The Ombudsman's final decision
Summary: Miss X complained the Council took no action on anti-social behaviour and noise nuisance from a neighbour, despite officers witnessing the issues. Miss X said the Council discriminated against her and gave preferential treatment to her neighbour. We have not found fault in the Council’s investigation.
The complaint
Miss X complained the Council took no action on anti-social behaviour and noise nuisance from a neighbour, despite officers witnessing the issues. Miss X said the Council discriminated against her and gave preferential treatment to her neighbour.
Miss X said the situation caused her depression and sleepless nights. She wants the Council to assign a new case officer to investigate.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
As part of the investigation I have considered the following: The complaint and the documents provided by the complainant.
Documents provided by the Council and its comments in response to my enquiries.
The Environmental Protection Act 1990.
The Crime and Policing Act 2014.
The Council’s Noise Procedure.
The Council’s Antisocial Behaviour Procedure.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation Statutory nuisance 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 from premises or vehicles, equipment or machinery in the street smoke from premises smells from industry, trade or business premises artificial light from premises insect infestations from industrial, trade or business premises accumulation of deposits on premises 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.
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.
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.
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 If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice.
An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
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.
Antisocial behaviour 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.
For example, they may approach a complaint: as an environmental health issue, where the complaint is about noise or pollution; as a planning matter, where the complaint is about an inappropriate use of a building or facility; as a licensing matter, where the complaint is about a licensed premises, such as a pub or nightclub; as part of their duties as a social landlord, where the alleged perpetrator is a council tenant (although we are unable to investigate the council’s actions as a social landlord); or using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.
The Council’s procedures Noise When the Council receives a noise complaint, an officer will contact the complainant to explain its procedure. The officer will then write to the complainant and the alleged offender.
The complainant must complete and return diary sheets. If the diaries suggest no actionable nuisance, the Council will take no further action. If the diaries do suggest an actionable nuisance, the Council will start an investigation. This will include officers trying to witness the nuisance, monitoring, offering an out of hours reporting service, or using professional witnesses (such as the police).
At the case officer’s discretion, the Council may close its investigation if there is no evidence of a statutory nuisance after six weeks.
If the Council has not witnessed a statutory nuisance after three months, it will decide whether to continue its investigation.
Where it has not been possible for the Council to establish a nuisance, it will write to the complainant advising it will take no further action.
Where the Council establishes a statutory nuisance it will serve an abatement notice. If the offender is a Council tenant, their housing officer must be contacted.
If the complainant reports a breach of the abatement notice, the Council must try to witness it.
Antisocial behaviour The Council will class antisocial behaviour complaints depending on their seriousness. Noise nuisance, verbal abuse, and threatening or abusive behaviour falls into category B.
The Council will contact complainants within five working days and will agree an action plan.
The Council will send a warning letter to the perpetrator and will consider voluntary agreements, such as acceptable behaviour contracts and good neighbour agreements.
The Council makes clear some investigations may conclude without it resolving matters to the satisfaction of the complainant. Such decisions will be reviewed by a supervisor.
What happened I have summarised below some of the key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
Miss X is a Council tenant, as is her neighbour, who I will call Mr N.
In 2019, Mr N complained to the Council about banging, shouting, and screaming from Miss X’s home. The Council investigated this as possible ASB. Miss X denied the allegations. She said she sometimes made accidental noise, and Mr N would bang on the ceiling in response. Miss X made counter allegations about noise from Mr N.
A housing officer (Officer A) met with Miss X and Mr N separately in November 2019 to discuss the complaint and asked them to consider mediation. They both agreed.
A neighbour relations officer met with Miss X and Mr N in January 2020. The officer recorded that some resolutions were reached, and some issues were resolved. The Council therefore closed the case.
In October 2020, Miss X contacted the Council to report amplified noise from Mr N’s property. She described the noise as loud music from a radio, lasting all day.
The Council wrote to Mr N on 9 November. It said it may install noise monitoring equipment (NME) if complaints continued and officers may attempt to witness the noise.
The Council also wrote to Miss X, asking her to complete and return diary sheets.
Miss X’s support worker contacted the Council on 13 November. They said Miss X felt distressed and unsafe in her home due to the noise from her neighbour. The Council made a referral to its adult social care team to make a well-being check.
Miss X returned her completed diary sheets on 9 December. The Council put Miss X on the waiting list for NME but noted there was a delay due to a backlog of requests.
The Council wrote to Miss X and Mr N on 11 December. It told Miss X it needed to witness the noise and gave contact details of its rapid response service to report when noise was occurring. It told Mr N it was now investigating reports of noise and take action under the EPA, including seizing noisy equipment.
Environmental health officers visited Miss X’s home in response to reports of noise on 14 and 16 December.
On 14 December, an officer heard music when standing in Miss X’s front bedroom but did not consider it was a nuisance.
On 16 December, two officers attended shortly after 9pm after reports of loud music. They considered the music was loud and intrusive enough to be a statutory nuisance. While talking to Miss X, the officers heard loud banging or hammering from the front door. Miss X believed the noise was Mr X banging on her door. The officers were concerned about leaving as they had to pass Mr N’s home, so they called the police to help them.
Following this incident, the Council decided to install NME at both Miss X and Mr N’s home. It also decided to stop its rapid response service, as it was concerned about officer safety.
The Council served Mr X with an abatement notice on 22 December for playing amplified music causing a noise nuisance. The notice required Mr N to stop the nuisance immediately, or risk prosecution. It confirmed his right of appeal.
Miss X telephoned the Council in January 2021 to complain about noise from Mr N’s radio. She also referred to Mr N banging on her door and the police involvement.
Following the call, the case officer emailed all those involved in the complaint to arrange a meeting to decide how to proceed. The case officer did not feel enforcement action would achieve anything to resolve the ill feeling the neighbours felt toward each other and could make matters worse.
Officers considered the best long-term solution would be to support one of the tenants to move home.
The police said they reviewed CCTV and there was no evidence Mr N banged on Miss X’s door. However, there was evidence Miss X interfered with Mr N’s utility meter box. Miss X denied this. She said it was her own utility box.
In February, the court confirmed Mr N had appealed the abatement notice. It set a hearing date for May 2021.
The Council installed NME in Miss X’s home from 21 January to 4 February.
On 5 March Miss X reported Mr N had gone away but left music playing. Environmental health officers agreed to attend because Mr N was away. They did not witness any music being played.
The case officer sent an email to housing officers, environmental health officers, and the police on 8 March confirming the noise recordings did not suggest noise nuisance or ASB to any degree.
The Council’s wrote to Miss X in April 2021. It said it investigated her complaints, including use of NME and a referral to restorative justice, but found no physical evidence that would enable enforcement action against Mr N. It said strong it needed strong evidence for a court prosecution and, because no substantive evidence was found, it had to close the case.
In reply, Miss X referred to the visit by environmental health officers in December 2020 when the police attended. She asked why the Council ignored this evidence.
The court heard Mr N’s appeal against the abatement notice on 19 May. His appeal was successful, and the abatement notice was withdrawn.
The Council wrote to Miss X in August about a possible tenancy breach. It said it saw footage of her dumping Mr N’s clothing on the floor. It also said she was agitated on the phone when discussing the allegation with the Council. It said it would not tolerate her behaviour and would consider enforcement action if there was a repeat. Miss X said Mr N used her side of the garden and she moved his clothing back onto his side.
The Council wrote to Miss X in September and October, telling her it was ending its investigation. The Council said throughout the process housing officers carried out joint visits with both parties and the police, her support worker, and referrals were made to neighbour relations and restorative justice. It installed NME but found no evidence of noise nuisance or ASB.
The Council confirmed the police attended the incident on 16 December 2020 where it was alleged Mr N banged on Miss X’s door. Mr N attended a police interview, but the police took no action. Mr N was also interviewed about race hate, but again the police took no action. Miss X was however assigned a hate crime project officer from victim support.
The Council concluded, having investigated Miss X’s complaints, there was no physical evidence which would enable it to take enforcement action. It said strong evidence was needed for a court prosecution and it had to close the case.
Miss X was dissatisfied with the result and complained.
The Council wrote to Miss X on 21 October after reviewing her complaint and speaking with Officer A. It said it fully investigated Miss X’s complaint. Its investigations involved the police and it offered Miss X and Mr N restorative justice, which they declined. It installed NME but insufficient evidence was gathered. The Council said Miss X could ask for a review of her complaint if she remained unhappy.
Miss X questioned the Council’s response. She said: She did not decline the neighbour relations; she took part in the process.
She did have NME, but the Council installed it while her neighbour was away. She suggested he may have been aware of it. However, before NME was installed, she said environmental health officers accepted her case about loud music and officers came out to witness her neighbour slamming doors and making very loud noise.
Officers visited on 16 December 2020 and witnessed her neighbour slamming her door, resulting in the police attending.
The Council sent its final complaint response on 10 November 2021. It recognised Miss X took part in neighbour relations meetings but said both Miss X and Mr N later refused restorative justice. It repeated its earlier response that there was not enough evidence to take enforcement action.
My investigation In response to my investigation, the Council told me two officers witnessed what they considered to be a statutory nuisance. The case officer decided this evidence, along with the other information provided, meant the Council should serve an abatement notice under section 80 of the EPA 1990. The Council served the notice on 22 December 2020. It did not receive further evidence after that date, and the notice was successfully appealed and then withdrawn in May 2021.
The Council said its housing service did not take action because there was not enough independent evidence. Mr N was insistent he did not leave his flat and interact with environmental health officers, and the police verified this using CCTV. Housing officers spoke to neighbours, who said both Miss X and Mr N were equally at fault. The Council had to find out who the instigator was before it could act, but it was one word against another.
Analysis First, in 2019, Mr N and Miss X both made complaints about noise from the other’s home. Because Miss X and Mr N are both Council tenants, the Council’s housing department dealt with the complaints as possible ASB.
The Council arranged mediation through its neighbour relations team. Miss X and Mr N contributed to the process and agreed to be more mindful and considerate of one another. At the time, the Council thought this had resolved matters, so it closed its investigation. On the evidence seen, the Council acted in line with its ASB procedure, and I have not seen evidence of fault.
When Miss X reported noise caused by Mr N again in October 2020, the Council considered the complaint under its noise nuisance procedure, which it was entitled to do.
The Council sent a warning letter to Mr N and asked Miss X to complete diary sheets. After considering Miss X’s diary entries, the Council started an investigation. It put Miss X down for NME and its rapid response service, so it could try to witness the noise.
Environmental health officers witnessed noise they considered to be a statutory nuisance on 16 December 2020. As a result, the Council served Mr N with an abatement notice.
The Council’s actions were in line with its own procedure and relevant statutory nuisance legislation.
Once the Council served the abatement notice it had to witness further noise nuisances to take enforcement action against Mr N. Mr N decided to appeal the abatement notice, and a court ruled in his favour. The abatement notice was therefore withdrawn.
Miss X continued to report noise nuisance caused by Mr N. However, environmental health officers did not witness further nuisances, and the NME did not record any noise nuisances or ASB. As the Council pointed out, it needs sufficient evidence to take formal enforcement action.
It is not the role of the Ombudsman to decide whether the threshold for a statutory nuisance has been met. It is up to environmental health officers to decide whether, in their professional opinion, they consider a statutory nuisance is taking place.
Miss X was unhappy no action was taken about the disturbance on 16 December 2020, or about race hate due to comments she alleges Mr N made towards her. The police investigated both incidents but decided not to take further action. That is not the fault of the Council. The Council took what action it could, by issuing an abatement notice to Mr N about the noise. Later investigation by the Council’s housing department and the police suggested both Miss X and Mr N were responsible. They did not find evidence one party was solely to blame.
In those circumstances, I do not find evidence of fault in the Council’s decision not to take further action and to close its investigation. The Council’s decision is consistent with its procedure.
It is not the Ombudsman’s role to make findings about discrimination. Only the courts can do that. However, I have not seen evidence the Council took Mr N’s side or that it treated Miss X less favourably. It considered complaints from both parties and took what action it could, in line with procedure and legislation, and based on the available evidence. The only formal action the Council took was against Mr N. By comparison, the Council only issued warnings to Miss X.
Final decision
I have completed my investigation. We have not found fault in the Council’s investigation into anti-social behaviour and noise nuisance.
Investigator's decision on behalf of the Ombudsman