Summary: Miss X complained the Council has: unfairly taken enforcement action against her regarding noise complaints relating to her son; ignored medical information about her son’s medical condition and discriminated against her son and her family. We do not find fault in the Council’s actions.

The complaint

1. The complainant, Miss X, complains the Council has:
• Unfairly taken enforcement action against her regarding noise complaints relating to her son;
• Has ignored medical information about her son’s medical conditions;
• Has discriminated against her son and her family.
2. Miss X said this has caused her and her family significant ongoing stress.

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What I have and have not investigated

3. I have investigated the process the Council followed in relation to complaints it had received about Miss X’s family and whether the Council discriminated against them. I have not investigated the actions of the housing association. This includes the acceptable behaviour contract. This is because the Council is not responsible for this. This is the housing association acting as landlord, which the law states I cannot investigate.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate a complaint where the body complained about is not responsible for the issue being raised. (Local Government Act 1974, section 24A(1), as amended)
6. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
7. 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

8. I spoke with Miss X about her complaint. I considered all the documents provided by Miss X and the Council.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

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What I found

10. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
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.

Anti-social behaviour

12. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation. ASB can include noisy, rowdy or inconsiderate neighbours.
13. Councils and the police can issue Community Protection Notices (CPN) to prevent anti-social behaviour which is having a negative effect on the community's quality of life, and which they decide is unreasonable. CPNs require the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence and may result in a fine or a fixed penalty notice.
14. Councils must issue a written warning in advance of the CPN. It is for the person issuing the written warning to decide how long is appropriate before serving a CPN. A CPN can be appealed in the Magistrates' Court within 21 days by the recipient if they disagree with the council’s decision.

The Equality Act 2010

15. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
16. The Equality Act 2010 says an individual or organisation that provides a service to the public, such as councils, must not treat someone worse just because of one or more “protected characteristics”. Protected characteristics include people with disabilities.
17. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

Education, Health and Care plans

18. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHC Plan). The EHC Plan identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs. This can include support needed in school.

What did happen?

19. This section sets out the key events in this case and is not intended to be a detailed chronology.
20. The Council contacted Miss X in December 2021 to state her neighbour had submitted a complaint about her and her family. It said Miss X’s partner had behaved in an anti-social manner, used a vehicle to cause a nuisance, been verbally abusive and said the family had fly tipped. It also said occupants at the property had caused a noise nuisance by banging on walls, slamming stairgates shut and playing loud music.
21. The Council spoke to Miss X in the same month. She said the noise element was occurring from her three-year-old son, B, who she said has global development delay and is non-verbal. She said he was banging on the stairgate and walls with a cup to advise that he required a drink. The Council discussed alternative solutions with Miss X to minimise the potential noise. It was noted that the other allegations were denied, and Miss X said there had been a long standing campaign of malicious complaints. Miss X said the family were seeking support for B.
22. The Council contacted the special educational needs co-ordinator (SENCO) and assistant head of B’s nursery in December 2021. The nursery advised that B does have some communication and speech delay. But it said his understanding was more advanced than his verbal ability and said the nursery had not witnessed him banging or making noise to communicate. The nursery said B is very sensitive to noise and does not tolerate the noise of his baby sibling well. But the nursery said B had not been diagnosed with any medical conditions yet.
23. A meeting took place in January 2022. It was noted that B has developmental delays which mean his communication and language skills are below where they should be for his age. The Council discussed managing B’s needs in the home and stated the family were doing there best to minimise noise from B. Miss X was advised to re-apply to join the Council’s housing register.
24. Another meeting took place in the same month which was attended by Miss X, the nursery and Miss X’s current housing association. Discussions took place around different strategies Miss X could try to reduce the noise. The Council advised Miss X these strategies must be tried to avoid a community protection notice warning (CPNW) for which it said there was evidence to substantiate the allegations of noise nuisance. It said it would implement the new measure for a period of two weeks.
25. The Council issued a CPNW to Miss X and her partner the following month. It said with immediate effect:
• Do not bang items, nor allow any behaviours by others within the property that result in repetitive banging noises without intervention to cease such noise;
• Or play loud music at an excessive volume that could disturb or cause nuisance to other people living in the vicinity to their property.
26. Miss X told the Council the loud music was coming from a different neighbour and she and her partner sent in pictures and videos. She also said she had images of cameras being pointed into her kitchen and garden. But the Council said it had evidence that the music referred to was different and coming from Miss X’s property.
27. In February 2022, a letter from the SENCO stated B was under assessment for autism spectrum disorder and attention deficit hyperactivity disorder. It said B had recently been diagnosed with epilepsy and was prone to large emotional meltdowns. It also said B could not share a room with his baby sibling.
28. In the same month a safeguarding referral was submitted. It said there had been substantial banging noises recorded by Miss X’s neighbour who alleged that B was being left for prolonged periods in his bedroom unattended where he kicks and bangs the walls. It said recent recordings captured B screaming and crying. But no further action was taken regarding this referral.
29. The Council told Miss X in February 2022 that it was still receiving evidence of noise nuisance coming from her property. It said it may result in further enforcement action.
30. The Council held a meeting in March 2022 to discuss the possibility of a property move for Miss X. It advised Miss X to provide any supporting documents and to update her application to join the Council’s housing register. It also advised Miss X a tenancy reference would be requested and said this would contain any details of any breaches, so advised Miss X to cease all acts of ASB and noise nuisance to strengthen her chances of getting a move.
31. The Council contacted Miss X’s housing association in the same month to discuss the importance of a management move for Miss X. But the housing association said it did not believe they should be awarded a move for behaviour which they have perpetrated or tensions which they have contributed to. It said agencies could put forward supporting letters for review.
32. Following supporting letters from the GP and nursery, Miss X’s application to join the Council’s housing register was approved and she was placed in band B with effect from 17 March 2022. The Council told Miss X it had not received any evidence of ASB or noise nuisance for over a week and said it was now up to Miss X to bid for properties.
33. In April 2022, the Council held a meeting with Miss X. It said it had sufficient ongoing evidence to demonstrate ongoing noise nuisance and ASB with grounds for the serving of a CPN. But it said Miss X’s housing association advised instead of issuing a CPN which would impact on their potential move, it would issue an acceptable behaviour contract (ABC). The housing association said if this was not breached within six months, then it would be able to put her forward for a management move. But Miss X refused to sign this agreement as she said the noise referred to related to her son.
34. During the meeting, the Council said from listening to the noise recordings, the noise was too forceful to have been made by a small child. It requested evidence be provided to demonstrate that the noise was coming from B, which it said was refused. Miss X asked for noise equipment to be installed in her property. But this was declined by the Council as it said it was up to Miss X to provide the evidence. The notes state Miss X said she had been trying everything, but it said she couldn’t detail what had been tried.
35. Miss X complained to the Council in August 2022. She said:
• The Council displayed unprofessional behaviour which she deemed to be discriminating.
• Her son makes noise due to his additional special education needs (SEN) and suspected autism and said there had been a lack of understanding of SEN needs.
• The officer was aware of his additional needs but said this made no impact on how the officer dealt with the case.
• The Council issued CPNW two weeks after a meeting where it was acknowledged that the family were doing their best and would be supported.
• Unprofessional advice was given as she said the Council suggested she put cameras in her house to record B’s meltdown and allow him to go to extremes so it can be compared against the neighbours recording.
• An officer reported her to social services twice.
36. In the same month the Council told Miss X it had concluded its noise investigation and did not intend to take further action.
37. Miss X chased the Council for a response to her complaint. It said it required a further week and responded on 15 September 2022. It said:
• It first received complaints in May 2021 and again in August and December 2021. It said this was regarding amplified music being played until late at night, fly tipping, harassment and intimidation.
• The Council officer had contacted the SENCO and assistant head of the nursery. The officer was advised that whilst B does have some communication and speech delay, his understanding is more advanced than his verbal ability and at nursery he had not been witnessed banging or making noise to communicate.
• The officer said specialist agencies were supporting the family.
• At the meeting held in January 2022, different strategies were given to Miss X to try and attempt to reduce the noise.
• The ABC was a discretionary offer made by the housing association which if effective would enable a more expedient management move than going through the Council’s housing register process.
• There was no formal diagnosis for B and officers had followed the correct process.
38. Miss X was unhappy with the Council’s response. She requested her complaint be escalated and asked for a meeting. But the Council did not respond until Miss X contacted it again in October 2022 when a meeting was arranged for the following month.
39. In November 2022, a letter from the SEND practitioner stated B had an EHC plan and was awaiting a sensory assessment. It said some of the behaviours he showed could be due to stimming and/or sensory needs.
40. Miss X continued to chase the Council for a response to her complaint and the Council provided her with its stage two response in February 2023. It said:
• It may take some time to secure a property but confirmed her banding.
• It could have managed some areas differently. It said it would have expected the Council to meet with the family face to face due to the circumstances.
• The officer should have liaised with relevant professionals at the Council to offer additional advice.
• It apologised for the delay in responding to Miss X and offered a payment of £200. It also offered a £50 voucher to B.

Analysis

41. The Ombudsman’s role is to review councils’ adherence to procedure in making decisions. Where a council has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on councils’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a council’s decision.
42. After Miss X was made aware of the complaint made against her in December 2021, she contacted the Council. She told the Council the noise element was occurring from her son but denied the other allegations. In response the Council liaised with B’s nursery and held two meetings in January 2022 to discuss different strategies Miss X could try to reduce the noise. This evidences that the Council did properly take account of B’s individual rights. The Council told us these strategies were not only to reduce the impact of the noise on others but to assist Miss X and B in terms of health and wellbeing and to prevent injury. But it said these were not put in place when asked nor alternative measures outlined. The Council has a duty to act on complaints it receives and there is no fault in the process the Council followed when it received the complaint about Miss X.
43. The Council then issued the CPNW to Miss X and her partner. This was due to causing a nuisance to others by shouting, banging, failing to stop behaviour that resulted in banging noises being transferred and playing bass music. Therefore, this did not solely relate to noise being made by B. One of the conditions of the CPNW was to not bang items, nor allow any behaviours by others within the property that result in repetitive banging noises without intervention to cease such noise. Before issuing the CPNW the Council has evidenced it did consider B’s needs as it liaised with the nursery and held two meetings as stated in paragraph 45. This is what we would expect. In response to Miss X’s complaint, the Council said it could have done more and said it should have liaised with relevant professionals. But it is my view that the Council has acted without fault. We cannot question the decision when there is no fault in the decision making process.
44. The Council held a meeting in April 2022 and said from listening to the noise recordings, the noise was too forceful to have been made by a small child. This is a decision the Council is entitled to make. It requested evidence be provided to demonstrate that the noise was coming from B, which it said was refused. Miss X told us the Council recommended she get cameras in her house so it could compare against its own evidence. The method of gathering this evidence was one that Miss X could have chosen. There is no fault in the Council requesting evidence.
45. In response to our enquires, the Council said it now has in place a proportionality assessment which is to be utilised once an officer determines that there is a protected characteristic that should be considered as part of the investigation. It said this was not in place for this case. But said the officer utilised the fundamental elements of this throughout and the Council has evidenced it liaised with the SENCO and assistant head at B’s nursery throughout its investigation.

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Final decision

46. I have completed my investigation on the basis there was no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman