Summary: The Council’s repeated delay in responding to Mr X’s complaints about fly-tipping was fault. The Council was also at fault for giving Mr X conflicting information about what the Council could or would do about the problem. This caused Mr X significant and avoidable distress and raised his expectations. The Council has agreed to apologise, make a payment to Mr X, and act to improve its services.

The complaint

1. Mr X complained about the Council’s handling of his reports of repeated fly-tipping in an alley adjacent to his home. Mr X says the Council repeatedly delayed in responding to his communication, failed to keep him updated and gave him conflicting information about what it would do to address the problem. Mr X says this caused him distress and the impact of the fly-tipping has damaged his property and attracts pests.
2. Mr X also complained that the Council delayed in dealing with his complaint. This caused him avoidable distress and time and trouble.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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 considered the complaint and the information Mr X provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
8. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Fly-tipping

9. Fly-tipping is the illegal dumping of rubbish on land or in water.
10. Councils must remove and dispose of fly-tipped waste on “relevant land”. Relevant land is publicly accessible land under the Council’s direct control.
11. Councils also have powers to require owners of private land to clear litter, rubbish or controlled waste.

Orphaned land

12. Orphaned land is land with no owner or where the owner cannot be identified.
13. The Council has powers under the Public Health Act 1961 to remove from land “in the open air” any rubbish which is “seriously detrimental to the amenity of the neighbourhood”. This is power, not a duty. This means the Council can do it, but does not have to.

What happened

14. There is an alley next to Mr X’s house. In June 2021, Mr X submitted an online report of fly-tipping in the alley.
15. The Council’s records show an officer visited Mr X early July. Officers spoke to the residents of nearby properties but could not identify a perpetrator. The Council’s checks found the alley is “orphaned land”. This means no one owns it and no one is responsible for maintaining it.
16. Mr X told the officer he would ask the Council to clear the land.
17. In April 2022, Mr X contacted his local councillor to say he had not heard back about his request. Mr X wrote to his councillor again in May and June. In June, the councillor emailed the relevant Council department and asked it to contact Mr X. In July, the councillor followed up on behalf of Mr X.
18. In late July, Officer 1 contacted Mr X. The officer apologised that Mr X had “been left hanging”. Officer 1 said they would ask the Council’s Primary Enforcement Team to contact Mr X. The officer asked Mr X to follow up if he did not hear from someone within a week.
19. In early August, Mr X chased Officer 1, having had no response. He also asked his councillor how to escalate his complaint. Officer 1 responded to Mr X the next day by email. This said the plan was to write to all the neighbouring properties.
20. Mr X contacted Officer 1 again at the end of the month. He said no one had contacted him and nothing had been done to clear the alley. Mr X followed up again a week later.
21. In late September, Officer 1 wrote to Mr X again. Officer 1 said they had chased a response for Mr X and “you should hear from a colleague shortly”.
22. In October, Mr X once again sought help from his councillor. He said it had been 14 months, that several officers had visited but he had received no action, response, or follow up.
23. Officer 2, from the Primary Enforcement Team, wrote to Mr X in October. Officer 2 told Mr X they “regret this has only just come to my attention and will assign this to my team to investigate immediately.” The Council visited the alley a few days later and Officer 2 wrote to Mr X to say:
• They had discussed with several departments and should be able to help
• A team could clear the alley and put up anti fly-tipping signs
• Officer 2 would request a gate be installed the same day the Council cleared the alley. Officer 2 explained Mr X might have to contribute to the cost of this because the land is orphaned
• Officer 2 asked two specific officers to visit and quote for the cost of the gate
24. Mr X said he would be happy to contribute up to £300 towards the costs.
25. In early November, Officer 2 told Mr X the Council would have a quote for the gate soon. Once the gate was installed, it would quote for the clearance.
26. In late November, the Council wrote to Mr X again. It said a gate would cost £250 and asked if he wanted to proceed. However, because the land was orphaned, the Council had no responsibility to clear it. It would be up to Mr X and his neighbours to meet the costs of clearance. Mr X wrote to his councillor to express his frustration that he was now advised the alley would not be cleared after all.
27. In December, Mr X and Officer 1 corresponded again. Officer 1 said Mr X’s frustration was understandable. However, when Mr X was first in touch with the Council, it had some resources available to do the sort of work required. It no longer had such resources available. Mr X asked how to complain about this.
28. The Council’s records show an internal exchange between Officer 1 and Officer 3:
• Officer 1 asked Officer 3 for a quote to clear the land
• Officer 3 said they had provided a quote over a year ago and had not heard back. Officer 3 said a new quote would be necessary because there was now more waste. Officer 3 said Officer 2 had been involved and might know more.
• Officer 1 said Officer 2 had closed the case as “no action possible”
• Officer 3 said they could focus on the waste immediately next to Mr X’s house. That way, if there was any further dumping, the Council would know which addresses backed on to that part of the alley and might identify the perpetrators.
29. There is no evidence the quote mentioned by Officer 3 from 2021 was ever sent to Mr X.
30. Officer 1 told Mr X they would get back to him with a quote for clearance and provided details of a firm used recently to provide a gate. There is no evidence the Council sent Mr X a quote for clearing the land.
31. In March 2023, Mr X once again chased his councillor and asked about how to escalate his complaint. The councillor’s response said “according to our records it is a private land and unfortunately [the] Council doesn’t have the funding to clear private [alley] ways.”
32. In late March, the Council sent Mr X information about how to make a complaint for the first time. Mr X made a complaint in early April, which the Council acknowledged 10 days later.
33. In May, Mr X contacted the Council again. He said he had raised a complaint more than 28 days ago and had not received a response.
34. Mr X approached the Ombudsman in early June. We contacted the Council, which told us it would respond to Mr X’s complaint by mid-June.
35. The Council did respond to Mr X’s complaint in June. It said:
• It accepted fault for its poor communication and acknowledged Mr X had to chase much longer than reasonable
• The Council had written to Mr X’s neighbours in July/August 2022 but it accepted this did not resolve the issue and it had not kept Mr X informed
• The further visits and proposed action by Officer 2 in October/November were not initiated and the case was closed in March 2023
• Because it was orphaned land, the Council did not have a responsibility to clear it
• It proposed arranging a visit to establish “categorically what action is available to the Council on your behalf and what action you and your neighbours could take between you to tackle the condition of this alley.”
36. Mr X asked the Council to consider his complaint at stage two. The Council responded in July. It said:
• There were issues with lack of regular updates and responses
• It appeared from the records that “each new officer quickly concluded we had no powers to intervene” however the officers wanted to help. But “in reality this unfortunately raised expectation on what they could deliver”
• The Council should have told Mr X it couldn’t help him and closed the case
• It was sorry it didn’t do this and instead “raised your expectations and then provided a service that was below the expected standard on communications”.
37. Mr X then brought his complaint to the Ombudsman.

My findings

38. The Council has no duty or responsibility to maintain or clear rubbish from orphaned land. It was, therefore, not fault for the Council not to clear the land following Mr X’s original report in 2021.
39. However, Mr X then asked the Council for help to clear the land. Officer 3’s emails to Officer 1 from the following December suggest the Council did get a quote for the cost of clearing the alley. However, it failed to communicate this to Mr X. This was fault. This denied Mr X an opportunity to decide whether to pay to clear the land before further waste accumulated. This is an injustice to Mr X.
40. In July, the Council told Mr X it would refer his case to its Primary Enforcement Team. However, Officer 2 from this team did not contact Mr X until October and said the case had only just come to the team’s attention. The delay of three months making this referral was fault. It caused Mr X further distress and uncertainty, which is an injustice.
41. In October 2022, Officer 2 told Mr X the Council would address the problem. It set out a detailed course of action. The Council made a commitment to take specific action to address the fly-tipping and then changed its mind a month later without proper explanation or communication with Mr X. This was fault. This caused Mr X significant and avoidable frustration and distress and avoidably raised his expectations, which is an injustice.
42. The Council told Mr X in December 2022 that it would contact him with a quote for the cost of clearing the land. There is no evidence it did so. This was fault. This caused Mr X yet further frustration, which is an injustice.

Complaint handling

43. Mr X asked his councillor how to make a complaint at least as early as August 2022. The Council did not provide Mr X with information about the complaints process until March 2023. This delay was fault. It denied Mr X the opportunity to have the Council investigate his complaint and delayed his ability to complain to the Ombudsman. It avoidably prolonged Mr X’s distress and frustration, which is an injustice.
44. Mr X complained in April 2023. From the evidence and the Council’s response to my enquiries, it appears the Council dealt with this as a service request instead of a complaint. This was fault. The content of the letter shows Mr X clearly wanted a response to his concerns about how the Council dealt with his issues up to that point.
45. The Council missed a further opportunity to identify the complaint when Mr X chased for a response in May. Failure to treat this as a complaint until the Ombudsman intervened in early June was fault. This caused Mr X avoidable distress and time and trouble, which is an injustice.

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Agreed action

46. To remedy the injustice to Mr X from the faults I have identified the Council has agreed to:
• Apologise to Mr X in line with our guidance on Making an effective apology
• Pay Mr X £350 in recognition of his avoidable distress and raised expectations, or, if Mr X prefers, the Council should pay Mr X £100 and put £250 towards the gate previously offered.
• Pay Mr X a further £250 in recognition of the avoidable frustration and time and trouble caused by the Council’s poor communication and complaint handling.
47. The Council should take this action within four weeks of my final decision.
48. The Council should also take the following action to improve its services:
• Ensure elected councillors know how to refer to the Council’s complaints process in relevant cases, through training or other means.
• Remind relevant staff of the importance of keeping complainants informed about progress or actions on their cases.
• Remind relevant staff that where the Council is unable to complete a previously agreed action, it should inform the person concerned in writing and explain the reasons for the change.
49. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

50. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman