Summary: Mr C says the Council has not done enough to control refuse or to prevent fly-tipping on his street thereby putting his family at risk. The Council was at fault for delay in considering and taking action to solve problems with refuse and in collecting fly-tipped waste. The Council has agreed to apologise to Mr C and pay him a sum in recognition of his distress. It says it has devised a new waste collection system for the area.

The complaint

1. The complainant, who I have called Mr C, says the Council was at fault for:
1. Failure over three years to remove domestic waste and fly-tipped items from his street. This failure, he says, caused the problem to become worse;
2. Failures in communication; and
3. An inadequate complaints response.
2. Mr C says these failures have caused him injustice. He says the pavements on his road are often blocked. One of his children was nearly run over while going onto the road to skirt rubbish. The litter attracts flies, vermin and foxes. It smells, particularly in summer. The fly-tipped items also pose potential injury risks.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council is alleged to have done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
5. If we are satisfied with a council’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)

Back to top

How I considered this complaint

6. I spoke to Mr C and made enquiries of the Council. I considered the Council response alongside Mr C’s evidence and the relevant law and guidance.
7. I invited responses to my first draft from the Council and Mr C both of whom made comments. I considered these and wrote a substantially amended second draft in which I maintained my finding of fault but expanded on my reasoning. I sent this to the Council and Mr C.

Back to top

What I found

Time limit

8. Mr C has pursuing this matter since 2015. He has not complained every day but neither has he ever given up on it. The emails show he sometimes left months between email contacts with the Council because he did not want to be rude.
9. However, he never let the matter go. He continued to document the problem. He made frequent complaints on the Council’s fly-tipping web page and took photographs documenting the problem. I have decided, therefore, to consider this matter back to 2016. The allegation is of an ongoing Council failing.

What should happen

10. The Environmental Protection Act 1990, s.89(1) and (2) imposes a duty on local authorities to keep public highways clean. S.89(7) requires the secretary of state for the environment to provide guidance on how this duty should be met. The Department for Environment, Food and Rural Affairs (DEFRA) published the current guidance; The Code of Practice on Litter and Refuse
11. (‘the Code’) in 2006.
12. The Code provides the following definitions:
• Refuse – Waste or rubbish including household and commercial waste. It can include fly tipping.
• Litter – Items improperly discarded by members of the public on the street such as cigarette butts, soft drink cans and fast food wrappers.
• Fly tipping – The illegal disposal of controlled waste
• Detritus – Small, broken down particles of waste such as twigs, stones, leaves, plastic and ‘other finely divided materials’.
13. The Code says, in part six, ‘The quality of the local environment, that is, the appearance of an area, and the way that people perceive it, comes down to good, effective management. In order to know what resources should be deployed and when, accurate and systematic monitoring is needed. This will enable duty bodies to identify when and where the greatest litter problems are likely to occur, and to put into place procedures to ensure that these do not build up and that acceptable standards are maintained. It is good practice to make this information available to the public, for example, through publishing cleansing regimes.
14. ‘Public opinion tends to be shaped by a minority of sites – unsightly niches and areas where litter may be trapped due to the nature of the environment itself. For most responsible bodies, good management is therefore simply about managing the minority of locations for short periods of time as well as maintaining a consistent overall cleansing strategy’.

Grades of cleanliness

15. The Code sets out four grades of cleanliness, A-D. These are
• Grade A: No litter or refuse
• Grade B: Predominantly free of litter;
• Grade C: Widespread distribution with minor accumulations; and
• Grade D: Heavily affected with significant accumulations.
16. The Code says, ‘Managers should be able to predict times or situations that lead to greater fluctuations in likely disposal patterns and prepare for them appropriately. Managers should also consider shaping their monitoring to enable them to respond quickly to potentially dangerous items such as glass or drug needles, or to sensitive areas such as playgrounds’.

Zones

17. The Code says:

• ‘The speed and intensity of the accumulation of litter and refuse in an area depend on a large number of factors. These can include the levels of pedestrian and vehicular traffic, natural physical features and location, the weather, the time of year, the nature of the surface of the terrain, the structural and physical items that affect the ability to clean, and the nature and condition of the surrounding areas. All of these must be accounted for when analysing the most effective cleansing strategy’.
• As such, this revised Code has re-classified the different types of land managed by duty bodies into four main zones, based on these two variables. It is anticipated that this will help to guide duty bodies on the intensity of management required.
• High intensity of use (busy public areas)
• Medium intensity of use (‘everyday’ areas, including most housing areas occupied by people most of the time)
• Low intensity of use (lightly trafficked areas that do not impact upon most people’s lives most of the time)
• Areas with special circumstances (situations where issues of health and safety and reasonableness and practicability are dominant considerations when undertaking environmental maintenance work)

18. ‘Hotspots…should be classified as ‘high intensity’ in order to be managed effectively’

Response times

19. High intensity hotspots should be cleared every half day. Medium intensity sites should be cleared every day. Low intensity areas can be cleared every 14 days.

What happened

20. The Council’s area is an urban one. The Council has had a waste arrangement with Veolia, a waste collection company, throughout the relevant time. The Council retains the statutory duty so any finding of fault is against the Council. The Council says that, since 2013, the area in question has been Grade B.
21. Emails show that another resident of Mr C’s street had been complaining about waste in the street for about a year before he first contacted the Council. The other resident complained in January 2016 that:
• Residents of the flats were leaving rubbish at a site on Mr C’s road;
• The problem had persisted for over a year;
• Fly-tippers had been attracted by the rubbish on the street;
• This was dangerous as on at least one occasion youths had set fire to rubbish.
22. Mr C first complained in early 2016. He had two main concerns:
• Residents of flats above a row of shops on a road adjoining his (‘the flats’) left their domestic waste on a narrow stretch of pavement at the end of his road. Mr C had two small children and he was concerned that he sometimes had to push his pushchair into the road around bags of waste. Foxes ripped open rubbish bags creating a health hazard and unpleasant smells; and
• The road was frequently used by fly-tippers who left large items on the street on an almost daily basis. These included sinks, fridges, cupboards, mattresses and other domestic items as well as bagged rubbish.
23. The Council considered the matter in April 2016. A senior officer suggested making the street a ‘hotspot’ (see above). This seems to have happened. This meant that twice daily collections should have taken place. The evidence is that it did not happen, or, if it did, it did so for only a short time.
24. Officers considered asking the Council’s parking enforcement contractor to issue penalty notices for fly tipping. This seems not to have been a viable suggestion.
25. Mr C says shopkeepers and tenants repeatedly told him the Council told them to leave rubbish at the site. The Council denies this. It says it has told businesses they must dispose of their own rubbish.
26. Mr C frequently contacted the Council via its waste reporting web page with, he says, little success. From time to time, he contacted Officer O and local councillors. He says his councillor told him in 2016 waste was a problem across the borough and budgets were tight. He felt ignored.
27. Officer O told him the Council had advised the tenants of flats on the main road at the end of Mr C’s road (‘the flats’) to leave their rubbish at either end of a service road, one end being on Mr C’s road. She said; ‘whilst this is not the most ideal arrangement, it is the only arrangement we have been able to come to at this moment in time’.
28. Officer O said there were problems with rubbish throughout the borough but said it was particularly bad on Mr C’s road. She said she would write to the flats to remind tenants they should only put rubbish out on the morning of collection.
29. Mr C wrote again in early July 2016 to Officer O, a Council waste officer, saying matters had not improved. He said residents of the flats had told him the Council had told them to leave their rubbish on his road. He said it was a health hazard. He asked why signs could not be put up to prevent people leaving rubbish.
30. Officer O wrote to Veolia asking for a response. She said:
• Bags from the flats were not collected on collection day; and
• Fly-tipped items were not being removed promptly.
31. A Veolia manager replied, ‘I thought we were already monitoring this area more than what we should be would you like us to up the frequency to a couple of times a night and are we sure the resident had valid complaints or is he just another Kingston lunatic’.
32. The next day, 22 July 2016, a Veolia driver emailed Officer O saying he had picked up four bags of refuse, two bags of garden waste, two bags of wood and a sink which had been there for several days.
33. Mr C contacted the Council again in late October 2016. He said the situation had improved slightly but residents of the flats still left rubbish at the end of the service road every week on the night before their rubbish was collected. From 6.30 that evening until the bins were collected the next day, the pavement was impassable.
34. He wrote again in November 2016 naming a van he saw visiting the site and two shops which left rubbish on the side of the road daily.
35. In late November 2016, Officer O wrote to Mr C saying the Council was attempting to formulate a trial which would tackle both the fly tipping and unauthorised waste deposits. She said the Council was intending to extend a pilot environmental enforcement scheme that had been trialled in the previous year. She hoped it would be expanded to include a wider range of offences including fly tipping and unlawfully dumped commercial waste. She said she hoped it would begin policing the dumping in Mr C’s road in the new year.
36. In March 2017, Mr C wrote to Officer O again asking her whether the trial was due to start. He said the problem had not been solved. He said Veolia’s street team did not visit except when a complaint about fly tipping was logged online.
37. In June 2017, the Council wrote to residents of the flats above the shops to tell them only to leave waste on Thursday mornings.
38. Mr C wrote to Officer O saying neighbours had told him the Council’s online system for reporting fly tipping had got worse as Veolia no longer came on the day a complaint was made but the next day.
39. Officer replied saying she was disappointed to hear that Veolia had not complied with her request to clear the site daily. She also said the planned trial of the environmental patrol had been delayed.
40. Mr C wrote again in August 2017. Officer O wrote back agreeing his photographs showed matters had got worse. Mr C asked her why no effective action had been taken and why rubbish from the flats could not be left on the nearby main road by the flats’ front doors or on the service road by their back doors. He said that the previous week, rubbish had been left on his road for six days despite being flagged on the Council website numerous times by himself and his neighbours.
41. Officer O responded saying, ‘I understand this is an extremely distressing situation for you and your fellow residents and I am sorry that it is continuing. I was also forwarded a photo on Thursday last week by Veolia demonstrating the level to which the issue has escalated’.
42. She said she would ask her team to consider moving the collection point to the main road, writing to all residents to explain the situation, and writing to the tenants of the flats above the shops to try to improve things.
43. Mr C wrote again in September 2017 saying his road continued to be ‘a dumping ground’ and asking if Officer O and her team had taken further action.
44. In November 2017, Mr C wrote to the Council saying his son had nearly been run over when walking along the road and having to leave the pavement to go around a pile of rubbish one Thursday morning.
45. He said, because people left rubbish out as early as Wednesday morning, and Veolia sometimes did not clear the rubbish until lunchtime on Thursday, there was a pile of rubbish on the road for 24 hours, attracting more fly-tippers. He said he had witnessed a local shopkeeper leaving an old fridge at the site.
46. He also said a neighbour’s wall had been discoloured by the dumped rubbish.
47. The evidence shows the Council began a concerted campaign to prevent waste being left at the site in November 2017:
• For four weeks in November and December that year, waste officers attended the site on Thursdays and checked rubbish to see where it was coming from;
• In January and February 2019, Council waste officers visited the site daily. They went through bags to investigate sending out fixed penalty notices;
• The Council sent letters to the shops and the flats above them to explain who could put rubbish there and when;
• The Council issued several fixed penalty notices to local businesses for illegally leaving waste at the site;
• The Council said Mr C’s neighbour had never complained about his wall; and
• The Council recognised that the site had become a recognised fly-tipping hotspot and so would ‘look at alternatives to reduce if not resolve the problem’.
48. Officer O left the Council in May 2018. A new officer took over her role. Matters did not improve. Mr C continued to write occasionally to known staff members at the Council and councillors but the Council asked him to stop.
49. He complained formally in April 2018. He said:
1. The Council had advised residents of the flats to put their rubbish on his road;
2. This had encouraged fly-tipping and misuse which causes the pavement to be blocked and causes unsightly;
3. There were no recycling facilities for the flats;
4. A neighbour’s wall had been damaged by leachate from rubbish bags;
5. Local businesses misused the area as a free waste dump;
6. The Council had failed to respond to many of his emails;
7. There had been no follow up from a meeting that Mr C had with a Councillor;
8. No signs discouraging fly-tipping had been posted; and
9. Street cleaning was not performed to an acceptable standard.
50. The Council responded in June 2018. It dismissed his complaint. In response to each of the points it said:
1. There was no reliable record of when or why the site on his road was first used as a waste site. There was no immediately obvious suitable site for collection.
2. Fly-tipping is to some extent, beyond the Council’s control. The Council was satisfied that, both in terms of weekly collection of rubbish from the flats, and in terms of fly-tipping, Veolia were fulfilling their contract with the Council. The responding officer said, ‘I can’t find any evidence that they have failed to respond to reported fly-tips within the permitted time scales’.
3. The Council would begin a sack-based recycling service when the new contract for street refuse removal was introduced in April 2019. The Council was also looking into placing bins for the flats in a back alley.
4. There was no evidence that the wall had been damaged.
5. The Council had issued some fixed penalty notices to local businesses after its waste audit in December 2017. The Council had spoken to those businesses. There had been no evidence of business waste at the site since.
6. While accepting that Officer O or others had not responded to every email, but ‘I am satisfied that all efforts have been made to address all points raised through the different points of contact in a timely matter.’
7. The officer responding said she had recently met with the councillor and had suggested three options to solve the problem caused by the flats leaving their rubbish on Mr C’s road. These were, in order of preference:
1. Placing bins for the flats in a service road behind the shops. Unfortunately, the road’s ownership was disputed. The Council was seeking legal advice.
2. Rubbish could be left outside the flats’ front doors by the shops.
3. Leaving the collection point where it was but erecting signage, continuing with enforcement and regular communications with residents to ensure rubbish was only left just before collection time.
8. The erection of signage would be beneficial.
9. The standard of street cleaning was acceptable. The Council had recently asked Veolia to clean the service road behind the shops and ‘positive feedback has been received in response’.
51. Officer O left the Council’s employment in mid-2018. Mr C says that, since then, matters have deteriorated.
52. Mr C says that, in November 2018: ‘All the flats (above the shops) were provided with bins and written to and told to leave the bins outside their flats on the service road where the bin men would come and collect them, or if they couldn’t then to present the bags/bin on [the main road]. Anecdotally from two residents in the flats that I have spoken to, they did as instructed for two weeks during which time their bins were not collected. As such they started presenting on [Mr C’s road] again and the bins were collected. It would appear the council did not inform waste collection of their change in strategy.
53. This actually made the situation worse, as now huge rubbish bins instead of bags were out on [his road] and blocked the pavement even more and were left out on the road for longer, collecting more waste from people on non-collection days.
54. After persistent reporting and emailing to a local councillor another letter was sent to residents in the flats in July [2019] asking to leave bins on the service road. Again, some of the flats did this and their bins were again not collected. Others didn’t even attempt and just put bins out on [Mr C’s road] as always. Now they all present on [his road]. The pavement is blocked every [bin collection day] and fly tip waste is regularly dumped on other days of the week.
55. He also says, ‘There is [still] no signage as you would recognise it. There is a small sign, smaller than an A5 notepad on the disabled parking sign near the location. It is above head height, does not give clear instruction and is not at the direct location where rubbish is dumped. It is easily missed. It is the same sign that has been in place for over a year. Before this sign there was a hand-written sign in a plastic folder attached to the post. I thought a resident had done this, turns out it was the council team!!

Was there fault causing injustice?

Overview

56. I have presented my findings below under three headings derived from Mr C’s complaint: failures in dealing with waste, failures in communication and failures in complaint handling. However, it is not possible to divide the complaint cleanly into those three categories.
57. Overall, I have found the Council at fault. It took some action in trying to solve the problem but it did so after lengthy delays. It did not examine all options promptly. It allowed the problem to continue. This was all fault.

Failures in rubbish removal

58. In essence, Mr C’s complaint is that there was, for at least four years, a problem with waste on his street and that the Council was at fault for not doing enough to stop it, indeed, by its activity, making it worse.
59. The Council says in effect, that, while there were problems with waste on his road, it did all that could reasonably have been expected to deal with the problem. The area was not particularly badly affected by waste. It dealt with it properly.
60. I do not accept the Council’s position and have upheld the complaint. While the Council said in its complaints responses that it was doing everything that could reasonably be expected, this cannot have been the case.
61. In July 2016, Officer O, who knew the case, said she considered the road among the worst in the borough. She recognised there were problems both with refuse collection and fly tipping. She accepted that the continuing problem with refuse was exacerbating the problem with fly-tipping. She believed the Council could and should do more to combat both. She recommended a waste audit in July 2016. (This did not occur until December 2017).
62. The Council had the duty and the power to deal with both problems. The guidance says it should focus its efforts on problem hotspots. And yet, little was done to combat the problem of the refuse from the flats for many years.
63. In its complaint response in June 2018, the Council said it was exploring moving waste collection for the flats to the service road and had only just discovered the potential legal difficulty in doing so. After four years, this was unacceptable delay.
64. The records show that Veolia too had doubts about the severity of the problem. A Veolia manager suggested Mr C was ‘another Kingston lunatic’ implying his concerns were unreasonable. The next day a Veolia driver picked up six bags of rubbish and a sink which suggests that this was not the case.
65. While Veolia did increase the frequency of their visits on request, the records show these efforts were limited. Mr C says that, even when the Council claimed collections were taking place twice daily, rubbish was left on the street for days. He also says that, even when Officer O was on the case, the rubbish was removed infrequently. Officer O accepted this in March 2017.
66. Neither had the Council, by June 2018, erected any signage at the refuse collection site. This was at least four years after the complaints began.

Failures in communication/delay

67. Mr C complains of failures in communication with the Council. While the Council has accepted it failed to respond to several emails, it says that, given the weight of correspondence, this was not a significant fault.
68. I agree that, had Mr C been emailing the Council every day, it would not have been fault to ignore some emails. However, he did not do so. In fact, he emailed infrequently and his emails, often months apart, were usually triggered both by a period of silence from the Council but also by a spike in fly-tipping activity.
69. In any event, I have found that the heart of Mr C’s complaint is not about communication but about inaction. It is true Officer O might have failed to respond to some of his emails. His concern though was about the Council’s failure to confront the dual waste problems on his road. And this went on for years.
70. I do not say that the Council should have solved the problems. Some problems are intractable. Sometimes there is no practical solution. However, the Council had a duty to try to solve those problems. The evidence is that it did not explore options as it should have done.
72. The guidance says, ‘Public opinion tends to be shaped by a minority of sites’ so ‘good management is simply about managing the minority of locations for short periods of time as well as maintaining a consistent overall cleansing strategy’.
73. In 2018, the Council belatedly looked into the possibility of putting the bins elsewhere. It suggested the service road behind the shops but found, initially, that ownership of it was disputed. It also looked into putting up signage. Mr C and others had been suggesting these options for a long time. This was unacceptable delay given that waste was a weekly, even a daily, problem on the road.

Complaint response

74. I find the Council’s complaint response was inadequate. The officer responding found no evidence of any failures in the way in which the Council or Veolia dealt with either rubbish or fly-tipping on the road and dismissed the complaint.
75. It said, ‘no suitable area has been identified for storage of containers and so a sack-based collection has been the only option’. However, later in the same complaint response, she said the Council was now considering an alternative site, in the service road behind the shops – after four years of complaints. It is impossible to square those two statements.
76. When it came to fly-tipping, again, the Council said its response had been adequate. But this was not in line with Officer O’s findings. She said in an email to Mr C in July 2017 that the problem had been exacerbated by the other waste problems on the road.

Back to top

Agreed action

77. The Council has agreed that, within two weeks of the date of this decision, it will:
1. Apologise to Mr C; and
2. Pay him £300 in recognition of the time and trouble it caused him.
78. The Council says it has reviewed the waste removal arrangements for the road and a new system will be introduced in Spring 2020. I have therefore withdrawn my recommendation that the Council review the arrangements for the road.

Back to top

Final decision

79. I have decided the Council was at fault. It has agreed to my suggested personal remedy and says it has recently reviewed the waste collection arrangements for the road. I have therefore closed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman