Summary: Mr X complained about the Council’s actions relating to wheelie bins, which were left out on the street after collections. We have not investigated his complaint about fixed penalty notices, because Mr and Mrs X had the right to appeal to tribunal. The Council was at fault when it invoiced Mr and Mrs X for costs of its investigation, which it did not have the power to do without taking court action. This caused stress and anxiety for Mr and Mrs X. The Council has agreed to apologise and decide whether it will pursue a claim for its costs through the county court. It will also consider whether it has put others in the same position as Mr and Mrs X.

The complaint

1. Mr X complained about fixed penalty notices the Council issued to him and his wife when their wheelie bin was left on the street after collections. They did not receive all the notices the Council says it sent and this led to the Council adding extra penalties which they cannot afford to pay.
2. Mr X also complained the Council:
• advised them prematurely to appeal to the tribunal, because they had not yet received a penalty, only a notice of intent;
• sent their final invoice late and to their old address;
• failed to respond to their request to pay the fines in instalments; and
• charged them separate fines for the same issue.
3. Mr X feels the Council failed to follow due process and contravened guidelines on the management and issuing of fixed penalties. He says this has caused him and his wife significant stress and anxiety.

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What I have investigated

4. I have investigated the fees the Council added after Mr and Mrs X did not pay their fixed penalty notices. These fees were not ordered by a court and did not come with appeal rights. Mr and Mrs X first found out about these extra charges after their appeal rights for the fixed penalty notices had expired.
5. I have explained why I have not investigated other parts of Mr X’s complaint in the sections titled “The Ombudsman’s role and powers” and “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

6. 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)
7. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
8. Mr X appealed to the tribunal about the Council’s intention to serve a fixed penalty notice. Although he later withdrew his appeal, I cannot investigate this.
9. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
10. Mr X says that Mrs X did not receive notices in her name. I am satisfied the Council served notices in Mrs X’s name. It was reasonable for Mrs X to use her appeal rights. It was also reasonable for Mr X to use his appeal rights for his fixed penalty notice.
11. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe a fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
12. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
13. 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

14. I considered the information Mr X provided verbally and in writing.
15. I made enquiries of the Council and considered the comments and documents it provided.
16. I looked at the relevant law and guidance, including the Environmental Protection Act 1990 and the Deregulation Act 2015.
17. I considered the Ombudsman’s guidance on remedies.
18. I wrote to Mr X and the Council with my draft decision and considered their comments.

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What I found

Relevant law, guidance and Council policy

19. Councils have duties to arrange for collecting household waste. They can require residents to place their waste for collection in certain receptacles, in certain locations and at certain times.
20. When residents do not comply, councils are entitled to issue written warnings and notices of intent to issue a fixed penalty notice (FPN). If breaches continue, councils can issue FPNs. Residents can appeal to tribunal at various stages of this process.
21. This Council issues FPNs of £80. These are recoverable as a civil debt. Councils may apply to the county court if a person does not pay.
22. The law allows for councils to add further fixed penalties if the person continues not to comply with the council’s requirements. The law does not allow councils to add extra charges to FPNs to cover the cost of investigation and enforcement. If a council wishes to claim costs, it must do so through the courts. The Council’s debt policy confirms it will add expenses it has incurred in attempting to recover debt at the point it places the matter before the court.

What happened

Background

23. In early 2017, the Council served two separate notices on Mr and Mrs X saying they could not leave bins on the street after refuse collections. The Council issued each of them a separate notice of contravention in February 2017. In April 2018 it issued each of them with a separate notice of intent. All notices explained Mr and Mrs X’s appeal rights and the consequences of not complying. The Council served all notices by first class post.
24. Mr X says Mrs X did not receive notices in her name. I have seen the notices the Council served to Mrs X. Mr X contacted the Council in May 2018 quoting the reference number, which was the same on both Mr and Mrs X’s notices. Mr X did not specify his email was also on behalf of Mrs X, and the Council is therefore of the view Mrs X did not appeal in her own right. The Council officer explained Mr X should address his appeal about the notice of intent to the first-tier tribunal.
25. Mr X appealed to tribunal and said his bin had disappeared on some occasions. Mr X said he had not received earlier correspondence about bins being left out on the street. In June 2018 Mr X withdrew the appeal. He told the Council they would pay the fine as they felt they would not win their appeal.
26. Mr and Mrs X moved to a new property at the end of June 2018. They included the change of address on their submission to the tribunal, which the Council received a copy of, but they did not directly tell the relevant Council department they had moved. They say they informed the Council’s council tax department.
27. The Council issued fixed penalty notices to both Mr and Mrs X in July 2018, sending this to their previous address. The notice explained if they paid one payment of £80 within 28 days the Council would take no further action. It gave details again of how they could appeal to the first-tier tribunal, as they had a fresh right of appeal at this point. It explained if an appeal was unsuccessful, failure to pay would result in the Council issuing proceedings in the county court. It explained it would add associated enforcement costs at that stage.
28. The Council sent final notices to Mr and Mrs X at the end of July, as they had not paid or appealed. The notices explained if they paid one penalty of £80 within 14 days the Council would take no further action. It reiterated it would add associated enforcement costs if it was required to issue proceedings in the county court.
29. Mr X says they did not receive these notices as they had already moved. However, the Council says it spoke to Mr X on the telephone during this period and discussed the amount due. It extended the date for payment to the end of August 2018 to enable them to pay.

Charges added by the Council for its investigation and enforcement

30. The Council sent final invoices to Mr and Mrs X in September 2018, to their new address. The invoices explained the Council had added investigation and administration charges of £517.49 for Mr X and £330.53 for Mrs X. The Council gave them information about how to request a repayment programme.
31. The Council told me these added charges were for the costs it incurred, including visiting the property, administration, investigations and monitoring. The Council had not started any court action. I asked the Council to provide a policy and evidence of its decision to charge in this way, and to explain the legal basis for this. The Council says it has no policy on this, and that it is entitled in criminal and civil cases to claim back the costs of investigation.
32. Mr X says he contacted the Council’s income collections team to explain they could not pay the charges all at once. He says he received an acknowledgement but then the team did not contact him further. The income collections team says it agreed a repayment plan with Mrs X in November 2018. It says Mr X did not ask it to negotiate the debt he owed.
33. In November 2018, Mr X complained to the Council. Mr X explained he chose to pay the fine but he had not then received the FPN or final notice. Mr X said the income collections team had not contacted him further. Mr X said it was unreasonable for the Council to expect Mr and Mrs X to pay fines totalling £1,008.02.
34. The Council responded and said it could not accept an appeal as it was too late. Mr X had withdrawn his appeal, both notices were unpaid and the Council had added its costs. It said it would continue to seek recovery.
35. Mr X told the Ombudsman he wants the Council to drop all the charges. He also said he and Mrs X paid for advice to challenge the notices. However, he later clarified this advice was free.

Analysis

36. The Council did not obtain a court order making Mr and Mrs X liable for the costs of its investigation. It told me these were the costs it would add if it filed an application to the county court. This is consistent with its debt policy, and its letters which said it would add such costs if it took court action. However, despite not having started any court action, the Council invoiced Mr and Mrs X for these costs.
37. I asked the Council to explain its decision to invoice for its costs in this way. It does not have a policy or evidence of consideration of this policy decision. The Council told me it is entitled to recover costs. However, this would need to be through the proper processes. The Council has not convinced me there is a legal basis for it to invoice residents in this way without a court order.
38. The Council was at fault for invoicing Mr and Mrs X for its investigation and enforcement costs. This caused stress and anxiety for Mr and Mrs X. However, Mr and Mrs X’s actions contributed to their own injustice. They did not notify the relevant Council department of their change of address. While they told the tribunal their new address, I would expect them to have notified the relevant officers directly. They also say they told the Council’s council tax department, who they believe should have passed this information on. While this may have been good practice, this is not maladministration and the onus was on Mr and Mrs X to notify the relevant departments they had moved. Therefore, it is not the Council’s fault that Mr and Mrs X did not receive the FPNs. On withdrawing the appeal, Mr and Mrs X were aware they would need to pay the FPN. They did not do so. I would expect them to have chased the Council if they did not receive further contact, to ask how they should pay.
39. The Council cannot invoice Mr and Mrs X for extra costs without a court order. It is entitled to begin county court proceedings to recover the penalty, along with its costs. The Council is entitled to decide whether it would accept a payment of £80 from Mr and Mrs X at this time to bring an end to matters or whether, in any event, it will pursue them via court for the additional costs it has incurred.
40. Based on the evidence I have seen, the Council has also not showed it calculated the costs properly. The charges it applied to Mr and Mrs X’s case do not match with the instructions it provides to its officers. However, this does not affect my decision, as the Council should not have added these costs at all. If the Council refers the matter to the county court, the court can direct in this respect.
41. There is a difference in information from Mr X and the Council about whether the income collections team discussed a repayment plan with Mr X. I have not been provided substantive evidence of their communications about this. Mr X raised this issue in his complaint of November 2018, saying the income collections team had not contacted him. The Council could have responded to this by initiating contact from the income collections team to Mr X. However, this did not cause an injustice to Mr X so I will not investigate this further.
42. I am concerned about the Council’s approach in this case, and whether it has taken the same approach with others who may not have complained. I have recommended the Council consider whether others have been caused an injustice.

Agreed action

43. Within one month of my final decision, the Council has agreed to:
• Apologise to Mr and Mrs X for wrongly issuing invoices for additional charges without first obtaining a court order.
• Decide what action it intends to take. The Council is entitled to accept a payment of £80 at this time if it believes this is appropriate, to bring matters to an end. However I make no recommendation for it to do so, and it is entitled to begin county court proceedings to recover the penalty and associated costs.
44. The Council will provide the Ombudsman with evidence it has taken these actions.
45. The Council has also agreed to consider whether it has also wrongly invoiced others in similar circumstances, without first obtaining a court order. It should make a decision in these cases about what action to take. It will report to the Ombudsman within three months of my final decision, with its findings and the action it intends to take.

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Final decision

46. I found fault by the Council, causing an injustice to Mr and Mrs X and potentially others. The Council has accepted my recommendations to remedy this. I have completed my investigation.

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Parts of the complaint that I did not investigate

47. I have not investigated the Council’s decision to issue FPNs, and issues related to this, such as the officer’s advice. Mr and Mrs X had the right to appeal to the tribunal about notices of intent and the FPNs.
48. Mr X’s letter of intent is outside of the Ombudsman’s jurisdiction, because he appealed, even though he later withdrew this. It was reasonable for him to use his right of appeal for the FPN itself and so I have not used discretion to investigate this. It was reasonable for Mrs X to use her right of appeal at both stages and so I have not used discretion to investigate her penalty. While Mrs X says she did not receive notices in her own name, I have seen evidence the Council sent notices to both Mr and Mrs X.

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Investigator's decision on behalf of the Ombudsman