Summary: There was fault in how the Council responded to Ms D’s complaint about fly-tipping in the street close to her property. The Council has agreed to make a payment to remedy the time and trouble she went to pursuing her complaint.

The complaint

1. The complainant, whom I shall refer to as Ms D, complains the Council failed to take appropriate action after she reported fly-tipping close to her property. Ms D said because a property in the area was a House in Multiple Occupation (HMO) it did not have enough bins, which caused the problem.

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The Ombudsman’s role and powers

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

4. As part of the investigation, I have:
• considered the complaint; and
• reviewed and considered information received from the council; and
• considered the relevant legislation; and
• communicated with Ms D about her complaint.

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What I found

5. In April 2018, Ms D complained to the Council about waste being fly-tipped in the street close to her property. She said that one neighbouring property, which I shall refer to as Property A, did not have any recycling bins, so the occupants were leaving their waste in the road. Ms D said that occupants of other properties were also leaving their waste in the street.
6. The Council said that it had written to the occupants of Property A and the other properties Ms D had mentioned, advising them how they should be disposing of their waste. The Council said that it would monitor the issue, and it would clear the waste from the street.
7. Ms D appealed under stage 2 of the Council’s complaints procedure. She said the occupants of Property A were still leaving their waste in the street, which was resulting in others doing the same.
8. The Council acknowledged there was a problem with litter on Ms D’s road. It said there had been 82 incidents of fly-tipping in the area during the previous three months, and it had issued 12 Fixed Penalty Notices (FPN) for littering. The Council said it had arranged to clean the road every two weeks, with an extra bin collection also arranged. The Council also said that it had sent refuse sacks to the occupants of Property A.
9. Ms D remained dissatisfied with the Councils response, and on 10 June, she asked it to be progressed to stage 3 of the Councils complaints process. She said that Property A was a HMO, housing at least ten people, and did not have enough bins. Ms D raised concerns about the health and safety of Property A, and asked the Council if it was registered as a HMO.
10. Ms D asked why the Council had not taken enforcement action against the occupants of Property A, and occupants of other properties in the street for leaving waste in the street. Ms D said the problem was worse at weekends, when the Council did not collect the waste.
11. On 22 July, after receiving no response to her stage 3 complaint, Ms D asked the Council for an update. On 31 July, the Council said that it aimed to respond by 7 September.
12. Ms D did not receive a response and complained to the Ombudsman, who asked the Council to complete its complaints process. On 18 February, the Council apologised to Ms D for the delay and said it aimed to provide a response by 8 March.
13. On 4 April, the Council provided Ms D with a stage 3 response. It said the Council could not find any evidence that Property A, or any of the other properties mentioned in Ms D’s complaint were registered as HMO’s, but the Housing Enforcement team would investigate further. The Council also said it would check if there were a enough of bins for the number of occupants.
14. The Council said that in order to issue a FPN, it’s officers would need to witness an offence or a witness statement would need to be provided detailing the offence. The Council said it had not issued any FPN’s or received any witness statements.
15. In response to my enquiries the Council said that it focused weekend street cleansing on shopping areas, which is why it only cleansed Ms D’s street on weekdays.
16. The Council said that on 2 July, it visited three of the four properties Ms D had referred to as HMOs in her complaint. It found two were not operating as HMO’s, and one property was not accessible, so the Council said it would visit again later.
17. The Council did however find that Property A was operating as an unlicensed HMO. The Council said the property was overcrowded and in very poor condition. It said it was taking enforcement action.
18. In response to a previous draft version of this decision, the Council said that while there is an issue with rubbish being dumped in the area Ms D lives, it has been proactive in trying to deal with the issue.
19. The Council said that Property A does not have recycling bins, as it collected rubbish in bags from the property. However, it would visit the property to assess if it needed to issue bins to the property.
20. The Council said that it has visited the other properties Ms D referred to in her complaint and found there are enough bins.
21. The Council said that since February 2018, it has carried out 25 fly-tip removals and 7 street inspections. The Council also said that a full cleanse of Ms D’s street is carried out weekly, with an additional litter pick also being carried out weekly since it became aware of the issues of littering.
22. The Council also provided a map showing where instances of fly-tipping have been found. It shows that all but one of the 18 instances had occurred at the opposite end of the road to the HMO.
23. Finally, the Council said that after examining fly-tipped rubbish, it had issued Fixed Penalty Notices to three properties. However, none of these were for the HMO because no evidence could be found linking rubbish to that property, or the other properties Ms D mentioned in her complaint.

Analysis

24. In June 2019, when Ms D asked for her complaint to be escalated to stage 3 of the Councils complaint procedure she indicated that Property A were responsible for much of the waste in the street and suggested they may be an unlicensed HMO.
25. The Council did not provide Ms D with a response to her stage 3 request for a further ten months, despite its policy stating it would send a response in 30 days. This is fault.
26. The Council said that since Ms D complained, it has improved its complaints procedure, and improved systems.
27. However, Ms D went to a significant time and trouble raising her complaint with the Council and then the Ombudsman.
28. The Ombudsman’s remedy guidance explains that when a complainant has been to significant time and trouble pursuing their complaint, we recommend payments of between £100 to £300, which should reflect the level of difficulty experience by the complainant.
29. Having considered time taken to complete stage 3 of the complaints process in this case, I have decided that a time and trouble payment of £200 is suitable in this case.
30. I have also considered whether Ms D suffered from a loss of amenity. While it may have been frustrating for Ms D to live on a street with a littering problem, I am unable to conclude that the Council’s failure to act against the HMO has led to an increase in littering in the area.
31. This is because the evidence the Council have provided indicates that it has been proactive in dealing with the issues of littering in the area, and, although it has found evidence of fly-tipping in the area, there is no evidence to suggest it is as a result of the unregistered and overcrowded HMO. It is for these reasons I do not consider that Ms D has suffered a loss of amenity as a result of the delays in responding to her complaint.
32. Since bringing her complaint to the Ombudsman, the Council have found Property A to be an unlicensed and overcrowded HMO. It has since started enforcement action. I am therefore satisfied with the action it is taking and therefore make no further recommendations regarding this.
33. Ms D remains dissatisfied with the Council’s response to her reports of fly-tipping. She says the Council should have prosecuted the offenders when she made her reports and is concerned the issue will continue.
34. However, I do consider that the action the Council have taken is appropriate, and its decision to issue letters to the properties, rather than take legal action is a decision it was entitled to make.

Agreed action

35. To remedy Ms D and prevent a recurrence of the failings identified the Council has agreed to:
• Offer to pay Ms D £200 within three months of the date of our final decision, for the time and trouble she went to bringing this complaint to the Ombudsman.

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Final decision

36. I have concluded my investigation with a finding of fault causing an injustice.

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Investigator's decision on behalf of the Ombudsman