The Ombudsman's final decision
Summary: Mrs C complained the Council failed to address her reports of anti-social behaviour and did not manage the Community Trigger properly. Mrs C said this affected her and her husband’s enjoyment of their home, caused them distress, resulted in financial loss and put them to time and trouble chasing the Council. We found fault with the Council for its delay telling Mr and Mrs C the result of its noise nuisance investigation and not including their health information in their risk assessments. The Council’s apology a suitable remedy for any injustice caused to Mr and Mrs C.
The complaint
Mrs C complained the Council failed to address her reports of anti-social behaviour (ASB) and did not manage the community trigger properly. Mrs C said this affected her and her husband’s enjoyment of their home, caused them distress, resulted in financial loss and put them to time and trouble chasing the Council.
What I have investigated The matters in this case are ongoing. I investigated the Council’s actions in response to Mr and Mrs C’s reports of ASB and noise nuisances between January 2021 and September 2021 and its subsequent complaint response. September 2021 is when Mr and Mrs C complained to the Council.
Mr and Mrs C can make a new complaint if they are unhappy with the Council’s ASB and statutory nuisance investigations from October 2021 onwards.
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 investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the police. (Local Government Act 1974, sections 25 and 34A, as amended) 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) If we are satisfied with a council’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 considered: Mrs C’s complaint and the information she provided; documents supplied by the Council; relevant legislation and guidelines; and the Council’s policies and procedures.
Mr and Mrs C and the Council had the opportunity to comment on a draft decision. I considered their comments before making my final decision.
What I found
Legislation and guidance ASB Section 2 of the ASB, Crime and Policing Act 2014 defines ASB 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.
Section 17 of the Crime and Disorder Act 1998 places a general duty on councils to take action to combat ASB. The Anti-Social Behaviour, Crime and Policing Act 2014 gave councils new powers to address ASB; these included the power to issue community protection notices. A community protection notice can direct any individual over the age of 16 to stop causing the problem, it could also require the person responsible to take reasonable steps to ensure that it does not occur again.
As well as drawing on these powers, a council could use its environmental health powers, where the complaint involves a potential statutory nuisance, for example, noise.
The 2014 Act also introduced a mechanism for alleged ASB victims to ask for a review of the handling of their case by the relevant bodies. This is commonly known as the community trigger. The review is multiagency, and its decisions are not within the Ombudsman’s jurisdiction.
In East Riding the community trigger is managed by the community safety partnership.
Statutory nuisance Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. A nuisance is defined as something which unreasonably interferes with someone else's enjoyment of their home or garden. Noise can be statutory nuisances. To be considered a statutory nuisance, they must: unreasonably and substantially interfere with the use or enjoyment of a home or other premise; and / or injure health or be likely to injure health.
Under the EPA, a council must take 'all reasonable steps' to investigate complaints about potential statutory nuisances.
There is no fixed point at which a nuisance becomes a statutory nuisance. Councils will rely on suitably qualified officers to gather evidence. The Council should consider the type, duration, intensity and location of a nuisance when deciding if it is a statutory nuisance.
If the Council considers the nuisance amounts to a statutory nuisance it must serve an abatement notice under section 80 of the EPA.
Section 82 of the Environmental protection Act 1990 allows a magistrates' court to act on a complaint made by any person on the grounds that they are aggrieved by a statutory nuisance.
What happened In January 2021, Mrs C contacted the Council. She told them the problem with her neighbour making a noise nuisance had started again. The Council asked Mr and Mrs C to complete noise diary sheets.
Mr and Mrs C returned noise diary sheets in April 2021. The Council decided these did not provide enough detail to warrant installing noise monitoring equipment. The Council explained this to Mr and Mrs C and advised they could take private legal action against their neighbours.
Mr and Mrs C returned further noise diary sheets in May 2021. The Council arranged to install noise monitoring equipment in June 2021.
In June 2021, the police signposted Mr and Mrs C to the Council’s ASB team. Mrs C reported ASB from her neighbour to the Council. She told the Council she and her husband were disabled and the ASB was affecting their health. She advised their neighbour lived in a Housing Association property and the police told her the Council could get it to evict them. She said she had contacted the Housing Association about the ASB, but it had not responded. The Council contacted the police. The police said it was investigating threats made to Mr and Mrs C and damage to their property.
Over the course of the month, Mr and Mrs C reported multiple incidents they considered ASB to either the police or the Council.
The Council completed an ASB risk assessment for Mrs C. It assessed her as being at medium risk. Medium risk was where the impact of the ASB did not ‘carry the risk of harm, deterioration of health, metal or emotional well-being or inability to carry out normal day-to-day routine through fear of intimidation’.
The Council installed noise monitoring equipment at Mr and Mrs C’s home for one week. Two Council officers reviewed the evidence, and both decided the noise did not constitute a statutory nuisance. Six weeks later, the Council advised Mr and Mrs C of this and explained the reason for its decision.
In June and July 2021, Mrs C contacted the Council to ask for support and intervention from the ASB team. The Council explained the role of the ASB team was to coordinate the multiagency response to their reports of ASB. It reiterated that it could not force a private Housing Association to evict her neighbour. She said she did not want this to happen. It told her it would contact the Housing Association and encourage it to consider her reports of ASB, liaise with the police, and speak to its environmental control team about the noise nuisance. It included these actions in an investigation and support plan for Mr and Mrs C. It said it would update her every 20 working days until either the matter was resolved or there was nothing further it could do.
Mr and Mrs C made further ASB reports to the Council in July 2021 and asked it to activate the community trigger. The Council decided they met the threshold for the community trigger.
The Council discussed Mrs and Mr C’s case at a meeting with the police. The police advised it investigated Mr and Mrs C’s reports of ASB and no offences had been committed. It said it had told Mr and Mrs C.
The Council had a meeting with the private Housing Association. It said Mrs C did not provide evidence of the behaviours she reported, and these behaviours would not be breaches of tenancy. It told the Council it had responded to Mrs C. The Council told Mr and Mrs C the Housing Association did not consider their neighbour had breached their tenancy and therefore it would not take any action. The Council asked for information from the Housing Association about Mr and Mrs C’s reports of ASB.
The Council reviewed its investigation and support plan. It recorded it had spoken with the Housing Association and was having ongoing contact with the police. The Council reassessed Mrs C’s ASB risk and decided she was low risk.
The community safety partnership held a community trigger meeting in August 2021. Mr and Mrs C requested to attend the meeting, and this was arranged. The Council’s ASB and environmental control teams and the police provided information. The meeting found: The police and Council provided Mr and Mrs C’s a timely response to Mr and Mrs C’s reports of ASB.
The police investigated, visited Mr and Mrs C and their neighbour, and found no evidence of any offences being committed.
The Council investigated their complaints about noise and did not find a statutory nuisance.
The Housing Association considered Mr and Mrs C’s reports of ASB and found no breach of tenancy.
The meeting identified the following actions for the Council: Inform complainants at the earliest opportunity about the result of noise monitoring.
Complete ASB risk assessments once it becomes aware an individual may have vulnerabilities.
Tell complainants about the need to evidence ASB.
Provide complainants with realistic expectations about what the ASB team can do.
Review information from the Housing Association and tell Mr and Mrs C about any actions it intends to take.
The Council wrote to Mr and Mrs C with the result of the meeting and gave them details of how to appeal.
The Housing Association sent the Council information about Mr and Mrs C’s reports of ASB. The Housing Association confirmed Mr and Mrs C’s neighbour had not breached their tenancy and advised the police had not found any evidence of unlawful activity.
The Council wrote to Mr and Mrs C in September 2021. It told them it had reviewed the information sent by the Housing Association and this did not provide enough evidence to take formal action against their neighbour. It told Mr and Mrs C the behaviours they reported to the Housing Association did not breach their neighbour’s tenancy agreement.
Mrs C appealed against the result of the community trigger. The community safety partnership manager completed the review and sent the findings to Mr and Mrs C in October 2021. In relation to the Council, the review found its risk assessments had not taken account of Mr and Mrs C’s health matters. The review said although a higher risk rating was unlikely to have changed the result of the procedure if this information was included the Council officers could have given greater consideration to the impact of the reported ASB on Mr and Mrs C’s wellbeing. It also found the Council hastily rescheduled the community trigger meeting so Mr and Mrs C could attend with limited productivity arising from it.
Complaint In September 2021, Mr and Mrs C complained to the Council that it had failed to investigate reports of ASB and that its officer was rude. They said the Council should have issued their neighbour with a community protection order. They also complained about the management, and result of the community trigger.
The Council responded at stage one of its complaint procedure: It explained diary sheets received in April 2021 did not warrant it installing noise monitoring equipment in Mr and Mrs C’s home. It said it installed noise monitoring equipment when they provided credible diary sheets. It confirmed the result of the noise monitoring was there was no statutory nuisance and therefore, no justification for it to take enforcement action. The Council acknowledged it took too long to tell them the result of its investigation. The Council apologised.
It considered its officer was professional and noted he gave them relevant information, support, and advice. It said if apologised it they were upset by any of its correspondence and said this was not its aim.
It confirmed it liaised with the housing association.
It explained it considered all the information it had and did not have enough evidence to act. It advised it could not address wider partnership issues, including her complaint about the community trigger procedure. It said it was sorry they felt let down by the Council.
Mrs C told the Council she was unhappy with its stage one complaint response. The Council sent its final response in November 2021. It considered its stage one response, and found it addressed all the concerns they had raised about the Council. It confirmed it was satisfied it had conducted itself properly and followed the correct process in relation to their reports of ASB. It reiterated that it could not consider the actions of partner agencies.
It acknowledged that it did not tell her how to escalate her complaint to stage two in its first response and apologised. It said it would remind all managers in housing services of the need to do this.
Analysis The Council can only take action against an alleged perpetrator of ASB if it has the evidence to do so. In this case, there was no evidence of ASB.
The Council’s environmental control team reviewed Mr and Mrs C’s diary sheets and collected evidence by installing noise monitoring equipment. It reviewed the evidence and decided the noise was not a statutory nuisance. This was the professional judgement of the Council’s officers. I found no fault with the Council’s decision making. The Council delayed telling Mr and Mrs C the result of its investigation and apologised for this in its complaint response. I consider this a suitable remedy for any injustice caused to Mr and Mrs C by the Council’s fault.
The ASB team told Mr and Mrs C about its role and kept them regularly updated with the actions it had taken. It spoke to the police and the Housing Association and engaged with the community trigger procedure. The police found no evidence their neighbour was committing criminal offences, the Housing Association found no evidence they breached their tenancy, and the Council found no evidence of a statutory nuisance. Without evidence of ASB, the Council could not take any action against Mr and Mrs C’s neighbour.
As identified by the community partnership’s review of the community trigger, the ASB team did not consider Mr and Mrs C’s health when assessing the potential impact of ASB; this was fault. I do not consider this caused Mr and Mrs C significant injustice because from the records I have seen, there was no evidence of ASB. As the meeting was multiagency, its productivity and outcome was not within the Ombudsman’s jurisdiction.
The Council failed to tell Mr and Mrs C how to ask it to consider their complaint at stage two in its stage one complaint response. I do not consider this fault caused Mr and Mrs C significant injustice because they escalated their complaint. The Council apologised for its oversight in its stage two complaint response, I consider this a suitable remedy for any injustice caused to Mr and Mrs C.
Final decision
I have completed my investigation and uphold Mr and Mrs Cs complaint. There was fault by the Council which caused them injustice. I am satisfied the Council has taken action to remedy that injustice.
Parts of the complaint that I did not investigate The matters in this case are ongoing. I did not investigate the Council’s actions beyond September 2021 and its subsequent complaint response. Mr and Mrs C can make a new complaint if they are unhappy with the Council’s ASB and statutory nuisance investigations from October 2021 onwards.
Investigator's decision on behalf of the Ombudsman