The Ombudsman's final decision
Summary: Mr B complained the Council failed to address problems he was having with his neighbours. This included anti-social behaviour and potential statutory nuisances. He said this restricted his family’s use of their garden. The Council was at fault because it did not investigate Mr B’s reports of anti-social behaviour and potential statutory nuisances correctly. The Council will apologise to Mr B and provide staff training.
The complaint
Mr B complained the Council failed to address problems he was having with his neighbours, specifically: Allowing their dogs to get into his garden.
Dogs barking.
Burning household waste and emitting smoke and fumes.
Parking illegally.
Storing refuse in their garden.
Mr B the Council’s failure to address this behaviour restricted his family’s use of their garden.
What I have investigated I investigated the Council’s response to Mr B’s complaints about potential statutory nuisances and anti-social behaviour (ASB).
I did not investigate Mr B’s complaint about his neighbours blocking his drive or storing refuse in their garden. This is because we cannot investigate the actions of a council when it is acting as a social housing provider.
The Ombudsman’s role and powers
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) We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, 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 considered: Mr B’s complaint and the information he provided; documents supplied by the Council; relevant legislation and guidelines; and the Council’s policies and procedures.
Mr B and the Council had the opportunity to comment on a draft decision. I consider the comments I received making my final decision.
What I found
Legislation and guidance Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise and fumes can be statutory nuisances. To be considered a statutory nuisance, they must: unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or injure health or be likely to injure health.
Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines ASB as conduct that has caused, or is likely to cause: harassment, alarm or distress to any person; conduct capable of causing nuisance or annoyance to a person in relation to that person's occupation of residential premises; or conduct capable of causing housing related nuisance or annoyance to any person.
Section 17 of the Crime and Disorder Act 1998 places a general duty on councils to take action to combat anti-social behaviour (ASB). Councils will have a team to respond to and investigate complaints about ASB, liaising with the police and other agencies as necessary.
Ombudsman’s principles of good administrative practice One of the six principles of good administrative practice is being open and accountable. This includes being open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete Canterbury City Council The following information is from the Council’s website.
If residents are experiencing recurring problems with noise, smell or smoke they can report it to the Council. This can include: dogs barking bonfire or chimney smoke It may be able to offer help and support if someone is experiencing ASB. This can include: verbal abuse threatening behaviour harassment or intimidation What happened This chronology includes key events in this case and does not cover everything that happened.
In March 2021, Mr B reported ASB. He told the Council his neighbour’s dog had entered his garden at least four times in the last 12 months. He said he had spoken to his neighbour, but they had not taken any action. He told the Council this was preventing him making full use of his property. The Council’s community safety unit told Mr B it would ask the environmental health department to investigate.
At the end of April 2021, Mr B chased the Council for a response. The Council’s housing department asked him for more information. He explained he had experienced ASB from his neighbours since 2019. He said he had raised this with his neighbours and their housing association, but no action was taken. He added that he had also complained about his neighbours piling domestic rubbish in front of their property, dogs barking, illegal parking and burning household waste. The Council’s housing department said it would visit his neighbours and update him following the visit. Mr B asked the Council to confirm its procedure for investigating ASB.
Mr B reported to the Council that his neighbours blocked his driveway. He told the Council this was ASB. The Council’s community safety unit said it would forward his complaint to the housing department and asked him to send any other complaints about his neighbours to the department. It also suggested he contact the police for further advice.
The Council’s housing department emailed Mr B in May 2021. It advised it visited his neighbour and investigated the matters he raised. It said it found: The car was parked legally. It told Mr B parking on the highway was a police matter.
His neighbour would clear the rubbish in front of the property and the Council would monitor this.
There were dogs at the property which barked occasionally, and it would be unrealistic to expect dogs not to bark.
It was not illegal to burn household waste.
Mr B responded to the Council. He clarified his concerns. He said there were times when the dogs barked persistently, and they barked at him when he was in his garden. He told the Council this was a noise nuisance. He also advised the smoke and fumes caused by burning waste was also a nuisance. He advised the dogs entering his garden and illegal parking were ASB.
Mr B’s neighbours moved to a new property.
In September 2021, Mr B complained to the Council that it had not investigated or managed ASB by their housing tenants. He said the Council failed to address his concerns about uncontrolled dogs; trespass; noise nuisance; illegal parking; burning household waste; and waste storage.
The Council’s response summarised the actions it had taken: Raised with his neighbours that their dogs were getting onto Mr B’s property. It said as a result, his neighbour blocked up the fence and rehomed the smallest dog.
Visited his neighbours and found no evidence of a noise nuisance.
Discussed where his neighbour could park. It said after this conversation it did not receive any further complaints about illegal parking.
Spoke to his neighbour about the rubbish in their garden and they agreed to hire a skip to remove it.
Spoken to his neighbours who agreed not to have any more bonfires.
In November 2021, Mr B asked the Council to escalate his complaint to stage two of its complaint procedure. He said the Council did not investigate his complaint about noise nuisances and ASB properly and failed to keep him up to date during its investigations.
The Council responded in December 2021 and: Partially upheld his complaint about his neighbour’s dog intruding on his garden. It advised it should have opened a formal ASB case and created an action plan for each report.
Upheld his complaint it did not investigate the noise nuisance from the dogs barking properly. It said it should have asked him to complete diary sheets to evidence the nuisance.
Did not uphold his complaint it had not dealt with illegal parking. It said it checked where his neighbour’s parked and confirmed they were parked legally. It advised it did not get any further reports of illegal parking.
Did not uphold his complaint that it did not resolve the issue with his neighbours piling rubbish in their garden. It advised its officers witnessed his neighbours clearing the rubbish into a skip. It apologised if there was any residual rubbish left and said it could not have anticipated this.
Did not uphold his complaint the Council did not address his concerns about his neighbours burning waste in their garden.
The Council said in future, it would like its officers to keep formal records and action plans, so residents are clear about allegations that have been made and reasons for any actions taken in response.
Analysis We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. However, we can investigate whether the Council considered Mr B’s reports as incidents of ASB and/ or statutory nuisances.
Mr B complained about dog barking and fumes emitted when his neighbours burnt waste. The Council had a duty to take reasonable steps to investigate whether these were statutory nuisances. Indeed, its website states problems with noise, smell or smoke can include dogs barking and bonfires. The Council did not carry out a formal investigation of either, this was fault. The Council accepted it did not investigate Mr B’s noise nuisance report properly in its stage two complaint response, but it did not uphold his complaint that it did not investigate fumes from burning waste as a potential statutory nuisance.
The Council partially upheld Mr B’s complaint about ASB from dogs intruding on his garden. It accepted it should have opened an ASB investigation, not doing so was fault.
Mr B asked for details of its ASB policy and procedure. There is no evidence the Council provided him with either it’s ASB or its statutory nuisance policies and these were not publicly available on its website. One of the principles of good administrative practice is that Council’s are open and clear about policies and procedures. Not having these policies publicly available was fault.
The Council’s faults caused Mr B avoidable frustration. He did not know what he could expect of the Council because it did not provide him with its policies and procedures. The faults also caused uncertainty about whether the matters he reported would have been statutory nuisances or ASB if the Council had investigated properly.
Agreed action
Within one month of the final decision, the Council will: Apologise to Mr B for the faults found in this investigation.
Within two months of the final decision, the Council will: Make its ASB and statutory nuisance policies available on its website.
Provide staff working in the departments involved in this complaint with training to support them to identify and investigate ASB and potential statutory nuisance reports, and to keep relevant records.
The Council should provide the Ombudsman with evidence it has completed these actions.
Final decision
I have completed my investigation and uphold Mr B’s complaint. Mr B was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.
Parts of the complaint that I did not investigate I did not investigated Mr B’s complaint about his neighbours blocking his drive or leaving refuse outside their property. This is because we cannot investigate the actions of a council when it is acting as a social housing provider.
Investigator's decision on behalf of the Ombudsman