Summary: Ms B complains that when the Council changed its recycling scheme, it introduced a large bin which she does not want and will not use. The Council can specify what bin will be used and the implication in law and guidance is the resident will store the bin. There are no exceptional circumstances, and therefore the Council is not at fault. However, the Council served Ms B a formal notice in which the wording was unclear. The Council will apologise and review the wording of future notices.

The complaint

1. The complainant, who I will call Ms B, says the Council changed its recycling arrangements; replacing a blue box with a brown wheeled bin. The Council delivered a brown bin for recycling and expects Ms B to store it on her private property without getting her permission. Ms B does not want the bin; she produces little waste and manages her own recycling without need for the brown bin. Ms B says the bin is large and unsightly. Ms B says in response to her complaint the Council issued a notice under the Environmental Protection Act 1990, this was heavy handed and came as a shock. Ms B would like the Council to take the bin back.

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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 cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I considered:
• Information provided by Ms B, including during a telephone call.
• Information provided by the Council in response to my enquiries.
• The Environmental Protection Act 1990.
• Responses to a draft of this statement.

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What I found

5. The Council has a duty to collect recyclable waste and can specify the receptacle (bin) that should be used. The Council can provide the bins or expect the household to provide the bins it specifies. In this case the Council has decided to provide all households with a brown wheeled bin for glass, cans, tins and plastic bottles. It provides a blue wheeled bin for paper and card. There is also a black wheeled bin for general household waste, and a green wheeled bin for garden waste.
6. If the Council is satisfied that comparable alternative arrangements are available, then it does not have to collect recyclable waste from a household.
7. When the Council delivered the brown bin to Ms B, she asked the Council to take it back because it is too big, it will take her a year to fill it, she has nowhere to store it, and she will do her own recycling. The Council refused because having looked on the internet at her property it said she had a large enough garden in which to store the bin. The Council says the fact it can specify what bins should be used, implies that to use those bins a household would need to store them.
8. Ms B says she produces little waste, but what she does produce she takes to local recycling centres as much of it, such as yoghurt pots, can’t be placed in the brown bin. The Council says these recycling centres are not intended to be used as the only means of a household recycling; there is nothing in the Council’s published information to say those sites are only supplementary.
9. Section 46 of the Environmental Protection Act 1990 says councils may require the occupier to place waste for collection in specified bins, and can impose this by a notice served on the occupier. The notice can specify:
• The size, construction and maintenance of the bins.
• When and where you must place the bins for emptying.
• What you can or can’t put into the bins.
10. A person who fails without reasonable excuse to comply with the above requirements can be subject to a fine. An occupier can appeal to a magistrates court about any requirements imposed on them on the basis the requirement is unreasonable, or the receptacles in which household waste is placed for collection from the property are adequate.
11. The Council served Ms B with a formal notice under Section 46 of the Environmental Protection Act 1990 when it sent the final complaint response to Ms B. The notice set out that Ms B must use the blue bin and brown bin for her recycling, and the black bin for other household waste. The notice then referred to Section 46A when stating what happens if you fail to comply. It said if you fail to comply and that failure causes a nuisance, or was likely to cause nuisance, or could be detrimental to local amenities, then you may have to pay a fine.
12. The Council says based on its correspondence with Ms B and that her complaint was at the final stage of the complaint’s procedure, it felt it was appropriate to issue and send the notice with the complaint review response. The Council says the notice is fundamentally an information notice to make sure occupiers are aware of the arrangements that it has put in place as the Waste Collection Authority, so they can comply with them. It is not an enforcement notice.
13. I asked the Council how it checks whether Ms B complies with this notice. The Council says it does not monitor individual households’ use of the recycling service, as this would be impracticable for resource and cost. If it becomes aware of residents mismanaging their waste, then it will take action where appropriate. It has closed Ms B’s case.

Was there fault causing injustice?

14. The Council has a statutory duty to run a multi-stream recycling scheme, and they have the power to decide what bins will be used within that scheme. To satisfy this duty, and exercise that power in any practical way, it is inevitable the Council will need to adopt a high degree of uniformity of approach.
15. While there is no explicit power to require a resident to store a bin on their property, there is a reasonable working assumption that residents, under normal circumstances, will be expected to use and therefore store the containers for their waste. The Council can rely on that assumption as a practical basis for the administration of the scheme.
16. For some people that will inevitably be more burdensome and inconvenient. I note the Council has granted exceptions in some cases, for example where the property makes it physically impossible to store the bin. Therefore, the Council is not applying a blanket approach, and has made amendments where necessary.
17. Unless there are truly exceptional reasons someone will find it impossible to use and store the nominated bins, the Ombudsman’s view is there is no fault by the Council in expecting residents to store and use the bins as required by the scheme.
18. Although it is inconvenient for Ms B to store the bin as she is unlikely to use it, it is not impossible to store it. Therefore, it does not cause a significant injustice.
19. The Council acted in accordance with the law when it issued the Section 46 notice and did so as a reminder to Ms B of the expectations within the law to meet waste disposal requirements. The Ombudsman would not say it was fault to issue the notice, though the timing and wording of the notice was quite severe and came as a shock to Ms B. Although it is a Section 46 notice, it then refers to Section 46A which is a written warning and can be a penalty for failure to comply with requirements relating to household waste receptacles. owevThe Council accepts the wording of the notice may have been unclear and will review the wording accordingly. The Council has offered to apologise to Ms B for any distress the notice caused.

Agreed action

20. To recognise the impact of its actions and prevent future problems, the Council will:
1. Apologise to Ms B for sending a confusing notice referring to both Sections 46 and 46A of the Environmental Protection Act.
2. Review the wording of its Section 46 notice, to ensure it is clear for future use.
21. The Council should complete the above actions within one month of the Ombudsman’s final decision and provide evidence of its compliance to the Ombudsman.

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Final decision

22. I have completed my investigation on the basis the agreed actions are sufficient to acknowledge the impact of the Council’s actions.

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Investigator's decision on behalf of the Ombudsman