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Kingston upon Thames Council (202011154)

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REPORT

COMPLAINT 202011154

Kingston upon Thames Council

28 May 2021


Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

  1. The complaint is about the resident’s reports of noise nuisance.

Determination (jurisdictional decision)

  1. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

  1. On 15 September 2020, the resident emailed her single point of contact (SPOC) at Environmental Health Services (EHS) asking for the contact details of their current noise pollution officer.   In a reply the same day, the SPOC at EHS asked the resident what issue she was experiencing.
  2. In a response later that day, the resident advised the landlord that it concerned noise from a motorbike owned by her neighbour. She said he would rev the motor bike engine outside of her property early in the morning to wake her up and had been doing this for years. This individual also recently had a motorbike party where twenty motorbike friends revved their engines between 4.30 and 6.30 am. The resident referred to a previous complaint she made to EHS about the same issue when it had advised her that because of budget cuts, it could not speak to her neighbour about stopping revving his engine for so long in the morning.
  3. On 16 September 2020, the SPOC at EHS stated they had already discussed this complaint topic at great length with the resident and that she was aware of their position that it is unable to assist her; it was previously found in 2018 that her neighbour was not doing anything that could amount to a statutory nuisance.  The SPOC advised the decision to not contact her neighbour was not due to financial or budget cuts. In a reply the same day, the resident disputed these points.
  4. The resident emailed log sheets to EHS (including to its Enforcement and Renewal team) on 23 September 2020 detailing motorbike engine noises. This  was in response to an email she received from EHS advising her to complete noise diaries.
  5. On 14 October 2020, the resident emailed the EHS’s Enforcement and Renewal team asking for confirmation that they had received her log sheets in respect to her neighbour and querying why no one had contacted her. The resident emailed the SPOC at the landlord advising she wished to make a complaint about EHS not contacting her about the log sheets submitted on 23 September 2020 in regard to the noise nuisance.
  6. On 15 October 2020, the resident’s SPOC at the landlord advised this issue would not be logged as a stage one complaint as the resident had not copied the landlord into her initial email dated 23 September 2020. Furthermore, it said EHS had advised her that it investigated this complaint previously.
  7. On 23 October 2020, the resident forwarded another log sheet to the EHS’s Enforcement and Renewal team reiterating she wished to make a complaint as no one had responded to her 14 October 2020 communication. The resident also expressed dissatisfaction that the landlord had refused to reply to her stage one complaint on the basis she should have sent these log sheets to it; she said EHS Enforcement and Renewal team had emailed her directly asking her to send them log sheets. The resident’s complaint was logged by both the landlord and EHS.
  8. On 10 November 2020, the resident’s SPOC at EHS sent a stage one complaint response. They referenced their communication with the resident on 15 September 2020, noting that they had replied to her email enquiring about who to contact regarding noise nuisance, asking what the noise problem was. The SPOC noted the further reply sent to her on 16 September 2020 outlining that they had already investigated her complaints and that they would not be able to take action – this was before the resident submitted her log sheets. They explained she had not followed the SPOC route and her complaint was passed through the normal procedure resulting in the dispatch of diary sheets for her to complete. The SPOC referenced their previous response of 16 September 2020 and advised that since receiving the diaries, officers had in fact visited the area at the times suggested by her diaries and not witnessed any “movement of motorbikes”.
  9. On 10 November 2020, the resident asked to escalate her complaint to stage two disputing EHS’s stage one response. She also asked why she had not been provided with noise recording equipment and queried why the stage one letter was wrongly addressed to her neighbour.
  10. On 1 December 2020, EHS issued a stage two complaint response to the resident from a Team Leader.  Within this response, it reiterated EHS’s previous position in relation to the complaint raised and also stated:
    1. It accepted that in an earlier response dated 2018, it had said budget cuts meant it could no longer take informal action to noise complaints, but it said this was not the reason given in the recent response from the resident’s SPOC at EHS. It said it could only help complainants if the evidence available proves that a statutory noise nuisance exists or is likely to exist.
    2. Officers had attended the area on 7, 15 and 26 October 2020 between 0545hrs to 0800hrs and did not witness noise that amounted to statutory nuisance.
    3. As her diaries alleged the noise happened in a particular area, its officers could visit and it was not necessary to install noise recording equipment.
    4. Unfortunately, the stage one response letter was sent in the post with the incorrect address. It sincerely apologised and advised it had reported this matter to its Data Protection Team who would contact the resident directly.
  11. Within its stage two response, EHS advised the resident that she had exhausted its complaints procedure and if she remained unhappy she could ask the LGSCO to review her complaint.
  12. There was further correspondence between the resident and EHS between 15 January 2021 and 26 January 2021 regarding noise nuisance when the SPOC reiterated that EHS would not be carrying out a further investigation based on information/content the resident had supplied in further diary sheets received.

Reasons

  1. Paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints that, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
  2. Further, paragraph 39(a) of the Scheme states that the Ombudsman will not investigate complaints that have been brought to us prior to exhausting a member’s complaints procedure.
  3. Complaints relating to the Local Authority’s duty to investigate reports of statutory noise disturbance under the Environmental Protection Act 1990 and decisions about how it will exercise these statutory duties, fall within the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO).
  4. The resident complained about noise nuisance caused by a motorbike being revved outside of her property by her neighbour every morning which she said woke her up.  The complaint is about the Local Authority’s response to her reports of noise nuisance namely its refusal to accept that the noise amounts to statutory nuisance and its failure to take appropriate action. Therefore, this falls under the remit of the Local Government and Social Care Ombudsman.
  5. Whilst there is evidence of the resident raising the matter with the landlord, it is evident that the Local Authority’s EHS dealt with the resident’s reports of noise nuisance and associated complaint. Therefore, as the complaint was handled by the Local Authority and was not escalated through the landlord’s complaint process, it is also outside of the jurisdiction of the Housing Ombudsman on this basis.