Summary: Mr X complained the Council failed to take the correct action when he placed his rubbish out earlier than allowed. The Council is at fault for failing to show how it considered all sections including section 46 of the Environmental Protection Act 1990 when deciding what action to take. The Council will make payment to recognise the injustice caused.

The complaint

1. Mr X complained the Council failed to take the correct action when he placed his rubbish out earlier than allowed.
2. He says this has caused him to pay a financial penalty instead of receiving a written warning.

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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 have considered:
• The information provided by Mr X and discussed the complaint with him;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
6. Mr X 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

Law and guidance

7. The Environmental Protection Act 1990 distinguishes types of littering and refuse offences and sets out powers to prevent this. This defines offences including littering and waste collection breaches.
8. Section 81 - Littering - A person is guilty of the offence of littering if they throw down, drop or otherwise deposit any litter and leaves it open to the air in a public open space. The Council is entitled to issue a fixed penalty fine for such offence.
9. Section 46 - Waste collection breaches - Councils have a duty to collect waste from residential properties and can set a time and place for collection. Where a person fails to follow the requirements about the collection of waste, including the timing of when waste is put out, the Council should issue a written warning. If the person continues not to follow the requirements the Council can issue a fixed penalty.
10. The Defra guidance on effective enforcement code of practice for litter and refuse says that littering fixed penalties should not be issued for fly-tipping offences or waste receptacle breaches as there are specific powers available.

The Council’s waste collection policy

11. The Council provides residents with waste sacks. The policy states that rubbish and recycling should be left in a front garden or driveway where applicable. Where a property opens directly onto the street rubbish and recycling should be placed on the pavement near the entrance without causing an obstruction.
12. Rubbish should be placed out after 18:30 the day before the collection and brought back in at 17:00 on the day of collection if it has not been collected.

Key events

13. Mr X lives in a flat above shop fronts. His property opens directly onto the street.
14. In late June Mr X was going away and would not be at the property on the day his bins were due to be collected. He accepts that he put his waste sacks on the curb by his property the morning before collection day. This would be around twelve hours earlier than allowed.
15. The Council identified waste sacks on the curb placed next to a public rubbish bin close to Mr X’s property. On investigation it identified the waste within the bags as belonging to Mr X and it issued him with a fixed penalty notice for littering.
16. Mr X wrote to the Council in early July to explain that he had left the waste out early for collection. He said this was because he was going away and asked the Council to consider whether a fixed penalty notice was appropriate given the offence. He wrote to the Council repeatedly and asked it to consider the law around waste collection breaches and referred it to a previous ombudsman decision.
17. On each occasion the Council responded explaining waste should not be put out before 18:30 the day before collection and said that Mr X’s actions amounted to littering. It stated it had issued the fixed penalty notice correctly.
18. Mr X paid the £150 fine in mid-July. The Council refunded £50 of this accepting that the time which had passed during his complaints had resulted in him paying the higher amount.
19. The Council has told us, during this investigation, that it did not consider this was a waste collection breach. It says it does not provide residents with waste receptacles and does not carry out any enforcement of such breaches.

Findings

20. The government guidance on when and how councils can issue fixed penalties for household waste and bins explains councils should be relying on Section 46A of the Act. It explains councils should not issue FPNs for minor problems, such as leaving waste out early.
21. The Council’s comments during this investigation shows it makes no consideration of waste collection breaches despite this guidance.
22. While the Council are entitled to consider actions to be a littering offence, it should be considering all possible offences and deciding which it amounts to. When the Council encountered the waste, it should have considered whether this amount to a breach of the timing specified for waste disposal. It should have considered the location of the rubbish, the timing of the disposal and that items were placed in waste sacks when determining this. Its failure to consider all offences under the Environmental Protection Act is fault, as the Council has been unable to demonstrate how it acted proportionately when enforcing the contravention.
23. The Councils failure to consider the law around waste collection breaches has left Mr X feeling that his case has not been considered correctly and that he has been unfairly asked to pay a fine.
24. 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

25. Within one month of the final decision the Council should:
• Pay Mr X £100 to refund the remainder of the FPN.

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Final decision

26. I have completed my investigation. I have found fault leading to injustice. The Council will refund the additional £100 to Mr X.

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Investigator's decision on behalf of the Ombudsman