Summary: Mr B complained about the Council’s response to his complaints of noise from a neighbouring property and about its role in the serving of a community protection warning and notice on him. He considered the Council’s actions meant he and his family suffered disturbance and the community protection warning and notice caused him distress. There was fault in the Council’s communication with Mr B which caused him some injustice. To remedy the injustice the Council will apologise and make a small payment.

The complaint

1. I refer to the complainant as Mr B. He complained the Council:
• did not properly consider or act on the complaints he made about noise from the occupants of the property above his from March 2020;
• did not have a sound basis for its involvement in the decision to serve him with a Community Protection Notice (CPN) warning letter and then the notice.

He considered the Council’s actions meant he and his family suffered disturbance and the community protection warning and notice caused him distress.

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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. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), 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 considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. Mr B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision. I sent a draft of this statement to Mr B and the Council and considered their comments.

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What I found

7. Mr B first complained of noise from the property above his in January 2020. The Council issued a warning letter to the tenants. The tenants then changed and the Council issued a warning letter to the new tenants in the middle of March. This was just at the start of the first lockdown for the COVID-19 pandemic. Mr B returned noise diaries to the Council in April. The Council has not provided any detail of the action it took in response. In August the Council inspected the properties and decided that ordinary household noise from the flat above would be audible in Mr B’s property because of the nature of the construction and lack of insulation. The Council considered the noise would amount to a statutory nuisance but because it was not deliberate, or as a result of unreasonable behaviour, it would not be appropriate to consider it under its statutory noise nuisance powers.
8. The Council has powers under the Housing Health and Safety Rating System (part of the Housing Act 2004) to tackle the condition of privately rented properties. The Council considered the condition of the properties under those provisions. The system defines hazards as either category 1 or category 2. The Council must take action if it finds category 1 hazards but any action is discretionary for category 2 hazards.
9. The Council considered the defects in the properties in respect of the insulation amounted to category 2 hazards and it would not, therefore, take any formal action. It did advise the owners of both properties, the flat above and Mr B’s, of the defects and action needed.
10. I am not clear how Mr B was informed of the outcome. I have seen correspondence from 3 November 2020 where Mr B complained and what appears to be a response from the Council. But it is from the officer Mr B is complaining about so that would not appear to be a satisfactory response. The Council did not adequately corresponded with Mr B about the conduct and conclusion of the investigation or his complaint.
11. Mr B made a further complaint about noise in February 2021. The Council accepted it did not respond to this until August. Its position then was that this was essentially the same matter so there were no grounds for it to take any action unless there had been some material change. However, because of ongoing difficulties between Mr B and the occupiers of the above property, the Council did revisit both properties and installed noise monitoring equipment in the property above Mr B’s. The Council did not find any noise recorded on the noise monitoring equipment and received no further complaints of noise from Mr B after the middle of November. Mr B has commented that new tenants had moved in and did not cause the same degree of disturbance as the previous tenants. Although everyday living noises were still audible.
12. There was fault by the Council in not responding to Mr B’s correspondence of February 2021. But there was no fault in the approach taken by the Council in respect of the noise issues. The position remained that it was a problem of poor sound insulation between the properties that was the root cause of the problem. There was not fault in the Council’s assessment that it could not take action in respect of that.
13. There was further correspondence between the Council and Mr B in July 2022. It had understood the owner of the flat was going to do some works to improve the insulation after the tenants had moved out in January of that year. But the position remained that because of the nature of the problem there was no further action it could take.
14. There has been some fault by the Council in its correspondence and responses to Mr B. The Council accepted that was the case after the complaint in February 2021 but it was also the case in 2020. The Council will apologise to Mr B for those failures in communication and pay him £200 as a symbolic recognition of the distress caused to him as a result. But as there was not fault in the approach taken by the Council no other remedy is warranted.
15. There were difficulties between Mr B and the occupiers of the above properties. This resulted in the involvement of the police because of the complaints made by both parties. The police issued a Community Protection warning to Mr B and then a Community Protection Warning Notice. Mr B complained about the Council’s involvement in those decisions.
16. Mr B successfully appealed against the notice. This was the proper way to challenge it. Where a court has considered a matter we will not reconsider it. I have considered whether there are significant aspects that are separable from the matters that the court will have considered – I do not consider there are. In saying that I understand Mr B considers there was fault by the Council in its involvement in the matter but the court action has addressed the main issue. In reaching that decision I have considered the information Mr B has provided including the recording of the comments made the police officer. They refer to involvement by Council officers in the lead up to the decision to serve the warning and notice. But this does not, in itself, indicate any fault. There are not grounds for me to investigate this further.

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Agreed action

17. The Council will apologise to Mr B and pay him £200 within one month of the final decision.
18. The Council should provide us with evidence it has complied with the above action.

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Final decision

19. There was fault which caused some injustice.

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Investigator's decision on behalf of the Ombudsman