Summary: We will not investigate Miss X’s complaint about how the Council investigated her complaint about noise from a nearby business premises. There is not enough evidence of Council fault to warrant us investigating. Further investigation of an officer’s behaviour during a visit would not lead to a different outcome.

The complaint

1. Miss X lives near a business premise with air conditioning units. She complains the Council:
1. failed to assess the noise from the units during late evening and night when it is most intrusive;
2. relied on subjective officer hearing instead of objective analysis;
3. gave contradictory advice about how many sound recordings she should make using the noise monitoring equipment;
4. did not clarify whether the noise recorder could capture the frequency and tone of the noise she was experiencing;
5. failed to consider her autism or make reasonable adjustments for her increased sensory sensitivity;
6. ignored that the premises with the units had acknowledged the noise issue and had discussed possible work to reduce the noise;
7. sent an officer to visit who was dismissive of her concerns.

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The Ombudsman’s role and powers

2. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:
• there is not enough evidence of fault to justify investigating; and
• further investigation would not lead to a different outcome.

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

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How I considered this complaint

4. I considered information from Miss X, relevant online maps, and the Ombudsman’s Assessment Code.

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My assessment

5. We are not an appeal body. We may only criticise a council decision where there is evidence of fault in the decision-making process and but for that fault a different decision would have been made. So we consider the process they have followed to make their decision. We cannot replace a decision with our own or someone else’s opinion if the decision was reached after following proper process.
6. Councils with environmental health responsibilities have a duty to investigate noise complaints under the Environmental Protection Act 1990 (the EPA). They may ask a complainant to submit a noise diary to allow officers to assess the type, level and timing of noise. Officers then decide whether further information is needed. They may use their powers to enforce against someone making a noise if they decide it amounts to a statutory noise nuisance which can be proved in court. It is for officers to use their professional judgement to decide whether there is a statutory noise nuisance. Councils’ enforcement powers are discretionary so there is no duty on them to use them in all cases.
7. Ms X considers the Council did not investigate properly. In response to Miss X’s concerns, the Council asked her to complete a noise diary sheet which she then sent her diary to the Council. An officer visited the business premises and another organised to install noise monitoring equipment at Miss X’s property for a week. Officers visited Miss X’s property twice, assessed her diary sheets and analysed the noise monitoring results.
8. We note Miss X considers officers failed to assess the noise from the units when it is most intrusive to her, during late evening and night. But the Council installed noise monitoring equipment for Miss X to record night noise. We note Miss X says because of the guidance officers gave, she did not make many sound recordings with the noise monitoring equipment. But Miss X had told officers the noise was the same at all times. Therefore, the number of recordings at night would not have altered their decision the recorded noise was not a statutory nuisance.
9. Miss X considers it was fault for the Council to rely on subjective officer hearing instead of objective analysis of the noise. But it is for officers to apply their professional judgement to determine if a noise could be a statutory nuisance. The officers’ visits was only one of the kinds of evidence they used, along with Miss X’s diary sheets and the sound recordings, to make their decision.
10. Miss X says the Council did not clarify whether the noise recorder could capture the frequency and tone of the noise she was experiencing. The officers’ emailed replies showed the frequencies the recorder had captured in graph form and explained the findings. None of the frequencies reported by Miss X featured prominently on the graphs. There is no evidence the Council’s machine was unable to accurately record noise in residential properties.
11. Miss X says the Council did not take account of her autism when dealing with the matter. There are two aspects to this:
1. if the Council took account of how autism affects Miss X’s perception of noise when making their noise nuisance decision, and
2. if officers made reasonable adjustments when providing their noise service.
12. Regarding a), the Council has explained that there is no part of the law they can apply which allows them to give a different statutory nuisance decision because the person witnessing the noise has autism or other neurodivergence. The EPA does not empower officers to decide a noise is a statutory nuisance based on the affected person having heightened sensitivities to it. So the Council could not use Miss X’s autism as a reason to alter its statutory noise nuisance decision and take it into account in the way she wanted.
13. Regarding b), different people with autism have different communication needs. There is no set reasonable adjustment for every person with autism. From the emails and letters between Miss X and the Council Miss X provided, she does not ask the Council to communicate with her in any specific way, to help her use its noise services. The correspondence does not show any misunderstandings occurred while the Council sought diary sheets or arranged visits and noise monitoring. While Miss X made no specific reasonable adjustment request, the Council proactively corresponded with Miss X in a clear way and was consistent in its explanations of its investigation and decision.
14. Officers determined the evidence they received and gathered did not show a noise which amounted to a statutory noise nuisance giving them grounds to use their discretionary enforcement powers. Officers collected and considered appropriate evidence and applied the relevant law to reach their decision, a professional judgement they were entitled to make. There is not enough evidence of fault in the Council’s decision‑making process here, nor in how they provided their noise service, to justify us investigating. We recognise Miss X disagrees with the Council's noise nuisance decision. But it is not fault for a council to properly make a decision with which someone disagrees.
15. We note Miss X says the Council ignored that the business had acknowledged the noise issue and had discussed possible work to reduce it. Once a council determines a business is not causing a statutory nuisance, its officers do not have grounds to continue action, including advising business owners to do works to equipment. Miss X may wish to ask the owners if they are willing to do noise reduction work. She may also decide to take her own formal action against the business under section 82 of the EPA in a magistrates’ court if she does not consider the noise matter to be resolved.
16. Miss X says one of the Council’s officers was dismissive of her concerns during a visit and the Council did not properly investigate. Officers spoke to the staff involved to remind the visiting officer of the standards expected when engaging with complainants. The Council apologised to Miss X for any offence the officer may have caused. The apology and the reminder to the officer would be the outcome we would have sought for this issue if we had investigated. Investigation of this issue would not lead to a different outcome so we will not do so.

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Final decision

17. We will not investigate Miss X’s complaint because:
• there is not enough evidence of Council fault to warrant us investigating; and
• further investigation of the officer’s behaviour at a visit would not lead to a different outcome.

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Investigator's decision on behalf of the Ombudsman