Summary: Mr X complained the Council has failed to suitability investigate a noise nuisance complaint about private-contracted bin collections since June 2021. We found fault with the Council failing to complete a suitable noise nuisance investigation. The Council agreed to our recommendations to produce a plan of action for completing a noise nuisance investigation into Mr X’s complaint and reviews the action it has taken in line with its enforcement policy. The Council also agreed to apologise to Mr X and pay him £300 for the stress and inconvenience the Council’s lack of action has caused him.

The complaint

1. Mr X complained the Council has failed to suitability investigate a noise nuisance complaint about private-contracted bin collections since June 2021.
2. Mr X says he is disturbed three times a week between 4:30am and 5:30am causing him disturbed sleep, stress and inconvenience.

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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 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)
5. 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

6. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Statutory Noise Nuisance

8. The Environmental Protection Act 1990 (EPA) places a duty on the Council to investigate any complaints of ‘statutory nuisance’. Statutory nuisance is a term commonly applied to the impact of noise from a property. For a noise to amount to a statutory nuisance it must do one of the following:
• Unreasonably and substantially interfere with the use or enjoyment of a home or other property
• Injure health or be likely to injure health
9. There is no set level at which noise becomes a statutory nuisance. The Council’s role is to make a judgement considering several factors such as the activity, locality, time of day, frequency and duration of the noise.
10. The Council is required to investigate complaints of noise nuisance. It will gather evidence to find out whether the noise is causing a statutory nuisance. If it finds the noise is a statutory nuisance it must take action to stop it.

Council policy

11. The Council’s Enforcement Policy details how it handles complaints about noise nuisance.
12. The Council’s policy says that any decision about appropriate enforcement action is based on the professional judgement of the Council Officer.
13. The Council’s policy says when it receives a complaint from a person that may lead to enforcement action against a business or an individual it will first notify the alleged perpetrator of the complaint.
14. The Council says it will usually begin with informal action such a providing advice or information, or issuing a warning to the alleged perpetrator. The Council says it will take informal action when it does not consider the issue is serious enough to warrant formal action or if it believes informal action is likely to achieve compliance.
15. The Council says it may give advice on “good practice” to an alleged perpetrator but will distinguish this from telling an alleged perpetrator what they “must do” to comply with the law.
16. The Council says that if an alleged perpetrator fails to follow informal advice or honour a voluntary undertaking it can consider an escalation of enforcement action.
17. The Council will can take formal enforcement action which includes options such as issuing a statutory notice. The Council says it will take formal enforcement action when this is required by statute or where it believes the alleged perpetrator will not take the required steps to comply with informal action.

Council complaints procedure

18. The Council operates a five-stage complaints procedure from Stage 0 to Stage 4.
19. Before accepting a formal complaint, the Council will log a contact at Stage 0 of its process. The Council treats a Stage 0 complaint as anything that it can resolve quickly without needing to continue to a full formal complaint response. If the Council can resolve a matter quickly it can close a complaint before progressing to Stage 1 of the complaint process.
20. A person can request to advance to Stage 1 of the Council’s complaints process by making a formal written request. The Council does not have to consider a matter at Stage 0 before progressing to Stage 1. Once a person has submitted a Stage 1 complaint, the Council should provided a written response within 10 working days.
21. If a person disputes a Stage 1 complaint response the Council should advance to Stage 2 of its complaints process. The Council should provide a written Stage 2 complaint response within 10 working days of receipt of the request.
22. Again, if a person is dissatisfied with a Stage 2 complaint response they can request consideration at Stage 3. At Stage 3 the Council’s process says it will normally try to arrange a meeting with the complainant to discuss the complaint. The Council will issue a Stage 3 complaint response within 10 working days of this meeting. If no meeting takes place then the Council should issue a Stage 3 complaint response within 10 working days of the request.
23. Once the Council has issued a Stage 3 complaint response a person can approach the Local Government and Social Care Ombudsman with their complaint. This is Stage 4 of the Council’s process.

What happened

24. On 28 July 2021, Mr X complained to the Council about a noise nuisance caused by commercial bin collections near his property at 4:30am.
25. The Council registered Mr X’s concerns and spoke with both the commercial waste contractor and the shop. The contractor agreed to reschedule collections after 7:00am with its subcontractor. The Council told Mr X about this agreement on 10 August 2021.
26. Mr X told the Council on 23 August 2021 that bin collections continued to take place early than 7:00am. The Council contacted the contractor again who advised it would start to complete collections after 6:30am but it would take about a week to reschedule the rota.
27. Mr X contact the Council on 6 September 2021 and advised bin collections continued to take place earlier than 6:30am. The Council sent Mr X diary sheets to complete to monitor the times and occurrences of the bin collections. The Council also contacted the contractor who advised it had not managed to reschedule bin collections yet.
28. On 21 September 2021, Mr X provided the Council with completed diary sheets of the noise nuisance and asked the Council for an update. The Council did not respond to Mr X’s contact or review the diary sheets.
29. Mr X told the Council on 24 November 2021 that bin collection continued at about 4:45am. Mr X also requested the Council raise a Stage 1 complaint on 26 November 2021.
30. The Council contacted the contractor who advised it was completing collections after 6:00am but a temporary driver had completed earlier collections this week. The Council told Mr X about the contractor’s response; Mr X disputed the contractor’s claims.
31. On 3 December 2021, Mr X told the Council the subcontractor continued to complete collections before 5:00am as well as another subcontractor. The Council asked Mr X for evidence of these collections. Mr X told the Council he could not provide his video evidence because the file was too large.
32. The Council contacted the contractor who said it would arrange for later collection times after 7:00am. A council officer also completed a site visit on 8 December 2022 but made no reference to noise nuisance, whether it was present or not.
33. The Council told Mr X about the promise from the contractor to collect rubbish after 7:00am and asked him to provide diary sheets of the noise nuisance. Mr X said he provided diary sheets in September 2021 and invited the Council officers to visit his property any day to witness the noise nuisance. The Council asked Mr X to provide new diary sheets. Mr X did not provide new diary sheets to the Council.
34. Mr X asked the Council for a response to his noise nuisance complaint on 11 February 2022. The Council promised a response from the noise nuisance department. The Council tried to contact the contractor on 11 February 2022 and 16 February 2022 before managing to speak to the contractor on 21 February 2022. The contractor told the Council it had contracted for a different subcontractor to start after 7:00am and confirmed this in writing with the Council on 25 February 2022.
35. The Council confirmed this new agreement with Mr X. Mr X responded on 26 February 2022 and 1 March 2022 to advise he wanted a response to his complaint at Stage 2 of the Council’s complaint process.
36. On 4 March 2022, the Council told Mr X it had handled his previous contacts as service requests but had now lodged a Stage 1 complaint.
37. The Council provided its Stage 1 complaint response on 18 March 2022. The Council said:
• It had not responded to all Mr X’s contacts about his noise nuisance complaint and had failed to keep him suitability updated.
• It had failed to explain the benefits of the diary sheets and went on to provide an explanation of their importance to Mr X.
• None of its officers had visited to try to witness the noise nuisance.
• The contractor had agreed to complete collection after 7:00am from 25 February 2022 and to contact if he is disturbed before this time.
• It had spoken to its officers about the issues and apologised for the lack of updates and contacts.
38. Mr X sought consideration of his complaint at Stage 2 of the Council’s complaint process on 29 March 2022. Mr X complained the Council had failed to progress his noise nuisance complaint and the Council was not carrying out any meaningful investigation.
39. The Council liaised with Mr X about his complaint and initially refused to progress his complaint to Stage 2 of its complaints process. Mr X also provided evidence of collections being completed by two different contractors. The Council said it would complete a site visit; this did not happen.
40. The Council contacted the subcontractor on 25 April 2022 who advised it could not accommodate later collections. The Council contacted the contractor about this who said it would be looking at finding a different subcontractor.
41. The Council sent Mr X a Stage 2 complaint response on 10 May 2022. The Council said:
• It had been in contact with the main contractor since July 2021 to try to reach an agreement for later collection times. The Council said the contractor was currently working on this.
• It had arranged for an officer to contact the businesses to try to identify the subcontractors for all the businesses and remind them of the need to be considerate of residents.
• Mr X should continue to provide diary sheets as it must assess each contractor, and subcontractor, on their own merit to determine a statutory noise nuisance.
42. Mr X sought escalation of his complaint to Stage 3 of the Council’s complaint process on 20 May 2022 and asked questions of the Council. The Council contacted Mr X on 24 May 2022 and offered to have a meeting with him on 16 June 2022. Mr X at first agreed to this meeting but declined this on 31 May 2022.
43. On 1 June 2022, the contractor told the Council it had put in place a contract with a subcontractor for collections after 7:00am from 6 June 2022. The Council told Mr X about this agreement.
44. On 17 June 2022, the Council provided Mr X with a Stage 3 complaint response. The Council said:
• It had been in regular contact with the contractor to try to reach an informal agreement over a suitable outcome.
• It had conducted site visits, but not between 4:30 and 7:00am.
• As a result of mediation, collections should now be at a more acceptable time.
• Mr X should continue to provide diary sheets to prove the noise nuisance.
45. Mr X told the Council he continued to be experience collections before 7:00am before providing diary sheets on 19 July 2022 to show the collection times.
46. The Council contacted the contractor who advised it had now scheduled collections between 6:00am and 6:30am.

Analysis

Initial noise nuisance investigation

47. The Council took suitable steps in line with its policy in response to Mr X’s first contact in July 2021. The Council assessed the situation and decided an informal approach was best suited to the situation. The Council approached the alleged perpetrator of the noise nuisance and reached an informal agreement for it to complete collections after 7:00am.
48. The Council has followed its policy as it believed it could resolve the matter through an informal approach. I do not find fault with the Council.
49. In response to Mr X’s contact at the start of September 2021, the Council took suitable steps to move Mr X’s complaint about noise nuisance forwards. The Council provided Mr X with diary sheets to enable him to log the noise nuisance and contacted the contractor to remind it of the informal agreement.
50. The Council acted in line with its statutory duty to investigate noise nuisance complaints by beginning the process of collecting evidence. The Council also followed its policy by continuing to pursue an informal resolution with the contractor. I do not find fault with the Council.

Noise nuisance investigation from September 2021 to February 2022

51. When Mr X provided the diary sheets to the Council at the end of September 2021, it failed to review the diary sheets. The Council also failed to take further action to progress Mr X’s noise nuisance complaint. This was fault by the Council. This fault caused a two-month delay in investigating Mr X’s noise nuisance complaint until November 2022.
52. Following Mr X’s contact in November 2022, the Council continued to try to pursue an informal resolution with the Council. This is a decision the Council was entitled to make as it continued to believe it could resolve the issue through an informal agreement. I do not find fault.
53. However, the Council’s records show no attempt to review Mr X’s diary sheets. While a council officer visited the site, there are no notes they tried to visit Mr X’s property to try to witness the noise nuisance. This was a missed opportunity to review the evidence available and was fault.
54. While the Council failed to review the information available in December 2021, it asked Mr X to provide further diary sheets. Mr X failed to provide these diary sheets. This resulted in no further action from December 2021 until February 2022. During this time the Council was waiting on diary sheets from Mr X so I do not find fault with the Council for any lost opportunity to investigate during this time.

Informal enforcement action

55. The Council has shown it tried to take an informal approach to enforcement over Mr X’s complaint. I do not find fault with the Council pursuing an informal approach in the first instance as this is in line with its enforcement policy.
56. However, despite Mr X’s repeated contacts about a continuation of the noise nuisance, the Council has repeatedly pursued an informal approach.
57. By February 2022, the Council had informally agreed a voluntary undertaking with the contractor on four separate occasions for collections to be completed after the earliest of 6:00am. On 25 February 2022, the contractor confirmed a fifth voluntary undertaking to not complete collections, in this instance, before 7:00am. The Council has continued to pursue an informal approach since this point.
58. Despite these voluntary undertakings, Mr X continued to complain to the Council about collections earlier than 7:00am. The Council’s policy says that it can consider escalation to formal enforcement action if an alleged perpetrator fails to follow a voluntary undertaking or informal advice.
59. The Council has discretion about when to pursue a matter through formal enforcement. The Ombudsman cannot question a council’s decision not to advance to formal enforcement action if it has considered a matter and set out its reasons for not pursing formal enforcement action.
60. However, a council cannot fetter its discretion by failing to consider progression to formal enforcement or never adopting a formal approach despite repeated failures of the informal approach. The Council’s records show no consideration of escalating to formal enforcement action despite repeated non-compliance with voluntary undertakings. This was fault.

Statutory duty to investigate noise nuisance

61. The Council has a statutory duty to investigate any complaints of statutory noise nuisance. There is no set, formal process for councils to follow when they receive a complaint about a potential statutory nuisance. However, there is a requirement on the Council to gather evidence to decide if a statutory nuisance exists.
62. As explained in paragraphs 47 to 50, the Council took suitable steps to register Mr X’s noise nuisance complaint and ask Mr X to provide diary sheets to evidence the noise nuisance.
63. But, since the end of September 2022, the Council has taken no steps to progress Mr X’s noise nuisance complaint forwards through either the gathering, or review, of evidence.
64. Mr X provided the Council with noise nuisance diary sheets in September 2021 and July 2022. The Council’s records of Mr X’s noise nuisance complaint show no notes of reviewing Mr X’s diary sheets. This was fault.
65. Following a review of diary sheets, a council should decide whether to investigate a noise nuisance further. If a council decides to investigate a noise nuisance further it should decide if this is through site visits or installation of noise monitoring equipment, or both.
66. The Council failed to progress Mr X’s complaint through to any form of investigation despite promises to send officers to complete site visits. The Council has made minimal attempt to gather evidence of any statutory noise nuisance. This has prevented the Council from making any decision on whether a statutory noise nuisance exists. This was fault.
67. This fault has resulted in missed opportunity to investigate Mr X’s complaint for over a year, since September 2021. This has caused Mr X frustration and uncertainty about whether the Council would find a statutory noise nuisance.

Complaint handling

68. Mr X requested the Council raise a Stage 1 complaint on 26 November 2021. The Council failed to register this request. Mr X reiterated his request for the Council to respond to his complaint under its complaints process on 11 February 2022, 26 February 2022 and 1 March 2022.
69. The Council only registered Mr X’s complaint on the fourth time of asking and only provided Mr X with a Stage 1 complaint response on 18 March 2022.
70. The Council has obstructed Mr X’s ability to raise a Stage 1 complaint. This resulted in the Council responding to Mr X’s Stage 1 complaint 67 days outside its complaint timescales. This was fault.
71. Mr X sought escalation of his complaint to Stage 2 of the complaints process on 29 March 2022. The Council refused escalation of his complaint until 21 April 2022. This meant the Council only provided its Stage 2 complaint response on 10 May 2022. This response was 20 working days outside the Council’s complaint timescales. This was fault.
72. Mr X requested a Stage 3 complaint response on 20 May 2022. The Council offered a meeting on 24 May 2022 which Mr X at first accepted but by 31 May 2022 declined the meeting.
73. In the circumstances, I consider Mr X’s effective request date for a Stage 3 complaint response became the date he declined the meeting, being 31 May 2022. The Council provided Mr X with the Stage 3 complaint response on 17 June 2022 This response was 3 working days outside Council’s complaints process. This was fault.
74. The Council has delayed in handling Mr X’s complaints outside its complaint timescales by a total of 90 working days. The Council has obstructed Mr X’s ability to pursue his complaint through its complaint procedures through either ignoring contacts or refusing to progress his requests for escalation.
75. The Council’s mishandling of Mr X’s complaint has caused Mr X inconvenience, frustration and distress.

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Agreed action

76. Within one month of the Ombudsman’s final decision the Council should:
• Create a plan of action to investigate Mr X’s noise nuisance complaint including details or how it will gather evidence and a timescale for completion of these actions. The Council’s plan of action should enable it to make a decision about whether a statutory noise nuisance exists and what action it should take. The Council should share its plan of action with Mr X.
• Complete a review of the informal action it has taken to date relating to Mr X’s complaint and demonstrate consideration of whether it should pursue formal action under its enforcement policy. The Council should write to Mr X to explain its thinking following its review.
• Apologise to Mr X and pay him £300 for the inconvenience, frustration and stress caused by the Council’s mishandling of his complaint and delays in completing a suitable noise nuisance investigation.

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Final decision

77. There was fault leading to injustice. As the Council accepted my recommendations I have completed my investigation as I consider that a suitable remedy.

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Investigator's decision on behalf of the Ombudsman