's decision on behalf of the Ombudsman