Bristol City Council (18 019 085)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 09 Aug 2019

The Ombudsman's final decision:

Summary: Mr B complains the Council has not resolved the problems of litter near to where he lives following a previous complaint to the Ombudsman. He says the Council did not respond to his report of continued littering and then did not respond to his complaint. There was delay in responding to the last investigation decision and fault in how the Council responded to Mr B when he reported continuing problems. There is not fault in the action the Council has now taken to address the problems.

The complaint

  1. Mr B complains the Council has not resolved the problems of litter near to where he lives following a previous complaint to the Ombudsman. He says the Council did not respond to his report of continued littering and then did not respond to his complaint.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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)

Back to top

How I considered this complaint

  1. I considered the complaint and documents provided by Mr B and spoke to him. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments

Back to top

What I found

Background to the complaint

  1. Mr B lives in a Council owned property near a play area and supermarket. His complaint concerns littering of the planted beds alongside the road near his home. He complained to the Council in July and August 2017. He was dissatisfied with the response and complained to the Ombudsman. In November 2018 we decided his complaint. We found the Council had not met the relevant response times for clearing litter and it should not have said the supermarket was responsible for clearing the litter. We also found there was delay in the Council dealing with Mr B’s complaints. We asked the Council to clarify which department would ensure the areas were litter-free and how any agreement with the supermarket would be monitored and enforced.
  2. In December Mr B reported to the Council the land was still littered. When he chased the Council for a response he was told the request was closed and marked as completed. He asked for it to be reopened and made a complaint. He received an acknowledgement of his complaint but no substantive response so he complained to the Ombudsman. The Council told us it had not dealt with his complaint because it referred to the same issue as the previous complaint that was still being investigated by us.
  3. In responding to the agreed remedy on the previous complaint in March 2019 the Council told us the land is, in parts, heavily littered but is difficult to cleanse due to the density of hedges and bushes which make it challenging to litter pick properly and safely. It was going to cut back or remove hedges and bushes to allow the heavily littered areas to be litter picked properly by Council teams. The supermarket had committed to cutting back or removing bushes and hedging from the land they are responsible for cleansing and some of that had already happened. They were committed to doing more cleansing and the Council had agreed to deploy its enforcement team. The Council was to monitor the area monthly over the next three months.
  4. Since March the bushes have been cut back in areas but this did not resolve the problem and litter remained. In addition to the regular cleaning schedule community payback team have visited the area three times to do additional litter picking. At the beginning of July the Council arranged for a deep clean of the highway areas.
  5. The normal routine maintenance programme is:
    • Highways cleansed three times per week;
    • Areas around blocks of flats cleansed daily;
    • Park land cleansed once per week;
    • Supermarket land cleansed three times per week with the addition of volunteer support: and,
    • Enforcement service now visit weekly to tackle environmental crime.

In responding to my further enquiries the Council clarified that in respect of the daily cleansing round blocks of flats staff are on duty daily, and carry out a variety of cleansing tasks around the blocks as required. This may or may not include picking litter from the grounds. For example, they may prioritise removing a dumped bag of rubbish from outside the block, but not necessarily do a full sweep for litter on a daily basis.

  1. In responding to the complaint the Council says the area is heavily littered daily. There should be enough resource to cleanse it properly but due to the amount of littering it would need to be cleansed more frequently and there is not enough resource to do this.

Legal background

  1. Councils have a duty under the Environmental Protection Act 1990 (the Act) to ensure land they are responsible for is, as far as practicable, kept clear of litter and refuse. This duty is not transferable. If a council contracts a private company to carry out cleansing on its behalf, it remains responsible if the land is not maintained to acceptable standards.
  2. Councils must have regard to the Code of Practice on Litter and Refuse, DEFRA 2006, which describes grades of cleanliness: Grade A is where there is no litter or refuse present; Grade B is where the area is predominately free of litter. The Code says councils should keep land so it does not fall below a Grade B and is cleansed to a Grade A on a regular basis. It also sets timescales for responding to reports of litter. In areas of medium intensity use, such as out of town retail parks, the response time is one day.
  3. Councils can be taken to court if they do not keep their land clear of litter. A member of the public can serve notice on a council and take the matter to the magistrate’s court. It is for the court to determine whether or not it was impracticable for the council to discharge its duty. If the court finds the council has not met its duty under the Act, it can make an order requiring the council to take further action.

Analysis

Action since the last complaint

  1. The Council responded to our findings on the last complaint after four months. We had asked the Council to respond in three months so there was a delay of a month.
  2. The Council has taken steps above the normal cleaning schedule to try to bring the area up to an acceptable standard but it accepts that has not been achieved. It says this is because of repeated and regular littering and that it does not have the resources to achieve the recommended standard.
  3. The law requires the Council should ensure land it is responsible for is, as far as is practicable, clear of litter and refuse. The Council’s argument is now essentially that it has taken all reasonably practicable steps to keep the land clear and it cannot do more than it is now. My role is to consider whether there has been fault in how the Council has acted. I consider the Council has now responded to the problems and is continuing to address it. I do not consider there is fault in the approach it is now adopting.
  4. A member of the public can take action against the Council in the courts to establish whether it was impracticable for the Council to do more. That route is open to Mr B. As there is this way to establish whether the Council’s position that it cannot do more is right, or not, it is not for me to consider the point further.

Complaint handling

  1. Mr B raised a service request about the continued littering on 18 December. The Council said it did not deal with the request or the follow up complaint because it was still being considered as part of our last investigation. It has clarified that it was still within the period for responding to the action following the last complaint. It has accepted it should have told Mr B that was the approach it was taking.

Agreed action

  1. The Council will, within a month of this decision, apologise to Mr B for the delay in providing a response to the recommendations of the last investigation and for failing to deal with his complaint properly.

Back to top

Final decision

  1. There was delay in responding to the last investigation decision and fault in how the Council responded to Mr B when he reported continuing problems. There is not fault in the action the Council has now taken to address the problems.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings