The Ombudsman's final decision
Summary: Ms X complains the Council’s Anti-Social Behaviour Team has failed to properly investigate her complaint of noise nuisance from occupants of the flat above her causing her distress. We have found no evidence of fault in the way the Council considered these matters. So have completed our investigation.
The complaint
I have called the complainant Ms X. She complains the Council’s Anti-Social Behaviour (ASB) Team has not properly investigated her reports about persistent noise nuisance from the occupants of the flat above her. Ms X says this has caused her distress, impacted on to her health and put her to time and trouble in pursuing the matter.
What I have investigated I have considered Ms X’s complaints about the Council’s response to her reports of noise nuisance from May 2021. The final section of this statement explains why I have not investigated Ms X’s concerns before that date. I have referred to events from 2019 to provide background to Ms X’s current complaints.
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 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) We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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
I have read the documents submitted by Ms X and spoken to her about the complaint. I considered information from the Council and the supporting documents it provided.
Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’ such as noise.
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 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. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
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. This process does not involve the council, but it is good practice for councils to draw a complainant’s attention to their right to private action under section 82.
The Council’s policy for dealing with noise nuisance complaints The Council’s ASB policy and procedure sets out how the Council deals with complaints of ASB which is ‘behaviour by a person which causes or is likely to cause harassment, alarm or distress to a person, conduct capable of causing nuisance or annoyance to any person in relation to that person’s occupation of residential premises or conduct capable of causing housing related nuisance or annoyance to any person’. This can include noise nuisance.
The Council’s intention is to seek to resolve the causes of ASB and prevent reoccurrence. It will often explore informal resolution at first and give those causing problems the chance to stop the behaviour being complained about. If this is ineffective it will take formal action including enforcement action to stop the behaviour. Officers will decide what the appropriate actions should be based on the information/evidence they have when their initial investigation is complete.
The Council’s Pollution team does not have a policy with regards to ‘noise’ per se as they only deal with statutory noise nuisance. So will not assist with reports of household noise such as children playing, banging/thudding and loud conversations.
The Community Trigger Process The Community Trigger (also known as the ASB case Review) is a process which allows members of the community to ask the Council, Police, Clinical Commissioning Group, or Registered Social Landlords within the Borough to deal with ASB. A person can activate this by making an application for an ASB case review, but they must meet the threshold for a review which is set out in the Council’s ASB policy. The Trigger is designed to ensure the relevant bodies work together to try and resolve any reports about ASB.
What happened in this case This section sets out the key events in this case and is not intended to be a detailed chronology.
Background information Ms X is a private tenant in a block of flats managed by a property management company (company). In 2019 Ms X complained to the Council about noise from the flat above her caused by tenant A. An ASB officer spoke to tenant A and issued a written warning letter. Ms X did not raise any further complaints and the Council closed the case.
Tenant A moved from the property and tenant B moved in under a new private tenancy.
Events from 2021 Ms X contacted the Council’s Pollution Team in May 2021 about noise from tenant B. Ms X reported the noise as stomping, banging, thumping, talking loudly and dragging furniture. An ASB officer told Ms X the Pollution Team would not be investigating as the noise she described was not a statutory noise nuisance such as loud amplified music. So, it would be investigated by the Council’s ASB team. The officer told Ms X to liaise with the company/landlord as it was their responsibility to enforce the tenancy agreement to address the concerns she raised. Or she could seek independent legal advice about the matter.
The officer investigated and took enforcement action against the landlord by issuing a written warning notice in August 2021 about the noise allegations. The landlord confirmed he had spoken to tenant B who disputed the allegations of noise and had now left the flat. The landlord showed the officer the checkout report to confirm the property was empty and said new tenants would be moving in to the flat in the next 7 to 14 days.
Ms X spoke to the officer as she did not believe tenant B had left the flat. Ms X said she still experienced excessive household noise such as banging, thumping, and dragging furniture. Ms X provided the officer with a log of incidents from the flat and evidence she considered showed the flat was occupied. The officer said the noise should cease as the tenant had moved out but if not, then the Council would arrange to install noise monitoring equipment (NME) at Ms X’s flat.
Tenant C moved into the flat and Ms X complained to the Council again about noise. The officer visited Ms X in October 2021 and installed NME for two weeks. The officer collected the equipment in November 2021. Ms X gave the officer a further log of incidents. Ms X said the noise from the flat was causing her to have a breakdown and she did not think the NME picked up the noise. Ms X asked the officer to send a warning letter to tenant C. The officer told Ms X the NME would detect noise. The officer confirmed she needed to review the recordings before deciding whether to send a warning letter especially as the new tenancy had only just started.
The officer told Ms X the Council could not take action against tenants for domestic noise. And it was for the landlord to act against their tenant if they were responsible for causing noise nuisance.
Ms X sent the officer a log of incidents for October and November 2021 reporting noise caused by banging, stomping, slamming cabinet doors and tapping. The officer spoke to tenant C who denied making noise. Tenant C reported they lived alone, did not play any music, or cause any excessive noise nuisance.
The officer contacted Ms X about the findings of the noise recordings. The officer said Ms X made seven recordings with only two having noise from another property. The noise consisted of shouting/raised conversation for about 5 minutes and short bursts of hammering from DIY for 8 minutes. The officer told Ms X the incidents in her log did not collaborate with the recordings on the NME. The officer considered the noise was domestic noise and told Ms X the Council could not take action against tenants for this. So based on Ms X’s information in her logs and recordings from the NME the Council would not take further action. The officer advised Ms X to seek legal advice if she wished to progress the matter further independently.
In December 2021 Ms X complained to the Council at stage 1 of its complaint procedure she was dissatisfied with the officer’s investigation and decision not to take further action. Ms X complained the noise from the flat was ongoing and a neighbour also raised concerns about the noise.
The ASB officer responded to Ms X and asked for the neighbour’s details to contact them. Ms X provided information and complained again about noise from the flat affecting her health. The officer contacted Ms X’s neighbour about the noise who responded they were not being affected by any noise nuisance. The officer acknowledged the impact onto Ms X’s health and offered to contact her GP about it. Ms X refused the officer’s request.
The officer contacted the company at the flats about Ms X’s concerns. The company confirmed it had taken over management of the block in October 2020 and Ms X contacted them with her concerns in July 2021. The company reported no evidence to support the noise nuisance complaint or that it received any other complaints about the flat. So considered Ms X’s complaints of noise nuisance were unsupported and had taken no further action.
The Council responded to Ms X’s Stage 1 complaint in January 2022. It considered officers had thoroughly investigated Ms X’s case and taken appropriate action when necessary. The Council acknowledged Ms X’s allegations of noise was having a detrimental impact onto her health. The Council said it was willing to work with her to provide support and would liaise with her GP with her consent.
Ms X remained unhappy with the Council’s response and escalated her complaint to stage 2 in January 2022. Ms X complained the noise from flat above continued, she reported her concerns to the company who could not help and were intimidating towards her. Ms X said the Council failed to take account of the impact on her health. Ms X alleged tenant C lied to the Council about not being in the flat. Ms X said her life had been in danger from the tenant A who intimidated her, and she alleged tenant B tried to break in to her flat in 2021 by thumping on her door. Ms X also complained the Council was refusing to talk to her witnesses.
A complaint officer investigated Ms X’s concerns and spoke to Ms X and the ASB officer. The complaint officer listened to the recordings and found some faint noise. But nothing to indicate an ongoing or persistent noise nuisance and the recordings did not match with the many disturbances reported by Ms X.
The complaint officer contacted a police officer involved in the case. The police officer confirmed they had not witnessed any noise nuisance from the flat or received other reports for that location. The police officer agreed to listen to the recordings and report back to Ms X.
The complaints officer acknowledged that unwanted noise at any time of day or night can feel invasive and disturbing. But told Ms X the Council could only take enforcement action if backed up with independent evidence. The Council did not have such evidence and the noise was the type of domestic noise it expected to experience living in a block of flats. The Council advised that as Ms X was a private tenant it would also expect the private management company to take any action.
The Council advised Ms X of her options to consider a Community Trigger application although it was not clear she met the threshold. Or the Council could install NME for a further two weeks and follow up with one of the witnesses Ms X mentioned. The other witness was a family member so not considered independent. The Council advised Ms X that witness testimony on its own was unlikely to be enough for it to take enforcement action.
The Council acknowledged the situation was taking a toll on her health as she presented as distressed. So had a duty to escalate its safeguarding concerns and make a referral to its safeguarding and adults’ service. The Council noted Ms X’s allegations about actions of the tenants, but she had no evidence support this. The Council confirmed Ms X had reported the issue to the Police which was the correct course of action for her to take.
The Council asked Ms X to contact it if she wished to have the NME installed again for two weeks. It says it has not received any complaints or reports of noise nuisance from Ms X since January 2022.
Ms X made a Community Trigger application in May 2022, but the Community Trigger panel did not consider it met the threshold to be looked at. However, the panel offered Ms X NME for a further two weeks after which the Council would review the case again once it had any further recordings. The Council and Ms X have now arranged for the NME to be installed.
My assessment
The Council provided documents to show it has responded to and investigated Ms X’s complaints of noise nuisance according to its procedures and practices. The Council spoke to the tenant and landlord in 2021and issued a warning letter about Ms X’s concerns. When Ms X’s complaints continued in 2021 officers installed NME but do not consider recordings show evidence of a noise nuisance.
The Council has spoken to some of the witnesses Ms X referred to. One witness did not report any noise nuisance. The Council did not contact another witness due to being a member of Ms X’s family so not considered independent. Ms X may disagree with the Council’s actions over contacting her witnesses. However, it has already advised Ms X that witness testimony on its own unlikely to be enough for it to take enforcement action. This is a decision the Council is entitled to make.
The Council considers the noise to be domestic noise which it cannot take any action over as it has no independent evidence of it causing a statutory nuisance. It has advised Ms X to contact the management company and landlord. This is because they have a responsibility to take action over her concerns of noise as Ms X and the tenants have private tenancies. The Council has also advised Ms X to seek legal advice about taking her own independent action which can be under section 82 of the EPA.
The Council’s documents show it has acknowledged the impact of Ms X’s concerns on her health and offered support through her GP and its safeguarding procedures. Ms X’s allegations of intimidation by the tenants are matters for the Police and property management company.
Ms X disagrees with the Council’s decision there is no evidence of a statutory noise nuisance, but the decision is a matter of the officers’ professional judgement. We cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there is fault in this case.
This is because officers considered the information and recordings made by Ms X and visited her property to investigate the alleged nuisance. This is according to the Council’s policy and practice and the requirements of the EPA to investigate. Officers did not consider there was evidence of a statutory noise nuisance from the information it obtained. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached these decisions from the documents I have seen.
Final decision
I am completing my investigation. I have found no evidence of fault by the Council in the way it has responded to and dealt with Ms X’s complaints of noise nuisance from occupants of a flat above her.
Parts of the complaint that I did not investigate I have not investigated Ms X’s concerns about the Council’s response to her complaints of noise nuisance before May 2021. This is because I consider Ms X’s concerns before then are late complaints. There are no reasons to investigate Ms X’s concerns now as Ms X could have made a complaint to us sooner if she was unhappy with the outcome of the Council’s investigations before May 2021.
Investigator's decision on behalf of the Ombudsman