The Ombudsman's final decision
Summary: Miss B complained that the Council failed to issue an abatement notice despite witnessing a statutory noise nuisance in May 2021. It then failed to acknowledge this visit had happened or respond to her complaint. The matter was only resolved in January 2022 following the intervention of a different team. We found fault with the actions of the Council, in not serving an abatement notice, not taking other action to resolve the problem and not responding to her complaint. The Council has agreed to pay Miss B £500 and improve its procedures for the future.
The complaint
Miss B complained that Westminster City Council (the Council) failed to adequately respond to her complaints of noise nuisance in April/May 2021. She says two officers visited her property in the early hours of 5 May 2021 and witnessed the noise from the neighbouring property’s boiler. She says they considered the noise was a statutory nuisance and that an abatement notice should be served. However, the Council failed to act on this visit or even acknowledge it happened. Since then, it insisted on Miss B ringing the Council again when the noise was occurring. The matter was only resolved in January 2022 following intervention by the leaseholder team. Miss B believes she endured noise nuisance causing sleepless nights for much longer than she should have done.
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) 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 considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B 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
Statutory nuisance Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’, including noise from 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.
Abatement notices 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 seven days, to attempt to address the problem informally.
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.
What happened In March 2021 Miss B had to stop sleeping in her bedroom due to noise (a loud humming) from the boiler in the neighbouring property. She said it had been a problem since the previous October/November but had recently got worse. In April 2021 she complained to the Council on several occasions. The Council contacted the landlord of the neighbouring property who agreed to send a plumber to investigate the problem on 28 April 2021.
Miss B continued to complain of disturbance and said the Council needed to visit to witness the noise. She complained to the Council on 28 April 2021 about the Council’s lack of action. She submitted further complaints on 29 and 30 April 2021.
Environmental health officers visited at 3.30 am on 3 May 2021 but only heard a noise for one second. They visited again at 4.40 am on 4 May 2021 but only witnessed a faint noise which was neither long enough or loud enough to be a statutory nuisance. On 5 May 2021 at 2.00 am two officers witnessed a series of loud noises, forming a regular pattern which were longer and louder than during the previous visits. They describe the noise as like a four legged wooden table being dragged across the floor where each of the legs catches and vibrates. Miss B said the officers said they would serve an abatement notice. This is not reflected in the records.
One of the visiting officers sent an email to colleagues asking them to investigate further during the daytime and to contact the landlord to have the boiler examined. An officer tried to visit the flat at lunchtime on 5 May 2021, but Miss B said the Council should serve the abatement notice as agreed and there was no point visiting during the day.
The Council said it had contacted the landlord who said the boiler had now been repaired. The Council explained to Miss B that it usually tried to resolve issues through mediation in the first instance before serving any notices and it would have to witness the noise again as the boiler had allegedly been fixed. The Council says Miss B was upset at this news and insisted that the Council serve a notice. Miss B made a further complaint on 12 May 2021. On several occasions the Council offered to visit as soon as Miss B notified them that the noise was occurring, but she declined.
Miss B says the Council made no further reference to the visit where the statutory nuisance was witnessed and persisted trying to visit her during the day. Miss B declined these visits as she said the noise was disturbing her at night, officers had witnessed it and said they would serve an abatement notice.
Miss B says that in May 2021 the neighbouring tenants complained to the landlord about the noisy boiler and a plumber made four attempts to fix it. The noise improved from 22 May 2021 but started again on 17 June 2021. Miss B complained to the landlord who said they were going to install a new boiler. But the noise was still occurring on 9 July 2021. Miss B complained to the Council in August 2021 about the lack of response to her complaint. But she did not receive a reply.
Miss B said the leaseholder team at the Council got involved following her complaint to the Housing Ombudsman. They sent an expert round who inspected the boiler, noted problems with it and ensured the repairs were done in January 2022.
Formal complaint Miss B complained to us in March 2022 saying that if the Council had served the notice at an earlier point, then the matter could have been resolved sooner. In April 2022 we referred the complaint back to the Council to investigate through its complaints procedure.
The Council replied in May 2022. It referred to Miss B complaining of noise out of hours on 29 and 30 April 2021 and again on 12 May 2021. It said it had agreed to treat the matter as urgent and visit Miss B again when the noise recurred, but since that time Miss B had not contacted them regarding the noise. Miss B remained dissatisfied and escalated her complaint to stage two of the Council’s procedure.
The Council responded in June 2022. It agreed it had not dealt with her complaints clearly and had not communicated to her that her complaints in April and May 2021 had been treated as enquiries. It said the Council had done this because she had contacted the Council by telephone about an ongoing problem which the Council was attempting to solve. The Council explained that it was not appropriate to serve an abatement notice because the landlord was co-operating to fix the boiler. It apologised if Miss B was led to believe a notice would be served but there was no evidence that it had been promised.
Since May 2021 the Council had offered to visit Miss B’s home but she had not reported any further noise nuisance, so the case had not progressed. The Council partially upheld her complaint because it had not informed her that her complaints had been merged together and dealt with as enquiries. Miss B complained again to us insisting that the officers who visited in May 2021 said they would serve an abatement notice but did not do so. She said the Council had failed to refer to this visit at all and pretended it did not happen.
Analysis The Council witnessed a statutory noise nuisance on 5 May 2021. This was after the landlord said the boiler had been fixed. Miss B says the officers agreed they would serve an abatement notice. The records of the visit do not support this. They confirm that the officers referred the case to the day-time team to investigate further and contact the landlord to examine the boiler.
The law says that the Council must serve an abatement notice if it witnesses a statutory nuisance, but it can delay this for seven days in the case of noise from premises to allow the perpetrator to rectify the problem. So the Council was acting correctly in contacting the landlord again to repair the boiler.
I have not seen evidence of when or how the Council contacted the landlord and I do not know when or if, it satisfied itself that the source of the noise nuisance, the boiler had been repaired. No other evidence has been presented by the Council to show the landlord carried out repairs after 5 May 2021.
The Council should have explained to Miss B that it was allowing the landlord seven days to fix the problem and then followed up the matter (ie by 12 May 2021). If the landlord had not fixed the boiler by then the Council should have served an abatement notice. It was not necessary to insist on further visits to Miss B to satisfy the Council that there was a statutory noise nuisance when it was satisfied that one had already occurred.
This was fault which caused Miss B frustration and distress because the noise nuisance continued until 22 May 2021 and then recurred on 17 June 2021. It was not fixed until January 2022.
The Council exacerbated the situation by failing to explain in May 2021 that it was not dealing with her case as a complaint and failing to respond to Miss B’s complaint in August 2021. It was also at fault for failing to follow up the landlord and ensure that effective and enduring repairs were carried out.
The Council was also at fault for failing to say in either of its complaint responses in 2022 that a statutory nuisance had been witnessed. It then erroneously blamed Miss B for the continuation of the problem because she had not allowed further visits.
Agreed action
In recognition of the injustice caused to Miss B, the Council has agreed, within one month of the date of my final decision: to pay Miss B £500; and to take steps to ensure its staff are aware of when abatement noises should be served and to improve its communication with people using its service.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman