Summary: There was fault in the way the Council pursued Miss X for debts regarding fixed penalty notices it served when she failed to remove her wheeled bin from the street outside her property. The Council has agreed to waive the outstanding debt. This is a suitable remedy. The Ombudsman has discontinued the investigation into the other parts of Miss X’s complaint as she has a right of appeal to tribunal against the Council’s decision to issue her with fines for leaving her wheeled bin on the pavement outside her house. Miss X also has a right to go to court if she disagrees with the Council’s arrangements for collecting her wheeled bin.

The complaint

1. Miss X complains that the Council has served her with several fixed penalty notices for leaving her wheelie bin out on the street between collections. Miss X says she has explained the difficulties she and her family have in moving the wheelie bin and although the Council offered to refer her for assistance this never happened.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I have spoken to Miss X about her complaint and considered information she provided to the Ombudsman. This includes correspondence with the Council.
8. I have also considered the Council’s responses to my enquiries. This includes correspondence with Miss X, copies of fines it has issued to the household and details of court action it has taken.
9. I have written to Miss X and the Council with my draft decision and given them an opportunity to comment.

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What I found

What happened

10. Section 46 of the Environmental Protection Act 1990 gives councils the power to issue fixed penalty notices to households who do not comply with local rules about wheeled bins. This includes times when wheeled bins should be placed out for collection.
11. If a person can appeal to magistrates court if they disagree with the arrangements a council imposes on them for making wheeled bins available for collection.
12. Where a person is issued with a fixed penalty notice for failing to comply with local rules about leaving wheeled bins out for collection they may appeal against that notice to First Tier Tribunal (General Regulatory Chamber).
13. The Council has served Miss X’s household with notices under section 46 of the Environmental Protection Act 1990. This is because the wheeled bins for the property were not removed from the pavement outside once they had been collected. The Council said Miss X could appeal to magistrates court if she was unhappy with these arrangements.
14. Miss X says her mother’s health conditions means she is unable to move the bin from the street after it has been collected. Miss X says her own health issues and those of her sister, who also lives in the property, mean they cannot move the bin from the street either.
15. The Council offers and assisted bin collection service. Miss X has requested this but the Council has rejected her request as it says there are able bodied people in the house who can move the bin.
16. The Council has issued Miss X’s household with fixed penalty notices for failing to comply with arrangements for wheeled bin collections. The notices explained Miss X’s household could appeal to First Tier Tribunal if she disagreed with the fine.
17. The Council has asked Miss X to enter into an arrangement to repay outstanding debt relating to the fixed penalty notices. The current outstanding balance, including additional fees is £752.34 and includes investigation fees.

My findings

18. Following a previous Ombudsman investigation, which covers the same period as the events of this complaint, the Council accepted it could not add investigation fees to fixed penalty notices before going to court. The Council has been reviewing cases where this has happened, including Miss X’s case, and removed fees.
19. The Council has also said it has cancelled the rest of the outstanding debt owed by Miss X’s household as a “gesture of goodwill”. The Council says it will also refund any money Miss X’s household has already paid towards the debt.
20. That is a suitable remedy for the injustice caused in this case. The Council has accepted it should not have added investigation fees onto the debt owed by
    Miss X’s household before going to court to confirm the debt.
21. I cannot continue to investigate Miss X’s complaints about arrangements for the collection of her wheeled bins. This is because she can apply to Magistrates Court if she is unhappy with arrangements the Council has placed on her. Miss X has been able to seek legal advice regarding this matter and I see no reason why she could not go to court to pursue this.
22. I also cannot continue to investigate Miss X’s complaints about the Council’s decision to serve notices on her household as a result of wheeled bins being left outside her property. This is because she has a right to appeal any notice via Tribunal. There is no reason why Miss X could not pursue an appeal if she disagreed with the Council’s decision to serve such a notice. Miss X has been able to obtain advice regarding this matter so I consider it reasonable to expect her to appeal to Tribunal.

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Agreed action

23. The Council has agreed to remove fees it wrongly added to Miss X’s debt. The Council has also agreed to waive the outstanding debt and refund any payments Miss X and her household have already made towards this.
24. The Council write to the Ombudsman to confirm that it has taken this action within 8 weeks of my final decision.

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Final decision

25. I have completed my investigation as there was fault in the way the Council pursued Miss X for debt owed as a result of fixed penalty notices it served. The Council has agreed to cancel the outstanding debt. This is a suitable remedy for the injustice caused.
26. I have discontinued my investigation in to the other aspects of Miss X’s complaint as she has a right of appeal to court and tribunal and it is reasonable to expect her to use this.

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Investigator's decision on behalf of the Ombudsman