The Ombudsman's final decision
Summary: We will not investigate this complaint about noise on the railway network. This is because there is not enough evidence of fault to justify investigating. Further, there is not significant enough injustice to warrant our investigation.
The complaint
Ms Y complains the Authority is failing to ensure the noise of the underground is within a suitable level for passengers.
Ms Y says she is concerned for her hearing as she uses the underground each day for work and is concerned for the hearing of others, including children who also use the service.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information Ms Y provided and the Ombudsman’s Assessment Code.
My assessment
Ms Y complained to the Authority in 2021 about the noise she experienced when using the underground trains in her area. The Authority responded in October. It explained it was aware of the issue and its cause was the roughness that developed on the rails over time. It said it would grind the surface of the rails between once and twice a year but from its experience previously, the roughness returned quite quickly following this. It said its engineers were looking for longer term solutions.
The Authority’s response then explained that there was no legal limit for noise on the underground network and while it understood Ms Y’s concern, the short duration of the noise meant that it did not pose a risk to health or hearing. It confirmed it took regular reading of the noise, but this was to ensure that the noise levels stayed within levels set by the Health and Safety Executive (HSE) for staff working on the underground.
Ms Y then approached HSE, who referred her to her local council. She then approached us in March 2022.
Analysis Railways can lead to a degree of unavoidable noise and disturbance, and this has been recognised in section 122 of the Railways Act 1993. This legislation gives bodies who are acting in the provision of network services, a defence to proceedings for nuisances, such as excessive noise. The Authority has also explained that there is no legal limit for noise on the underground network.
As the Authority has such a defence, it is unlikely we would find fault for the level of noise experienced during journeys on its network. Further, as it has considered the complaint and regardless of any noise limit being in place or not, agreed to act to rectify the problem as part of its maintenance plans, there is not enough evidence of fault to justify our investigation of this complaint.
Further, Ms Y experiences the noise for short periods while she is using the underground. While these instances are regular, the duration of the noise means there is not significant enough injustice to warrant further investigation of the issue.
For the reasons explained, we will not investigate this complaint.
Final decision
We will not investigate Ms Y’s complaint because there is not enough evidence of fault to justify investigating. Further, there is not significant enough injustice to warrant our investigation.
Investigator's decision on behalf of the Ombudsman