Summary: Mr X complained the Council failed to properly investigate recurring fly-tipping near his home. There was fault with how the Council failed to properly investigate Mr X’s reports of fly-tipping and how it communicated with him throughout 2023. The Council agreed to apologise, pay Mr X a financial remedy, carry out a thorough review of its investigation and make several service improvements.

The complaint

1. Mr X complains the Council failed to properly investigate his reports of fly-tipping near his home since 2020. He says that, despite making repeated reports to the Council, it has not investigated who is responsible or taken action to prevent further incidents. He also says the Council ignored him for several months between 2022 and 2023 when he tried to get the Council to take further action.
2. As a result, Mr X says the fly-tipping is ongoing and he was caused significant frustration. He wants the Council to apologise, properly investigate who is responsible, prevent further incidents and improve its services.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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

7. I have investigated how the Council responded to Mr X’s reports of fly-tipping from the start of 2023 onwards.
8. I have not investigated events before this because Mr X’s complaint about events before this is late and I am not satisfied there are good reasons to investigate that late complaint now.

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How I considered this complaint

9. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and Government guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Fly-tipping

11. Fly-tipping is the illegal dumping of liquid or solid waste on land or in water. It is an offence under section 33 of the Environmental Protection Act 1990.
12. The ‘waste collection authority’ for an area (in this case, the Council) has the responsibility to investigate and the power to prosecute people for breaches of section 33, including fly-tipping.
13. The Government publishes guidance for councils (Fly-tipping: council responsibilities) on their responsibilities to tackle fly-tipping. This guidance says that Councils:
• must gather as much information as possible about:
1. the circumstances, for example if anyone witnessed the fly-tipping, the date and time it happened and a description of any vehicles involved;
2. land type, for example relevant land or privately owned;
3. location, for example highway verge, back alleyway, railway embankment or river;
4. the amount and type of waste, for example solid, liquid or gas; and
5. its potential effects, for example how it may harm people, animals or the environment.
• should investigate fly tipping incidents on land or water under the Council’s control;
• should carry out a ‘preliminary investigation’ involving a review of:
1. witness claims;
2. the scene;
3. evidence, for example CCTV footage; and
4. local knowledge;
• should assess whether to take further investigation or action, based on:
1. how serious the offence is;
2. potential costs; and
3. likelihood of prosecution;
• record the details of the fly-tipping incident, costs incurred and any action(s) taken.

Background and events before 2023

14. Between mid-2021 and mid-2022 Mr X reported 28 instances of fly-tipping in the road near where he lives. Many of these incidents involved the regular dumping of bags full of used nappies and household waste.
15. The road near where Mr X lives currently has a video camera to identify and deter fly-tipping in part of the road. However, there are other parts of the road which are not covered by the camera and it was in the un-monitored part of the road that most of the fly-tipping happened.
16. Mr X had discussions with an officer in the Council’s anti-social behaviour (ASB) team over several weeks in mid-2022 about the possibility of installing an additional video camera to cover other parts of the road. Over the next few months Mr X tried to contact the Council about further incidents, and an update, but the Council did not respond until late 2022, after an officer from a different department asked the ASB team to contact him. However, although the Council acknowledged Mr X’s latest report, there is no evidence the Council updated Mr X on its investigation or the additional video camera.

What happened in 2023

17. In early 2023, Mr X contacted a more senior officer in the Council’s ASB team, asking for an update on what the Council was doing to prevent further fly-tipping. The officer replied to Mr X and apologised for the poor service he had received so far. They promised Mr X a review of the previous communication with him and the Council’s plans to investigate the ongoing fly-tipping.
18. Mr X chased the Council for a response to the offered update in March 2023. In response, the Council told Mr X the video camera currently in place had not been working, but was being repaired, and the investigating officer was currently absent from work. However, it promised the investigating officer would contact Mr X when they returned from work.
19. Mr X chased the Council again around six week later, as it had not responded to him. A manager from the ASB team spoke with Mr X and assured him the Council was investigating the situation. They also promised to contact Mr X in a month’s time to update him.
20. Just over a month later, Mr X contacted the senior officer again, as the manager had not contacted him as promised. The senior officer explained the manager who had promised an update no longer worked for the ASB team but that they would check on the investigation and update Mr X on the Council’s progress.
21. Mr X chased the Council again, including the senior officer, over the next three months as nobody contacted him.
22. In mid-September 2023, the investigating officer emailed Mr X to tell him the Council was investigating and they would keep him up-to-date. However, the officer’s response included no details of the action the Council had taken so far or was planning to take.
23. Mr X complained to the Council in October 2023 about the lack of action and updates. In its response to Mr X’s complaint the Council told him the poor performance and lack of responses to Mr X’s contact was mostly due to structural changes involving its anti-social behaviour and environmental enforcement teams and some staff absences. The Council apologised for the poor service Mr X had received, but it did not address his concerns about the ongoing fly-tipping in his area.

My findings

24. The Council should properly investigate incidents of fly-tipping in its area. I am satisfied, in the case of the road near where Mr X lives, the Council has failed to do so. Despite receiving a further 21 reports of fly-tipping in the road near Mr X’s home in 2023, there is no evidence the Council considered:
• the scale and pattern of the fly-tipping affecting the road near Mr X’s home;
• the possible impact on local residents of the type of waste being deposited;
• information from other Council teams about the fly-tipping; or
• the options available to it to gather information or evidence to identify those dumping the waste, including from areas not covered by the existing camera.
25. The Council’s failure to properly investigate the problems Mr X reported is fault. The Council also failed to ensure adequate oversight of its handling of Mr X’s reports. Despite the Council noting on more than one occasion that officers were not progressing the case, it did not take effective action to resolve those problems.
26. I am also satisfied there was significant fault in how the Council communicated with Mr X over the period I have investigated. This fault included:
• failing to respond to many emails Mr X sent to the Council over periods of several months (in addition to the emails Mr X says the Council failed to respond to in 2022);
• not keeping any of the promises it made to update Mr X on the progress of its investigation;
• not following up the offers or suggestions it made in 2022 about extra or additional video monitoring of the problem;
• failing to review the standard of communication with Mr X in 2022, as it promised to do; and
• not providing Mr X with any details of its investigations or plans, despite Mr X asking for this on several occasions.
27. The Council said much of this poor communication was due to the restructuring and understaffing of its anti-social behaviour and environmental enforcement functions. It said some of the difficulties it experienced during the restructure were unanticipated and it could not have planned for them. I accept there were some problems the Council could not have expected and were outside its control.
28. However, the Council has a role in the investigation and enforcement of some environmental crimes, such as fly-tipping. The public, including Mr X, is entitled to expect the Council to carry out that role, including during periods of change or restructuring. I am satisfied that the Council’s failure to provide a reasonable service during this time was service failure, and therefore fault.
29. The poor service and communication Mr X received from the Council during 2023 caused him significant, prolonged frustration and outrage, particularly on top of the poor contact from 2022 the Council has already accepted.
30. There were also further failures in how the Council investigated and responded to Mr X’s formal complaint. Although the Council responded within the timescales set out in its complaints procedure, it did not address the underlying issues. It explained why it believed the poor service had happened, but it did not investigate why the investigation was still stalled or explain what it planned to do to investigate or reduce the fly-tipping. That was further fault which caused Mr X more avoidable frustration.

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Agreed action

31. Within one month of my final decision, the Council will:
1. apologise to Mr X for the poor service and communication it provided throughout 2023;
2. pay Mr X £350 to recognize the avoidable frustration and outrage caused by that poor service and communication; and
3. carry out a review of the fly-tipping in the road near Mr X’s home. This review should be carried out a by a senior Council officer and should include:
• a review of all evidence available to the Council about the fly-tipping in that location since 2021, including the number of reports made by Mr X;
• a written analysis of action already taken and a review of any other options available to the Council (including both overt and covert video monitoring) to address the ongoing fly-tipping;
• if the Council decides additional action is appropriate, development of an action plan (with dates for all actions), including regular oversight and review by a senior officer of progress against that plan and a communication plan for how the Council will keep Mr X updated about its progress.

The Council should share its report and any action plan with both Mr X and the Ombudsman.

32. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
33. I would normally have recommended that the Council make several service improvements. However, the Council explained it has recently carried out a review of how it investigates fly-tipping and other environmental crimes. It is also currently reviewing its system for monitoring and managing these cases.
34. Within three months of my final decision, the Council should:
• remind senior officers in its Community Safety and Enforcement teams who are responsible for responding to complaints, that they should ensure all aspects of a complaint are investigated, including any underlying issues;
• provide an update to the Ombudsman on its review of its fly-tipping case management system; and
• provide a review of its progress against any action plan it has produced to address the fly-tipping in the road near Mr X’s home.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault with how the Council failed to properly investigate Mr X’s reports of fly-tipping and how it communicated with him throughout 2023. The Council agreed to apologise, pay Mr X a financial remedy, carry out a thorough review of its investigation and make service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman