Bristol City Council (18 002 590)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 25 Oct 2018

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s response to her reports of noise nuisance and says they were not acknowledged or resolved until after she made a formal complaint. We found there was fault by the Council, as the investigating officer did not contact Mrs X to update her on his investigation and did not offer her access to its Noise App sooner. This put Mrs X to the time and trouble of having to complain and left her to live with the nuisance for longer than she might otherwise have done. The Ombudsman recommended the Council should remedy this by apologising to Mrs X, paying her a financial remedy and revising its policy to prevent this happening in future. It agreed to do so.

The complaint

  1. Mrs X complains that despite her telling the Council about a noise nuisance on seven different occasions in 2017 and 2018, she did not receive any response or resolution until she made a formal complaint in May 2018.

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The Ombudsman’s role and powers

  1. 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)
  2. If we are satisfied with a council’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

  1. I spoke with Mrs X and considered what she had to say. I wrote to the Council to ask for information about the complaint and reviewed the material it sent in response.
  2. I have taken into account the legal requirement for the Council to investigate reports of a statutory nuisance as explained in the Environmental Protection Act 1990. I have also seen guidance provided by the government which can be found online at https://www.gov.uk/guidance/noise-nuisances-how-councils-deal-with-complaints
  3. I have also read the Council’s ‘Noise and Nuisance Procedure’ document in which it explains how its officers should act.
  4. I shared a copy of my draft decision with Mrs X and the Council and I invited them to comment on it.

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What I found

  1. Local authorities have a duty under Section 79 of the Environmental Protection Act 1990 to investigate reports of statutory nuisances. This includes complaints about noise. Complaints are typically investigated by trained environmental health officers, who should consider all the evidence available and then decide whether a statutory nuisance is being caused.
  2. If the officer decides the noise is causing a statutory nuisance, they must issue an abatement notice requiring the person responsible for the noise to stop. If the perpetrator fails to do so, the council can bring court proceedings for breaching the notice.
  3. Mrs X says she was suffering from noise nuisance caused by her neighbours’ dogs barking at unsocial hours for several months. In August 2017, someone from Mrs X’s address complained to the Council. It sent diary sheets to fill out to show when the nuisance was happening and waited for these to be returned. Mrs X says she completed them and sent them back but the Council’s record shows it did not receive them. After six weeks, it closed her complaint file without taking any further action.
  4. Mrs X says she continued to send in diary sheets in both January and February but without any acknowledgement from the Council. She says she had no contact at all from it until, in May 2018, she made a formal complaint about its lack of action. The Council’s own policy says ‘appropriate contact’ should be made with both the person reporting the nusiance and the alleged perpetrator. It suggests an initial letter should be sent to both parties and then ‘follow up contact if necessary’.
  5. The Council’s records show it opened a second noise nuisance complaint investigation in late March 2018, once it received the completed diary sheets Mrs X had sent in. The case notes show the case was allocated to an investigating officer on 4 April and he immediately made enquiries to identify Mrs X’s neighbour. The officer tried to call Mrs X the same day but the note says there was no reply. Further diary sheets were received from her and, on 16 April, the result of the checks identified the neighbour.
  6. The case notes show the investigator then sent a ‘first warning letter’ to Mrs X’s neighbour. The neighbour contacted the Council within a few days and the officer spoke with them to give advice. On 3 May, Mrs X sent a further email to the Council and followed this up with a call the next day to say the barking was still happening. The investigator carried out a site visit on 9 May but his case note says, “unable to visit complainant as speaking with neighbour when she arrived home.”
  7. Mrs X sent in further diary sheets. On 18 May, while the investigator was on leave, a colleague emailed Mrs X with an invitation to use the Council’s ‘noise app’ to make recordings of the dogs barking. This is a mobile phone application which can be used by complainants to record evidence. Mrs X says she already had recordings on her laptop but she agreed to use the app. Meanwhile, her neighbour wrote to the investigator to provide more information about her own circumstances.
  8. On 5 June, the investigator’s log says he spoke with Mrs X’s husband during a site visit. He also visited Mrs X’s neighbour. As Mrs X had complained in May, the Council looked into her concerns and wrote to her on 8 June with its findings. Mrs X had alleged the investigator knew her neighbour, as that is what her neighbour had told her. Although the Council found no evidence to support that allegation, it agreed to re-assign the case.
  9. Mrs X provided the Council with several Noise App recordings after 8 June. On 14 June, the new investigating officer listened to them and agreed that they were evidence of a statutory nuisance. An abatement notice was served on Mrs X’s neighbour the following day. The new investigator also emailed Mrs X. The email started by saying, “I am your new case officer dealing with your complaint. Sorry for the lack of contact.”
  10. Mrs X says since the new investigator was appointed things have been much better and she is happy with how the investigation has been conducted.

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Analysis

  1. I will deal with the events in this case in the order in which they happened.
  2. From Mrs X’s perspective, she had to make several complaints to the Council between August 2017 and May 2018 before it at last started to take her concerns seriously.
  3. The Council has shown me the case record for the August 2017 complaint. This has two main entries – one dated 5 September which says ‘Noise or Nuisance diary sent’ and the other, exactly six weeks later, which says ‘diary not returned letter’. The case was closed. Although I have no reason to doubt Mrs X’s account that she posted the completed diary sheets to the Council, the evidence of the case notes persuades me they were never received. I cannot say that was the fault of the Council as responsibility for the delivery of post lies elsewhere. There is no proof the diary sheets ever reached the Council’s offices.
  4. The second investigation was opened by the Council in late March 2018. Mrs X says she sent in more diary sheets in January and February. The allocated officer identified Mrs X’s neighbour in just over two weeks and sent a warning letter. The case notes evidence later contact between the neighbour and the officer, as they discussed the complaint. However, other than one attempted call and one site visit where it was not possible to see Mrs X, there is no other evidence to suggest he ever spoke with her. Even when Mrs X provided more information the case notes do not record any attempts by the investigator to contact her.
  5. The invitation to Mrs X to use the Noise App was only made by another officer when the original case officer was on leave. I asked the Council about its policy on providing access to the app to complainants. It said this happened, “after initial contact has been made with each party to establish if the matter can be resolved informally”. Its written policy does not mention the Noise App, as it pre-dates its use by the Council. However, it does say ‘evidence gathering’ will not begin until both parties have been contacted.
  6. The lack of contact with Mrs X caused her to make another noise nuisance report. She also continued to send in diary sheets and eventually she felt she had to make a formal complaint. I am satisfied the lack of contact from the Council to Mrs X once it had opened its investigation in March 2018 was fault. I asked the Council to show me correspondence between the investigator and Mrs X and it referred me to the case notes. These show only one attempt of any note was made - a missed phone call. Also, the fact the newly assigned case officer felt it necessary to apologise for the lack of previous contact only supports my view.
  7. I accept the investigation did advance to some extent without any contact with Mrs X. However, it is not clear why the Noise App was not offered to her sooner than it was. I believe it could have been offered in April 2018. Mrs X was sending diary sheets during this time and was able to provide enough evidence to support an abatement notice within only one week of using the app in June. This leads me to believe, on the balance of probabilities, an abatement notice could have been served sooner in this case if the app had been offered earlier. I conclude the first investigator did not do what was reasonably practicable to investigate the nuisance, as the law requires. This was fault.
  8. Having found fault, I have to consider the injustice caused to Mrs X as a result. She has told me about the effect the noise from her neighbour’s dogs had on her and her family. She works shifts and has young children and their sleep was often affected because the noise would happen late at night or early in the morning. Although the Council was clearly not responsible for causing the noise, my finding that it could have contributed to stopping it sooner means this forms part of the injustice. Mrs X was also put to the time and trouble of having to complain to the Council due to the lack of contact she received.

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Agreed action

  1. The Ombudsman recommended how the Council could remedy the injustice identified in this investigation. It has agreed with my recommendations.
  2. By 25 November 2018, the Council has agreed to:
    • Write to Mrs X to apologise for not keeping a reasonable level of contact with her during its investigation of her noise nuisance complaint and for not offering her the Noise App sooner.
    • Pay Mrs X £250 in recognition of the time and trouble in having to make her complaint and for having to live with the noise nuisance for longer than was necessary.
    • Remind all its officers involved in investigating statutory nuisances about the need to establish and keep reasonable contact with complainants as part of their investigations.
  3. By 1 February 2019, the Council has agreed to:
    • Agree the circumstances in which the Noise App should be offered to complainants and write these into its policy accordingly.
  4. The Council should write to the Ombudsman to confirm when each of these actions is completed.

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Final decision

There was fault by the Council as the investigating officer did not contact Mrs X to update her on his investigation and did not offer her access to its Noise App sooner. This put Mrs X to the time and trouble of having to complain and left her to live with the nuisance for longer than she might otherwise have done.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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