Summary: Mr C complained the Council delayed in investigating his complaint about a noise nuisance inside the block of flats he lives in and closed the case without properly investigating the matter. There was no fault in the Council’s actions when it investigated the noise Mr C complained about.

The complaint

1. Mr C complained the Council delayed in investigating his complaint about a noise nuisance inside the block of flats he lives in and closed the case without properly investigating the matter. Mr C says this caused him frustration and the ongoing noise affected his health.

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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. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’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. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. If we are satisfied with an organisation’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

6. I read the documents provide by Mr C and discussed the complaint with him on the telephone.
7. I considered the documents provided by the Council in response to my enquiries.
8. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Statutory nuisances

9. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Statutory nuisances can include noise from premises or vehicles, equipment or machinery in the street.
10. 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.
11. 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.
12. 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.
13. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.
14. Under section 82 of the Environmental Protection Act, a member of the public can also take private action against an alleged nuisance in the magistrates’ court. If the court is persuaded they are suffering a statutory nuisance, it can order the person or people responsible to take action to stop or limit it. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.

What happened

15. In 2020 Mr C owned a flat in a block of flats. The leaseholder of the building had replaced the lifts. In December Mr C complained to the Council that the noise from the new lifts was disrupting his sleep. He stated it was a health and safety issue and he had already complained to the management company about it.
16. The Council responded and explained that it could not visit due to COVID-19 restrictions in place at the time. It offered to contact the management company on Mr C’s behalf. It advised Mr C that civil law action may be a more productive option for him.
17. The Council communicated with the management company who explained that it was aware of the problem and had taken remedial measures to reduce the noise.
18. In February the Council spoke with Mr C and he confirmed the noise was still occurring. The Council explained that to investigate the noise it would need to visit Mr C’s flat, but it could not do so until the restrictions were lifted.
19. In March 2021 the COVID-19 restrictions were lifted. In April Mr C recontacted the Council and asked for an update. Mr C contacted the Council again in May and June.
20. In June the Council responded and arranged to visit Mr C’s flat. Council Officer A attended and listened to the noise with Mr C. Officer A recorded the noise was not a statutory nuisance. The record shows Officer A discussed further investigation with Mr C including a visit out of hours to listen to the noise. He stated a noise meter was not likely to show the presence of a statutory nuisance. Officer A discussed the civil law route available to Mr C.
21. In July Mr C complained to the Council he could not contact Officer A. The Council responded, apologised and explained Officer A was no longer in the department and it would reallocate the case. It arranged for the out of hours team to complete a visit after 10.30pm to listen to the noise.
22. The out of hours team visited Mr C’s flat and listened to the noise. The two Council Officers who attended decided the noise was not a statutory nuisance.
23. A week later the Council installed a sound level meter in Mr C’s flat. Mr C and the Council provided different recollections of the verbal instructions provided when the Council installed the sound level meter.
24. The instruction for the meter states it records sound energy and characteristics. It has a button which records the noise being made when it is pressed. The recording of the noise provides context for any changes in sound energy. It states the complainant should push the button when there is a significant noise and record why they pushed it on a diary sheet. Mr C signed and dated the instruction sheet.
25. In August 2021 the Council collected the sound level meter and Mr C’s diary sheets and analysed the information. It found the noise levels in Mr C’s flat during the lift operation were not a statutory nuisance.
26. In September the Council wrote to Mr C and told him that its investigation had not found a statutory nuisance. It stated it could not take enforcement action and it had closed the investigation.
27. Mr C complained to the Council in September. He complained about the instructions the Council Officer’s had given him verbally about the sound level meter.
28. The Council record shows that it reviewed the case file and the meter data and confirmed the noise was not a statutory nuisance. The Council responded to Mr C and did not uphold his complaint. It provided further explanation on how it had investigated the matter.
29. Dissatisfied with the Council’s response Mr C complained to us.
30. In response to my enquiries the Council stated the Environmental Protection team suffered a staff shortage in April and May 2021 due to the pandemic. This shortage led to it missing two of Mr C’s emails.

My findings

31. The Council could not begin its statutory nuisance investigation when Mr C complained due to the COVID-19 restrictions that were in place. Meanwhile it contacted the building’s management company to try to resolve the issue. It also provided Mr C with information about taking civil action on the matter. There was a short delay in beginning the investigation once the COVID-19 restrictions were lifted, however I stop short of finding fault on this point. When the Council completed its investigation, it did not find a statutory nuisance and so the delay did not cause Mr C an injustice because it is likely the outcome would have been the same.
32. We are not an appeal body. We cannot question a professional judgement or decision unless there was fault in the decision-making process. The Council completed an appropriate investigation. Three Officers witnessed the noise, and analysed recordings from the sound meter. Based on that information the Officer’s decided there was not enough evidence to confirm a statutory nuisance. There was no fault in how the Council made that decision.
33. Mr C complained to the Council about the information it provided to him verbally about the sound level meter. I was not there and cannot know what was or was not said during that conversation. However, Mr C received the instruction sheet for the sound level meter which was clear, and the sound level meter recorded the noises. There was no fault in the Council’s actions.

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Final decision

34. I have completed my investigation. I did not find any fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman