Summary: Mr Q is making a complaint on behalf of his daughter (Miss G). He says the Council has failed to resolve issues relating to household bins being left for collection at a designated site which is close to Miss G’s home. We found the Council was at fault for not taking agreed enforcement action for apparent breaches to the rules which were repeated and long lasting. The Council had agreed to control this problem when we investigated the issue in 2019. It failed to do so and bins and household waste has often been left outside Miss G’s home for days unchallenged. This caused her an injustice because the fault adversely impacted on the use and enjoyment of her home. The Council has agreed to our recommendations for the Council to remedy the injustice suffered.

The complaint

1. The complainant, who I refer to as Mr Q, is making a complaint on behalf of his daughter (Miss G) in relation to the Council allegedly not taking enforcement action against households for not complying with bin collection and waste disposal rules. This includes households not adhering to the times bins should be put out and collected and not leaving the correct waste in the appropriate bin. In summary, Mr Q alleges the following:
1. The Council has failed to adhere to the Ombudsman’s recommendations when we investigated Mr Q’s complaint on the same subject in 2019.
2. The Council has failed to take appropriate enforcement action as it has agreed to do over a number of years.
3. The Council has failed to properly consider the possibility of collecting household waste from the frontiers of individual properties.
2. The entrance to a cul-de-sac runs past the side of Miss G’s house. Because the cul-de-sac is too narrow, the Council requires residents to leave waste by the side wall of Miss G’s house. In summary, Mr Q says the Council’s failings are impacting on Miss G’s use and enjoyment of her property. In particular, he says the failings has resulted in obstructions to Miss G’s home. He also explains the uncollected waste attracts rodents and results in unpleasant smells in her garden. As a desired outcome, he wants the Council to take action which prevents these problems from continuing.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended).
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended).
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended).

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How I considered this complaint

8. I have read Mr Q’s complaint to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also had regard to applicable legislation, guidance and policy. I provided Mr Q and Council with a confidential draft of my decision and invited their comments. The comments received were taken into account before my decision was finalised.

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My findings

Background and legislative framework

The Environmental Protection Act 1990

9. Under section 45 of the Environmental Protection Act 1990 (“the Act”), councils have a duty to collect household waste. The Act also allows councils to require residents to place their refuse in bins and to place their bins in certain places to facilitate emptying. Further powers under the Act include:

1. require residents to place bins so as to avoid causing nuisance or detriment to the amenities of the area.

2. requiring the removal of bins which have been place somewhere for emptying.

3. allowing councils to specify the time when bins can be left for emptying and, once emptied, when they must be removed.

10. Section 46(6) of the Act says that where any person fails without reasonable excuse to comply with such requirements will be liable, on summary conviction, to a fine. A section 46 notice is a legal notice about dealing with rubbish and bins. Households who have this notice served on them need to follow the rules about what they should do with their domestic waste. Failure to comply with a notice can result in a council issuing a Fixed Penalty Notice.

Chronology of events

Background to complaint

11. Miss G’s house is on a main road. The entrance to a cul-de-sac runs past the side of the house. The Council has engaged a contractor to collect refuse in the area. The refuse lorry visits once a week. The Council requires residents to leave waste by the side wall of Miss G’s house so the truck can reverse in and collect the waste of the entire cul-de-sac from one site. This caused obstruction to Miss G’s garage and, in summer, resulted in unpleasant smells in her garden.
12. Mr Q says some neighbours do not leave their bins at the site on collection day but may do so days in advance. Nor do some residents remove their bins on collection day and some are left there for days afterwards. If residents put the wrong waste in the wrong bin, as frequently happens, the contractor refuses to remove the bins. This results in rotting rubbish being left by the wall for days on end which causes a nuisance.
13. Mr Q says he first complained to the Council on Miss G’s behalf in 2017 and he has done so frequently since without success. We completed an investigation into the same complaint from Mr Q in 2019. In that case, we found the Council failed to stop Miss G’s neighbours from leaving household waste bins outside her property and in a non-compliant way. The was due to a failure by Council for not maintaining the ability to enforce its powers under the Act. The Council agreed to take steps to remedy, including taking enforcement action where necessary.

