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. The complainant, who I will call Mr B, complains the Council issued a fixed penalty notice (FPN) for littering when domestic refuse was left out too early. Mr B complains that Government guidance says councils should issue a written warning before serving an FPN in this type of case, but he did not receive any warning.
2. Mr B said that he has had to pay the fine and he would like the money refunded. He says dealing with the correspondence has been stressful.

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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)
4. 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)

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How I considered this complaint

5. I read the papers put in by Mr B.
6. I considered the Council’s comments about the complaint and any supporting documents it provided.
7. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Mr B lives in a flat. The Council collects Mr B’s refuse bags on Fridays. As he was away on Friday, he put the tied bags out on the pavement (as he has no front garden) at lunchtime on Thursday.
9. Four days later, Mr B received a Fixed Penalty Notice under section 87/88 of the EPA 1990. The notice said ‘litter was found abandoned on land open to the air. This is a criminal offence under section 87 of the Environmental Protection Act 1990’. The fixed penalty was £100 if paid within 10 days or £150 within 14 days. Or the case could be heard in a Magistrates Court if Mr B did not pay.
10. Mr B complained to the Council but was told there was no process for making representations against the fine. Mr B paid the fine but informed the Council he intended to challenge it. Mr B complained to the Ombudsman.

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Legislative background

Fixed penalty notices

11. 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.
12. 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

13. 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.
14. 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.
15. 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

16. 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.
17. 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”

18. 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.
19. 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

20. 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.
21. The enforcement of waste offences is a regulatory activity for the purposes of the 2006 Act.

Principles of Good Administrative Practice

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

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Analysis

24. Mr B says the Council has used the wrong legislation. He considers that he did not ‘litter’ but that his refuse was out approximately six hours early for the refuse collection.
25. The Council’s domestic refuse policy for properties without a front garden says ‘place sacks on the pavement by the entrance to your home after 6.30pm on the day before your collection is due. Make sure your waste sacks do not cause a pavement obstruction. Failure to follow these instructions may result in a Fixed Penalty Notice or prosecution.’
26. In response to my enquiries on why it issued the notice, the Council said, ‘The legislation under which the offence was committed, and the Fixed Penalty issued is the EPA, 1990. This Act states a Council, with a view to promoting the abatement of litter, may take such steps as it thinks appropriate for making the effect of subsection (5) above known to the public in their area. The EPA is a statutory document, imposing a duty of care on every person and business to be in full control of their waste. Every citizen is duty bound to fully aware of their responsibilities in compliance with legislation added to which the EPA has been enshrined in law for over 30 years’.
27. The Council says it issued a notice under Section 87 of the EPA, as litter was left on land open to the air. The Council said ‘if dropping litter is witnessed by an authorised officer, the offender may be subject to section 87 EPA 1990. If the litter is not witnessed, in the case of a cigarette butt or sweet wrapper it would be impossible to trace the offender. When a sack filled with waste is found left on the public highway, it fulfils the criteria for enforcement under Sec. 87 EPA 1990 as amended and an FPN can be issued if the issuing officer believes an offence has been committed. Storing bags of waste on the public pavement leaves them vulnerable to being attacked by vermin and creates additional litter.’
28. In response to my enquiries the Council also said ‘to bring a swift resolution to the matter, and as a gesture of goodwill, officers agree to cancel this particular FPN and send a letter of apology for any inconvenience, but will stress this is without prejudice and not a reflection of an error in the Council’s policy’.
29. I acknowledge the Council's offer to refund the fine satisfies Mr B's desired outcome here. However, I remain concerned there is a systemic fault in the Council's procedure, which will not be resolved simply by reimbursing Mr B.
30. 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.
31. 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.
32. What this means is that, in the narrow sense, it is not for us to decide whether Mr B committed an offence. The law gives the Council the power to make this decision, and we have no grounds to criticise the Council just for the fact it did so.
33. However, in issuing Mr B with an FPN, we are concerned the Council has not shown how it considered the various options available to it.
34. The Council has explained to us that it considers Mr B’s offence to be one of ‘litter left on land in the open air’. This is a criminal offence under s87 of the Environmental Protection Act, and an offender may be prosecuted, or receive an FPN as an alternative to prosecution.
35. But the guidance published by Defra says the act of leaving waste receptacles “out for several days” is one which should be dealt with under s46 of the Act instead. And this, it appears, is precisely what Mr B did. The FPN itself referred to domestic waste.
36. So Mr B left waste, in a sack on the pavement close to his property. But he did so approximately six hours before 6:30pm, when the Council policy said waste could be left for the collection the next day. This is what Defra says should be treated as an offence under s46.
37. We should note, at this point, there appears to be a contradiction in some of the information published by Defra. Defra’s guidance says offences under s46 can attract a ‘fixed penalty’, and this is the same term which is used in the Environmental Protection Act. However, Defra’s code of practice instead uses the term ‘civil penalty’ for the sanction available for s46 offences instead. This is somewhat confusing, but from context it appears both terms are intended to mean the same thing – and, critically, that a s46 ‘fixed penalty’ in this context is not the same as an FPN issued under s87 of the Act.
38. We also note, the definition ‘litter left to the open air’ under s87 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 was a proportionate response to a bag of waste left at its usual collection point approximately 6 hours early, or how it would generally differentiate between the various powers it has at its disposal.
39. The Council’s website says ‘the type of accommodation you live in decides where you should leave your rubbish or recycling for collection. Failure to follow these instructions may result in the issuing of a Fixed Penalty Notice or prosecution’. The Council’s website does not explain the legislation under which the Council would issue a FPN.
40. Taking this together, we find the Council at fault, on the basis that it was not clear how it considered the full range of powers available to it before deciding to issue a FPN under s87.
41. However, the Council has now offered to refund the FPN in full, which we consider represents a suitable remedy.
42. It is also important for the Council to ensure its own relevant staff are aware of and understand Defra’s guidance about domestic waste receptacle offences and s46 of the Act, and when it would be more appropriate to enforce domestic waste offences under these powers. To this end, the Council should provide guidance to staff on when and how to issue fines under s46, as well as the occasions where it would be proportionate to enforce contraventions under more stringent powers.

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Agreed action

43. Within one month of the date of our final decision, the Council should:

• cancel the FPN and refund Mr B the full £100 he paid;
• provide guidance to relevant Council staff to ensure they are aware of and understand the Department for Environment, Food & Rural Affairs guidance on the use of fixed penalties for domestic waste receptacle offences.

44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation with a finding of fault causing injustice. This complaint is upheld.

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Investigator's decision on behalf of the Ombudsman