Summary: It was for the Council to decide whether to suspend indoor collections of bulky waste, because of concerns about the spread of COVID-19. The Council should have ensured it made an assessment of the likely impact of this suspension on disabled people, but this did not cause a direct injustice to the complainant. There was an injustice to the complainant caused by the delay and confusion in the Council’s complaint handling, which it has now agreed to remedy. We have therefore completed our investigation.

The complaint

1. I will refer to the complainant as Mr B.
2. Mr B complains about the Council’s waste collection contractor’s decision to

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How I considered this complaint

5. I reviewed Mr B’s correspondence with the Council, along with some documents and comments the Council provided to me.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Like many other local authorities, the Council offers a paid-for collection service for bulky waste items, which cannot be disposed of via the normal refuse and recycling collection. This is a discretionary service, which means the Council is not obliged by law to operate it.
8. Customers to this service are generally required to move the bulky items outside their properties for collection, but the Council will also arrange indoor collections for customers who cannot do this because of a disability.
9. I should also note the Council has commissioned a third-party contractor, Veolia, to carry out its waste collection duties and services, which is again a common arrangement. However, although the Council no longer runs the service directly, it still maintains legal responsibility for it.
10. In July 2021 Mr B contacted Veolia to book a bulky waste collection for a fridge-freezer he had just replaced. He asked for an indoor collection, because he had a disability which meant he could not move the fridge-freezer outside his home.
11. However, Veolia explained it could not currently make indoor collections. This was because it had suspended this service in response to the COVID-19 pandemic.
12. Mr B submitted a complaint to Veolia. He reiterated he could not move the fridge-freezer himself due to his disability, and had no friends or family nearby who could help him. Mr B pointed out the Government had now lifted most COVID-19 restrictions and said “legally Veolia cannot impose mandatory restrictions that conflict with Government rules”. He also explained he was vaccinated against COVID-19 and was prepared to take other measures to reduce the risk to Veolia staff while they were in his home.
13. Mr B also complained it was discriminatory for Veolia to “refuse the collect refuse from disabled persons because they have to enter the property”.
14. Mr B received a formal stage 1 response to his complaint from Veolia on 31 August. It explained that, in consultation with the Council, Veolia had decided to maintain the suspension on indoor collections at that time. Veolia said it would notify Mr B when the suspension had been lifted.
15. Following this, Mr B contacted the Council several times to discuss his complaint, including an email to the Chief Executive on 2 November. He complained the Council had declined to investigate, as it considered it was a matter for Veolia to address. During this period Mr B also referred his complaint to the Ombudsman.
16. On 18 November, the Council contacted Mr B to say that, after discussing the matter with Veolia, it had agreed to reinstate indoor collections. The Council offered Mr B a free collection for his fridge-freezer if needed.
17. After we made initial enquiries with the Council, it provided Mr B with a formal stage 2 response on 10 January 2022.
18. In its response, the Council confirmed Veolia had correctly stated the current policy position during Mr B’s original contact in July. It explained the policy had been introduced at the beginning of the COVID-19 pandemic, to reflect Government restrictions and general concerns about infection at that time.
19. However, after Mr B had contacted the Council’s Chief Executive, the Council said it had held discussions with Veolia, and agreed a safe system of work to allow it to reinstate indoor collections.
20. The Council also said it agreed, upon review, the suspension of the service could have been lifted earlier, and apologised to Mr B for this.
21. The Council also apologised for the delay in responding to Mr B’s complaint. It noted Mr B said he had spoken to several people at the Council to attempt to get his complaint investigated, and said:

“Whilst I am unsure as to who you spoke to at Sheffield City Council, I believe that the person/s you spoke to understood that as a service provided by Veolia on our behalf, your complaint would be responded to by Veolia, but then failed to explain that this is because Veolia follow the same complaint process as ourselves, and that the Council’s Waste Management team reviews Veolia complaint responses once escalated.”

22. The Council explained it had now asked Veolia to include more information about the complaints process in its response to stage 1 complaints, to include informing complainants of their right to escalate their complaint to the Council itself if they remained dissatisfied.
23. The Council reiterated its offer to arrange a free collection for Mr B’s fridge-freezer if he needed it, although it acknowledged he may have made his own arrangements by now. It also confirmed Mr B could now take the matter back up with the Ombudsman if he wished to pursue it further, which he did.
24. In February, Mr B told us he had eventually been able to find someone to help move the fridge-freezer outdoors to his driveway. However, he had not, at that point, taken up the Council’s offer of a free collection, as he said he was concerned about prejudicing the outcome of our investigation.
25. The Council subsequently confirmed Mr B had eventually taken up its offer of a free collection.

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Legislative background

Public sector equality duty

26. On 5 April 2011, the public sector equality duty (the equality duty) came into force. The equality duty was created under the Equality Act 2010. The duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.

27. The broad purpose of the equality duty is to integrate consideration of equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.
28. To do this, it is necessary for decision-makers to understand the potential impact of their decisions on people with different protected characteristics and to identify potential mitigating steps to reduce or remove adverse impacts. This should help to ensure that the policy is fully effective for different groups of people.
29. The general equality duty does not set out a particular process for assessing impact on equality that public authorities are expected to follow. Having due regard to the aims of the general equality duty is about informed decision-making, not about carrying out particular processes or producing particular documents. However, public authorities may carry out an ‘equality impact assessment’ to assess the impact of a policy or decision on groups with protected characteristics.

Government guidance on waste collection

30. In July 2021, the Government published non-statutory guidance for local authorities on which aspects of their waste collection services they should prioritise, in the event of unexpected resource difficulties.
31. Under ‘Assisted collections’, the guidance says:

“Priority: High

Action: Maintain.

Risks if service reduced or stopped

Vulnerable residents may be unable to put out waste for collection, so waste could build up at vulnerable residents’ homes.

Mitigation

Assisted collections must be maintained. As a minimum, make sure that putrescible waste is collected.

Rationale

Vulnerable residents may not be able to dispose of their waste in another way.”

32. For ‘Bulky items’, it says:

“Priority: Low

Action: Consider promoting or using private contractors, or temporarily stopping the service.

Risks if service reduced or stopped

Some residents may not have capacity to store waste at home indefinitely. There could be increased levels of fly-tipping.

Mitigation

Send residents clear information on:

• any changes to the schedule and alternate services
• duty of care and penalties for fly-tipping
• using registered carriers to avoid waste crime and risk of fly-tipping

Rationale

Households could store items in the short term.”

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Analysis

33. Mr B complains Veolia would not make an indoor collection for his fridge-freezer in July 2021, despite the fact the Government had lifted most COVID-19 restrictions by this point, and despite the measures he said he would take himself to ensure safety. He says the suspension of indoor collections was discriminatory against those with a disability.
34. Mr B says the fridge-freezer remained in his kitchen for several months, blocking access and gradually becoming mouldy, which represented a health hazard. He says he should be compensated for this, the fact Veolia advised him to book a collection with a different service provider, and for the delays in the handling of his complaint.
35. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if it has, for example, failed to follow an appropriate procedure, not taken into account relevant information, or not explained a decision properly. However, we cannot criticise a council simply for making a decision someone disagrees with, provided it has done so properly. We do not provide complainants with a right of appeal against council decisions, and we cannot make operational or policy decisions on a council’s behalf.
36. This being the case, I must first make the point it is not for me to consider or decide whether it was appropriate for Veolia to suspend its indoor collection service. This was a decision for it, and by extension, the Council, to make.
37. I asked the Council to explain how it had considered the impact on disabled people of suspending the indoor collection service. In response, it provided me with a document Veolia had compiled (I understand at the beginning of the pandemic), which set out how it would prioritise its operations in the event of short staffing. According to this document, bulky waste collections were considered a lower priority, because they do not represent the same health hazard as other forms of waste.
38. The Council also said:

“Whilst bulky waste collections were identified as a lower priority service, the Council has a reasonable adjustment policy which means that when a resident or service user highlights that a service, or the way in which a service is delivered has a negative impact on their disability, consideration will be given to providing reasonable adjustments to mitigate against this negative impact. In this particular case, aside from the inconvenience and restricted access for cleaning and cooking associated with having a fridge/freezer inside the kitchen, it was not indicated that the non-provision of a bulky waste collection from inside the home had a negative impact on the complainant’s disability.”

39. I acknowledge the reasoning behind both these broad points, and I note, in particular, they both appear to be in line with the non-statutory Government guidance.
40. I am, however, not persuaded this demonstrates any concerted thought was given to the impact on disabled people of suspending the indoor collection service, when the suspension was originally imposed. The ‘prioritisation’ document does not address this issue at all; and while the Council’s own comments address Mr B’s situation in hindsight, this does not show that consideration was given to the effect on disabled people, in general, when the policy was first introduced.
41. Although the law does not require councils or their contractors to complete an explicit equality impact assessment document when changing or introducing a new policy or procedure, it does require them to consider the substantive point about how this change may affect those with protected characteristics.
42. I appreciate the policy change was introduced a time of unprecedented upheaval and pressure on the Council’s services; this is an issue we have made a point of considering when dealing with complaints which are related, directly or indirectly, to services available during the pandemic. However, I am conscious this change in policy had the potential to have a significant impact on disabled people, such as Mr B, and also that simply completing an impact assessment of some form was not a particularly onerous task. Taking this all together, therefore, I find fault that the Council did not do so (or did not ensure Veolia had done so), in accordance with the public sector equality duty.
43. This is not to say this fault, in itself, has caused Mr B a significant injustice. The Council has given reasons for why it would not have made a reasonable adjustment for Mr B’s circumstances here; and, although I acknowledge Mr B is unlikely to agree with this reasoning, this was a decision it was entitled to make. There is no reason to think, therefore, the Council would have made a different decision, even if it had made a proper impact assessment when introducing the policy.
44. And, given the fact it has now reinstated the service anyway, I see little benefit to recommending the Council make any form of service improvement here.
45. Separate to this, the Council has also confirmed its view that Veolia could have lifted the suspension sooner than it did (although it does not suggest when).
46. My attention is drawn particularly here by a comment in the Council’s complaint response, where it said that, after Mr B had emailed the Chief Executive on 2 November, it “became aware” of the continued suspension, and contacted Veolia to discuss it. This appears to contradict Veolia’s own response at stage 1, where it said it had agreed to continue the suspension in discussion with the Council.
47. It is difficult to unpick this, especially as I do not know when Veolia’s purported discussion with the Council happened. Either way, what appears clear is that the suspension had been introduced at the beginning of the pandemic, and then little to no more thought given to it as the situation progressed, until Mr B made his complaint.
48. This, arguably, is another point of fault. But, given the circumstances the Council was dealing with through this time, and the relatively small number of collections this would likely affect, it is not hard to appreciate how it was missed. I consider this be a shortcoming in the Council’s service, but not to the point of being a significant administrative fault.
49. This said, I am also conscious there was some delay and confusion in the handling of Mr B’s complaint. I will consider this as a separate point presently; but, given Mr B’s complaint was what brought the matter to the Council’s attention, it appears reasonable to conclude the suspension would have been lifted sooner had this delay not happened. There is, therefore, some injustice to Mr B in this respect.
50. But, in assessing injustice, we must consider how a complainant’s own actions may have contributed to their situation.
51. Mr B says that, because Veolia refused to complete an indoor collection, this meant the fridge-freezer remained in his kitchen for several months. This meant he had difficulty accessing some parts of the kitchen, and also that it was embarrassing for him when he had guests. Mr B also says the fridge became mouldy, creating a health risk.
52. However, while Mr B may not have been able to book the Council’s service, there are other private waste collection providers available to use. These can cost more than the Council’s service, but not to the point where I consider it would not have been reasonable for Mr B to do this, when it became clear Veolia would not coming to collect his fridge-freezer in the near future. And, had he then made a complaint to us about this, we would have been able to recommend the Council refund him the difference, if we considered it appropriate.
53. I note Mr B also says that, even once he was able to remove the fridge-freezer to outside his property, he still did not take the Council’s offer of a free collection. Mr B says this was because he did not wish to prejudice the Ombudsman’s investigation – but I cannot understand what he means by this. That the Council had eventually completed the collection would not alter the fact it had taken much longer than it was supposed to. There is no reason to believe this would have ‘prejudiced’ our investigation.
54. I am not persuaded, therefore, that the length of time the fridge-freezer remained in Mr B’s kitchen is an injustice flowing directly from the Council’s fault. These were matters it was within Mr B’s power to resolve, even while his complaint was still pending.
55. Instead, I consider the injustice created by the Council here arose in the delay and confusion in dealing with Mr B’s complaint.
56. This is the second version of my decision on this complaint. When I made my original decision, I had not yet had sight of the full version of the stage 1 response to Mr B’s complaint, sent by Veolia on 31 August. This was because the Council had inadvertently sent us only an excerpt of it.
57. The Council has accepted its error in doing so, but points out the full stage 1 response directed Mr B to contact Veolia to escalate his complaint. The Council says, however, that Mr B did not do this, but instead wrote direct to the Council’s Chief Executive, at which point the Council acted to resolve the matter. It therefore considers it is not responsible for any delay or confusion in the handling of Mr B’s complaint.
58. However, in the stage 2 complaint response, the Council wrote:

“I would also like to apologise for the length of time it has taken for your complaint to be resolved. I note in your email to our Chief Executive on 2nd November that you asked why having spoken to numerous people at Sheffield City Council, we would not investigate your complaint, instead leaving it to Veolia. Whilst I am unsure as to who you spoke to at Sheffield City Council, I believe that the person/s you spoke to understood that as a service provided by Veolia on our behalf, your complaint would be responded to by Veolia, but then failed to explain that this is because Veolia follow the same complaint process as ourselves, and that the Council’s Waste Management team reviews Veolia complaint responses once escalated.”

59. I find it difficult to follow precisely what happened with Mr B’s complaint here – but, either way, by the Council’s own admission, there was delay in its resolution, and the officer(s) to whom Mr B spoke did not clearly understand the Council’s procedure for complaints about waste collection.
60. The Council says it has asked Veolia to provide more information to complainants, to ensure they understand they can escalate matters to the Council if they are dissatisfied with the stage 1 response. This is positive; but it does not appear, to my reading, that the problem here was caused by Veolia not providing Mr B with information. Rather, it was that Council staff did not understand they should be accepting Mr B’s complaint.
61. As I have commented, the result of this was some unnecessary delay and confusion in dealing with Mr B’s complaint, as well as the possibility the Council could have acted sooner to revoke the suspension on indoor collections.
62. To this end, I consider the Council should offer Mr B a small financial remedy, in accordance with the Ombudsman’s published Guidance on Remedies. The Council should also take steps to prevent a recurrence of this problem.

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Agreed action

63. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mr B £150 to reflect his time and trouble, arising from the delay and confusion in its complaint handling; and
• circulate guidance to relevant staff to ensure they understand the Council’s policy on dealing with complaints about waste collection.

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Final decision

64. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman