Summary: Mr D complains that the Council has failed to clean his street to the required standard. The Ombudsman finds no fault in the way the Council is maintaining the street. But the Ombudsman finds fault with the Council for the delay in dealing with Mr D’s complaint.

The complaint

1. Mr D complains that, the Council has failed to provide regular street cleaning on the street where he lives. He also says the Council delayed in responding to his complaint at Stage 1 and 2 of the process.

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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. 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)
4. 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

5. I have considered all the information provided by Mr D and spoken to him on the telephone. I made enquiries of the Council and considered its comments and the documents it provided.
6. I gave Mr D and the Council a copy of my draft decision and invited their comments. I considered the comments I received.

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What I found

7. Section 89(2) of the Environmental Protection Act 1990 places a duty on local authorities to ensure that all publicly maintainable highways in their area (apart from those maintained by the Secretary of State) are, so far as is practicable, kept clean. This duty applies to all highways that the authority maintains including streets, footways, alleyways and public rights of way.
8. In April 2006, the Department for Environment, Food and Rural Affairs (DEFRA) published the ‘Code of Practice on Litter and Refuse’ (‘the Code’). The emphasis of the Code “is on the consistent and appropriate management of an area to keep it clean, not on how often it is cleaned”.
9. The Code makes it clear that a local authority’s duties under the Environmental Protection Act 1990 are not transferable if an authority contracts a private company or other agency to carry out its cleansing duties on its behalf. The local authority retains its duties and responsibilities.
10. The Code says that in order to know what resources should be deployed, where and when, “accurate and systematic monitoring is needed”. It says this will enable local authorities to “put in place procedures that ensure [litter problems] do not build up and that acceptable standards are maintained.”
11. The Code sets out graded standards of cleanliness as follows:

• Grade A: no litter or refuse
• Grade B: predominantly free of litter and refuse apart from some small items
• Grade C: widespread distribution of litter and/or refuse with minor accumulations
• Grade D: heavily affected by litter and/or refuse with significant accumulations.

12. The Code expects councils to keep their land clear of litter and refuse so it does not fall below a grade B. The Council explained that if its finds that standards are not being met it will issue a rectification to the contractor with a twenty-four-hour response time. There is an escalation process in the contract if the contractor fails to rectify the issue.
13. The Council undertakes random street inspections to monitor cleanliness. Targeted and additional monitoring can be put in place where there have been complaints and/or when performance is poor.

Key facts

14. In April 2017 Veolia took over the provision of street cleaning on behalf of the Council. Mr D had been logging reports about the poor standards of cleaning on the street where he lives, since December 2017. Since then the Council has received several reports about inadequate street cleaning in the area.
15. On 28 December 2017, the Council held a meeting with ward councillors, chair of the local residents’ group and Mr D to discuss the issues. On 8 February 2018, Officer X sent an email to the chair of the local residents’ group and confirmed the action that the Council was taking in response to the concerns raised. He said that neighbourhood services carried out an inspection on 23 January 2018 and found that the streets were below standard and had advised Veolia. As a result, the Council had agreed to deep clean of the area on 28 February 2018 and 1 March 2018.
16. On 15 August 2018 Mr D complained to the Council about the condition of the street and the lack of significant cleaning. He said that despite reassurances that the service would improve, the situation had worsened.
17. Officer X responded to the complaint on 2 October 2018. He explained that the Council’s street cleaning contract with Veolia required them to ensure that streets were kept to a specific satisfactory standard and not on frequency of sweep or litter picking. He explained that a street cleaner would attend the street where Mr D lives, fortnightly, and would clean the area if it fell below standard. He explained that there would be areas within the street that did not need to be cleaned as they were within the standard of the contract. Officer X said that previous inspections and monitoring of the are found that standards were as they would expect. Officer X confirmed that a cleaning blitz in the area took place on 1 March 2018 and there were no further plans to carry out a further targeted intervention. Officer X recognised that not all residents would be happy with the changes to the service but due to financial challenges the Council faced resources were being stretched further for street cleaning and waste management.
18. Mr D contacted the Council on 3 October 2018. He remained dissatisfied and said the issues were still unresolved. He said his street had not been cleaned to a satisfactory standard for a considerable period. He also complained about the time taken to respond to his complaint at stage one of the complaint process.
19. On 4 October 2018 the Council carried out an inspection on the street where Mr D lives. It found litter and detritus to be at grade B and was satisfied that cleansing met the required standard.
20. The Council responded to Mr D’s stage two complaint on 11 January 2019. It said that its position had not changed. It highlighted the work that had undertaken by its neighbourhood services team as follows:

• Local area walkabouts in September 2017 which Mr D was invited to attend with Councillor Y;
• Responses to enquiries by Councillor Y in September and October 2017 explaining cleansing standards;
• Meetings with Mr D, representatives from neighbourhood services, ward Councillors on 28 December 2017;
• Blitz work carried out in March 2018.

The Council apologised for the delay in responding to Mr D’s complaint and referred him to the Ombudsman should he remain unsatisfied.

21. On 19 February 2019 the Council carried out another inspection and found litter was grade B and detritus grade B+.

Analysis

22. Mr D complained to the Ombudsman. He said the street was not being kept to co grade B standard and the Council was failing in its duty to address litter and rubbish. Mr D said there had been no improvement since he reported the problem. He also complained about the way the Council handled his complaint. The Council sent its stage one response six weeks after Mr D made a formal complaint. The Council took three months to respond at stage two of its complaint process.
23. The Council’s duty to keep streets clean from litter is set out in the Environmental Protection Act 1990 but it is not absolute; it applies “as far as practicable”. The Council has explained that under its service standard, Mr D’s street is considered to be a residential street and as such is attended to by a street cleaner fortnightly who will clean the area if it has fallen below standard. On alternate weeks the street is swept by a mechanical sweeper, if needed. It is for the Council to decide how to use its resources and for the contractor to decide how to meet its obligations to the Council.
24. Paragraph 20 explains the steps the Council has taken to address Mr D’s concerns. I am satisfied that the Council has considered his complaints and reviewed its position. The Council considers that attending the street fortnightly and cleaning if required is sufficient. Random inspections are undertaken, and systems are in place to notify Veolia if the standard is found to drop below grade B.
25. Mr D considers the Council’s cleaning schedule is unsatisfactory, but this is not evidence of fault on the Council’s part. It is for the Council to decide how it should spend the resources available to it. While the Council’s efforts may not achieve the level of cleanliness Mr D would like, I cannot find fault with the Council.
26. If Mr D believes the Council has failed to comply with the requirements of section 89 of the Environmental Protection Act, he can serve notice on the Council under section 91 of the Act and apply to the Magistrates Court for an order for the Council to remove litter. The court can consider representations from both parties and, if it finds the Council has not met its duty, it can make an order requiring it to carry out the necessary work.
27. The Council accepts that there was a delay in responding to Mr D’s complaint at both stages of the process. The Council’s policy states that a response should be sent within 20 working days. In addition to this I have seen no evidence that shows the Council contacted Mr D to inform him of the delay. This fault caused Mr D injustice in the time and trouble he spent chasing the Council for a response.

Recommended action

28. Within four weeks of this decision the Council should apologise in writing to Mr D for the delay in dealing with his complaint.

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Final decision

29. I do not find the Council at fault in the way it is maintaining Mr D’s street. However, I find the Council is at fault for the delay in dealing with Mr D’s complaint.

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Investigator's decision on behalf of the Ombudsman