Birmingham City Council (18 010 480)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 30 Apr 2019

The Ombudsman's final decision:

Summary: Miss X complains about the Council’s response to reports she has made of fly-tipping and dumped rubbish in her local area. The Ombudsman found although the Council was not at fault in most of its responses to Miss X’s reports, its failure to properly manage her expectations was fault. This caused Miss X an injustice through uncertainty and frustration. The Council agreed to the Ombudsman’s recommendation it should apologise, explain how it will deal with Miss X’s reports in future and publish more information on its website about its service standards.

The complaint

  1. Miss X complains about the Council’s response to reports she has made of fly-tipping and dumped rubbish in her local area. She says the Council’s poor response means her and her family have to live in an unhealthy and dirty environment.

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What I have investigated

  1. The law says the Ombudsman should usually only investigate events in the 12 months before someone complains to us. Miss X approached the Ombudsman in October 2018 and it is clear she has had longstanding concerns about dumped rubbish in her area. However, I have decided it is sensible to limit my investigation so it only considers October 2017 to October 2018. I cannot identify any good reason to look back further.
  2. Miss X also sent information and photographs about more recent events but I cannot consider these as they are new events.

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The Ombudsman’s role and powers

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. 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)
  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. I spoke with Miss X and considered the information she sent me. I wrote to the Council, made enquiries and reviewed the evidence it provided.
  2. I have taken into account:
    • Section 45 of the Environmental Protection Act 1990, which outlines the Council’s duties to collect waste (both domestic and commercial), including charging for commercial waste collections.
    • Section 89(1) of the same Act, which places a duty on councils to keep relevant land and roads clear of refuse and litter “so far as is practicable”.
  3. I have also seen the ‘Code of Practice on Litter and Refuse’ (‘the Code’), published by the Department for Environment, Food and Rural Affairs (DEFRA) in April 2006. Its emphasis “is on the consistent and appropriate management of an area to keep it clean, not on how often it is cleaned”. It says “accurate and systematic monitoring is needed” in order to know what resources local authorities should use, where and when. This will enable local authorities to “put in place procedures that ensure [litter problems] do not build up and that acceptable standards are maintained.”
  4. I sent a copy of my draft decision to Miss X and the Council and I invited them to respond to it.

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What I found

  1. Although the law imposes a duty on local authorities such as the Council to clear dumped rubbish from roads and public land, it only has to do what is practicable to achieve this. The law explains the standard to reach is different depending on the type of land, its use and what measures are practical.
  2. Miss X lives in a residential street in the Council’s area. From viewing online maps and images, it appears to be a typical and traditional terraced street away from a main road. There are shops at the ends of the road but only houses in between.
  3. Miss X told the Ombudsman how unhappy she is with the failure of the Council to deal with dumped rubbish in the street and other spaces near to her home. She believes residents elsewhere in the city get a much better level of service and worries about the impact living in that environment will affect the health of her and her family. She does not believe she should have to constantly report issues and then follow them up when the Council does not do its job.
  4. The Council found 25 contacts from Miss X about dumped rubbish or street cleanliness for the period under investigation. Apart from occasional requests from Miss X for the Council to clean her whole street, these often refered to specific items of rubbish she believed it should collect. These include dumped fridges, bags of rubbish, boxes and other items.
  5. The Council has accepted in some of its letters to Miss X there were times when its level of service was not up to the standard it would like. However, it also told her it usually removed dumped rubbish “as soon as reports are received.” It told the Ombudsman the street attendant will also report bigger issues back to the depot if needed.
  6. It said Miss X is sometimes vague about where she has seen dumped rubbish and it is only after staff have gone out they find it is on private land. The Council explained to the Ombudsman although it has powers to clear rubbish on private land, it does not have to do so and will only act if there is a significant risk to human health.
  7. Miss X was in regular contact with the Council from July 2018 onwards. She complained its crews were “failing to deliver”, they had not properly dealt with an overflowing bin she had reported and she was unhappy with the level of service. She filed these complaints using different online forms and the Council responded to them separately. It explained what it had done about her reports but apologised for how it had dealt with her concerns. At one point in September 2018, the Council sent Miss X two written responses in two days relating to two different complaints.

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Analysis

  1. The Council has wide discretion in how it responds to reports from Miss X. The Ombudsman cannot intervene to tell the Council to choose one course of action over another, as long as it can explain what it did. Decisions on how best to collect rubbish reported by Miss X, and what to do once it finds it is on private land, rest with the officers concerned.
  2. I asked to see the Council’s policy on dealing with dumped rubbish. In response, it showed me the way members of the public can report incidents online but did not provide a policy. Searches of its website found no such policy and so I have to assume there is not one. Nor is there any explanation of how it prioritises its response to reports or the service standard it works towards.
  3. Of the 25 reports identified during the period under investigation, the vast majority are from July 2018 onwards. This coincides with Miss X’s increased complaints about the level of service. Having read through the reports sent to me by the Council, it seems it resolved most at the first time of asking. However, it is clear from Miss X’s complaints, and the Council’s apologies, this was not always the case.
  4. I do not find fault on the basis the Council’s efforts have not achieved the general level of cleanliness Miss X would like. It is clear from the evidence I have seen the Council is responding to the majority of Miss X’s reports. Its decision to task a street attendant to visit the area occasionally also supports my view it is monitoring what is happening locally. There is no evidence to suggest a significant health hazard ever developed in the street. And it is also normal for local authorities to ask for members of public to report concerns to them which they would otherwise not be aware of.
  5. Ultimately, I cannot find fault with the Council once it has decided how to use its resources, especially where redeployment would likely lead to issues elsewhere in its area.
  6. With respect to the individual occasions where the Council has not responded correctly to Miss X’s reports, I consider although this was fault, an apology and immediate action to resolve the problem is resolution enough. However, it is not clear to me that has always happened and, where the Council has apologised in writing, it is not always clear why and what for. Miss X told me she felt officers were lying about coming out and dealing with her reports, but I have seen no evidence to support that conclusion.
  7. That said, when Miss X began reporting more incidents to the local depot, and making more complaints in July to October 2018, the Council should have taken a more hands-on approach to dealing with her concerns. That might have involved appointing a specific point of contact or arranging a meeting to discuss her concerns in person. Openly publishing online an explanation of its response to dumped rubbish would also help to manage public expectations. Instead, a situation arose where vague apologies were being offered and correspondence with Miss X had several reference numbers within a short period of time. This was fault.
  8. I have concluded the fault identified in this case caused Miss X a significant injustice in the form of uncertainty, frustration and her time and trouble in having to repetitively contact the Council. I accept the Council’s position some of Miss X’s reports were vague and it appears some were repeats too. It is also possible she makes more reports than the average member of the public. However, this does not remove the duty on the Council to provide a good level of service and to be able to explain its actions and decisions.

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Agreed action

  1. By 30 May 2019, the Council has agreed to:
    • Write to Miss X to apologise for the situation that arose in this case due to how it managed her complaints and its inability to properly explain why it was taking the course of action it did.
    • Explain how it will deal with Miss X’s reports more effectively going forward, to better manage her expectations and be able to show how it will ensure it efficiently handles future reports she makes.
    • Remind officers writing complaint responses on behalf of the Council to be specific about why they are apologising.
  2. By 30 July 2019, the Council has agreed to publish information on the relevant section of its website, to make clear the service standard is aims to achieve in dealing with public reports of dumped rubbish.
  3. The Council should write to the Ombudsman when it has completed these actions.

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Final decision

  1. Although the Council was not at fault in most of its responses to Miss X’s reports of dumped rubbish, its failure to properly manage her expectations was fault. This has caused Miss X an injustice which the Council should remedy.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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