Summary: the Council took too long to investigate Mr X’s reports about noise nuisance and anti-social behaviour by his neighbours. This fault caused Mr X avoidable distress and frustration and the Council has agreed to provide a remedy for this. Once the investigation started, there was no fault in the way the Council conducted it and considered the available evidence.

The complaint

1. Mr X complained that the Council did not carry out a timely and thorough investigation of his complaints about noise and anti-social behaviour by his next door neighbours. He believes the Council officer who investigated his neighbour’s counter-allegations of noise nuisance was biased and that led her to serve him with an Abatement Notice.
2. Mr X wants the Council to withdraw the Abatement Notice and reimburse the legal costs incurred to instruct a solicitor to appeal against the Notice.

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What I have and have not investigated

3. I investigated Mr X’s complaint about the way the Council handled his complaints about noise and ASB by his neighbours.
4. I did not investigate the Council’s decision to serve him with an Abatement Notice because Mr X used his right of appeal to the Magistrates Court to challenge the Notice.

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The Ombudsman’s role and powers

5. 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)
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)
7. The Local Government Act 1974 sets out our powers and also imposes restrictions on what we can investigate.
8. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
9. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not, or could not, provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

10. I have spoken to Mr X and considered the evidence he sent me.
11. I considered the Council’s response to my written enquiries along with the relevant case records and correspondence held by the ASB and noise teams.
12. I gave Mr X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and practice

Anti-social behaviour

13. Councils have a general duty to take action to tackle anti-social behaviour (ASB). ASB can take many different forms; and councils should make informed decisions about which of their powers is most appropriate for any given situation.
14. For example, they may approach a complaint:

• as an environmental health issue, where the complaint is about noise or pollution; or
• using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

Noise and statutory nuisance

15. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
16. Noise from premises may amount to a statutory nuisance. To count as a statutory nuisance, the noise 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.
   

17. 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 sometimes offer an ‘out-of-hours’ service for people to contact, if the nuisance occurs outside normal working time.
18. Once the evidence-gathering process is complete, the environmental health officer will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
19. 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.
20. 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 a short period, to attempt to address the problem informally.
21. An abatement notice requires the person 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.
22. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.
     

What happened

23. This statement sets out the key events relevant to this complaint but it does not aim to describe everything that happened.
24. The Council’s Environmental Crime team investigates complaints about noise and other types of statutory nuisance. The Anti-Social Behaviour (ASB) team investigates complaints about neighbour nuisance, harassment and other types of ASB.
25. The Council says the ASB team has a target timescale of one to ten working days to respond to complaints from the public, depending on the nature of the enquiry. The Environmental Crime team has a target timescale of ten working days.
26. Mr X is a private tenant who lives in an end of terrace house. He says his next door neighbours regularly wake him by banging on the bedroom party wall in the early hours of the morning. They also play loud music at unsocial hours.
27. Mr X says the noise often starts on weekday nights around 2:00 a.m or 3:00 am when the Council’s out of hours noise service is not operating so officers have not been able to visit to witness the nuisance.
28. Mr X first reported the noise nuisance to the Council in mid-October 2021. causing a noise nuisance. He received an automated acknowledgement email on 14 October.
29. On 12 November 2021 Mr X sent an email to the Environmental Crime team to chase up a response. He said he had reported the noise nuisance a month earlier but had heard nothing. He said the neighbours were still waking him when they banged on the bedroom wall in the middle of the night. They also banged on the living room wall in the evenings a few times a week. Mr X did not mention in this email that the neighbours also played loud music. He said he had contacted the police in early October who advised him to report incidents to the Council. Mr X said he had also overheard his neighbours making reference to his ethnicity.
30. On the same day the Environmental Crime team asked Mr X for his neighbour’s address. Mr X responded immediately with the details. Officer A, an Environmental Health Officer (EHO) in the Environmental Crime team, then forwarded Mr X’s email to the Anti Social Behaviour (ASB) team. She said if the neighbour was banging on the walls for a limited time two or three times every week it would not be regarded as a statutory nuisance. She said the neighbours may be deliberately harassing Mr X by banging on the walls and it was therefore appropriate for the ASB team to investigate. In a separate email sent on the same day, the ASB team was also asked to investigate the racial remarks made by the neighbours.
31. Mr X sent two emails to the Environmental Crime team in December 2021 to say he was still waiting for a response. An officer forwarded his first email to the ASB team and asked them to give Mr X an update and copied Mr X in.
32. Mr X received no response from the ASB team in 2021.
33. Meanwhile Mr X’s neighbours contacted the Environmental Crime team in January 2022 to allege that Mr X was causing a noise nuisance by playing loud music during the day. The Council sent a warning letter to Mr X on 19 January 2022 to alert him to the complaint but Mr X says he did not receive it.
34. In late February 2022 Mr X’s neighbours sent diary sheets which logged the dates and times when they say they heard loud music was played in Mr X’s home. Generally this was during the daytime.
35. Following a further report from Mr X’s neighbours, Officer A visited on a weekday morning in early March 2022 to try to witness the noise. She went into the neighbour’s home and recorded that she could hear music coming from Mr X’s property. She said she could hear the bass sound of the music in the living room and a bedroom.
36. Officer A then went to Mr X’s home to speak to him about the neighbours’ complaint. She asked him to turn the music down. She said she would have to serve an Abatement Notice if she returned and witnessed noise amounting to a statutory nuisance.
37. Mr X told Officer A he had not received the warning letter sent in January. He also asked what the Council was doing to investigate the noise complaints he made several months ago about the neighbours. Officer A said she was not aware of his complaints and agreed to find out more and update him. According to Officer A’s notes, Mr X refused to turn down the volume of his music until the Council started investigating his complaints about the neighbours.
38. On the same day Officer A spoke to an officer in the ASB team who confirmed that the referral made in November 2021 had not been acted on. Officer A asked her to allocate the case urgently because Mr X was equally entitled to a service.
39. On the same day Officer A called Mr X’s neighbour and asked her to respond to Mr X’s allegations. She denied playing loud music, banging on the walls or making racial comments. On 4 March the neighbour told Officer A she and her husband were not willing to consider mediation with Mr X. Officer A emailed a copy of the January 2022 warning letter to Mr X.
40. On 4 March Officer B, who works in the Council’s ASB team, contacted Mr X to ask for more information. He noted that he had made the complaint some time ago and asked Mr X whether his neighbours had made any racial remarks more recently. He also asked for crime reference numbers for incidents reported to the police.
41. On 17 March Officer B sent Mr X an action plan for the investigation. It said Mr X would complete diary sheets to log incidents and Officer B would:

• Contact Mr X’s neighbours about the allegations he had made;
• Visit Mr X and his neighbours;
• Contact the Neighbourhood Policing Team to discuss any interventions that they may assist with including reports of racial abuse.
• Liaise with the Environmental Crime team.

42. On 22 March Officer A sent a final warning to Mr X following further reports from his neighbours that he was playing loud music.
43. On the next day Officer B wrote to Mr X’s neighbour to tell her about Mr X’s complaint that they were causing a nuisance by knocking on the wall during the night. He asked her to contact him to discuss this matter.
44. On the same day Officer B contacted the police to enquire about any incidents reported by Mr X. According to the Council, the police said Mr X had reported one incident in the past six months but it did not relate to racial abuse or his neighbours.
45. On 31 March Officer A returned to the neighbours’ home when they called her to report that Mr X was playing loud music during the day. Officer A heard loud music which she considered to be a statutory nuisance. The Council served Mr X with an Abatement Notice in early April 2022. Since Mr X used his right of appeal to the Magistrates Court to challenge the Notice, the Ombudsman has no jurisdiction to investigate the decision to issue it.
46. Between 25 March and 26 May 2022 Mr X sent Officer B six sets of diary sheets which logged noise incidents in the period from 17 March to 23 May 2022. Every entry in the diary sheets describes the noise as the neighbour banging on the wall intermittently and playing loud music continuously. Mr X said he heard this in his bedroom and it woke him up. The vast majority of incidents were logged as occurring between 1:00am and 7:30 am on weekday nights. There were three incidents logged in the early hours of Saturday and Sunday mornings.
47. Mr X also sent six noise recordings he made in late March and late May 2022.
48. On 11 April Officer B said he had reviewed the diary sheets and listened to the noise recordings Mr X submitted in late March. He said he could not hear any loud music on the recordings. He asked Mr X to continue logging and recording incidents.
49. In late April Officer A noted that some of the incidents Mr X logged in the diary sheets had occurred at the weekend at times when the Out of Hours Service was on duty. She asked Mr X if he would like her to ask the Out of Hours noise service to contact him on a Friday or Saturday night.
50. Mr X asked for another case officer to deal with the noise investigation because he had made a complaint about Officer A’s conduct and alleged she had been biased in her investigation. Officer C, an EHO, took over the case. Officer C said he could arrange for the Out of Hours Noise team to contact Mr X at 2:00am on Saturday and Sunday mornings for the next three to four weeks. They could then visit if a noise nuisance was happening then. He also gave Mr X the team’s number so he could contact them to request a visit if the noise occurred earlier on those nights. He confirmed the team did not operate on weekday nights.
51. On 29 April Officer B wrote to Mr X’s neighbours to ask when he could visit them to discuss Mr X’s allegations about them banging on the walls in the early hours. One of the neighbours replied and denied that they banged on the walls. They complained that they were disturbed by Mr X playing loud music. They did not agree to Officer B visiting them but said he could telephone instead on a specified date and time.
52. The Out of Hours team contacted Mr X on 30 April at 2:00am. Mr X said there was no noise occurring at the time. He also missed two telephone calls from the Out of Hours team and Officer C in May while he was sleeping as there was no noise at the time.
53. In late April Officer B contacted Mr X to ask if he could visit him on 4 May. He said Mr X’s neighbours had not responded to his request to visit but he would try to call on them at the same time. Mr X said the proposed date was not convenient due to his work commitments. He suggested alternative dates. Officer B and Mr X exchanged further emails between May and July to clarify the purpose of the visit and potential dates but they could not agree on a date.
54. In late May 2022 Officer C said he had listed to the noise recordings Mr X sent in April 2022 but he could not hear the knocking sounds Mr X referred to on the recordings.
55. Between April and July 2022 Mr X used the Council’s complaints procedure to raise his concerns about the way it had handled the noise nuisance and ASB investigation. The Council accepted the ASB team failed to respond to the referral in late 2021. It says the ASB team wrongly believed the Environmental Crime team were dealing with the noise issues and its response was also delayed by a high volume of calls and staff sickness. It apologised to Mr X for the poor service. It told him the case was still open with the ASB team who were trying to arrange a visit to both properties.
56. Mr X was not satisfied with the response and took his complaint to the second stage of the complaints procedure. The Council confirmed that another officer in Environmental Crime team was handling his case and Officer B had contacted the police who said it received one report of criminal damage from Mr X. It upheld Mr X’s complaint about the delay in investigating and responding to his complaints.
57. In July 2022 Officer C reiterated that he could not hear the knocking or banging sounds Mr X had pinpointed on the noise recordings. In early August 2022 Officer B contacted Mr X to ask if there were any ongoing problems with noise because he not reported any further incidents.
58. Mr X complained to the Ombudsman in August 2022. Our investigation can only consider events which happened before then and which the Council investigated. In response to our enquiries, the Council said it has not received any further diary sheets or noise recordings from Mr X since July 2022.

My analysis

59. Mr X received an inadequate response when he first reported incidents of noise nuisance and ASB to the Council in October 2021. The Council did not start to investigate until early March 2022. Despite sending three emails in November and December 2021 to chase progress, the investigation only began when Officer A visited Mr X to discuss his neighbour’s complaint.
60. The Council’s service standards say it should respond to ASB and noise complaints within a maximum of 10 working days. Instead it took almost six months to start the investigation. The failure to carry out a timely investigation and respond to Mr X’s reminders was fault and this caused Mr X avoidable uncertainty, frustration and stress. It also meant it was too late to carry out an effective investigation and gather evidence about what happened in the autumn 2021. It is not possible to say whether the outcome would have been different if there had been a timely investigation.
61. Mr X alleged that his neighbours were causing a noise nuisance by playing loud music and banging on the walls. Noise nuisance comes under the remit of the Environmental Crime team. But he also raised concerns that his neighbours were deliberately engaging in this behaviour as a form of harassment and he overheard them making comments about his race. That was a matter for the ASB team. Mr X was understandably confused when his complaint was passed from one team to the other. Better communication and joint planning by the two teams at the outset is likely to have led to a more efficient investigation and clearer communication with Mr X.
62. I find no fault in the way the investigation was carried out once it started in March 2022. Officers reviewed the evidence in Mr X’s diary sheets and noise recordings. They found no evidence of a statutory noise nuisance or harassment. Mr X takes a different view but it is not fault when officers have assessed the evidence, exercised their professional judgment and reached a different conclusion. The option of mediation, which requires the voluntary participation of both parties, was considered but Mr X’s neighbours were not willing to engage with this. Mr X’s allegations were put to the neighbours and they responded. They did not agree to Officer B’s suggestion of a visit and denied all the allegations. Arrangements were made for the Out of Hours noise team to contact Mr X at the end of their weekend shifts to find out if the noise was occurring so officers could visit to witness it. However there was no noise when they tried to contact Mr X. Officer B from the ASB team offered to visit Mr X but they could not agree a mutually convenient time. The Council took proper steps to investigate the reported incidents.
63. Mr X says he received a worse service than his neighbours. He certainly waited far too long for the Council to investigate the incidents he reported. But the Council could not take formal action against his neighbours unless officers had sufficient evidence of harassment or a statutory nuisance. In this case, officers did not find this threshold was met.
64. Mr X believed Officer A was biased in the way she approached the investigation because she took his neighbours’ side. He says that influenced her decision to serve him with an Abatement Notice. As Mr X has used his right of appeal to the Magistrates Court, I cannot investigate whether the Council had good grounds to serve the Notice.
65. One of the outcomes Mr X wanted from our investigation was for the Council to rescind the Abatement Notice and reimburse his legal costs for the appeal. However I cannot recommend this remedy. Mr X appealed to the Magistrates Court and so it was for the Court to decide whether to quash or vary the Notice and whether to award costs. Furthermore the law is clear that the Ombudsman cannot investigate a matter which has been considered by a Court even where the Court did not, or could not, provide a complete remedy and award the appellant’s full costs.

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Agreed action

66. Within one month of my final decision the Council will apologise to Mr X and pay him £200 for the avoidable distress and frustration caused by its failure to carry out a timely ASB and noise investigation. This payment is in line with our published Guidance on Remedies for distress.
67. The Council should provide us with evidence it has complied with the above actions.

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Final decision

68. I have completed the investigation and found the Council was at fault and this caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman