Summary: Ms X complained that the Council incorrectly issued her with a Fixed Penalty Notice for littering when she left domestic refuse out too early. We found the Council was at fault because it was not clear how it considered the full range of powers available to it before deciding to issue the fixed penalty notice. In recognition of the injustice caused, the Council has agreed to refund the amount Ms X paid.

The complaint

1. Ms X complains that the Council incorrectly issued her with a Fixed Penalty Notice (FPN) for littering when she left domestic refuse out too early. She says Government guidance says councils should issue a written warning before serving an FPN in this type of case, but she did not receive any warning.
2. Ms X says she had to pay the fine and would like the money refunded. She also says the matter has been very upsetting.

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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 all the information provided by Ms X and the Council and advice from the Department for Environment, Food and Rural Affairs (Defra) on a similar complaint.
6. Ms X and the Council 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

Legal and administrative background

Fixed penalty notices

7. 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.
8. 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

9. 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.
10. 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.
11. 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

12. Defra has issued guidance for waste authorities on the use of penalties for failing to comply with collection rules. 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”.

13. The guidance explains an authority should follow a three-stage process to enforce against offences. It should first send 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.
14. 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

15. Section 21 of the Legislative and Regulatory Reform Act 2006 says that this 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.
16. The enforcement of waste offences is a regulatory activity for the purposes of the 2006 Act.

Principles of Good Administrative Practice

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

Key facts

19. Ms X lives in a flat and so does not have a refuse bin. The Council collects her refuse sacks from outside the flat.
20. The day before her refuse collection was due, Ms X was working the late shift and so left her rubbish sack outside the flat on her way to work.
21. A few days later, Ms X received an FPN under section 87/88 of the Environmental Protection Act 1990. The Notice stated, “domestic waste was “deposited on land open to the air and the public and left there”. It stated that, if Ms X did not pay the penalty within the stated period she may be prosecuted for the offence. The fixed penalty was £100 if paid within 10 days or £150 within 14 days.
22. Ms X complained to the Council explaining why she had left the rubbish sack out the day before collection.
23. The Council responded saying that, having reviewed the matter, it was satisfied the FPN was issued correctly. It said Ms X should pay £150 within 10 days or she would receive a summons to appear at the Magistrates Court charged with the criminal offence of littering.
24. Ms X responded again asking the Council to cancel the FPN. She said issuing an FPN was against Government guidance issued by Defra and the Council should have issued a warning letter instead.
25. The Council responded stating it had already advised Ms X of its decision. It advised her to await the court summons if she wished to challenge the FPN.
26. Ms X paid the £150 fine and complained to the Ombudsman.

Analysis

27. Ms X says the Council’s actions were disproportionate because she was acting in good faith by putting her bagged refuse at the usual collection point a few hours earlier than she should have. She says the Council should not have issued an FPN but should, instead, have issued a written warning letter in line with Government guidance.
28. 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.’
29. In relation to another similar case, 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.’
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 council to address these.
31. However, we do not make 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, we cannot question it no matter how strongly a complainant feels it is wrong.
32. So, it is not for us to decide whether Ms X committed an offence. The law gives the Council the power to make that decision, and we have no grounds to criticise it just for the fact it did so. However, in issuing Ms X with an FPN, we are concerned the Council has not shown how it considered the various options available to it.
33. The Council considers Ms X’s offence to be one of ‘domestic waste 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.
34. 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 Ms X did. The FPN itself referred to domestic waste. Ms X left waste in a bag on the pavement close to her property for collection the next day. She did this a few hours early. This is what Defra says should be treated as an offence under s46.
35. I should note, at this point, there appears to be a contradiction in some of the information published by Defra. The 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 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.
36. I also note the definition ‘litter left to the open air’ under s87 is broad, and it is important to highlight that councils can consider their full range of powers when they find wrongly deposited waste. 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 a few hours early, or how it would generally differentiate between the various powers it has at its disposal.
37. The Council’s website says ‘the type of accommodation you live in determines 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 an FPN.
38. Taking this together, I 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.
39. However, the Council has now offered to refund the FPN in full, which we consider represents a suitable 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. The Council has agreed that, within one month, it will refund Ms X the £150 she paid.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I find fault causing injustice to Ms X.
43. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman