Summary: Mr X complained about the Council’s handling of noise complaints in 2021 and 2022. The Council did not properly investigate the noise reports in 2021 and failed to progress the 2022 reports after the case was transferred to its licensing team in August 2022. It also delayed in responding to the formal complaint and failed to send a written response. The Council will apologise, pay Mr X £200 for the uncertainty caused and make service improvements.

The complaint

1. Mr X complained about the Council’s handling of his noise reports relating to a public house near where he lives. In particular, he complained the Council:
1. failed to properly investigate his noise reports in 2021 and closed the case without notifying him it had done so;
2. lost evidence he submitted as part of the 2021 complaint;
3. failed to keep records relating to the 2021 reports, requiring him to resubmit evidence in 2022;
4. failed to take action or properly respond to his 2022 report; and
5. delayed in responding to his complaint.
2. As a result of the Council’s failings, Mr X says he has been unable to study or work from home, has had to wear ear plugs or ear defenders in his house, has had to go out at weekends to avoid the noise and the noise has affected his sleep. He also says the Council’s promises to resolve the issue prevented him from taking legal action or taking the matter to the licensing committee.

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The Ombudsman’s role and powers

3. 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)
4. 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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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What I have and have not investigated

8. Mr X complained to us in December 2022 about events from July 2021 onwards. I exercised discretion to investigate the whole period because this is an ongoing matter potentially causing an injustice to Mr X. I am satisfied the Council has sufficient records to enable me to reach robust and defensible findings.

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How I considered this complaint

9. I considered:
• the information Mr X provided;
• the information the Council provided in response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, available on our website.
10. Mr X 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

Relevant law and guidance

Statutory nuisance

11. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. This can include noise from premises.
12. 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.
13. 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. EHOs may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits.
14. Once the evidence-gathering process is complete, the EHO will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
15. 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.
16. 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.
17. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
18. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
19. An individual can make an application to the magistrates’ court without involving the council.

Licensing

20. All businesses and event holders must obtain a licence before they can sell alcohol to the public or provide certain entertainment, which can include the performance of live music or the playing of recorded music. The Licensing Act 2003 (the Act) sets out four licensing objectives, which includes the prevention of public nuisance.
21. Licenses are issued by councils, which must have regard to the conditions in the Act and views from responsible authorities, including the police and environmental health. Comments can also be made by individuals but will only be considered relevant if they relate clearly to the four licensing objectives.
22. Any party who has made relevant comments can appeal to the magistrates’ court if they object to the council’s licensing decision.

Complaints handling

23. The Council has a two-stage process. At stage 1 an appropriate officer or manager will respond and at stage 2 a member of the leadership team will do so. At both stages the Council it will usually respond to complaints within 10 working days. In complex cases that need a lengthy investigation it will let the complainant know when to expect a response.

What happened

2021

24. Mr X contacted the Council about the noise from the pub in early July 2021. The Council sent an automatic acknowledgement which said it would be in touch within five working days. The Council responded to the report a month later, following two further emails from Mr X asking for an update. In mid August, it wrote to the pub and sent Mr X a copy of its letter.
25. In late August, Mr X reported the situation had not improved. He said he could send a noise diary and videos for the period from June 2021. He also said bottle bins were being emptied at unsociable hours. Officer 1, from the licensing team, said they would visit the pub and speak to the licence holder. Officer 1 asked Mr X to send the videos and diary. Mr X sent some information by email. He also sent a letter by post, enclosing with a USB memory stick containing videos, which he asked the Council to return after accessing the videos.
26. In early September, officer 1 asked Mr X to resend the videos and diary as they had been put in the confidential waste by mistake. They confirmed they still had the USB memory stick and apologised for any inconvenience caused. Mr X resent the diary and letter the same day.
27. Two days later, officer 1 said they had spoken to colleagues in the Environmental Protection (EP) team, and they had agreed to address the noise jointly. Mr X sent an updated noise diary and officer 1 asked him if he would agree to the Council installing noise monitoring equipment. Mr X said he was unsure if this was the best time to install noise monitoring equipment as the situation has improved with a decline in the weather and he would need further information before agreeing to this. Mr X said he sent a further email about noise monitoring equipment and tried to contact the Council by telephone but the Council did not respond.
28. In October, and again in December, Mr X asked about the return of the USB memory stick, which he said he needed for work. The Council returned this in December 2021.
29. In response to my enquiries, the Council said:
• officer 1, a licensing specialist, wrote to the pub in August 2021;
• Mr X did not send the Council any further evidence after that so it assumed the situation had been resolved, although it accepted it would have been appropriate to check the position with Mr X;
• it accepted it had not informed Mr X it had closed the case;
• it had not kept the video evidence Mr X provided, in line with its data protection policy at the time; and
• it accepted it did not return the USB stick as promptly as it should have, which was due to changes in staffing at the time and staff working from home.

2022

30. In June 2022 Mr X contacted the Council again. He spoke to Officer 2 in the EP team, who sent him further diary sheets to complete and return. Mr X returned completed diary sheets in early July.
31. Officer 2 arranged to install noise monitoring equipment at Mr X’s home for one week in July 2022. Mr X said officer 2 was seen arriving to do this by pub staff and, as a result, the speakers were moved for that period.
32. Officer 2 analysed the results of the noise recordings. Their record said the music and lyrics were audible in Mr X’s house, but it was not unreasonably loud and, given the frequency, duration and times, they did not consider it amounted to a statutory nuisance.
33. Officer 2 telephoned Mr X to explain their reasons for concluding this, and suggested the licensing team should consider the matter. Mr X agreed, with reservations. In early August, Officer 2 contacted Officer 3, in the licensing team. Their email, copied to Mr X, noted Mr X was apprehensive about the case being passed to licensing as he felt they had ignored him the previous year. Officer 2 confirmed Officer 3 would update Mr X after they had visited the pub.
34. A few days later, Mr X contacted officer 3 for an update. They said they had not yet been able to visit the pub and were about to go on annual leave. They asked Mr X to continue to keep the noise diary, so they knew the dates and times that loud music was played.
35. In early September, Mr X sent an updated noise diary. He said:
• he had kept a noise diary since June 2021, most of which had already been sent to the Council;
• the pub had recently changed the position of the outdoor speakers, which now pointed directly at the wall of his house from about 5 metres away. He said this meant the music could be heard in every room in the house, even with the doors and windows closed;
• he had had to return to wearing ear plugs as he had done the previous year;
• the noise was having a significant impact on his health and wellbeing, and the Council had allowed this to continue for 18 months.
36. Council records show a site visit was made in late October 2022. This identified the noise complained about was from the pub garden, which had a separate licence to the pub itself. There is no record of any further action.
37. In late December, Mr X reported further loud noise from the pub. The Council responded in early 2023 to say that the beer garden had a separate licence so a new file would need to be opened if Mr X wanted to pursue his complaint. Mr X responded that he was not aware there were two licences and asked why he had not been told about the application as he would have made representations about it. He said he had not heard further from the Council after the case had been transferred to the licensing team in September 2022, although he had not been told that either the 2021 or 2022 cases had been closed.

Complaints handling

38. In early September 2022 Mr X made a formal complaint. He said the Council had:
• failed to properly investigate and act upon his noise reports in 2021;
• delayed returning his USB memory stick between September and December 2021;
• required him to re-register the noise complaint in June 2022 but staff had no understanding of the history, and their communications implied the Council no longer had critical evidence he had provided in 2021;
• failed to consider whether the noise amounted to a statutory nuisance; and
• ignored the impact on his health and wellbeing, including that he had to wear ear plugs in the house and could not open doors or windows even in very hot weather.
39. The Council acknowledged receipt of the complaint and said it would respond within 10 working days or would contact him to agree a longer timescale. It did not do so, and Mr X complained to us in December 2022. When we contacted the Council, it told us it had not considered the complaint through its complaints process, and we asked it to do so. As it had not sent a complaint response by March 2023, and had not responded to a request for an update, we decided to investigate.
40. In response to my enquiries, the Council said:
• it did not respond to the complaint initially due to some confusion about which team would do so. It identified the oversight when we contacted it in December 2022;
• officer 4 spoke to Mr X in January 2023. The record of the call stated they had apologised for the poor service in 2021 and for the failure to respond to his complaint. The record stated Mr X had accepted the apology and officer 4 understood he intended to “drop” the complaint. Mr X disputes this account of the call. The Council said officer 4 did not inform the complaints team about this;
• officer 4 said Mr X could contact them directly if he wanted to make further noise reports and they would personally supervise any future investigation; and
• this Council is now part of the new Westmoreland and Furness Council, which is working on a joint policy for complaints. This is not due to be completed after 1 November 2023.

My findings

2021 noise complaint

41. It took a month for the Council to respond to Mr X’s noise report, despite its acknowledgement saying it would respond within five working days. It wrote to the pub in August, which was appropriate. Following this, Mr X sent further evidence, some of which he had to resend as it was lost by officer 1. Although officer 1 said they would investigate the noise jointly with the EP team, there is no evidence of any further action being taken. The Council failed to check if the situation had been resolved and failed to tell Mr X it had closed its file. It also delayed in returning Mr X’s USB stick, despite multiple requests for it. Overall, the Council failed to properly respond to or investigate Mr X’s 2021 noise complaint, which was fault.
42. This meant the Council did not establish whether the noise amounted to a statutory nuisance, nor whether the pub was in breach of any of the conditions on its licence. It is unclear whether the Council would have been able to take any formal action if it had investigated further, so Mr X is left with uncertainty about whether the outcome would have been different but for the fault.

2022 noise complaint

43. Mr X raised further concerns about noise in June 2022. He submitted a noise diary and the Council installed noise monitoring equipment at his home. Officer 2 considered the recordings, but their professional view was that the noise was not sufficient to amount to a statutory nuisance. There was no fault in the actions up to this point.

44. In early August, the case was transferred to the licensing team. Officer 3 did not carry out a site visit until October 2022, which was after the summer season had ended, and did not update Mr X after the visit, as agreed. There is no record the Council considered whether there was a breach of the licence conditions, and it was not until early January that it identified there were two licences. On balance, the Council failed to pursue the matter in any substantive way from August 2022 onwards, which was fault. Given this, Mr X is left with uncertainty about whether formal action could have been taken in 2022, which is an injustice to him.

Complaints handling

45. Mr X complained in early September 2022, and the Council said it would respond within 10 days. It did not do so. It had a further opportunity to respond after we became involved in December 2022. Although Officer 4 discussed the matter by telephone in January 2023, the Council did not send a written response. Therefore, I find fault with the complaints handling. This meant Mr X was put to avoidable time and trouble to pursue his complaint.

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Agreed action

46. Within one month of the date of the final decision, the Council will:
• send Mr X a written apology for frustration and uncertainty he felt due to the poor service he received in 2021, the failure to properly progress the noise complaint from August to December 2022 or update him about it, and for the time and trouble he had to go to due to the flaws in its complaints handling;
• pay Mr X £200 for the uncertainty and frustration caused and the time and trouble he was put to pursuing the Council for a response to his complaint;
• remind staff in its EP and licencing teams of the importance of keeping service users updated about the action being taken, checking whether the situation has been resolved before closing a case, and confirming in writing when cases are closed;
• ensures, by means of a change to its processes if needed, that its complaints team checks that a stage 1 complaint response has been sent, particularly where more than one service area is involved.
47. The Council will provide us with evidence it has complied with the above actions.

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Final decision

48. I have completed my investigation. I have found fault causing personal injustice. I have recommended action to remedy the injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman