Summary: Mr X complains the Council failed to deal with a noise complaint referred it about a nearby property. He also says the Council failed to respond to his complaint. Mr X says this has caused him distress. We have found fault in the Councils actions for delaying on acting on the report of noise and for failing to deal with the complaint. We recommend the Council issues an apology, makes a a financial payment to Mr X and implements a service improvement.

The complaint

1. Mr X complains the Council failed to deal with a noise complaint about a nearby property. He also says the Council failed to respond to his complaint.
2. Mr X says this has caused him inconvenience and distress.

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The Ombudsman’s role and powers

3. 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
5. 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)
6. 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

7. I have reviewed the information sent by Mr X and have discussed the complaint with him.
8. I have read and reviewed the information provided by the Council.
9. Both Mr X and the Council have provided comments on the draft decision. The comments have been reviewed before a final decision was issued.

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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’. Typical things which may be a statutory nuisance include:

• Noise emitted from premises.

11. 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.

12. 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.
13. 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.
14. 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.
15. 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 of the EPA.
16. The Councils ‘Noise Nuisance Cases – Licensed Premises’ policy states when a report is received the Council should send an acknowledgement to the person who reported it. It should also send an education letter to the premises highlighting any relevant conditions and licensing objectives. The policy says the premises should also be visited to reiterate the points made in the letter.

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What happened

17. Mr X reported a noise issue to the Council in late August 2022 coming from a business premises. The business premises is in a neighbouring borough to Mr X but is reasonably close by. Mr X had to use his previous address to report the noise issue as the Council’s website does not allow reports made from outside it’s area.
18. Mr X did not receive a response to his noise complaint until the end of September 2022. Mr X asked the Council why it took so long to receive a reply and the Council responded to say they were approaching his complaint from a licensing perspective as the premises was a business.
19. Mr X emailed the Council twice more in October 2022. The Council responded at the end of October and asked Mr X if he was still experiencing a problem.
20. Mr X said the noise had improved but that it often did in the winter months.
21. The Council told Mr X they would send officers to the premises on a Friday in December 2022 after he raised a further issue, but Mr X said the issues were mainly on a Saturday and were not as bad at that time.
22. Mr X reported a further noise issue in May 2023. The Council responded to Mr X to query the location of the noise a few days later and Mr X responded to confirm it was the same premises as his last reports.
23. The Council sent a letter to the premises at the end of May 2022 and visited in early June 2022.
24. Mr X raised a complaint with the Council on 13 June 2023.
25. The Council called Mr X towards the end of June to discuss the issues he was having. Mr X explained he was unhappy that he was not able to raise a complaint via the Council’s website and that he was still experiencing a noise disturbance from the premises.
26. The Council emailed Mr X in mid-July 2023 to say it was investigating the issues he had raised with it and again at the end of July to say it was still investigating the noise levels. The Council asked Mr X if it could visit his property as part of its investigations.
27. The Council visited the area several times between around 8 and 10pm on in late July and recorded no loud music. The Council’s notes also recorded its officers visited the general area where Mr X’s complaint originated from, and nothing could be heard. The Council completed a further visit the following week.
28. The Council visited the premises and discussed ordering a noise limiter with the business and also confirmed with staff to close the garden area by 11.30pm.
29. The premises confirmed with the Council in late August it had received and installed the limiter and asked if it could work with the Council and residents to set a level which is reasonable to all.
30. The Council emailed Mr X to ask for some dates and times which would be convenient to visit to assess the level set. I have not seen that times were received to allow the Council to arrange a visit.
31. The Council has said it addressed Mr X’s issue as a service issue rather than a complaint. It is clear from Mr X’s correspondence that he is unhappy with how the noise issue has been dealt with and this correspondence should have been a clear complaint. I understand the Ombudsman contacted the Council about the complaint raised and following this Mr X still did not receive a response to his complaint.

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Analysis

32. The issues reported by Mr X date back to August 2022 which is slightly over 12 months ago. However, I have exercised discretion to look at the whole of the issue as it is all related to the complaint raised and Mr X had some difficulty gaining a response from the Council when he raised his complaint. This delayed him being able to bring the issues to us.
33. The Council delayed in responding to Mr X’s initial noise report in August 2022. The Council have not been able to explain why the delay occurred. This is fault and would have caused Mr X distress and uncertainty about what, if any, action was being taken.
34. It is not clear what action the Council took in relation to the August 2022 report before Mr X said the situation had improved in late October 2022. During this period Mr X continued to contact the Council for updates as to what actions it was taking. This again would have caused Mr X distress and inconvenience.
35. When Mr X raised the issue again in May 2023, the Council responded quickly and took reasonable action to investigate and address the noise.
36. However, I cannot see the Council responded to Mr X’s complaint raised in June 2023. This is fault and would have been frustrating to Mr X.
37. Mr X has told the Council on several occasions that he could not raise concerns about the noise from the business premises as he lived in a different Borough. The Council has told us it is investigating why this happened and whilst I am satisfied the Council has taken steps to address the issue, it should provide a further update to us to show how it can be avoided in future.

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Agreed action

38. Within one month of a final decision the Council should:

• Write to Mr X to apologise for the faults identified.
• Pay Mr X £150 to recognise the distress and uncertainty caused in the delay in responding to his noise report in 2022 and the uncertainty around what action was being taken.
• Pay Mr X £100 to recognise the time and trouble caused in not responding to his complaint.
• Provide an update into the investigation for non-residents to report noise complaints. This should include any further actions the Council is taking.
• In writing, remind staff of the importance of logging and responding to complaints made by residents.

39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have found fault in the Council’s actions for delaying on acting on the report of noise and for failing to deal with the complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman