Summary: Mr X complains about how the Council has dealt with fly tipping incidents near to his home and how the Council has dealt with his complaint. The Council was at fault for its complaint handling which caused injustice to Mr X. The Council has been asked to remedy the injustice caused.

The complaint

1. Mr X complains about how the Council has dealt with fly tipping incidents at a site (Road A) near to his home. In particular, Mr X complains about the Council’s failure to ensure sensor activated cameras are operational on Road A to prevent fly tipping. He also complains about how the Council dealt with his complaint.
2. As a result, Mr X says fly tipping incidents have increased on Road A and the matter has caused him distress and frustration.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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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What I have and have not investigated

6. I have investigated matters from February 2023 to December 2023. This covers when Mr X first raised his concerns about fly tipping incidents on Road A to the Council to when the Council issued its final response to his complaint.

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How I considered this complaint

7. I have discussed the complaint with Mr X and considered the information he provided. I also considered the information the Council provided in response to my enquiries.
8. I sent Mr X and the Council a copy of a draft decision and considered all comments received before reaching this final decision.

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What I found

Law and guidance

9. Councils have a general duty to take action to tackle anti-social behaviour (ASB). But ASB can take many different forms, if proved, will generally be considered ASB. These includes littering and fly tipping. Councils should make informed decisions about which of their powers is most appropriate to use.
10. Section 33 of the Environmental Protection Act 1990 sets out the law around fly tipping, or ‘depositing controlled waste’. A person who breaches section 33 is committing an offence and may be subject to a fine or a prison sentence.
11. Councils have powers to take enforcement action against people they suspect of fly tipping. As these are powers, rather than duties, it is for councils to decide what action, if any, to take.

Council’s complaints procedure

12. The Council’s priority is to resolve concerns and complaints as soon as they come to its attention. So, the Council expects customers to first approach the team or person responsible for delivering the service they are unhappy with so that the matter can be addressed.
13. Where attempts for resolution with the relevant person or team have been unsuccessful, then the complaint will be handled under the Council’s two-stage process.
14. The Council’s two-stage complaint process:
1. Stage 1:

• the Council will record a new complaint as a formal complaint at Stage 1 which will be acknowledged within 3 working days, and it will issue a detailed response within 10 working days
• complainants can escalate their complaints to the final stage if they remain dissatisfied with the Stage 1 response
• if there are follow up actions which the Council could take to resolve the matter without a final stage review, it will set a timescale for completion and inform the complainant.
2. Stage 2: the Council will acknowledge the complainant’s escalation request within 3 working days, and it will issue a detailed response within 10 working days from date the escalation request was allocated.

Key events

15. Mr X lives near Road A.
16. Mr X said due to the persistent fly tipping issue on Road A and the Council’s failure to prevent the issue, he made a complaint to the Council.
17. In mid-February 2023, Mr X completed an online complaint form and submitted it to the Council. He said prior to COVID-19 pandemic lockdown the Council promised to install CCTV cameras to monitor fly tipping incidents on Road A, but it never did. Mr X said the fly tipping issue had become worse on Road A. He asked if the Council would install the cameras as it had originally promised to do. Mr X said if not, he would make a complaint to the Ombudsman about the matter. The Council did not classify Mr X’s contact with it as a formal complaint but as a request for information.
18. The Council replied to Mr X before the end of February 2023. The Council confirmed it had installed six cameras on Road A on a trial basis but said the cameras were not operational. It said this was due to the cameras’ inefficiency and the Council’s budgets, but it was being considered at its management level to decide how to progress the matter. The Council said its street wardens would continue to monitor Road A on a regular basis, gather fly tipping evidence and that appropriate enforcement action would be taken.
19. Mr X raised his concerns about the fly tipping on Road A with his councillor. He also informed his councillor about the Council’s February 2023 response letter. The councillor told Mr X she had raised his concerns with the Council. The councillor said the Council was considering replacing the batteries of the CCTV cameras and she advised Mr X to continue reporting any fly tipping incident to the Council.
20. Between February 2023 and December 2023, Mr X reported 17 separate fly tipping incidents to the Council. The Council removed the fly tipping waste after each of the reported incident.
21. When Mr X did not receive further update from the Council about the CCTV cameras and how it would prevent the ongoing fly tipping issue on Road A, he contacted the Ombudsman. Mr X said there had been an increase with fly tipping on Road A which meant the CCTV cameras were still not operational. He said the Council failed to remove the fly tipping waste following his report of an incident in September 2023. Mr X also raised concerns about how the Council dealt with his February 2023 complaint.
22. The Ombudsman advised Mr X to raise his concerns with the Council in the first instance so it could have the opportunity to respond/resolve the matter which Mr X did.
23. In its responses to Mr X’s complaint, the Council said:

• its contractors had removed the fly tipping waste Mr X reported in September 2023
• it acknowledged fly tipping was an issue in the Council’s area and its difficulty in identifying large-scale fly tippers
• it had previously installed CCTV cameras on Road A, but found it was ineffective in identifying perpetrators and the cameras had been tampered with/damaged. Therefore, it said it was considering options of enforcement action, use of more effective CCTV cameras and automatic number plate recognition
• the current CCTV cameras were not operational, but the signage remained in place as a deterrent
• it had increased patrols through its street warden team, and it will continue to investigate and clear fly tipping waste from Road A. The Council said where it has evidence of fly tipping, it will take enforcement action
• it must ensure it uses available resources effectively to both reduce fly tipping and hold perpetrators accountable. The Council said it was its priority to deliver improvement and better deal with fly tipping issue on Road A
• it advised Mr X to continue to report any fly tipping incident.

24. Mr X remained dissatisfied and escalated his complaint to the Ombudsman in December 2023. He said it took the Council several months to deal with and issue him with a formal response to his February 2023 complaint. Mr X said the Council’s measures to prevent fly tipping on Road A were ineffective. He said this was because the fly tipping incidents had increased and had been the highest in many years on Road A. Mr X maintained the Council had not removed the fly tipping waste following the incident he reported to it in September 2023.
25. In response to our enquiries, the Council confirmed:
1. its contractors removed the fly tipping waste Mr X reported in September 2023 on 21 September 2023
2. other residents of Road A had reported 84 fly tipping incidents between February 2023 and December 2023
3. it does not have a fly tipping policy, but said the Council is responsible for investigating, removing and taking appropriate enforcement action in relation to small scale fly tipping on public land
4. its street wardens continue to patrol fly tip hot spot areas including Road A, inspect and report fly tips to the Council to consider enforcement action
5. it took one enforcement action in December 2023
6. it is currently undertaking a bidding process and plans to outsource its Environmental Enforcement activities in September 2024. The Council said the aim is to consider the use of mobile CCTV solutions, to increase patrols, investigation and take enforcement action for fly tipping incidents within the Council area.

Analysis

My findings are:

Council’s complaint handling

26. I note the Council said it classified Mr X February 2023 contact with it as a request for information and not a formal complaint. But Mr X raised his concerns through the Council’s complaint online form and he recorded his concerns under the “your complaint” section. The Council recorded Mr X’s contact as a Stage 1 complaint and set its “target date for response” within the 10 working days timeframe as provided for under its complaint procedure. There was also no evidence the Council informed Mr X it classified his contact as a service request and not a formal complaint.
27. It appeared from the Council’s February 2023 response letter that the CCTV camera issue Mr X raised had not been resolved as its management was yet to decide on how to progress the matter. The Council should have at that point dealt with Mr X’s complaint under its two-stage complaint process in line with its policy. Also, there was no evidence to show the Council set or notified Mr X of a timescale in which the CCTV camera issue would have been resolved. Again, this was not in line with the Council’s complaint procedure, if it had considered a final stage review was not necessary.
28. Similarly, the Council did not advise Mr X on how he could have escalated his concerns if he remained dissatisfied with its February 2023 response letter. The Council allowed the CCTV camera matter to drift. It took the Council approximately 10 months to properly deal with Mr X’s complaint and issue him with a detailed response.
29. The Council’s actions as identified above all amount to fault. This caused Mr X distress, frustration, and uncertainty.

Fly tipping

30. The Ombudsman is not an appeal body, and we cannot question if a council’s decision is right or wrong if there was no fault in the way the decision was reached. The Council’s decisions to install the CCTV cameras on Road A on a trial basis and to leave its signage as a deterrent when the cameras were not operational are decisions the Council is entitled to make. The Council has explained its reasons why the CCTV cameras are not operational. This shows the Council considered whether it should replace the cameras. This is not fault and it is not for the Ombudsman to direct the Council on how it should use its resources.
31. Fly tipping is difficult to prove, and the Council needs good and robust evidence before it can take any enforcement action. The onus is on the Council to prove who deposits the waste. In this case, the Council acknowledged there are issues with fly tipping on Road A and the difficulty it experiences due to the ineffective cameras in identifying perpetrators who dump waste on Road A. Without robust evidence, the Council cannot take formal enforcement actions which could be challenged in court.
32. In view of the number of reports the Council received between February 2023 and December 2023, it is clear fly tipping is an issue on Road A. I acknowledge how distressing the fly tipping incidents may have been to Mr X, but it is for the Council to decide how to deal with fly tipping. The Council cleared the fly tip waste after Mr X reported the respective incidents and it has increased its street patrols. So, I find the Council has reacted to the situation albeit not in the way Mr X wants. This is not fault.
33. As regards the September 2023 fly tipping waste, Mr X said the Council failed to remove the waste for several months. However, the Council has evidenced it removed the waste on its own land on 21 September 2023. The Council acknowledges not all tipping was removed. But has provided evidence some tipping occurred on private land. It is not responsible for clearing any tipping on private land. This was not fault.
34. Evidence also shows the Council’s street warden regularly patrosl and report fly tipping incidents that occur on Road A to the Council to take enforcement action where appropriate. To tackle the ongoing fly tipping issue, the Council said it aims to increase patrols, its investigation and take enforcement action for fly tipping incidents within the Council area and on Road A. The Council intends to achieve these through its proposed plan to outsource its Environmental Enforcement activities in September 2024 and to consider the use of mobile CCTV solutions. These are welcomed measures. The Council should ensure it continues to deal with any fly tipping incident on Road A while it is in the process of finalising its outsourcing plans. This is to prevent any interruption in the service it currently provides to deal with the ongoing fly tipping issue.
35. The Council should also consider producing its fly tipping policy and publishing it on its website. This is to ensure residents are aware of how the Council deals with the fly tipping issue in its area including the timescales for removing fly tipping waste.

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Agreed action

36. To remedy the injustice caused by the faults identified, the Council has agreed, within one month of the final decision to; apologise in writing to Mr X and make a £150 symbolic payment. This is to acknowledge the injustice caused to him by the Council’s failure to properly deal with his February 2023 complaint. The apology should be in accordance with our guidance, Making an effective apology
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I find evidence of some faults leading to injustice. The Council has agreed to my recommended actions to remedy the injustice caused. I have therefore ended my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman