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Inaction by the council/PRPSH

This content applies to England & Wales

What occupiers can do if they are unhappy with the action taken by the council or a PRPSH.

If an occupier is unhappy with action taken by the council or, if relevant, a private registered provider of social housing (PRPSH), to deal with a complaint about noise, then s/he could:

  • in cases of statutory nuisance, initiate action her/himself
  • seek judicial review
  • complain to the Ombudsman
  • make a claim under the Human Rights Act 1998.

Each of these options is examined in detail below.

Statutory nuisance

For information about statutory nuisance and action that can be taken by the occupier, see the page on Courses of action.

Judicial review

Judicial review is a general legal remedy which can be used to challenge administrative decisions of councils (but not usually of PRPSHs). In order to judicially review a PRPSH, the court will have to be persuaded that the PRPSH is carrying out public functions. In certain cases, particularly where the PRPSH has taken over a local authority's housing stock, judicial review may be an available remedy. The law in this area is developing. PRPSHs are increasingly regulated and it is arguable they are increasingly carrying out public functions. Hence, specialist advice is necessary.

Judicial review is not an appeal against a decision but a challenge to the way the decision was made. Judicial review can challenge decisions that are:

  • irrational
  • perverse
  • unlawful
  • flow from a misdirection in law
  • the result of taking irrelevant considerations into account
  • the result of not taking relevant considerations into account
  • contrary to 'natural justice', or
  • so unreasonable that no authority properly directed in law could have reached the decision that it made.[1]

The challenge is made by a civil action in the High Court. It may be relevant to any council decision, eg an alleged failure by the council to meet its duties under the Environmental Protection Act 1990.

If an occupier wants to seek judicial review of a council's decision, then s/he should seek legal advice quickly because judicial review claims should be made promptly, and in any event, within three months. See the section on Challenging LA decisions for more information on judicial review.

Ombudsman

The Ombudsman deals with injustice caused by maladministration, for example, when an organisation takes too long to do something or does not follow its own procedures. However, the Ombudsman service does not question the merits of a decision if it has been taken properly.

Usually, an occupier must first exhaust the organisation's internal complaints procedure and then, if still dissatisfied, can approach the Ombudsman. For example, if an occupier wants to object about the way that a noise problem has been handled by the council's environmental health department, then s/he should use the council's complaints service. If still dissatisfied, s/he can then approach the Ombudsman.

If, following investigation, the Ombudsman agrees with the complaint, then the Ombudsman may order that particular action is taken to remedy the situation, and that compensation is paid.

The relevant Ombudsman service for noise nuisance is likely to be the Local Government Ombudsman.[2] In some cases, the occupier may need to contact the Housing Ombudsman.[3] The two Ombudsman services have arrangements in place for transferring cases between them and/or working together on cases of overlapping jurisdiction. 

In one case, the Local Government Ombudsman recommended that a council tenant living in a tower block be paid £1,500 compensation for failure by the council to act on its own environmental health officer's recommendation of works to improve sound insulation.[4] In another case, the Local Government Ombudsman recommended that a council should not only pay compensation, but also pay towards the legal costs of local residents disturbed by noise nuisance that the council could have taken action to stop sooner than it in fact did.[5]

Anonymised inspection reports are available on the Ombudsman's website (see Essential links) and a digest of housing complaints to all Ombudsman schemes is available on the Ombudsman Says website.

Human Rights Act 1998

Article 8 of the European Convention on Human Rights, which is incorporated into UK law by the Human Rights Act 1998,[6] gives everyone the right to respect for her/his private and family life and home. This is subject to interference by a public authority where it is in accordance with the law, and necessary in a democratic society in the interests of national security, public safety or for other purposes including the protection of the rights and freedoms of others. An occupier who believes that her/his rights have been or would be breached by a public authority in the UK, can bring a claim against that public authority in the domestic courts.[7] The definition of a public authority includes councils and can also include registered social landlords when they undertake functions of a public nature.[8]

In two cases, the state was found responsible for not taking sufficient action to prevent pollution, though it was not itself responsible for the pollution.[9] These cases and the Act may mean that an occupier can now expect councils to do more to protect her/him in matters relating to noise.

Potential applicants need to be cautious, however, in using Convention-based arguments, as illustrated by the case of Hatton v UK.[10] In this case, an application was made by residents who claimed that they and their families suffered intolerable disturbance to their sleep from Heathrow night-time flights. They claimed a violation of Article 8.

In October 2001, the European Court found in the applicants' favour. It was referred to the Grand Chamber of the European Court of Human Rights. In July 2003, this court reversed the decision. The court emphasised that in dealing with policy issues, national governments must be given a large measure of discretion in determining when breach of such rights is in the public interest. This case shows the reluctance of the court to interfere in domestic issues, especially where policy issues are involved.

It is also clear from various Court of Appeal and House of Lords decisions that the implementation of the Human Rights Act is unlikely to create substantial new rights relating to housing conditions where they did not exist before.[11] This is generally because of the potentially huge resource implications and because the courts defer to the wishes of Parliament.

[1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[2] Part 3, Local Government Act 1974.

[3] s.51 Housing Act 1996.

[4] Investigation 97/A/2870 (23 June 1999).

[5] Report on an investigation into complaints 12 001 338 and 12 010 505 against Hinckley and Bosworth Borough Council (5 March 2014).

[6] see article 8, Sch.1, Human Rights Act 1998.

[7] s.7 Human Rights Act 1998.

[8] Donoghue v Poplar Housing and Regeneration Community Association Ltd (The Secretary of State for the Environment, Transport and the Regions - interested party) [2001], CA.

[9] Lopez Ostra v Spain [1995] 20 European Human Rights Reports 277, Guerra v Italy [1998] 26 European Human Rights Reports 357.

[10] Hatton and others v UK [2002] 34 EHRR 1; [2003] 37 EHRR 611.

[11] Lee v Leeds; Ratcliffe and Others v Sandwell MBC [2002] England and Wales CA Civ 6; see also Marcic v Thames Water Utilities [2003] HL (United Kingdom) 66.

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