Current complaint

14. Since January 2021, Mr Q and Miss G began contacting the Council again as they did not consider there had been any improvement. The Council carried out a site visit and noticed there were clear breaches of the bin collection rules.
15. In September 2021, the Council explained that before any enforcement activity or action could be taken, the bin collection point must first be assessed and clarified to Miss G’s neighbours properly.
16. In March 2022, the Council wrote to Mr Q about a proposal to move the collection point. Mr Q disagreed with the proposal as he felt that collection from the frontier of individual properties would be possible. The Council decided to undertake a written review on the matter which explored various alternatives.
17. In June 2022, the Council completed its review. It found that bin collection from the frontiers of each property would not be possible due to the road being too narrow and double parked. There was also concern that collection in this way could result in damage to parked vehicles and access issues for pedestrians. The Council’s review identified a new waste collection point which it implemented.
18. In August 2022, the Council sent a letter to those it had identified as using the bin designation point. This clarified when and where waste bins should be left. The Council also outlined its powers to take enforcement action if problems continued and enacted enforcement officers to patrol the area on a weekly basis.
19. In September 2022, the Council needed to change the bin collection point again due to access issues for the collection’s vehicle and bins blocking vehicle access. The change was to move the collection point to an area at the front of Miss G’s property as opposed to the rear. The Council wrote to residents to clarify the change. Mr Q later that month brought his complaint to the Ombudsman. He says the Council has not remedied the problem and that the instructions on waste destination continue to not be adhered to by neighbouring households.

My assessment

20. It is not my role to decide the most appropriate method of bin collection, or if the Council should take enforcement action where rules are not followed. I can only determine whether the Council’s decision-making has adhered to a clear process and without fault. This means the Council considering and using the powers it has to seek compliance over recuring rule breaches. As the alleged fault is a recurring problem, our jurisdiction about time limits (see Paragraph 7) does not apply. That said, I am limiting my investigation for the purposes of only establishing fault since conclusion of our 2019 Investigation which covered earlier issues.
21. In response to our 2019 Investigation, the Council began working on a written enforcement policy to inform how decisions should be taken. This was implemented in November 2022, meaning that Mr Q’s complaint has not been considered following clear policy considerations. The evidence shows a significant delay in response by the Council to resolve a long-lasting problem. The Council acknowledged there was an issue concerning non-compliance with waste designation when we previously investigated this matter. The Council agreed to take steps to control present and future breaches of the bin collection rules. The Council also accept this is a problem which has continued and can be addressed through enforcement action (specifically a section 46 notice). However, the Council’s told Mr Q that it could not start enforcement action without first assessing the waste collection point. It also wanted to remind households of the bin collection rules and the consequences for non-compliance with these.
22. In my view, if the Council felt a review of the bin collection point was a necessity to commencing enforcement action, this should have been completed within three months of our previous decision about same issues. Further, the Council had already given written warnings to those using the bin collection point about taking enforcement action since 2017. The lack of any enforcement activity to ensure compliance can only be attributed to a delay by the Council in taking the action it said it would for breaches it accepts have been continuing for a number of years. I therefore find fault by the Council and I fully accept this caused Miss G an injustice due to the negative impact it had on the use and enjoyment of her home. The fault has also caused a degree of distress and uncertainty, made worse by the Council raising Miss G’s expectations that it would take action.
23. The Council says it has seen improved compliance as a result of 13 street patrols it carried out from August to December 2022. Mr Q disagrees with this assessment and has provided evidence there is still a problem. As previously explained, it is not my role to decide whether a breach has occurred. Instances of non-compliance should be reported to the Council using the appropriate reporting process. The Council should take action according with its legal responsibilities, enforcement policy and any actions it has agreed with the Ombudsman.
24. I recognise that Mr Q believes an alternative method of bin collection is possible. However, the Council’s decision-making in this area was informed by a detailed (albeit delayed) review. I cannot question the merits of that decision as there was no fault in the way it was made. The restriction I outline at Paragraph 6 applies.

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Agreed action

25. The Council will perform the following actions by 26 May 2023:
1. Provide a written apology to Miss G and Mr Q which acknowledges the fault and injustice identified in this statement.
2. Pay Miss G £400 to serve as an acknowledgement of the impact of the failings and the injustice caused to her.
3. Clarify to Miss G and Mr Q how evidence of non-compliance with the bin rules should be submitted to the Council. It will also arrange to have a telephone call with either of them at the end of each month for the next three months to review and discuss any problems.
26. The Council should also perform the following actions by 26 July 2023:

4. The Council will arrange to monitor the situation with the bins in Miss G’s area within the limited resources available to it. Patrols will be put in place by officers from the relevant Council department to monitor fly-tipping and we will use this resource as a way to monitor the situation, as well as to encourage Miss G and Mr Q to report instances of bins not being collected.

27. The Council will provide us with evidence it has complied with the above actions by the dates set out above.

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Final decision

28. The complaint is upheld as I found the Council was at fault for not taking agreed enforcement action for repeated breaches to bin collection rules. The Council agreed to control this problem following failings we identified in our 2019 investigation. However, the evidence shows delayed decision-making by the Council meant missed opportunities to prevent the rule breaches and the injustice Miss G suffered as a result of these. The Council has agreed to our recommendations to remedy this.

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Investigator's decision on behalf of the Ombudsman