Summary: There was fault by the Council, by not considering the full range of powers when deciding to enforce a waste offence. The Council has agreed to refund the money paid, and so we have completed our investigation.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P complains the Council issued him with a fixed penalty notice (FPN) for littering, in response to Mr P leaving his recycling waste out for collection on the wrong day. Mr P considers this to disproportionate and not in accordance with Government guidance, and seeks a refund of the money he paid along with changes to the Council’s procedures.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

4. I reviewed Mr P’s correspondence with the Council, and the FPN it issued to him.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Mr P lived in a property from which the Council collects waste in bags, and not from bins. In May 2023, Mr P says he inadvertently left some recycling waste bags out for collection on the wrong day. An enforcement officer, working on the Council’s behalf, found a document with Mr P’s name and address in the bags, and served a fixed penalty notice for £150 under s87/88 of the Environmental Protection Act 1990.
7. Mr P submitted a complaint to the Council. He disputed that he had left the waste bags on the public highway, as the FPN stated, and highlighted that Government guidance said FPNs should not be issued for minor issues, such as leaving waste out for collection prematurely. Mr P also pointed out that the Ombudsman had recently issued a decision on a very similar complaint, which we had upheld and made similar criticisms of the relevant council, the London Borough of Haringey.
8. The FPN issued to Mr P offered him the chance to pay at a reduced rate of £100 if he did so early, and he explained he had done so “under protest” to avoid possible escalation. However, he requested the Council refund this money.
9. In response, the Council said it could not refund the FPN because, by paying it, Mr P had legally discharged his liability. It said Mr P had had the alternative of refusing to pay and waiting for the matter to be heard in the magistrates’ court.
10. The Council said it had issued the FPN correctly, and explained that the Government guidance and the Ombudsman decision referred to different parts of the law than the one under which it had issued the FPN. Further to this, it said the Government guidance related to a part of the Environmental Protection Act which had been superseded by more recent legislation.
11. After further correspondence with the Council, Mr P referred his complaint to the Ombudsman in August.

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Legislative background

Fixed penalty notices

12. An FPN notifies the recipient they have committed a criminal offence, but that they may discharge liability – and therefore avoid prosecution for the offence – by paying a fine within a specified period. If they do not pay, they may be prosecuted, which can lead to a greatly increased fine, a criminal record, and for some offences potential imprisonment.
13. There is no formal right of appeal against an FPN, although it is good practice for councils to consider any representations a person makes, before deciding to prosecute them. If a person wishes to dispute the offence in court, they may wait to be prosecuted for it.

Environmental Protection Act 1990

14. Councils have a duty under the Environmental Protection Act 1990 (the Act) to collect household waste and recycling from properties in their area. Collections do not need to be weekly, and councils can decide which receptacles people must use.
15. Section 46 of the Act explains councils may issue written warnings where a person has failed to comply with its waste collection requirements. If the person then fails to comply with the requirements identified in the written warning, a council may issue a fixed penalty. This carries a right of appeal to the First-tier Tribunal.
16. Section 87 says that a person is guilty of an offence if they throw down, drop or otherwise deposit any litter in any place to which this section applies and leaves it. This section applies to any place in the area of a principal litter authority which is open to the air.

Government guidance

17. The Department for Environment, Food & Rural Affairs has issued guidance on the gov.uk website for waste authorities on the use of penalties for failing to comply with collection rules.
18. The guidance says:

“The use of these penalties should focus on those who cause genuine harm to the local environment. It is good practice to try and inform the household about any issues on the presentation of their waste bins. For example, you could use a letter or information notice. You should do this before moving to the process of issuing penalty notices outlined here. Where you chose to do so, you must follow these rules when issuing fixed penalties under section 46A of the Environmental Protection Act 1990.

“You can issue fixed penalties if householders put waste out so it:

• causes an obstruction to neighbours, such as forcing people using wheelchairs or buggies to walk on the road
• restricts access to the pavement or street, for example leaving waste receptacles (bins or bags) out for several days …

“You cannot issue them for minor problems, such as when householders:

• put something in the wrong receptacle by mistake
• forget to close receptacle lids
• leave receptacles out for a few hours before a collection”

19. The guidance explains an authority should follow a three-stage process to enforce against offences. It should first write a warning letter to offenders, explaining how they have broken the rules; then send a notice of intent that it is considering issuing a penalty notice, and giving the offender the opportunity to make representations. At the third stage it should issue the offender with a penalty notice, but the guidance says the maximum fine should be £80.
20. Defra has also issued a code of practice for waste authorities. This says that, for ‘domestic waste receptacle offences’, authorities should use a ‘civil penalty’ scheme and not an FPN.

The Legislative and Regulatory Reform Act 2006

21. Section 21 of the Legislative and Regulatory Reform Act 2006 says that regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent; and regulatory activities should be targeted only at cases in which action is needed.
22. The enforcement of waste offences is a regulatory activity for the purposes of the 2006 Act.

Principles of Good Administrative Practice

23. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils.
24. This document explains councils should ensure decisions and actions are proportionate, appropriate and fair.

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Analysis

25. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
26. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
27. I note, first, Mr P disputes that he left his recycling bags on the public highway, saying they were actually within the curtilage of his property, and that somebody moved them onto the pavement. On this basis, he does not agree he committed an offence at all.
28. I acknowledge Mr P’s view; but we do not have the power to determine whether an offence has been committed, which is something ultimately only a court can decide. Mr P would therefore need to have allowed the matter to be brought to the magistrates’ court if he wished this to be determined conclusively.
29. But, while I cannot criticise the Council for deciding Mr P had committed an offence, this does not mean we cannot consider whether it has used the appropriate power in response.
30. Mr P’s offence, to take the Council’s view, was abandoning litter, consisting of domestic waste, on land open to the air. However, it does not appear to dispute Mr P’s statement that the litter in question was contained within two Council-branded recycling bags; and the photos taken by the enforcement officer plainly support this. It is also clear the bags were on the pavement directly in front of Mr P’s property (although I note again Mr P does not agree this is where he left them), which I have verified using Google Maps.
31. The enforcement officer’s photos are date-stamped 2 May 2023, which was a Tuesday. The Council’s website shows that the collection for Mr P’s address is on a Wednesday.
32. Taking these points together, and on the balance of probabilities, I consider the evidence supports Mr P’s claim, that he placed his recycling bags out for collection, but on the wrong day.

Defra’s guidance says that councils may treat such incidents as an offence. We expect councils to be able to show how they consider which powers they use to enforce offences, to ensure they are taking a proportionate approach to enforcement.

33. In this case, we note the definition of littering under s87/88 is broad, and the Council could have decided to use these powers to enforce the matter, having considered all the relevant factors. However, the law requires councils to act proportionately in discharging their regulatory duties. We are not persuaded the Council has shown how the use of s87/88, and a £150 fine, was a proportionate response to a bag of recycling waste left out for collection on the wrong day, or how it would generally differentiate between the various powers it has at its disposal.
34. Mr P highlighted the Defra guidance in his complaint to the Council, and in response it said:

“This section of the guidance referred to applies to an FPN issued for breach of 46 of the EPA 1990. This has now been superseded by the Cleaner Neighbourhoods Act 2005, finally with the adoption of the Anti-Social Behaviour, Crime and Policing Act 2014. Section 46 of the EPA 1990 is more likely to be enforced via the Community Protection Notice perspective. This does not apply to [the Council] as a weekly service is provided, that is bagged and not within bins.”

35. However, Defra’s guidance was issued in 2018, long after the 2005 and 2014 Acts the Council has referred to. Given the guidance clearly directs authorities to use s46, this strongly undermines the Council’s claim that the 2005 and 2014 Acts superseded this power.
36. The legislation.gov.uk website also lists no changes to s46 brought about by either Act, despite listing various changes arising from other more recent legislation.
37. It is not clear to me what the Council means when it says s46 does not apply to it because it provides a weekly service, which is “bagged and not within bins”. The regularity of the Council’s service has no bearing whatsoever on the part of the Act it should use to tackle domestic waste receptacle offences. And Defra’s guidance refers explicitly to ‘bins or bags’, and so I am satisfied this distinction has no relevance here either.
38. I therefore find fault by the Council. Although it was entitled to find Mr P had committed an offence, it should have done more to show how it considered the full range of powers available to it under the Environmental Protection Act.
39. However, the Council has since offered to refund the fine in full, which we consider represents a suitable personal remedy. We have also made recommendations for the Council to learn from the complaints on case 22017841, and so there is no need for further recommendations here.

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Agreed action

40. Within one month of the date of our final decision, the Council has agreed to refund Mr P the full £100 he paid in response to the FPN.
41. The Council should provide us with evidence it has complied with the above action.

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Final decision

42. I have completed my investigation with a finding of fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman