Summary: Mr B complained that the Council acted disproportionately in issuing a fixed penalty notice for leaving recycling waste out too early. We have not found fault with the Council’s actions.

The complaint

1. Mr B complained that the London Borough of Wandsworth (the Council) acted unreasonably and disproportionately in issuing Mr B’s partner with a fixed penalty notice (FPN) for leaving a small bag of recycling waste outside their property approximately six hours too early and in doing so failed to have due regard to the DEFRA guidance. This caused Mr B and his partner distress and financial difficulties in paying the fine.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
5. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

DEFRA guidance on issuing fixed penalty notices under section 46 of the EPA 1990

6. You can issue fixed penalties if householders put waste out so it:
• causes an obstruction to neighbours, such as forcing people using wheelchairs or buggies to walk on the road
• restricts access to the pavement or street, for example leaving waste receptacles (bins or bags) out for several days
• is likely to attract vermin like foxes and rats, such as leaving bags or open receptacles out days before a waste collection
• is unsightly (torn bags or overturned receptacles are left out)
7. You cannot issue them for minor problems, such as when householders:
• put something in the wrong receptacle by mistake
• forget to close receptacle lids
• leave receptacles out for a few hours before a collection.

The Council’s policy on waste enforcement

8. This policy states that it might be appropriate to issue a fixed penalty notice (FPN) when bin bags are left on the street for a long period of time, but not if someone leaves their waste out for an hour or so too long. It also explains that there are two different routes to take enforcement action for bagged waste left on the pavement outside of the collection times: section 46 or section 87 of the Environmental Protection Act (EPA) 1990.

Section 46 EPA

9. Section 46 EPA is primarily legalisation that deals with waste receptacle offences, but it also contains provision to issue section 46 notices for incorrectly presented household waste.
10. If bagged waste is found on the public highway after 2pm on the day prior to collection, enforcement action under section 46 EPA 1990 may be taken.
11. This enforcement should take the form of a formal warning notice – effective for 12 months from date of offence. 
12. This may be followed by notice of intent to impose a financial penalty – subject to representations and objections to the council within 28 days (beginning with the day after the date on which the notice of intent was sent) in relation to the proposed imposition of a monetary penalty and this will result in a formal review.
13. If necessary, a final notice incorporating a fixed penalty notice - appeal against this notice may be made to a First Tier Tribunal, within the period of 28 days from the day after the date of the final notice. 

Section 88/87 EPA

14. The longer incorrectly bagged waste is on the public highway, the more likely they are to cause litter. Therefore if bags are found before 2pm on the day prior to collection, a FPN under section 87 EPA 1990 may be issued. There is no requirement to send a warning notice under this section.
15. The Council requires residents to place recycling rubbish in a clear sack on the pavement by the entrance to their home after 6.30 pm on the day before the collection is due.

What happened

16. Mr B left a sack of recycling refuse outside his property before 12 noon on the day before collection was due, as he and his partner were going away for the weekend.
17. The Council found the sack at 12.12 pm. It issued a FPN under section 87 of the EPA 1990 requiring payment of £300 within 14 days (£150 if paid within 10 days). It issued the FPN to Mr B’s partner as it identified her from waste in the sack.
18. Mr B challenged the FPN as disproportionate. He said the bag had been securely placed directly outside the property, a few hours early as they were going away. It was not causing an obstruction.
19. The Council replied two weeks later saying it had reviewed the situation but considered that the FPN had been issued correctly, in accordance with the law and the Council’s own policy. The bag had been found earlier than 6.30 pm and should have been taken to a waste centre instead. It gave them a further 10 days to pay the FPN at £150.
20. Mr B disputed the response saying it had not been issued in accordance with government guidelines. His partner also disputed the response but paid the fine at the reduced rate. The Council acknowledged the payment and responded to both of them separately, saying:
• The guidance referred to items being left out a few hours early, whereas their rubbish had been left out over six hours early.
• There is no appeal against a FPN.
• The enforcement officer does not need to witness the littering.
• The FPN was sent to the person identified from the rubbish in the sack.
• The Council has a duty to keep the borough clean and officers have a duty to act where breaches of environmental legislation are found. The Council offers clear guidance on how to present waste for collection and it cannot offer an individualised service.
21. Mr B complained to us.

Analysis

22. I understand Mr B feels aggrieved by the issuing of an FPN for what he perceives to be a minor issue which was not causing any disturbance, harm or obstruction. I agree that if the Council had chosen to take action under section 46 of the EPA 1990 then it would have issued a warning notice before a FPN and it is likely the outcome would have been different. The guidance referred to by Mr B relates to action under this piece of legislation.
23. However, the Council chose to take action under section 87 of the EPA 1990 for littering. It explains on its website that it can do this in cases where rubbish is left out before 2 pm the day before the collection is due.
24. I have not identified fault in the way the Council dealt with the issue. It acted in accordance with its own policy and the law, it highlighted its specific approach to the application of the policy in this exact situation and it considered Mr B’s representations on two occasions. As it did not take action under section 46 of the EPA, the guidance regarding proportionality did not apply

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Decision

25. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman