Doncaster Metropolitan Borough Council (19 001 769)

Category : Environment and regulation > Refuse and recycling

Decision : Upheld

Decision date : 17 Oct 2019

The Ombudsman's final decision:

Summary: Mr C says the Council is at fault for stopping assisted waste collections at his house. He says his wife is disabled and he often works away from home. He says this causes them injustice as his wife cannot put the bins out. The Council was not at fault. It says Mr C does not qualify for such collections according to its policy but it will provide them if he provides evidence that he needs them. The Council was at fault because contractors occasionally failed to replace bins. As the Council has apologised, no further remedy is required.

The complaint

  1. The complainant, who I have called Mr C, says the Council was at fault for:
      1. Refusing to provide assisted bin collections at his property;
      2. A failure to publish information about what amounts to contamination on its website or elsewhere; and
      3. The Council refuse contractor’s failure to remove his black rubbish bin when it had grass cuttings in it;
      4. Contractors walking on his lawn and leaving his bin on his driveway; and
      5. Allowing contractors to carry out a ‘vendetta’ against him.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I read the background information provided by the Council. I phoned Mr C and spoke to him about his complaint. I wrote an enquiry letter using the information he gave me. Having received the Council’s response, I considered all the evidence and any relevant law and guidance before making my decision.
  2. I sent my draft decision to the Council and Mr C and invited comments.

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What I found

What should happen

Environmental Protection Act 1990

  1. Under s.45 of the Environmental Protection Act 1990 (’The EPA’), councils have a duty to collect household waste.
  2. S.46(4)(b) allows councils to require residents to place their bins in certain places to facilitate emptying

Council Assisted Waste and Recycling Service

  1. The Council requires residents to place their bins on the kerbside for collection. It provides an assisted pull out (‘APO’) service to disabled residents. This service is only provided to households with no able-bodied resident aged 16 or over.

Missed collections

  1. The Council says it will, having been informed of a missed collection, arrange for the bin to be collected. If the missed collection is reported before midday, Tuesday to Friday, it will collect the bin by 7:00pm the same working day. Otherwise, it will collect it the next working day.

Public sector equality duty

  1. Public bodies such as councils must take reasonable steps to:
    • Remove or minimise disadvantages suffered by those with disabilities; and
    • Meet the needs of persons with disabilities.
      (Equality Act 2010, s.149(3))

Fettering discretion

  1. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.

What happened

Background

  1. Mr C lives in a house in the Council’s area with his wife and adult daughter. The Council collects his bins every Wednesday. One week it collects general waste and the next week it collects green waste and recycling.
  2. Mr C frequently works away from home and says that he is not able to put his bins out for collection approximately one week in four. His wife and daughter are registered as disabled. Around December 2017, he applied for APO collections. The Council agreed to provide these.

Binmen walking over grass

  1. In June 2018, Mr C complained to the Council that binmen had been pulling his bins over his grass and had left his bins on his lawn.
  2. He complained to the Council which apologised. It said the problem had been caused by the use of agency staff.

Assisted pull out collection (APOC) dispute

  1. On a Wednesday in March 2019, Mr C was at home. He put his bin out for collection. Contractors saw him and informed the Council they believed the household did not qualify for APOC because an able-bodied adult lived there.
  2. The Council decided to stop APOCs but did not tell Mr C. On 14 March 2019, the bin was not emptied. Mr C informed the Council and asked for it to be collected.
  3. The Council checked with the contractor and discovered the reason for the non-collection. Because it had not informed Mr C, it arranged for the contractor to collect the bin. It did so a week later.
  4. Mr C complained to the Council which investigated. It partially upheld his complaint. The complaints officer said the Council had learned lessons and had installed systems to ensure that service users were informed in future before the service was withdrawn.
  5. Mr C escalated his complaint to stage two of the Council’s internal complaints procedure. He said:
      1. The Council should have a procedure in place to allow APO collections to be provided when an able-bodied spouse worked away for lengthy periods leaving a disabled partner unable to empty the bins;
      2. The Council never informed him the APOC had been withdrawn;
      3. The contractor had wheeled bins across his lawn;
      4. The contractor had damaged his bin. He wanted them to pay for a new one;
      5. Communications with officers was poor and some had been rude to him;
      6. He would complain to the Ombudsman and ask for compensation for time taken and trouble caused by the dispute;
      7. On 27 March, the contractor had refused to remove his black waste bin. The reason given was that he had put lawn clippings in it. However, it was stated nowhere on the Council website that lawn clippings could not go in a black bin and, in cases of contamination, the contractor should put a sticker on a bin to explain the reason for non-collection. It had not done this.
      8. Mr C said he believed the black bin collection team had a vendetta against him because he had complained about them walking on his lawn.
  6. The Council responded to this complaint in late April 2019. It said:
      1. APOC policy: The Council had sent an APO application form to Mr C. An officer had written to Mr C asking for further documentary evidence or, alternatively, a date for an officer to visit to carry out an eligibility assessment.
      2. Failure to inform him APO collections had been withdrawn: the council did not respond though it had apologised in its stage one response.
      3. Wheeling bins across his lawn: The Council did not respond though it had apologised previously;
      4. Replacing damaged bin: The Council had attempted to remove and replace the damaged bin in early April. If he still wanted a replacement, he should contact the Council;
      5. Rudeness on phone: The Council apologised if Mr C felt the service and communication had not been to the standard he expected. To avoid any risk of unpleasant phone calls in future, Mr C should only contact the Council through the customer service department;
      6. Request for compensation from Ombudsman: Mr C had a right to complain to the Ombudsman but the Council could not comment on this;
      7. Failure to remove bin with grass in it: The Council apologised and said the bin should have been collected. If a similar mistake was made in future, he should contact the Council.
      8. Vendetta: There was no vendetta.
  7. On 10 May 2019, Mr C wrote to the mayor demanding a response. The mayor responded on 29 May 2019 saying:
      1. The Council had been forced to review its waste policies to save money:
      2. One way in which it had decided to save money was by reviewing APOCs. It had reduced the number of APOCs from 10% to 3%. It had withdrawn Mr C’s APOC in late March. It had since sent him a form allowing him to apply again but he had not yet completed it. The Council would consider his application if he did.
  8. Mr C later completed the APOC application form. He received a response from a Council officer. The officer again requested information from Mr C about his own and his daughter’s health or for a date for an eligibility assessment.

Councillor’s involvement

  1. Mr C says he recently spoke to a local councillor and explained his situation. He says the councillor told him, soon afterwards, that he had spoken to the Council and had sorted the problem out. He says the councillor told him that the APOC would soon be resumed but it has not been.

Was there fault causing injustice?

Refusal to provide assisted pull out collections

  1. Mr C says the Council has refused to provide APOCs at his property. The Council says he does not meet the Council’s published criteria for APOCs. But, it says, it has not refused to provide them. It says, if Mr C can provide evidence that his exceptional circumstances justify providing APOCs to him, it will do so.
  2. The Council is not, therefore, ‘fettering its discretion’. I do not find fault.

Failure to publish information about ‘contamination’

  1. Mr C says the Council should have published information on its website about what amounted to ‘contamination’ of black bin waste and what would happen if contamination occurred.
  2. The Council says it sends a leaflet to all households each year explaining what waste goes in each bin. This information is also on its website. There is not, however, any information about what actions it will take if waste is contaminated.
  3. While it might be preferable if the Council did publish this information on its website, it is not, in my opinion, at fault for not doing so. It has provided residents with guidance about what goes in each bin which Mr C did not follow.

Failure to remove contaminated bin

  1. Mr C says that he had placed lawn clippings in his black bin and that the binmen had therefore refused to collect it. He says they should have placed a sticker on the bin explaining this decision.
  2. Mr C phoned the Council which agreed to collect the bin later that day. It did not, in fact, do so for a week. This was fault. However, the Council says that the bin was left not because it was contaminated but due to human error.
  3. This fault did cause some, minor, injustice. The Council has already apologised. The Ombudsman does not intend to recommend a further remedy.

Contractors walking on Mr C’s lawn/leaving bin on driveway

  1. The Council has accepted that, on occasion, contractors did leave the bins on his drive. It has apologised for this fault. So far as I am aware, these incidents have not occurred recently and the Council has apologised for historic incidents. Again, the Ombudsman considers that an apology is sufficient.

Vendetta

  1. Mr C says he believes the general waste team has ‘a vendetta’ against him. He says he has never had any problems with the green waste and recycling team. I have seen no independent evidence to support this view and therefore cannot find fault on the basis of Mr C’s suspicions alone.

Councillor’s involvement

  1. I asked Mr C and the Council for information about the councillor’s involvement in Mr C’s case. The Council told me that there is no record of any involvement by this councillor. The Council says it has attempted to contact the councillor on my behalf on numerous occasions by email and phone with no response. Mr C has told me that the councillor has not responded to him either but has left a note at his surgery saying he does not know if he will continue with council work.
  2. There is therefore no evidence that the councillor took any action on Mr C’s behalf. As the Ombudsman makes his decisions on the available evidence, I cannot comment on this part of the claim.

Agreed action

  1. The Council has already apologised. No further remedy is required.

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Draft decision

  1. I have considered the available information along with the relevant law. I have found the Council was at fault for minor failures in bin collection but not for withdrawing Mr C’s APOCs. It has apologised. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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