The Ombudsman's final decision
Summary: Ms X complains the Council failed to address anti-social behaviour from her neighbours. The Ombudsman find fault with the Council for failing to follow its anti-social behaviour policy. The Ombudsman does not find fault with the Council for how it reached the decision whether to take action. The Council has agreed to make a financial payment and carry out service improvements.
The complaint
Ms X complains the Council failed to address the ongoing noise nuisance and antisocial behaviour from her neighbours.
Ms X says the Council did not properly consider the evidence she submitted.
Ms X complains the Councils failure to act has meant she has been subject to further antisocial behaviour.
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 cannot question whether a council’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 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)
How I considered this complaint
I considered Ms X’s complaint and the information she provided. I also considered information from the Council.
I invited Ms X and the Council to comment on my draft decision and considered any comments received before issuing my final decision.
What I found
Legislation and guidance Statutory noise 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 and fumes can be statutory nuisances.
For a council to consider something a statutory nuisance, it 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 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 will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
Anti-social behaviour (ASB) 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.
Statutory Guidance says it is good practice to assess the risk of harm to the victim(s), and any potential vulnerabilities, when they receive a complaint about anti-social behaviour. The welfare, safety and well-being of victims must be the main consideration at every stage of the process. It is particularly important to identify the effect repeated incidents of reported anti-social behaviour on the victim(s), through the use of a continuous risk assessment. The Anti-social Behaviour, Crime and Policing Act 2014: Anti-social behaviour powers – Statutory guidance for frontline professionals (Updated 2022, p26-7) LGSCO can investigate how councils respond to an ASB report and consider using their general powers to address ASB.
Council ASB policy The Council’s ASB policy says if there was use, or threat, of violence or significant risk of harm it aims to contact the complainant within 1 working day. For all other reports of ASB, an officer will aim to contact the complainant within 5 working days. When investigating a report, it will: Write to the individual causing the problem.
Liaise with the police if appropriate.
Issue nuisance log sheets and monitor the situation Contact the complainant to ask a series of questions to assess the potential risk of harm.
The policy also says if there has been many reported instances of the same anti-social behaviour problem and feel that it has not been addressed, those affected can apply for a community trigger.
A person can activate a trigger when there have been three qualifying complaints relating to the same issue (each made within one month of the initial incident taking place), and no action has been taken or response from the agencies. The complaints must have been made to either the council, police or a registered housing provider (social landlord).
What happened Between 2020 and 2022 Ms X submitted noise complaints about her neighbours. She said they had completed building work which had removed insultation between their houses, and she was subject to noise nuisance as a result.
The Council considered Ms X’s complaints about the noise. It decided that as the noise was because of daily life, it was not a statutory nuisance and there was no action the Council could take. The Council advised Ms X to seek remedial action through the courts if she was unhappy about the building work that had been done.
In March 2023, Ms X completed the Council’s online ASB report about behaviour from her neighbours in February 2023. The Council contacted Ms X and asked her for more information. She provided further details of the ASB and the police reference numbers. The Council reviewed the information and decided to refer the matter to the police.
The Police advised the Council that some of the incidents were historical, and the most recent incident in February 2023 was a civil matter, but that it would visit both parties to provide advice.
The police visited Ms X in April 2023 where advice was given to both parties, and Ms X was also advised to call and report any further incidents.
In May 2023, Ms X wrote again to the Council about the noise from her neighbour’s property. The Council initially told Ms X it would not consider her reports about noise from the neighbours as it had previously explained to her.
In July 2023 Ms X complained to the Council and asked for her concerns to be considered by Environment Health instead of as a noise nuisance. She also said she was still experiencing anti-social behaviour from her neighbours and raised a further ASB report. Ms X asked the Council to issue a community protection warning.
The Council’s ASB team responded to Ms X in August 2023 and said the ASB issue was best considered by the Police who could issue a community protection warning.
The Council’s complaint response in August 2023 advised that it would not consider the noise issue further. It also advised it had referred the allegations of ASB to the ASB team. It also advised Ms X to report ASB to the Police.
Miss X contacted the Ombudsman to raise a complaint against the Council for failing to address anti-social behaviour in October 2023. As the Council had not issued a final complaint response, it was asked to consider Ms X’s complaint at stage 2.
The Council’s final response said: It upholds its previous view that there is no further action it can take regarding the noise reported.
It recognised there had been emails in October and November 2023 where Ms X raised further ASB concerns.
The Council had since arranged a visit with its ASB officers and Localities officer to visit Ms X and complete an in-person assessment to be carried out in December 2023.
At the end of November 2023, Ms X wrote to the Council to advise she had an independent noise report and this had resulted in the noise being reduced, and the joint visit may not go ahead. The Council requested Ms X share the acoustic report and offered to carry out a visit.
Ms X asked the Ombudsman to consider complaint again in December 2023. She remained unhappy the Council had not taken action about the alleged ASB. Ms X said the failure by the Council in acting meant she was mistakenly issued an ASB notice.
Analysis Ms X has clarified that her complaint to the Ombudsman is about the Council’s lack of action in addressing the anti-social behaviour from her neighbours.
Having reviewed the correspondence between the Council and Ms X, I can see Ms X first reported the ASB in March 2023. The Council considered the reports and liaised with other agencies to decide the most suitable action. Where the Council has been able to evidence its decision-making process, the Ombudsman is unlikely to find fault. As the Council has demonstrated that it considered Ms X’s reports, and liaised with other agencies before making its decision, I do not find fault with the Council for this point of the complaint.
Ms X continued to raise ASB concerns on 22nd July 2023. According to the Councils policy, it should have responded to these concerns within five working days, however, it did not contact Ms X about the reports until a month later. There was fault in the Council failing to follow its policy, but I cannot say that if it had followed its policy, it would have made a different decision. However, I accept this caused Ms X distress and uncertainty.
In its response the Council explained that it had considered the information available, but felt the police were best placed to address the concerns Ms X raised. As the Council has demonstrated it considered Ms X’s concerns, I find no fault with the Council for how it reached its decision to take no further action at this point.
As Ms X continued to raise ASB concerns in her complaint to the Council, while it did not meet the threshold for the community trigger, the Council proposed a joint visit to carry out an in-person assessment. Although a date was arranged, the visit did not ahead as Ms X felt the issues had been resolved. The Council had again considered Ms X’s reports and decided which action to take. I find no fault with the Council for how it reached the decision to take further action.
I understand part of Ms X’s complaint is the Council’s failure to act meant the police served her with an ASB notice. The Council is not responsible for actions by the Police and I find no fault by the Council in this regard.
Agreed action
Within 4 weeks the Council has agreed to Write to Ms X and apologise for failing to follow its ASB policy.
Pay Ms X £100 in recognition of the distress and uncertainty caused.
Review how it will ensure that reports of ASB are considered in line with the timescales in the policy.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. I find fault with the Council for failing to adhere to the timescales in its ASB policy. I do not to find fault with the Council for how it reached the decision about what action to take.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman