Summary: Mr X complained the Council wrongly issued him with a Fixed Penalty Notice for littering. He said the Council failed to follow the correct enforcement procedure and had insufficient evidence he committed the offence. We did not find fault in the way the Council issued Mr X a Fixed Penalty Notice.

The complaint

1. Mr X complained the Council wrongly issued him with a Fixed Penalty Notice (FPN) for littering. He said the Council failed to follow the correct enforcement procedure and had insufficient evidence he committed the offence.
2. Mr X said he had to seek legal advice before the Council withdrew the FPN. He said the Council’s actions caused him frustration and distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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. As part of the investigation, 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. Mr X and the Council 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

Litter

8. Under section 87(1) of the Environmental Protection Act 1990, a person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.
9. Where on any occasion an authorised officer of a litter authority finds a person who he has reason to believe has on that occasion committed an offence under section 87 above in the area of that authority, he may give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty. (Environmental Protection Act 1990, section 88(1))

Domestic waste

10. Section 46A of the Environmental Protection Act 1990 applies to situations where a person fails, without reasonable excuse, to comply with requirements imposed by a council for domestic waste collections.
11. Where an officer is satisfied the person’s failure to comply has caused, or is likely to cause, a nuisance or detriment to local amenities, they may issue a written warning. Failure to comply after a written warning may result in an officer issuing a FPN.
12. The Department for Environment, Food & Rural Affairs (Defra) has issued guidance on what it terms ‘domestic waste receptacle offences’.
13. The guidance says penalties should focus on those who cause genuine harm to the local environment. And it is good practice to try and inform the household about any issues on the presentation of their waste bins. For example, using a letter or information notice. Councils should do this before issuing penalty notices under section 46A of the Environmental Protection Act 1990.

The Council’s procedure

14. The Council has a procedure for officers to follow when they find bags of waste on the street. Officers should take photographs and check the waste collection day for the location.
15. If a collection is not due that day, or a collection has already taken place, the officer should investigate the bags.
16. If the officer finds evidence relating to a person and address in one bag of waste, they should deal with the offence under sections 87 and 88 of the Environmental Protection Act 1990.
17. If they find evidence relating to a person and address in two or more bags, they should deal with the offence under section 33 of the Environmental Protection Act 1990. This section relates to unauthorised disposal of waste and carries a greater penalty than littering.

What happened

18. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
19. The Council wrote to Mr X on 21 February 2024 enclosing a FPN under sections 87 and 88 of the Environmental Protection Act 1990. It said an officer found evidence (on 21 February at 10:11am) linking him to the offence of depositing litter on the public highway on a non-collection day, or after a refuse collection has taken place. It attached photographs of bags of waste it found left in the street and of a letter it found within one of the bags which contained Mr X’s name and address. The Council gave Mr X fourteen days to pay the £150 charge. It gave an email address if Mr X wanted to discuss the FPN.
20. Mr X emailed the Council about the FPN on 3 March. He said the Council was accusing him of something he did not do. He said the Council had no proof he left the bags of waste in the street and had no footage of him doing so. He also accused the Council of invading his privacy by opening a confidential letter addressed to him. He asked the Council to withdraw the FPN.
21. The officer who issued the FPN said they found evidence linking him to the offence of littering. They said the Council operates a zero-tolerance policy on litter and officers will issue a FPN when they find identification. They said there was no appeal process, and the only way Mr X could contest the FPN was in court.
22. Mr X asked how to escalate the matter. He said the Council had no proof, except a piece of mail. Mr X asked the Council to cancel the FPN or provide footage of him committing the offence. He asked for details of the officer’s supervisor.
23. A supervisor from the Council emailed Mr X on 5 March. They said the officer who issued the FPN was patrolling the street and found waste bags left out on a non-collection day. The officer investigated the bags for evidence and found an item addressed to Mr X. The supervisor asked if Mr X could explain how the item got there. They also asked Mr X where he normally stores his waste.
24. Mr X said he had no idea how the item got there. He asked if the Council went through the other bags for evidence as well for proof of who they belong to before accusing him. He said wherever the piece of paper was discarded, it was not done on the day and time stated on the FPN, which means the Council did not follow protocol. He asked the Council to cancel the FPN.
25. Mr X emailed the Council again on 6 March. He said it had still not cancelled the FPN or provided evidence of the offence. He said he sought legal advice and the Council breached confidentiality by copying and distributing sensitive information about his identity.
26. The Council sent a chaser letter to Mr X on 7 March as he had not paid the £150 charge. It gave him until 14 March to pay, or it would pass the matter to its legal department for prosecution. It again gave contact details if Mr X wanted to discuss the FPN.
27. The Council sent Mr X a further chaser letter on 15 March. It gave him a further seven days to pay before it passed the matter to its legal department for prosecution. It offered Mr X the chance to be interviewed under caution about the allegations.
28. A Council manager emailed Mr X on 18 March. They apologised for the delay responding to him and confirmed the Council would withdraw the FPN. They also said they would like to meet Mr X to discuss the circumstances around the issuing of the FPN, to avoid the potential for notices to be issued in future.
29. Mr X thanked the manager for cancelling the FPN but said it should have happened sooner. He referred to the evidence gathering requirements from Section 11G of the Effective Enforcement Code of Practice issued by Defra. He said the Council had breached this code of practice as it had not given his full name and address, age, appearance, weather conditions, or the enforcement officer’s identification number.
30. The manager said they were sorry to hear Mr X’s continued concerns. They said there was a delay reviewing the case and that is why they withdrew the FPN.
31. Mr X brought his complaint to the Ombudsman on 19 March.

My investigation

32. Mr X told me he did not know how a letter addressed to him got into rubbish bags outside a property several miles away from where he lives.
33. Mr X said the Council failed to follow correct procedure when it issued the FPN. It had no closed-circuit television evidence, no details or description of him, and no proof he put the letter in the rubbish bag. Mr X said finding one letter did not mean the rest of the rubbish was his, and it was ridiculous to suggest he took rubbish several miles from his home to dump it.
34. Mr X said the Council did not try to help him and there was no way to challenge the FPN.
35. The Council told me it took the decision to pursue enforcement action using powers under section 87 and 88 of the Environmental Protection Act 1990 in 2022. It engaged its legal services as part of this process and said the public expects it to enforce against people who litter their streets. The Council recognised the 1990 Act does not define litter, but it considers it is proportionate and fair to enforce against dumped waste bags found on the streets using the section 87 offence of littering.
36. The Council said it withdrew the FPN on 18 March after it failed to respond to Mr X’s challenges within a reasonable time.
37. On the Effective Enforcement Code of Practice, the Council said this is guidance, not legal requirements. While it adopts many of the recommendations from the guidance, its actions are governed by sections 87 and 88 of the Environmental Protection Act, which states an officer may issue a FPN to a person whom they reasonably believe has committed an offence.
38. Regarding section 11G of the Code of Practice, the Council said it described the littered items, and gave the date and time. It also included the name and address of the alleged offender, details of the enforcement officer, and the FPN reference number. But it could not know the age and appearance of Mr X without direct engagement.
39. The Council told me it is conducting a service review, including its enforcement policy. This will include integrating the relevant codes of practice. It will change its enforcement policy to reflect section 46A of the Environmental Protection Act 1990, including written warnings and penalties for failure to follow requirements on household waste receptacles.
40. The Council said this will ensure officers conduct due diligence and engage with alleged offenders before taking enforcement action.

Analysis

41. Mr X considers the Council did not follow the correct procedure when issuing the FPN and he cited the Defra Code of Practice. As the Council points out, this is guidance, not law. Councils are not strictly obliged to follow statutory guidance, but we expect them to give good reasons where they choose not to.
42. I found the Council gave Mr X all the details it could about the alleged offence. It also gave the enforcement officer’s details and the FPN number. I did not find the Council at fault for failing to follow relevant guidance.
43. The Council chose to deal with the littering offence using sections 87 and 88 of the Environmental Protection Act 1990, though I note it could also have used section 46A of the same Act. The Council chose to adopt sections 87 and 88 for this type of offence as a policy decision in 2022. It is up to the Council to decide which of its available powers to use. Providing it considers its powers correctly, this is not something the Ombudsman can criticise.
44. The Environmental Protection Act 1990 states an officer may issue a FPN where they have ‘reason to believe’ someone has committed the offence of littering. This is a broad term. The Act does not go into detail about evidential requirements.
45. The officer in this case found bags of what appeared to be household waste on the street on a non-collection day. Within one of the bags, they found a letter with Mr X’s name and address on it. I appreciate Mr X considers this is not strong enough evidence to prove he committed the offence. However, I am satisfied the officer had ‘reason to believe’ Mr X was responsible for the bag of waste. I did not find fault in the way the Council issued Mr X a FPN.
46. The Council sent Mr X several letters asking him to pay. Each letter included contact details so Mr X could get in touch with the Council, which he did. And while the Council said there was no right of appeal, it did consider Mr X’s representations, and it did ask him for more information. The Council did not simply issue the FPN and then seek to prosecute Mr X when he did not pay.
47. The Council also withdrew the FPN over its delay responding to Mr X’s representations.
48. While it will have been distressing for Mr X to receive a FPN, I did not find the Council at fault for doing so. Also, the Council apologised for the delay responding to Mr X’s emails, cancelled the FPN, and took no further action. I therefore do not consider there is any significant remaining injustice.

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Final decision

49. I completed my investigation. I did not find fault in the way the Council issued Mr X a Fixed Penalty Notice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman