Summary: Ms X complained the Council failed to properly investigate her complaints about noise nuisance. She also said the Council unfairly issued her with a warning letter based on unsubstantiated evidence. We do not find fault with the Council about how it dealt with her noise nuisance allegations or when issuing her with a warning letter. However, there was some fault in the way it handled her complaint, but we are satisfied it has provided an adequate remedy for this.

The complaint

1. Ms X says the Council failed to properly investigate her allegations of noise nuisance against her neighbour, Ms F. She also says it failed to properly consider the evidence she submitted.
2. Ms X also says the Council acted unfairly in issuing her with a warning letter which was based on unsubstantiated evidence. Ms X says this has taken its toll on her mental and physical health and has caused her distress, anxiety, and confusion.

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What I have and have not investigated

3. I have only investigated the actions of the Council. I cannot look at any action taken by the housing association because it is not an organisation in our jurisdiction. Complaints about housing associations are a matter for the Housing Ombudsman Service.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 have spoken with Ms X, and I have considered the documentation sent in support of her complaint. I have also made enquiries with the Council and considered the information received.
7. I have carefully considered Ms X’s and the Council’s comments about my draft decision before making this final decision.

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What I found

Legislation and Guidance

8. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ such as noise.
9. 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.
10. 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.
11. 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.
12. Councils can 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. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
13. 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.

The Council’s Policy

14. The Council says people’s perception of noise is different. However, it says as the enforcing authority it decides what is reasonable and what isn’t before it considers taking action.
15. The Council has a duty to investigate noise complaints. If it satisfies itself the noise is a nuisance and doesn’t stop within seven days, it will usually serve a formal or statutory noise abatement notice to prevent recurrence of the problem.
16. If the problem persists the Council can apply for a warrant to seize the noise making equipment.

What Happened

17. I have set out a summary of the key events below. It is not meant to show everything that happened.
18. Ms X lives in a flat in a converted house. This is managed by a housing association.
19. This is a long-standing complaint, Ms X has raised repeated concerns about her neighbour, Ms F’s anti-social behaviour and noise nuisance between 2019 until 2022 with her housing association and the Council. Ms X specifically complained about:

• Ms F playing loud bass music.
• Loud TV noise; and
• The smell of cannabis in the building, which Ms X believed was from Ms F’s flat.

20. Ms F also made counter allegations against Ms X. She alleged Ms X washed her clothes at unsociable hours and complained of the loud noises coming from her washing machine.
21. Throughout 2021, Ms X attended some mediation sessions in an attempt to resolve the issues. However, this was unsuccessful. Ms X said Ms F continued to behave anti-socially.
22. Ms X’s housing association issued her with noise recording equipment and diary sheets to record the incidents she complained of. Ms X completed and submitted her concerns to the housing association.
23. Between January and April 2022 Ms X completed further diary sheets detailing her daily experiences and submitted these to the Council. These detailed repeated incidents of Ms F playing loud music noise and behaving anti-socially. She also supplied the Council with noise recordings.
24. Ms X told the Council Ms F’s anti-social behaviour was affecting her work and her health. She specifically noted:

• She was suffering from headaches.
• Her blood sugar levels were high.
• She could not concentrate on her work due to constant noise interruption.
• She felt the Council had failed to consider her concerns or investigate her complaint properly.
• She felt unable to approach the Council’s caseworker.
• She felt harassed, under scrutiny and unable to wash her clothes for fear of being accused of doing this ‘out of hours’.

25. In February 2022, the Council issued Ms X with a formal written warning. This explained the steps the Council could take if it continued to receive complaints about Ms X’s alleged use of and noise from her washing machine during unsociable hours. It also said the volume from Ms X’s TV was too loud.
26. The Council also said it also issued Ms F with a warning letter about her alleged anti-social behaviour and loud music.
27. Ms X refused to sign the warning. She said it was unfair. She noted that while she had no control over the noise her washing machine made, her neighbour could control the volume she played her music. She said the allegations against her were not substantiated and she had not used her washing machine at unacceptable times.
28. Ms X said when she raised her concern with the Council the case worker refused to allow her to speak and believed the Council was biased against her and had already decided the outcome of its investigation. She also questioned the validity of the sound recording equipment and said it could be tampered with and did not have a location marker installed.
29. Ms X disputed she was using her washing machine at unsociable hours. She advised the Council she had instructed an engineer to examine her washing machine and shared a video with the Council. She explained there were no defects to her machine, and in an attempt to minimise the noise, she would raise the machine on a piece of wood. However, she also stated that the soundproofing in the flats was poor, and believed this to be the cause of the issue rather than the overall noise of her washing machine
30. The Council said it had listened to Ms X’s recordings and said it could clearly hear ‘loud bass music’ coming from her neighbour’s property. It also said it could hear ‘spinning, vibrating and banging’ from Ms X’s washing machine. It noted it would speak with the housing association about the sound insulation in the property. It also said it had contacted the mediation service in an attempt to arrange a third session.
31. Ms X replied and said she was deeply upset the Council did not believe her. Ms X said as a result of the Council’s warning she felt harassed and now had panic attacks every time she washed her clothes.
32. The Council replied and told Ms X she could use her washing machine, however, she should be mindful of the wash cycle used which could consist of spinning, banging and vibrations. The Council said this could be heard in Ms F’s property. It again acknowledged that Ms F’s music could be heard in Ms X’s property.
33. Ms X said Ms F’s allegations had not been independently witnessed by a Council officer and questioned why she had not been given a noise recording machine at the same time so that results could be measured independently.
34. Ms X complained to the Council in February 2022. She said the case officer had not listened to her noise recordings or considered her concerns or noise diary properly. Ms X said the case worker had accused her of bombarding her with emails and ASB logs.
35. The Council responded to Ms X’s complaint in March 2022. It said it recognised the conversation between Ms X and the Council had been difficult, however, it did not uphold her complaint and had seen no evidence of unfairness or negligence. It also said:

• Management had formally interviewed the case worker looking into Ms X’s concerns.
• It accepted the case worker had told Ms X she was bombarding the Council with emails, however, this was in the context of a conversation where the Council said Ms X refused to let the case worker speak.
• This was a longstanding case that included allegations and counter allegations from Ms X and Ms F.
• The Council would continue to investigate the noise complaints along with the housing association.
• It had issued Ms X and Ms F with warning letters, explaining the consequences of noise nuisance was witnessed by an enforcement officer.
• The Council said this showed both parties had been treated equally.
• The warning letter had no further consequences if statutory noise nuisance was not witnessed by the Council’s enforcement team.

36. Ms X remained dissatisfied and asked the Council to consider her complaint at Stage Two.
37. Ms X continued to send the Council emails and diary sheets throughout March and April 2022. She noted that Ms F had been better since she had her warning, but she was still concerned about the smell of cannabis. Ms X again raised concerns that Ms F’s allegations and recordings were not accurate and could be falsified.
38. The Council discussed Ms X’s case at its Anti-Social Behaviour Panel in April 2022. It considered Ms X’s request to withdraw the warning letter but decided that it would not do this.
39. The Council considered Ms X’s complaint at Stage Two and said it spoke with her at length in May 2022 about her complaint and her ongoing concerns. It said:

• It accepted that although Ms X’s conversation with the Council’s worker had been difficult, it was satisfied there had been no unfairness or negligence with the management of Ms X’s case.
• It had met with the case worker and the manager responsible for the stage one complaint.
• The case worker had worked pro-actively with Ms X’s housing association in an attempt to resolve the issues faced by Ms X.
• It found fault with the Council’s lack of contact during the stage one investigation and had apologised for any frustration caused. It had also reminded all staff that complainants should be contacted.
• Insulation and soundproofing were matters for the housing association.
• It was for the housing association to deal with the neighbour dispute using its own ASB process.
• It had reminded Ms X she could use her washing machine, but she should be mindful of the times of use.
• It had considered Ms X’s concerns and requests but decided not to withdraw her warning letter.

40. Ms X remained dissatisfied and complained to us in June 2022.
41. The Council responded to my enquiries in October 2022. It said:

• The warning letter was issued to bring the matter to Ms X’s attention and explained the actions the Council could take.
• Ms X cannot appeal the warning letter.

• The property is a conversion with possibly no adequate sound insulation. This could be a contributing factor in regard to the reports received.
• A Council officer personally heard and felt the vibration of Ms X’s washing machine when they visited the property before lockdown.
• The housing association had provided Ms X with noise recording equipment at times throughout the complaint.
• It had listened to the noise recordings submitted by Ms X, had considered her diary sheets and emails and had spoken with her about her concerns.
• The Council said it had treated both parties the same.
• It would not usually consider evidence from the noise recording equipment in these circumstances, however, it had considered this evidence to get an overall picture of the noise being reported.
• The reported noise had not been witnessed by Council officers. The only evidence available was from the noise recordings and diary sheets submitted.
• The noise recording equipment had location marking technology and the Council is satisfied this can be accepted as evidence.
• If Ms X had information the equipment had been tampered with, she could supply it to the Council, and it would consider it.
• The Council had investigated Ms X allegations and had spoken with the officers involved. It was satisfied there was no fault in its actions.

Analysis

Investigation of noise allegations

42. The Council provided documents to show it has responded to and investigated Ms X’s complaints of noise nuisance according to its procedures and practices. It acknowledged that reports of noise had not been witnessed by the Council’s enforcement officers. However, the Council was in regular contact with Ms X. It also spoke with her neighbour Ms F and was in contact with the housing association. Although not its usual practice in these circumstances, the Council also considered the noise recordings submitted by Ms X. It considered Ms X’s diary sheets and spoke with her and her representative about her concerns.
43. I am satisfied the Council considered all relevant information and followed its usual practice. I would not expect the Council to duplicate the work already undertaken by the housing association. I am satisfied the Council considered all relevant information and spoke with Ms X to understand her concerns during its Stage Two investigation. There are no grounds to criticise this decision.
44. Ms X disagreed with the Council’s actions when it issued her with a warning letter in February 2022. I appreciate receiving a warning letter will understandably cause anxiety. However, the Council’s notes show it issued warning letters to both Ms X and her neighbour Ms F following allegations and counter allegations of noise nuisance and antisocial behaviour. The letters explained the steps the Council could take should the issues raised continue. This was in line with the law. Its notes show it made its decision after considering all of the available evidence. It also considered Ms X’s request to withdraw her warning letter at a multi-agency meeting about ASB. It decided it would not withdraw the warning letter.
45. The decision to issue the warning letter is a matter of the officers’ professional judgement and was one the Council was entitled to make. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in how the Council came to this decision and treated both parties the same.

Handling of Ms X’s complaint

46. The Council accepts there was a lack of contact with Ms X during its stage one investigation. This was fault. However, it has since apologised and reminded all staff that complainants must be contacted with an update about their complaint. I consider this to be an adequate remedy for any injustice caused. In any event, I am satisfied the Council has completed a detailed Stage Two investigation including discussing Ms X’s complaint at length.

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Final decision

47. I have completed my investigation. I have found no evidence of fault with the Council about how it dealt with Ms X’s noise nuisance allegations or when issuing her with a warning letter. However, there was some fault in the way it handled her complaint, but I am satisfied it has provided an adequate remedy for this.

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Investigator's decision on behalf of the Ombudsman