The Ombudsman's final decision
Summary: Mrs X complained the Council failed to investigate her complaints of noise nuisance from her neighbours. The Council failed to investigate Mrs X’s noise complaints in line with its noise nuisance policy. The Council agreed to apologise to Mrs X and pay her £200 to acknowledge the frustration and uncertainty that caused. It also agreed to review its procedures around how it investigates noise complaints.
The complaint
Mrs X complains the Council failed to investigate her complaints of noise nuisance against her neighbours. Mrs X said the Council has not resolved the issue or put anything in place to stop the noise recurring.
Mrs X says the matter is causing her and her husband ongoing distress, time and trouble and is affecting their health.
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 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 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) Some of Mrs X’s concerns and complaints are around her neighbours’ alleged breaches of tenancy and her wish for the Council to take action against those breaches. The law does not allow private homeowners to complain to the Housing Ombudsman about tenancy management issues. Neither, as I explained in paragraph 5, does the law allow us to consider such matters. This means I cannot look at what, if any, action the Council took or considered taking in relation to Mrs X’s neighbour’s tenancy. I have only considered the actions and decisions the Council took in relation to how it investigated and considered its powers in response to Mr X’s complaints of noise using its general duties.
When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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 spoke to Mrs X and considered information she provided.
I considered the Council’s response to my enquiry letter.
Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.
What I found
Anti-Social behaviour Councils have a duty to act to combat anti-social behaviour. The Anti-Social Behaviour, Crime and Policing Act 2014 gave councils new powers to address anti-social behaviour. These include civil injunctions and community protection notices.
Section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 defines anti-social behaviour 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.
We have no power to investigate the Council’s actions in its capacity as a landlord to deal with the behaviour of its tenants. Such a complaint is caught by the restriction outlined at paragraph 6 above. We have jurisdiction to deal with complaints about how councils have dealt with anti-social behaviour using their non-landlord powers such as their general anti-social behaviour powers or noise nuisance powers.
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 includes 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.
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.
Councils will gather evidence to find out whether the noise is causing a statutory nuisance. They do not have to witness noise nuisance in person. They can consider a range of evidence such as noise recordings, noise diaries and witness statements. Council officers 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 Section 82 of the Environmental Protection Act 1990 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 and procedure for dealing with noise nuisance.
The Council ‘noise nuisance procedure’ sets out how it responds to, investigates and deals with reports of noise nuisance. The procedure sets out that Its Environment Health Team is responsible for dealing with concerns about noise and its officers will respond to initial concerns by writing to complainants, asking them to complete diary sheets and will then carry out a visit if the noise continues. The procedure sets out various letters which officers should send to complainants at various stages including where they decide that a statutory nuisance does, or does not exist. If the Council decides to close the complaint it should explain why.
The Council said it operates a process that where reports of noise or ASB are received from a Council tenant then it is passed to its Tenancy and Estates Team to manage. If, after engagement with the alleged perpetrator the noise or ASB does not cease the Tenancy and Estates Team will pass it to the ASB team to manage.
What happened Mr and Mrs X live in a property which they own. Their neighbour, Mr F lives in a Council owned tenanted property. As part of Mr F’s tenancy, he is responsible for the behaviour and conduct of anyone who visits or stays with him at the property.
In January 2022 Mrs X called the Council and reported that two people had moved into their neighbour Mr F’s house. Mrs X reported that since this had happened noise nuisance was occurring which was keeping her and Mr X awake. The noise included loud music, banging doors and furniture being moved about. Records show the Council said it would call Mr F to find out what was going on. The Council passed to matter to its tenancy manager, Officer A, and also referred it to the police. Mrs X sent some handwritten diary notes of the noise to the Council which covered the period from late January to early February.
Records show Mr F’s friend, Mr K called the Council and said he was staying with Mr F temporarily while he sorted some issues with his own property. Officer A recorded giving verbal advice to Mr K about his conduct while he stayed with Mr F.
During February Mrs X contacted the Council again to say the noise was continuing and that she had seen Mr K moving personal items into Mr F’s house. Mrs X said the noise coming from Mr F’s house was affecting sleep and their work. Mrs X said Mr F was also starting to intimidate her by staring at her when she arrived home. Records show Officer A recorded they needed to find our why Mr K had not moved back to his property. They sent an email to Mr F warning him that Mr K needed to leave his property because of the reports of noise.
In early March 2022 Officer A visited Mr F to negotiate Mr K leaving the property. Mr K was advised to approach the housing team as he did not want to return to his property for various reasons.
Mrs X complained to the Council. She complained that the Council had not taken any action following her reports of noise nuisance and tenancy breaches. She said nobody had contacted her or kept her updated about what was happening and the matter was affecting her mental health. Mrs X sent further noise nuisance diaries to the Council.
The Council responded to Mrs X at stage 1 of its complaints procedure in mid-March 2022. It said the noise reported by Mrs X was not at level which would cause it to take any action regarding Mr F’s tenancy. It said the noise was household noises and generally occurred at reasonable times between 7 am and 11pm. The Council confirmed Mr K and his partner were staying with Mr F temporarily but did not consider this a breach of tenancy.
Records show Mr K left Mr F’s property towards the end of March 2022.
Mrs X escalated her complaint to stage 2. She said the noise she reported occurred during the night time which was clearly outlined in the noise diaries she had sent in. She also raised issues about tenancy breaches and a lack of action around that.
The Council tenancy manager visited Mrs X in early April 2022 to discuss the complaint and advised Mrs X to use a noise app to record the noise and also to fill in an electronic diary. They also discussed other issues around Mr F’s tenancy including rubbish, dog mess and an unkempt garden.
The Council sent Mrs X its stage 2 response in mid-April. It apologised for not referring to the night time noise in its stage 1 response. It reiterated it was unable to take any action around Mr F’s tenancy. The Council said however it had explained to Mr F the consequences should noise complaints continue. It acknowledged that someone should have visited Mrs X and spoken to her in person and apologised for not doing so. It offered Mrs X £100 to acknowledge the frustration that caused. It said it would continue to work with Mr F to address the behaviour and other tenancy issues Mrs X raised.
A couple of weeks later Mrs X contacted the Council and said Mr K had returned and the noise had started again. The Council advised Mrs X to use the noise app and submit recordings which she did. The Council said however the noise recordings were low level with only one audible bang picked up after midnight.
Mrs X remained unhappy and in May 2022 complained to us. She said she felt let down by the Council and that nothing was put in place to stop the noise occurring.
The Council’s response to us Since complaining to us the Council said Mr K has left Mr F’s property permanently and moved out of its area. It said it has received no further reports or complaints from Mrs X.
It said the matter did not trigger a referral to the Environment Health Team because at no time was a statutory nuisance determined. It said it only passes complaints to the Environmental Health Team if there is sufficient evidence in the form of noise records or recordings. The Council said it deemed the matter low level and therefore not appropriate for referral.
My findings
Mrs X reported a number of concerns about her neighbour. Although she raised issues about tenancy breaches the overriding complaint was one of noise nuisance. Therefore, although there was a role for its tenancy manager because Mr F is a Council tenant, the Council should have considered dealing with the matter as a noise complaint earlier, in line with its noise nuisance procedure. Instead, it concentrated on tenancy issues with Mr F. It did not, at the time, properly investigate or deal adequately with the noise reports.
The Council said it operates a process that where reports of noise or ASB are received from a Council tenant then it is passed to its Tenancy and Estates Team to manage. However, its policy and procedures say noise nuisance will be investigated by the Environment Health Teams. It is also unclear how officers from the tenancy team are qualified or trained to determine whether a statutory nuisance exists or not.
In line with its procedure the Council should have referred the matter to the environmental health team for investigation earlier, especially after Mrs X’s repeat reports. This would have prompted the team to register a noise complaint and write to Mrs X, provide her with a leaflet and diary sheets and explain what actions she needed to take. It was only after the stage 2 complaint response, three months after Mrs X’s initial report that the Council provided her with electronic diary sheets and the noise recording app. Referral to the environmental health team would have meant a suitably trained officer would have properly assessed Mrs X’s diary sheets and noise recordings to identify whether a statutory nuisance existed. All of this is fault.
The Council accepted in its stage 2 complaint response that it failed to visit Mrs X and discuss her concerns in person. However, it failed generally to keep Mrs X updated, inform her of any assessment of her noise diaries and noise recordings and at no time informed her it had made a decision around whether the noise constituted a statutory nuisance. It also failed to inform Mrs X of the right to take the matter to court for private action. All of this is fault.
The Council said at no point was a statutory nuisance determined. This may well have been the case and it is not for me to determine otherwise. However, there is no evidence Mrs X’s evidence or concerns were properly assessed and the failure to both deal with the noise complaint in line with its procedure and to keep Mrs X updated caused her frustration and uncertainty around whether the outcome may have been different.
Agreed action
Within one month of the final decision the Council agreed to: apologise to Mrs X and pay her £200 (this includes the £100 already offered) to acknowledge the frustration and uncertainty caused when it failed to deal with her complaints of noise nuisance in line with its procedures.
Within two months of the final decision the Council agreed to: Review its procedures around how it deals with and investigates reports of noise nuisance to ensure complaints are investigated in line with its noise nuisance policy by a suitably trained environmental health officer. If the Council decides officers other than those in the environmental team (such as tenancy managers) can investigate noise complaints it should ensure they are suitably trained and follow the steps set out in the procedure around keeping complainants updated on the investigation.
Final decision
I have completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.
Investigator's decision on behalf of the Ombudsman