Summary: Mr C says the Council failed to prevent his daughter Ms D’s neighbours from leaving their waste bins outside her house. The Council was at fault for a failure to maintain the ability to enforce its powers under the Environmental Protection Act 1990. This caused injustice. The Council has agreed to pay Ms D a sum in recognition of the injustice caused and to take steps to take to remedy this failure before reporting back to the Ombudsman.

The complaint

1. The complainant, who I have called Mr C, says the Council has not taken action to prevent his daughter’s neighbours from leaving waste bins in the street for several days thereby obstructing her garage and causing a nuisance.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. A complaint is late if it is made more than 12 months after the events complained of. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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)
4. 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)

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How I considered this complaint

5. I spoke to Mr C. I wrote a letter to the Council requesting further information. I considered the Council’s response alongside the relevant law and guidance.
6. I considered whether there were good reasons to investigate the complaint even though Mr C first complained to the Council more than a year ago. I decided that there was. This was an ongoing problem and Mr C tried to find a solution to it through engagement with his councillor and the Council. He did not delay unduly before coming to the Ombudsman.
7. I sent my draft decision to the Council and Mr C and invited comments.

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What I found

What should happen

8. Under s.45 of the Environmental Protection Act 1990 (’The EPA’), councils have a duty to collect household waste.
9. S.46(1), EPA, says councils can require residents to place their refuse in bins.
10. S.46(4)(b) allows councils to require residents to place their bins in certain places to facilitate emptying
11. S.46(4)(ba) allows council to require residents to place bins so as to avoid causing nuisance or detriment to the amenities of the area.
12. S.46(4)(f) allows councils to require the removal of bins which have been placed somewhere for emptying.
13. S.46(4)(g) allows councils to specify the time when bins can be left for emptying and, once emptied, when they must be removed.
14. S.46(6), EPA says that where any person fails without reasonable excuse to comply with such requirements will be liable, on summary conviction, to a fine.

Clean Neighbourhoods and Environment Act 2005

15. Mr C says the Council has duties under the Clean Neighbourhoods and Environment Act 2005. This act does not apply in these circumstances.

What happened

Background

16. Three years ago, Mr C bought a house in the Council’s area for his daughter, Ms D. The house is on a main road. The entrance to a cul-de-sac runs past the side of the house.
17. The Council has engaged a contractor, Ansa, to collect refuse in the area. The Ansa refuse lorry visits once a week. One week, it collects standard waste, the next, recycling and garden waste. Residents have a bin for each.
18. The cul-de-sac is too narrow for the refuse truck to enter easily. Residents therefore leave waste by the side wall of Ms D’s house so the truck can reverse in and collect the waste of the entire cul-de-sac from one site. This obstructs Ms D’s garage and, in summer, causes unpleasant smells in her garden.
19. Mr C says some neighbours do not leave their bins at the site on collection day but may do so days in advance. Nor do some residents remove their bins on collection day and some are left there for days afterwards. If residents put the wrong waste in the wrong bin, as frequently happens, Ansa refuses to remove the bins. This results in rotting rubbish being left by the wall for days on end which causes a nuisance, especially in summer.
20. Mr C says he first complained to the Council on Ms D’s behalf in 2017 and he has done so frequently since without success.
21. In late 2018, he asked a local councillor to approach the Council on his behalf. He asked why the truck could not collect bins from outside each house. The Council said the cul-de-sac was too narrow and this would increase the collection time.
22. The Councillor asked why residents could not take their bins from their gardens through their houses onto the road for collection from there. The Council said this was unacceptable due to hygiene issues.
23. The Council also agreed there was no agreed collection point for the road. The councillor asked the council if monitoring and/or enforcement action was possible.
24. Mr C came to the Ombudsman. We originally found that the complaint was made prematurely because the Council had not given its final response to his complaint.
25. It has now done so. It says Ansa has written to all residents on two occasions. On one occasion, it warned residents that, if they did not comply with these requirements, the Council had the power to issue a fixed penalty notice.
26. Since then, the Council itself has written to residents warning them that, if they continue to leave their bins outside Ms D’s house, it would consider them to be abandoned and remove them and charge them £30 for a replacement.
27. In response to our enquiries as to whether it would take enforcement action, the Council said it has no such plans because it ‘would require the creation of a new unit with all the necessary back office functions required in order to even consider enforcement on bins left out on the highway’.
28. It has also said ‘fulfilling our duties with regard to s.46 does not mandate the authority to have an enforcement team. We seek to fulfil our duties by determining local solutions for local issues’. It says that, in the last three years, it has issued no enforcement notices.
29. Ms D recently contacted the ombudsman to say nothing has changed.

Was there fault causing injustice?

30. Ms D says there has been no change in her neighbours’ behaviour as a result of the letters sent by Ansa and the Council. The Council has said it has issued no enforcement notices in the last three years. It says it has no plans to do so and that it is not required to under the EPA.
31. While it is, ultimately, a matter for the Council whether to prosecute any individual breach of a residents s.46 EPA duties, I find that, by having no ability to take any such action, it has fettered its discretion to do so. It has created a blanket policy which means that, even in extreme cases, it is unable to enforce breaches. This is fault which, in cases such as this, causes injustice.
32. The Council has provided copies of letters that Ansa wrote to residents to encourage them to comply with their responsibilities under the EPA. In one of them, it warned them of possible prosecution for a failure to comply. This is a hollow threat and residents may well, by now, realise that this is the case.
33. The Council says that the establishment of an enforcement department would be a ‘challenge’ in this time of budget cuts. The Ombudsman realises this and has sympathy. However, our position is that councils cannot avoid their responsibilities under legislation on the grounds of cost alone. The responsibility for enforcement of breaches of s.46 EPA lies with local authorities. The Council must, if it is to be able to fulfil this responsibility, have a system in place to do so.

Agreed action

34. Within three weeks of the date of this decision, the Council will:
• apologise to Mr C and Ms D for the inconvenience caused; and
• pay Ms D £200 in recognition of the distress and trouble caused.
35. Within one month of the date of this decision, it will appoint an existing staff member to address the problems suffered by Ms D and the criticisms of the Council set out in this decision.
36. Within three months of this date, the Council will inform the Ombudsman and Ms D of what steps it has taken to control the problem, the effect these steps have had and what ongoing action it intends to take to control future breaches of the EPA both in this case and in others.

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Final decision

37. I found the Council to be at fault. It has accepted this decision and agreed to my recommendations to remedy the injustice caused. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman