Summary: We will not investigate this complaint about the Council’s investigation into the complainant’s reports of noise nuisance by a neighbour. There is insufficient evidence of fault in the way the Council has reached its conclusion on the case, and we could not achieve a different or worthwhile outcome for the complainant.

The complaint

1. Mr X complains about the way the Council has handled his reports of noise nuisance coming from a neighbouring property.
2. Mr X also complains about the Council’s response to his freedom of information request for copies of its case notes.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We also cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. The Information Commissioner's Office (ICO) considers complaints about freedom of information (FoI). Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So, where we receive complaints about FoI, we normally consider it reasonable to expect the person to refer the matter to the ICO.

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How I considered this complaint

7. I considered:
• information provided by Mr X and the Council, which included their complaint correspondence.
• the Council’s Local Enforcement Plan.
• the Ombudsman’s Assessment Code.

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My assessment

8. I appreciate Mr X is very unhappy the Council has concluded the noise from the neighbouring property does not amount to a statutory nuisance, and he thinks the investigation should have been conducted differently.
9. But the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. And our role is not to ask whether an organisation could have done things better/differently, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there is insufficient evidence of fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
10. I consider there is insufficient evidence of fault in the way the Council has reached its decision that the noise does not amount to a statutory nuisance, so we will not start an investigation. In reaching this view, I am mindful the Council has:
• considered the incident diary sheets Mr X submitted.
• visited the neighbouring property to try to ascertain what may have caused the noise Mr X was hearing.
• installed noise monitoring equipment at Mr X’s home, and the results have been reviewed by four different environmental health officers. The Council was entitled to reach its own professional judgement on the recordings, even if Mr X believes the equipment is unsuitable for recording the type of noise he is experiencing.
• considered a statement from a tradesperson who had visited both properties at Mr X’s request.
• explained to Mr X why the noise he reports is not deemed to amount to a statutory nuisance, and highlighted that he may take his own action under the provisions of section 82 of the Environmental Protection Act.
• advised Mr X that if he believes the neighbour’s actions amount to harassment, then this could be considered under the anti-social behaviour provisions. It is open to Mr X to contact the Council’s Community Safety Team in that regard, or the Police if he has serious concerns about the neighbour’s intent.
11. And with reference to paragraphs 5 and 6 above, I see no good reasons why Mr X should not be expected to refer the matter to the ICO if he remains concerned about the Council’s response to his FoI request.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence of fault in the way the Council has reached its conclusion on the case, and we are unlikely to achieve a different or worthwhile outcome for him. It is also reasonable to expect Mr X to contact the ICO with any concerns about the Council’s response to his FoI request.

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Investigator's decision on behalf of the Ombudsman