Devon County Council (20 004 398)

Category : Environment and regulation > COVID-19

Decision : Not upheld

Decision date : 19 Jan 2021

The Ombudsman's final decision:

Summary: X complains the Council closed their local Household Waste Recycling Centre to pedestrians when it reopened in May 2020 following temporary closure due to COVID-19. We do not uphold the complaint, finding the Council could reasonably take this action as part of a package of measures designed to limit use of the site and maintain social distancing on re-opening.

The complaint

  1. X complains the Council closed their local Household Waste Recycling Centre (HWRC) to pedestrians when it re-opened in May 2020 after temporary closure caused by the COVID-19 pandemic. X says the Council has provided spurious reasons for barring pedestrian access to the site. X considers pedestrian use of the site carries no more risk to health and safety than visiting the site by car.
  2. X says they have been inconvenienced by the Council’s decision, being unable to dispose of garden waste unless they choose to pay for a kerbside collection.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether a council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
  3. If we are satisfied with a council’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

  1. Before issuing this decision statement I considered:
  • X’s written complaint to the Ombudsman;
  • X’s earlier complaint to the Council and its reply;
  • information provided by the Council in reply to our enquiries;
  • relevant national guidance referred to below.
  1. I also gave X and the Council an opportunity to comment on a draft decision statement setting out my proposed findings. I took account of any comments received before completing my investigation.

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What I found

Background

  1. In March 2020 the government announced that people must stay at home and avoid non-essential journeys as part of a package of measures introduced in response to the COVID-19 pandemic. In common with other local authorities, the Council closed its HWRCs to avoid encouraging non-essential journeys.
  2. In May 2020 the Government published advice encouraging local authorities to re-open HWRCs called “Managing Household Waste and Recycling Centres (HWRCs) in England during the coronavirus (COVID-19) pandemic”. The guidance said:
  • There was “no reason in law” HWRCs could not open although some may have to remain closed because of “safety being paramount”. The Government said the “key principle of this guidance is that human health must be protected while maintaining safe systems of working”;
  • Consequently, while most HWRCs are outdoors and “there is relatively low risk”, “householders should only take waste to a HWRC if it cannot be stored safely at home and no alternative disposal options are available”;
  • it was reasonable for householders to visit a HWRC “if the waste could not be stored on their property without causing a risk of injury, health or harm to the resident or other members of their household or harm to public health and amenity”;
  • councils would have to consider how to ensure social distancing on re-opening and measures needed to enforce this;
  • a risk assessment should inform how and when a HWRC could be opened; it was for councils to decide what measures they needed to take to safely operate a particular site;
  • councils would need to communicate changes in the operations of HWRCs; they may also want to consider encouraging collection of waste in other ways – for example by promoting kerbside collections including for garden waste.
  1. The Government guidance signposted councils to other sources of advice, including guidance published by the National Association of Waste Disposal Officers (NAWDO) “Coronavirus – restarting Household Waste Recyling Centre Service”. The NAWDO guidance provided detailed advice to councils on matters they had to consider when opening HWRCs during the pandemic. It included sections on traffic management and social distancing. It recommended various approaches councils could take to limit demand for HWRC sites including steps to limit customers and visitors to sites.
  2. Before re-opening its HWRCs the Council produced a ‘re-opening plan’. This said:
  • The Council anticipated a high demand for the HWRC service on reopening. It said that to avoid sites being overwhelmed it would introduce measures to manage or ease the flow of waste through its sites. It also needed measures to ensure health and safety at its sites.
  • It listed a series of measures it would take for ‘social distance/hygiene’ purposes. These included requiring members of the public to dispose of waste without help from staff on site; to mark sites to ensure social distancing of two metres; to allow only two passengers per vehicle; to prevent access from cars with trailers or vans; to limit the number of vehicles on site and not to allow “walk ins or other pedestrian access”.
  • The Council said it would ask the public to “hold on to their waste for a few weeks to avoid surge/queues”. It would also emphasise the government guidance that members of the public should only use HWRCs “if essential and urgent” and “if their waste and recycling cannot be stored at homes without causing risk of injury, health or harm”.
  1. On re-opening its HWRCs the Council published an article on its website that emphasised this messaging. It gave advice to visitors including that “only cars without trailers, with a maximum of two adults per vehicle, will be permitted on site”.

X’s complaint

  1. In August 2020 X complained to the Council when they could not access their nearest HWRC on foot to dispose of garden waste. X does not have a vehicle and transported their waste on a hand pulled trolley. X estimates this holds about the same amount of waste as an average car boot. X said the banning of pedestrians was unfair as there was no reason for them to breach social distancing rules when disposing of waste.
  2. In its reply to X the Council said it had banned pedestrians to enforce social distancing rules. It said it was “much safer to control access by site users if they remain in their cars with the windows shut until directed by site staff to an off-loading space”. The Council also said the HWRC visited by X had experienced problems with some visitors parking away from the site and carrying waste on foot to try and avoid vehicle queues. It added the site had “no formal pavement access from the public highway which makes pedestrian access unsafe”. It suggested X may want to use its kerbside garden waste collection service instead.
  3. X disputes there is no pedestrian access to the site and resents the suggestion they were trying to jump any queue.
  4. In October 2020 the Council contacted us to advise it had re-opened the HWRC to pedestrian access. X told us that since receiving our draft decision where they learnt the HWRC had re-opened they visited again. They were initially refused entry to the site but gained access after lengthy discussion on the gate.
  5. I note in January 2021 the Council further updated its website to say its HWRCs remained open and that “pedestrian access will only be permitted on sites with pavements connected to the public highway”. It would not allow pedestrian access to anyone who parked their vehicle outside the site and then carried waste by hand from their vehicle.

Findings

  1. I have some concerns about the quality of reply that X received to their complaint. I have looked at a google street map image of the HWRC taken in 2012 and note there is a pavement along the highway where it is located. Further there is a sign on the gate which points to a pedestrian access. Noting also the HWRC has now re-opened to pedestrians I consider all of this points to pedestrians usually having a safe access to the site. So, the suggestion that pedestrian access to the site was inherently unsafe appears inaccurate.
  2. I also consider the Council did not need to introduce in its response to X the problem created by visitors parking and walking to the site with their waste to avoid traffic queues. Because I do not find this was part of the Council’s thinking when it introduced the ban on pedestrian access in May 2020.
  3. Instead, I find the Council introduced the ban for the other reasons it explained in its letter to X. It was part of a package of measures designed to limit access to the HWRC. This in turn was to ensure the safety of staff and visitors to the site and ensure operations did not breach social distancing guidelines.
  4. I find the government guidance gave the Council wide discretion over what measures it could introduce to achieve these objectives. I recognise it will appear unfair to X the Council introduced this particular measure and accept they were inconvenienced on one occasion when trying to dispose of garden waste. But I consider it proportionate having taken account of the government and NAWDO advice. This emphasised:
  • the overarching aim of any policy being to keep members of the public and staff working at HWRCs safe by reducing visitor numbers. Limiting pedestrian access would limit numbers as did the ban on vehicles other than cars without trailers entering the site;
  • that HWRCs should be used for essential and urgent visits only; I consider the quantities of waste transported on a single journey by foot are more likely to be capable of being stored safely at home. This would not apply to every pedestrian journey just as not every visit by a van or a car with trailer would carry more waste than a car alone. But the Council could base its policy on certain reasonable assumptions about the amount of waste a pedestrian would usually be expected to carry.
  • that councils could legitimately promote kerbside collection services as an alternative.
  1. I also do not find fault in the way the Council introduced this measure. While I do not consider the Council’s ‘re-opening plan’ a comprehensive risk assessment, it still shows the Council considered carefully how it could re-open its HWRCs safely. I do not find it took anything irrelevant into account in its consideration. It also kept that plan under review and lifted the ban on pedestrian access in October 2020. It did not cause long-term inconvenience to pedestrian users of the site therefore.
  2. I also found the Council communicated its change adequately. Although to avoid any doubt it would have been better for it to made clear that when the HWRC re-opened there would be ‘no pedestrian access’ as well as permitting “only cars without trailers”. I am pleased to note the recent website update which makes this clear.
  3. I note with concern X’s most recent experience of visiting the site. I did not consider the inconvenience reported by X justified further enquiries but the Council should note the need to ensure site operatives understand the rules around pedestrian access.

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Final decision

  1. For the reasons set out above I do not propose to uphold this complaint finding no fault by the Council in its decision to temporarily ban pedestrians from its HWRCs. I therefore complete my investigation.

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Investigator's decision on behalf of the Ombudsman

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