Summary: We find the Council delayed its initial response to Miss X’s reports of antisocial behaviour and noise nuisance, in considering evidence and instances of poor communication. The Council should apologise to Miss X and make a payment for uncertainty and distress caused. We do not find any fault in the Council’s subsequent investigation of Miss X’s reports and its decision making not to take further action and its use of a neighbouring property as temporary accommodation.

The complaint

1. Miss X complains the Council:
1. Delayed responding to her reports of anti-social behaviour (‘ASB’) and noise nuisance from a neighbouring property.
2. Did not investigate her reports properly, provide updates or take appropriate enforcement action.
3. Did not have a local authority license in place for the neighbouring property.
2. Miss X says the disturbance caused her distress, anxiety, and a deterioration in her health. She says she spent money on soundproofing her home and went to time and trouble pursuing her complaint.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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)

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How I considered this complaint

7. I spoke to Miss X and considered documents provided by her and the Council in response to my enquiries.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before reaching a final decision.

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What I found

The Law, guidance and policy

Noise and Statutory Nuisance

9. Councils must investigate complaints about noise that could be a statutory nuisance under the Environmental Protection Act 1990. For noise 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.
10. Generally, the statutory nuisance will need to be evidenced by the Environmental Health Officer (‘EHO’ who will come to an independent judgement. The process of determining what level of noise constitutes a nuisance can be subjective. The level of noise, its length, timing, and location may be taken into consideration in deciding whether a nuisance has occurred.
11. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the noise. If someone does not comply with an abatement notice they can be prosecuted and fined.
12. It is open to members of the public to bring their own case to the Magistrates Court under section 82 of the Environmental Protection Act 1990 and to ask the court to serve an abatement notice. It is good practice for Councils to make complainants aware of this option.

Anti-social behaviour

13. 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. ASB may include noisy or inconsiderate neighbours.
14. Councils and the police can issue Community Protection Notices (CPN), use powers under EPA 1990 for noise complaints and use informal intervention such as mediation or advice.

The Council’s Statutory Nuisance Policy

15. The Council requires noise nuisance evidence in the form of diary sheets logging frequency and timing. Six incidents of noise complaints must be recorded within 40-days before it will decide to investigate.
16. Once a complaint is escalated for investigation it will contact the complainant within five working days. It will thereafter provide monthly updates as a minimum.
17. Its further response depends on different factors including the duration, frequency, and level of intrusion. Its first response is to make the person complained of aware of the situation. Its further investigation methods include verbal and written advice, site visits and inspections, diary records and use of noise monitoring equipment.
18. Where the Council establishes a statutory nuisance exists or is likely to exist, it is obliged to serve an Abatement notice on the person who is responsible for the nuisance, or the owner or occupier of the premises. It may undertake further enquiries with the responsible person before issuing a notice.
19. In some cases, the Council may decide it is unable to take enforcement action and direct the complainant to other relevant authorities or alternative remedies.
20. The Council’s online Noise Action guidance says it will not take further action where noise disturbance is due to poor sound insulation from everyday living, children, door slamming or domestic disputes.

Private Sector Leasing Properties

21. Local authorities often lease properties from private landlords to provide accommodation. These are called private sector leasing properties (PSL) where the local authority remains responsible for the management of the tenancy. It may delegate the management function to agents.

What happened

22. Miss X lives in a ground floor flat and is a leaseholder. Her neighbour was temporarily accommodated in the flat above and had young children.
23. In response to our enquiries, the Council confirmed the neighbour’s property was a PSL. It said the neighbour’s tenancy agreement was managed on the Council’s behalf by an agency (‘the managing agents’).
24. Miss X said her neighbours moved into their flat in April 2022. She said they caused a lot of noise which disrupted her ability to work, sleep or relax. She said she had to use ear plugs at home and even in bed to cancel out the noise. Miss X said she tried to resolve the situation directly with the neighbour but was unsuccessful.
25. In late June 2022, Miss X submitted an online noise report using the Council’s website (including six diary sheets). The evidence does not show a response from the Council.
26. Miss X then emailed the Council’s environmental health team attaching noise recordings. Miss X’s MP also who wrote to the Council.
27. In mid-July, Miss X emailed the Council’s housing team and said:
• The noise level was frequently high and causing her distress.
• The Children had thrown food, drink, glass bottles and rubbish into her garden and she had been spat on.
• The Council should visit the property and review her recording evidence.
28. In late July, an environmental health officer (EHO) acknowledged Miss X’s June email and apologised for the delayed response. The EHO confirmed the Council would obtain the neighbour’s details and discuss the situation with them.
29. In early August, the Council wrote to Miss X’s MP. It said:
• It had discussed the noise and ASB issues with the managing agents and the neighbour. The neighbour informed the Council they had apologised to Miss X, and the children had been warned about their behaviour. No further ASB incidents had since occurred.
• It considered the reported noise was within normal ‘everyday levels’ and was not taking any further action.
• Miss X could contact the managing agents directly and/or continue to report any further noise nuisance using the Council’s online service.
30. In mid-August the EHO also tried contacting Miss X to provide the above update. Miss X later replied to say she had vacated the flat for two weeks to allow it to be soundproofed at her expense. But it had not resolved the noise issue.
31. The EHO replied to say Miss X should now address the noise issue directly with the managing agents as the Council had limited powers to tackle domestic living noise. The EHO then closed Miss X’s case. The records do not show the Council considered Miss X’s evidence or informed her of the case closure.

Miss X’s complaint and the Council’s responses

32. In October, Miss X formally complained to the Council about the issues raised with us.
33. The Council’s November stage 1 response said:
• Miss X’s June noise report was reported to the managing agents who acted in line with the tenancy agreement.
• Noise had to be excessive and over a long period to warrant further action and Miss X’s reports did not meet these criteria.
• If the Council had found evidence it would have considered providing warning letters, supporting the parties, monitoring, and mediation.
• It would keep its position under review and consider Miss X’s evidence. The environmental team would also gather further evidence if necessary.
34. Miss X was unhappy with the Council’s response and escalated her complaint.
35. The Council’s December stage 2 response said:
• Following Miss X’s June 2022 email, the housing team contacted the managing agents who carried out an inspection, discussed the issue with the neighbour and monitored the situation.
• The managing agents subsequently wrote to the neighbours in August and September and visited the property again in late November. The property was furnished (with carpet) to help reduce the noise.
• The EHO’s initial noise assessment (paragraph 31) was without a site visit. However, it was deemed domestic noise due to poor sound insulation and Miss X’s description of the noise supported this finding. The Council referred Miss X to its noise guidance (paragraph 21) which says it did not take further action for everyday living noise.
• A temporary accommodation officer had discussed the situation with Miss X in November. The officer had explained the Council was considering moving the tenants but there was insufficient evidence to justify eviction.
• The environmental team had confirmed receipt of Miss X’s 28 June report. However, there was a technical failure to send her diary sheets. These would be reviewed to see if further action was necessary to include an unannounced home visit and mediation.
• It would undertake follow up action by 6 January, to include an unannounced visit to the neighbour’s flat, a visit to Miss X’s flat and a meeting of all involved parties to decide if further action was necessary.
• The Council was investigating if the property needed a local authority license. However, it noted the managing agents had already taken the necessary action required of normal licensees.

The Council’s follow up actions

36. The records show, in mid-December the Council undertook an unannounced morning visit to the neighbour’s property. Its records say the officer did not witness any noise nuisance. The Council’s report concludes it would not take any further action due to lack of evidence.
37. In late-December the EHO and the temporary accommodation officer visited Miss X’s flat in the evening to assess the noise. The EHO noted the property still had poor soundproofing despite Miss X’s works. The Council’s records say the officers did not witness any noise or statutory nuisance. Miss X later explained this was because the neighbours came to know of the visit and were intentionally quiet to avoid detection. The records say the Council considered Miss X’s previous sound recordings and diary sheets, but decided they also did not meet the threshold for further action.
38. In late December, the EHO emailed Miss X to confirm the Council had not found evidence of statutory nuisance and was unable to take any enforcement action. The Council offered Miss X mediation, but the records do not show if this was arranged. The EHO also advised Miss X of her right to pursue private action in the magistrate’s court.
39. Unhappy with the outcome of her case Miss X approached the Ombudsman.
40. In response to our enquiries the Council confirmed Miss X’s neighbour’s property is a Private Sector Leasing Property (PSL) used as temporary homeless accommodation. It said these properties are exempt from any local authority licensing requirements. However, this would not have affected the Council’s decision making about enforcement action if it had established a statutory nuisance existed.

Was there fault and did it cause injustice?

i) Miss X says the Council delayed responding to her reports of anti-social behaviour (‘ASB’) and noise nuisance from a neighbouring property.

41. Miss X submitted her nuisance report online at end of June 2022. The Council then opened an ASB and noise nuisance case. However, the records do not show any Council acknowledgment or response to Miss X until the EHO’s email in late July. This delay was fault and inconsistent with the Council’s statutory nuisance policy (paragraph 15), which says it will contact complainants within five working days. The Council’s housing team also failed to acknowledge Miss X’s contact and explain the steps it was taking to address her complaint. This was also poor communication and customer service. This caused Miss X uncertainty and frustration about whether her complaint was being managed properly. This is injustice.

ii) Miss X says the Council did not investigate her ASB and noise nuisance reports properly, provide updates or take appropriate enforcement action.

42. The records show from late July until end of August the Council took a proactive approach to investigating Miss X’s noise and ASB report. The records confirm the Council contacted the managing agents who made the neighbour aware of the complaint and then issued warning letters. The managing agents also confirmed Miss X’s neighbour had apologised to her for the children’s spitting and throwing rubbish in her garden. It then monitored the ASB situation and found no further incidents. The Council’s initial investigation response was in line with its statutory nuisance policy.
43. However, the Council’s stage two complaint response confirms it failed to consider Miss X’s noise recordings and diary sheets, due to a technical failure. The EHO’s initial decision to close Miss X’s case was therefore without considering her evidence or a site visit. The Council’s failure to properly consider the evidence is fault as it was inconsistent with the law and the Council’s nuisance policy which require evidence-based decisions. The records also do not show the Council sent Miss X a formal case closure letter in August 2022. This was poor communication and caused Miss X further uncertainty as she was left unsure of her case progression. This is further injustice.
44. The Council has explained its subsequent steps to investigate Miss X’s reports (paragraphs 35-36). In summary, the Council liaised with its managing agents who visited the neighbour, monitored the situation, and carpeted the property to reduce the noise. The temporary accommodation officer also spoke with the neighbour and explained to Miss X it could not move the tenants or issue an eviction notice. However, I note the Council eventually reviewed Miss X’s evidence about five months after her submission. This undue delay is fault which caused Miss X avoidable uncertainty and frustration as she did not think her views were properly considered. This is injustice.
45. As a part of its follow up plan the Council visited the neighbour’s property and Miss X’s home to gauge the noise levels. The Council conducted two assessment visits six months after Miss X’s report. However, the records show the Council also considered earlier visit information from its managing agents, temporary accommodation officer and discussions with Miss X before deciding no further action was required. I do not find fault in the Council’s decision making or that it failed to follow its policy and procedures in establishing the noise did not amount to a statutory nuisance. I therefore cannot question the merits of its decision.
46. I appreciate Miss X spent money soundproofing her home and incurred further expenses on accommodation during works. However, the records show this was her decision before the Council’s investigation and complaints process was complete. The records also show the Council’s housing and environmental teams worked together and stayed in regular communication with Miss X between November 2022 and the closure of Miss X’s case in late January 2022. I do not find any fault in relation to the Council’s communications with Miss X in the above period.

iii) Miss X says the Council did not have a local authority license for the neighbouring property.

47. The Council has explained the status of Miss X’s neighbour’s property as explained at paragraph 40 (above). I also note the Council ensured the managing agents took necessary action to address the noise issues as previously explained. Based on the evidence, the Council was entitled to accommodate Miss X’s neighbour in the property, and I do not find any fault in relation to this point.

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Agreed action

48. Within a month of my final decision, the Council has agreed to:
• Write to Miss X and apologise for:
1. Its delayed response to Miss X’s June 2022 noise nuisance report and failure to acknowledge her email to its housing team and any uncertainty and distress caused.
2. Its failure to consider Miss X’s diary sheets and noise recording evidence before closing her case and failure to inform her of its closure decision and any uncertainty and distress caused.
3. Its delay in considering Miss X’s noise diary and audio recordings and any uncertainty and distress caused.
• Make a payment to Miss X of £150 in recognition of the identified faults in this statement and uncertainty and distress caused.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I find the Council delayed in its initial response to Miss X’s reports of antisocial behaviour and noise nuisance from a neighbouring property, in considering evidence and instances of poor communication. The Council should apologise to Miss X and make a payment for uncertainty and distress caused. I do not find any fault in the Council’s subsequent investigation of Miss X’s reports and its decision making not to take further action. I do not find any fault in relation to the Council’s use of the neighbouring property as temporary accommodation.
51. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman