Summary: There was fault by the Council. It did not properly engage with its powers to tackle antisocial behaviour. It did not have proper regard of its duties under the Equality Act 2010. The Council properly investigated whether the noise Miss B was suffering from her neighbour was a noise nuisance. Miss B was caused distress and uncertainty. The Council did not always deal with the complaints made properly and this caused her representative time and trouble. I have recommended a remedy to take account of the impact on Miss B and her representative.

The complaint

1. Ms K complains on behalf of Miss B about how the Council dealt with her reports of noise nuisance and antisocial behaviour (ASB) from her neighbour. In particular, she says the Council failed to:
• Investigate and take appropriate action on her reports of ASB (including intimidation) and noise nuisance;
• Deal with her request for an ASB review (also known as a Community Trigger review) properly;
• Address her complaints about the conduct of officers at a meeting she had with them;
• Deal with her complaints properly, instead categorising a number of her complaints as expressions of dissatisfaction, service requests, or informal complaints; and
• Failed to consider Miss B’s reasonable adjustments or her complaints about disability discrimination.
2. Miss B says as a result of this she has been distressed. She became scared of her neighbour and so had to move to another property.
3. Ms K also complains that the Council failed to deal with complaints about her Freedom of Information request properly. This caused her frustration and put her to more time and trouble.

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What I have and have not investigated

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Ms K has taken this matter to the Information Commissioner and so I have not investigated this.

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The Ombudsman’s role and powers

5. 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 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 considered the information provided by Ms K and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments of both parties before issuing this final decision.

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What I found

The law and guidance

The Equality Act, reasonable adjustments and discrimination

8. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
9. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. Disability is one of the protected characteristics. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
10. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
11. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
12. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
13. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
14. The Ombudsman published a focus report ‘Equal access: getting it right for people with disabilities’. The Ombudsman considers it good practice for local authorities to ask whether they need to make changes to the way they communicate. This can help the authority meet its anticipator duty to make reasonable adjustments. Where an authority is aware of a disability it should anticipate their needs and make any necessary reasonable adjustments. It should not wait for the person to tell them the adjustments they require.

Antisocial behaviour

15. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
16. The Anti-social Behaviour, Crime and Policing Act 2014 introduced six new powers for agencies involved in tackling ASB. These include the power to issue a community protection notices (CPN). The CPN requires the behaviour to stop and, where appropriate, require the recipient to take reasonable steps to ensure it is not repeated. Failure to comply is an offence, and may result in a fine or a fixed penalty notice. Councils must issue a written warning in advance of the CPN.
17. A council may issue a CPN while it is investigating whether the behaviour is a statutory nuisance.
18. The 2014 Act introduced a mechanism to review the handling of complaints of ASB. This is commonly known as the ‘Community Trigger’ process. When a person requests a review, relevant bodies (which may include the council, police and others) should decide whether the local threshold has been met.
19. If the threshold has been met, the relevant bodies should undertake the review. They should share information, consider what action has already been taken, decide whether more should be done, and then inform the complainant of the outcome. If they decide to take more action, they should create an action plan. It is for relevant local bodies to agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.
20. We can only consider councils’ actions in an ASB case review. Any contribution made by other relevant bodies, such as the police, is not in our jurisdiction.

Statutory Noise Nuisance

21. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. This includes noise nuisance.
22. 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.
23. 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.
24. 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.

The Council’s complaints policy

25. The Council’s policy says that a complaint is an expression of dissatisfaction about something the Council has done or failed to do. The Council’s procedure has an initial stage by which it will try to discuss the matter with the complainant and try to resolve it quickly. If this does not work or is not appropriate, the Council will register it as a formal complaint. The formal complaints procedure has two stages and then if the person remains dissatisfied, the Council will signpost the person to the Ombudsman.
26. The Council’s policy also makes the distinction between complaints and service request. A service request is where the person has contacted to ask the Council to do something, for example a report of fly-tipping.

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What happened

27. This is a summary of events and is not a detailed account of everything that happened.
28. Miss B moved into her housing association flat at the beginning of December. Her neighbour has many pet animals including dogs. Miss B says her neighbour has harassed her by causing noise with loud music, drumming, and banging on the shared wall. As well as letting her dogs bark.
29. Miss B made numerous reports of the problems to the Council starting in June 2022. Miss B is autistic, and she told the Council she could not manage the online form. The Council told Miss B to complete log sheets instead and then it would decide how to proceed. The Council told Miss B that it will investigate whether it is noise nuisance but that she should report ASB to the Police. The Council liaised with the Police and the Housing Association. The case was discussed at the North Norfolk operational partnership (the Partnership) which coordinates responses to ASB.
30. In August, the Council installed noise recording equipment. Miss B says the equipment broke and the Council came to reset it. The Council’s files show that the Council listened to these recordings, and its initial view was that the noise was unlikely to be a statutory nuisance. Miss B told the Council she had lots of recordings she had made on her phone. The Council visited the estate with the housing association and was approached by 15 neighbours angry at Miss B’s neighbour and at the authorities for allowing the ASB to continue. The Council again says that it does not deal with ASB and will only look at whether the noise is a statutory nuisance.
31. Miss B continued to complain to both the Council and the Police about the problems she was having. In September, the Council installed the noise recording equipment again. Miss B told the Council that the Police had told her this was a matter for the Council. The Council’s files say that it was considering issuing the neighbour with a community protection warning. The Council’s files show that it was in contact with the neighbour, the police, and the housing association.
32. In October, the Partnership met. The Police, housing association and the Council said they are considering further action. However, the agencies also note that Miss B’s neighbour was vulnerable too. Ms K acting on Miss B’s behalf, requested an ASB review. She did this via the County Council’s website and received a reference number.
33. In November, the Council visited Miss B at home and helped her to upload a selection of the 900 recordings she had made of the noise next door. the Council told the police that it was unlikely the noise was statutory nuisance. It said it had considered issuing the neighbour a warning that it would issue a CPN. However, it had decided that it would be more appropriate for the housing association to take action as landlord.
34. The Council continued to be in contact with Miss B. The Council did not share this with Miss B and did not say why it would not take further action towards a CPN. It told Miss B that the noises recorded sounded like daily living noise and perhaps there was poor sound insulation. It wanted to visit to investigate this further. Miss B made clear to the Council that the noise and ASB was having a serious effect on her, making her suicidal and distressed. The Council again told Miss B that the Police deals with ASB and it does not.
35. In December, the Council visited Miss B. Ms K also attended in support. The Council’s plan was to play music and make other noise in the neighbour’s flat with the other officer witnessing this in Miss B’s flat. Miss B told the Council that she was very nervous that the neighbour would then know she had made complaints. She was scared of reprisals. The Council explained that it would tell the neighbour that it was visiting other residents to investigate poor sound insulation.
36. The Council played music at the top volume at the neighbour’s house. It also played the drums. It told Miss B that although her autism might make her more sensitive to noise, it could not take that into account when it decides if the noise is a statutory nuisance. The Council decided that it did not have evidence of a statutory nuisance and it wrote to Miss B to tell her the case was closed. It told her she could complain if she did not agree.
37. Miss B told the Police and the Council that the neighbour was intimidating her, creeping around her house, shouting at her in the street, and banging on the connecting wall late at night. The Police attended the property and found Miss B very distressed. Her representative describes this as a complete mental health crisis.
38. Miss B and Ms K continued to complain about noise, but the Council said that it had investigated this and referred her to the housing association. It said it could not give Miss B any evidence in support of a move because her distress was due to her autism, and it was unable to take this into account when assessing statutory nuisance. Miss B moved house and Ms K complained to the Ombudsman on her behalf.

The Council’s investigation of ASB and noise nuisance

39. Miss B reported dogs barking, loud music, excessive noise from drumming and banging on the wall. The reports showed this happened most days, and was really impacting on Miss B’s life. The Council’s actions focussed on whether these problems were a statutory noise nuisance. Ultimately it concluded there was no statutory noise nuisance.
40. There was no fault in how the Council conducted its noise nuisance investigation and how it reached its decision not to take formal action. Miss B may disagree with the Council’s decision, but as there is no fault in its investigation, I have no basis to criticise its decision.
41. The Council considered all the information available to it. It twice installed noise monitoring equipment, it listened to a sample of Miss B’s own recordings, and it visited to carry out a test of what could be heard in Miss B’s flat when officers played music and drums in the neighbour’s flat.
42. Miss B and Ms K has criticised the Council’s investigation. They say the equipment did not work, the Council did not listen to all of Miss B’s recordings, and the music and drumming were not as loud on the day the officers visited to test this. However, the equipment did make recordings. On the second visit the Council left the reset switch uncovered which might have called the results into question if presented as evidence, but it would not affect the actual recordings. The Council did take from July to October or November to listen to Miss B’s own recordings, but it was actively working on the noise investigation in the meantime. The Council would not need to listen to all the recordings, these are helpful but could only be used as an indication for further investigation.
43. When the Council visited it played the music and drums as loudly as possible. This is a reasonable approach. Miss B has suggested that her neighbour had different equipment on that day. One of the officers had heard loud drumming on a different visit and confirmed he could hear it from the street. However, the Council can only reach a conclusion on the evidence it can collect. It considered all the information it had and weighed this up before deciding the noise was not a statutory nuisance.
44. There was fault in how the Council dealt with Miss B’s reports in terms of ASB. This is not the same as a statutory noise nuisance and different law applies. The Council has sent me its ASB policy, but it is out of date, referring to laws and powers that were superseded by the 2014 Act. The policy is no longer relevant.
45. In this case, the Police took the lead in investigating the Miss B’s reports. This may have been appropriate particularly if there was a threat of harm, intimidation, or a criminal offence. However, this does not mean that the Council has no role in dealing with the ASB and it was not correct to tell Miss B that it does not deal with ASB. ASB often falls short of criminal behaviour. A criminal offence needs a higher burden of proof. I would expect the Council to keep under review its own powers, particularly when it became clear that the Police did not intend to take further action.
46. The Council did consider a CPW, and so I can see there was some consideration off its powers under ASB law (as opposed to statutory nuisance). However, based on the information I have so far, it has not shown how it considered its ASB powers or why it decided not to issue a CPW.
47. The Council’s failure to properly engage with its ASB powers meant that it did not always give Miss B or Ms K accurate information. For example, it told them that it could not give supporting information to Miss B’s housing association for a move, because it could not take her autism into account when assessing the noise. This is correct under statutory nuisance law, but for ASB, the Council could take Miss B’s autism into account.
48. Overall, the Council was not clear about its role in responding to Miss B’s ASB reports, and how this sits with the Police powers and the work being done by the Partnership. I would expect it to review its role once the Police decided it would not take further action.
49. I cannot say whether the Council would have used any of its formal powers. I recognise that other residents had also made complaints, but also that Miss B neighbour was also vulnerable with disabled children. I also recognise that the Police and Housing Association were considering the ASB. However, the Council missed the opportunity to explore what more it could do, and this is likely to cause Miss B uncertainty and distress.

The ASB review (also known as the community trigger)

50. Ms K requested the ASB review in October 2022 via the County Council website. There is no complaint against the County Council, and I have not investigated its actions. The request was not actioned, and Ms K chased this with the district council. The Council’s emails show it chased the request and offered for Ms K to submit it to it direct.
51. The Council was wrong to tell Miss B and Ms K that an ASB review could not happen while there was an active investigation. I acknowledge, that it was repeating the incorrect information on the County Council’s website. However, the District Council should have been aware that this was not the case. Again, this is the Council not fully engaging with its ASB role. The Council and Partnership have now reviewed its entire ASB review process with specialist advice and made substantial changes. The incorrect advice has been removed from the ASB review website pages.

Miss B’s complaint about the officers’ visit in December

52. Ms K made this complaint on Miss B’s behalf. Ms K had problems with the Council’s complaint handling, and I have set out my view of this below. Ms K made a complaint about the officers’ visit on 14 December with further clarification on 17 December. Ms K set out 30 heads of complaint about this meeting. The Council responded but Ms K asked it to escalate the complaint to stage two of its process because she considered it did not address all of her complaints.
53. As I understand it the Council responded on 1 December and also on 1 February confirming that its earlier response had been comprehensive.
54. I have looked at the accounts of the meeting and the complaints correspondence. The Council does not have to address every issue and can focus on the substantial issues. However, if it decides to do this it should make this clear. On balance, while its response does not address everything, it does deal with many of the main issues.
55. However, the Council did not address Miss B’s complaint that it had not protected her anonymity and that she feared reprisals from the neighbour. The Council said it had told the neighbour that it was calling at several residents to test sound insulation. A transcript of the meeting shows that Miss B was very nervous about this and feared reprisals. The officers did not visit any other residents while there and Miss B was worried that this would be obvious. The Council cannot show how it took this into account and this is fault.
56. I note that the Council did attempt to preserve Miss B’s anonymity when it installed the recording equipment. The officer wore plain clothes, parked away from her flat and carried the equipment in supermarket shopping bags.
57. However, had the Council completed a risk of assessment (which could be formal or any assessment that acknowledges the risk), the Council and Miss B could have reached a well-considered decision about whether to go ahead when it was raised at the visit in December.
58. Ms K says the visit did result in reprisals. She reported that the neighbour deliberately banged on the walls late at night, and shouted at Miss B in the street. Ms K says the Police attended and were concerned that Miss B was suicidal and would hurt herself.

The complaint handling

59. The complaints correspondence is difficult to follow. I have set out my understanding below.
60. Ms K made complaints on behalf of Miss B. Ms K made the first complaint about the Council’s response to Miss B’s reports of ASB and noise nuisance in November. Ms K also complained that the Council was discriminating against Miss B on the basis of her disability. The following day she added that the Council was wrong to describe the excessive noise as daily living noises. When she received no response, Ms K asked the Council to consider this complaint at stage two of the process.
61. The Council responded but only addressed her complaint about daily living noises and not the complaint about the Council’s main response to the problems. And so again, Ms K asked the Council to escalate this to stage two. The Council emailed Ms K to acknowledge that this was a stage two complaint. However, it failed to complete that and did not address Ms K’s complaint about its response to her ASB and noise nuisance until she complained again much later.
62. In December, Ms K complained about the officers’ visit (which I have dealt with above), and separately that the Council has not handled her complaints in accordance with its policy.
63. The Council explained that a report of ASB or noise is a service request, and a complaint about how the Council responded to that report is a complaint. It had dealt with her complaints made in November at its informal stage and tried to resolve it without using the formal complaints process. It also said it had been wrong to tell her that it was investigating her complaint at stage two of the process, and the officer had received refresher training. It offered to consider her complaint about the Council’s response to ASB at stage one of its process now.
64. Ms K asked the Council to consider her complaint about complaint handling at stage two of its process. She said it was clear that she was making formal complaints and the Council was not adhering to its policy.
65. In December Ms K also complained about the Council’s decision that there was no statutory noise nuisance, and that there were inaccuracies in the closing letter. The Council responded to this complaint in January, addressing all her issues and Ms K asked it to escalate this complaint to stage two as it does not say whether the Council has upheld her complaint or not.
66. In January Ms K made two new complaints:
• Firstly, she complained that the Council had not anticipated Miss B’s reasonable adjustments under the Equality Act and had taken too long to make these. (I will deal with the substance of that complaint below).
• Secondly, Ms K complained the Council had not responded when she reported that the neighbour was intimidating Miss B. The Council response says that intimidation is a matter for the Police, and that this is not a stage one complaint but a service request.
67. In February, the Council sent Ms K a letter. It explained this was the Council’s response to all her outstanding complaints but that it only dealt with the substantial issues. It explained that this was a stage two response and if Ms K remained dissatisfied, she could complain to the Ombudsman.
68. The Council’s stage two response is a detailed response. It says that it has addressed the issues of the officers’ visit in December, and the statutory noise investigation was professional and independent. The response does not mention the Equality Act but says the Council believed it acted with due care and consideration to all parties.
69. I recognise that the complaints correspondence became confusing with multiple complaints. I can see that later the Council tried to clarify this with Ms K, and it tried to address all the outstanding issues in its letters of 16 January and 1 February.
70. However, there is fault in how the Council dealt with Ms K’s earlier complaints. It did not deal with Ms K’s complaint that the Council had not investigated Miss B’s reports of ASB and noise nuisance properly (made on 7 and 8 November). It is clear these were not service requests. It also did not explain to Ms K that it was handling these at an informal stage. The Council did not deal with the substantive issue until Ms K complained again in December at the conclusion of the noise investigation.
71. The Council categorised Ms K’s complaint that the Council had not handled Miss B’s reports of intimidation properly as a service request, when this was clearly a complaint about the Council’s response to reports.

The Council’s consideration of the Equality Act and complaints about discrimination

72. Miss B is autistic. She says relevant to her complaint, it makes it hard for her to deal with online systems, follow digital procedures or use technology. Miss B complains the Council did not take account of that or offer to make reasonable adjustments to allow her to access its processes.
73. The Council did help Miss B with uploading her recordings by visiting her at home and by allowing her not to fill in the online form. These are examples of reasonably adjustments under the Equality Act. However, the Council did not fully explore reasonable adjustments with Miss B, or what would meet her individual needs.
74. In addition, the duty is anticipatory, and we would expect the Council to enquire of Miss B what help she needed rather than waiting for her to ask for help as each obstacle arose. We would then expect the Council to record the reasonable adjustments it has agreed with Miss B and apply those in its dealings throughout. The Council must also be careful not to impose an adjustment without considering Miss B’s individual needs.
75. In addition, the Council took too long to make the adjustment of visiting her to upload or listen to the recordings. It did this in October, when she had first asked for help in June or July.
76. Ms K complained in November that the Council was discriminating against Miss B based on her disability. I cannot see that the Council addressed that complaint.
77. The Council did not consider Miss B’s disability as a protected characteristic when it refused to support her in a move to new accommodation, (it also failed to engage with is ASB role here).
78. In its final response, the Council mentions the Autism Act but does not mention the Equality Act. This further suggests that the Council has not properly engaged with its duties under the Act. The Council should note that although it says it acted with due care and consideration, the Equality Act imposes specific duties.

The impact on Miss B and Ms K

79. We cannot say that had the Council properly considered its powers to address the reports of ASB, that it would have taken action. I acknowledge that there were other complaints from residents, but that the Police and Housing Association did not take action, and the neighbour herself was vulnerable. However, the Council’s failure to properly engage with its ASB powers has left Miss B uncertain that it could have done more to help her.
80. The Council’s shortcomings with regard to the Equality Act compounded the difficulties for both Miss B and Ms K.
81. The Council’s failure to handle Ms K’s complaints in accordance with its policy meant caused her unnecessary time and trouble for Miss B and Miss K.

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Agreed action

82. The Council will within one month of the date of this decision statement:
• Provide Miss B and Ms K each with a written apology for the faults identified above. The apologies should be made by an officer of appropriate seniority;
• Share this decision statement with relevant staff.
• Pay Miss B a symbolic payment of £400 in recognition of the distress and uncertainty she was caused when the Council did not properly engage with its ASB powers.
83. The symbolic payment is not to compensate for the impact of the ASB itself. The Council is not responsible for the neighbour’s actions, and I recognise that the Police and the Housing Association was investigating this. The payment also recognises that Miss B’s distress was compounded by the Council’s shortcomings to consider its duties under the Equality Act 2010.
84. The Council will within three months of this decision:
• Review its ASB response and update its policy accordingly. This should include how it will review its own ASB powers to respond to reports of ASB in the context of the Partnership.
• Deliver training to the relevant officers on the Council’s duties under the Equality Act 2010 especially with regard to its anticipatory duty to make reasonable adjustments, not to discriminate and the PSED.
• Remind staff how to handle complaints in accordance with the complaints policy to take account of the faults identified. This should include that service requests and formal complaints be properly identified and the Council is clear with complainants about this.
85. The Council should provide us with evidence it has complied with the above actions.

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Final decision

86. I have completed my investigation. There was fault causing injustice to Miss B and Ms K.

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Investigator's decision on behalf of the Ombudsman