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Scarborough Borough Council (20 011 085)

Category : Environment and regulation > COVID-19

Decision : Upheld

Decision date : 10 Sep 2021

The Ombudsman's final decision:

Summary: Mrs B complained the Council charged the full year’s fee for her holiday let waste collection service despite no service being provided at three times during the year. The Ombudsman found the Council failed to give clear information about which waste collection services were suspended. It agreed to offer Mrs B a remedy.

The complaint

  1. Mrs B complained the Council charged the full year’s fee for her holiday let waste collection service. She said that was despite no service being provided at three times during the year because of government enforced COVID-19 national lockdowns.
  2. Mrs B is unhappy she was charged in full for a service she did not at times need. She thinks the decision was unfair and inconsistent.

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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. 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)
  3. 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 the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council and its comments in response to my enquiries.
  2. Mrs B 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

  1. Under the Environmental Protection Act 1990, businesses must safely dispose of any waste produced because of their business. That includes businesses running from home and holiday let properties.
  2. Businesses can choose whether to pay the Council to collect their commercial waste or use a private supplier.
  3. The Council charges £189 a year for its standard holiday let waste collection service. Businesses can ask for a seasonal collection service if they only let out their property for part of the year. The Council will then provide a personalised quote.

What happened

  1. Mrs B runs a holiday cottage business and subscribes to the Council’s holiday let waste collection service. She pays an annual fee of £189.
  2. Because of COVID-19, Mrs B had to close her business three times. The first closure was from 23 March to 4 July 2020. The second from 5 November to 2 December 2020. The third from 30 December 2020 to 12 April 2021. That meant Mrs B had to close her business for about nine months in just over a year.
  3. The Council suspended its commercial waste collections service in April 2020 where businesses could not operate. It said collections would resume when businesses could reopen. It confirmed this on its website.
  4. Mrs B complained to the Council after it sent a trade waste invoice in December 2020. She said the Council charged the full rate despite her business being closed during national lockdowns, and she did not receive a service during those times. She asked the Council to recalculate its invoice.
  5. The Council responded on 11 December. It said its holiday let waste charge is a heavily discounted annual charge, like utilities such as water and Internet. Its waste collection crews continued to collect waste during the pandemic and the charge remains.
  6. It signposted Mrs B to the government’s small business grant scheme to help businesses with fixed costs where they could not trade.
  7. Mrs B was unhappy with the Council’s response. She questioned why the Council’s pricing policy had any bearing on her complaint. She pointed out services such as gas, electricity, water, and Internet did not charge her during lockdown as they understood the impact on small businesses.
  8. Mrs B said the government did not specify how small business should spend grant money. She said insurance companies had unsuccessfully tried to force businesses to pay using the grant and the Council therefore cannot rely on this.
  9. Lastly, Mrs B said the Council did not charge customers with pre-paid waste bags, as they received no service during lockdown. She said it was inconsistent and unfair to treat wheelie bin customers differently.
  10. The Council sent its final response on 20 January 2021. It said its independent complaints board had reviewed Mrs B’s complaint and found:
    • The holiday let collection is a fixed annual charge, regardless of whether the property is let, or a collection of waste needed.
    • The Council continued to provide a waste collection service throughout the year.
    • The Council took an appropriate approach in the circumstances.
  11. Mrs B brought her complaint to the Ombudsman on 25 January. She said the Council should be more transparent about its services and should let customers stop and start them in situations like this.

Response to my enquiries

  1. The Council told me, while it suspended its commercial waste collection service in April 2020, its holiday let waste collection service did not stop during national lockdown periods. That was because some holiday let properties were used by key workers, and it has a duty to empty any bins with waste in them. Its waste collection operatives continued to check bins to see if customers had any waste.
  2. The Council did not issue any refunds to its holiday let waste collection service customers. While it did not record details of customers who asked for refunds, anecdotally officers reported there were very few requests.
  3. It said customers had the right to cancel their service and make other arrangements with private providers if they wished. Given the circumstances, the Council told me it would have partially refunded customers if they had cancelled their service.
  4. The Council did not tell customers they could ask for a refund if they cancelled the service, but the option was available, and information is provided on the Council’s website.
  5. The Council confirmed it refused Mrs B’s request for a refund because it still provided a minimum service, of checking bins, and she could have cancelled the service.

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Analysis

  1. The Council’s holiday let waste collection service did not stop during national lockdowns as Mrs B thought. The Council continued to provide a service for businesses that were able to stay open.
  2. In response to my draft decision, the Council told me it also continued to collect pre-paid waste bags for customers who left them out.
  3. The Council said Mrs B could have cancelled her service if she wished. Mrs B did not think she needed to cancel the service, as she thought the Council had suspended all commercial waste collections.
  4. I have seen the announcement the Council published on its website in April 2020 when it suspended its commercial waste collection service. It stated that commercial waste collections were suspended where businesses were unable to open. It said collections of waste, recycling and garden waste for households would continue, but it made no mention of the holiday let service.
  5. The Council should have made clear that the holiday let waste collection service would continue. I can understand why Mrs B thought her service was suspended. The Council could not expect customers like Mrs B to cancel their service in circumstances where the information it gave was ambiguous and not clear. That was fault.
  6. I have seen notes from the Council’s independent complaints board when it reviewed Mrs B’s complaint. Officers considered the Council still had costs to pay, regardless of whether they collected waste from certain individual properties.
  7. The notes suggest the Council considered that, because COVID-19 restrictions were being applied as and when required, it would mean the Council would have to keep recalculating invoices if it did not charge some customers for certain periods where they were not open. The Council did not consider the situation arose because of any fault on its part.
  8. It is not the Ombudsman’s role to say a Council must issue a refund for its services in circumstances like this. It is for the Council to decide. However, the Ombudsman expects councils to consider exercising discretion. When doing so, we expect councils to consider all relevant factors and the individual circumstances, and to make a decision on the merits of each case.
  9. Having found the Council at fault for not providing clear information about the holiday let waste collection service, I do not consider the Council could consider all relevant factors when it made its decision. It made a blanket decision based on its costs and the inconvenience of adjusting customers’ bills. It did not consider the unclear information it gave and the impact on Mrs B, who may have cancelled her service if she knew the Council had not suspended it and intended to charge in full for a service she could not use.

Injustice

  1. I have considered whether the Council’s fault caused Mrs B an injustice which it should offer a remedy for. As part of my consideration, I have taken account of the Ombudsman’s guidance on remedies.
  2. Mrs B described the distress she suffered as a result of her complaint. For our purposes, distress includes things like raised expectations and lost opportunity. I consider both are relevant here and that is Mrs B’s injustice.
  3. The Council’s unclear advice gave Mrs B the legitimate expectation her waste collections were suspended. That led Mrs B to believe she may not be charged for those periods.
  4. The fact Mrs B believed her service was suspended meant she lost the opportunity to cancel it and ask for a refund.
  5. For the reasons discussed above, the Council should offer Mrs B a remedy. When the Ombudsman recommends a remedy we look to put complainants back in the position they would have been in if the fault had not happened. Since I cannot say for certain if or when Mrs B would have cancelled her holiday let waste collection service, I consider the Council should make a symbolic payment to recognise her raised expectations and loss of opportunity. In deciding a suitable figure, I have taken account of the fact Mrs B paid an annual fee of £189 for a service which she could not use for almost three quarters of the year.

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Agreed action

  1. Within four weeks of my final decision, the Council agreed to:
    • Apologise to Mrs B for not giving clear information about which waste collection services were suspended.
    • Pay Mrs B the sum of £150 to recognise the raised expectations and loss of opportunity its fault caused.

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Final decision

  1. I have completed my investigation. The Ombudsman found the Council failed to give clear information about which waste collection services were suspended. The Council agreed to offer Mrs B a remedy.

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Investigator's decision on behalf of the Ombudsman

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