Eastleigh Borough Council (19 004 049)

Category : Environment and regulation > Refuse and recycling

Decision : Not upheld

Decision date : 14 Oct 2019

The Ombudsman's final decision:

Summary: The Ombudsman has discontinued his investigation of this complaint, about the timing of the Council’s waste collections. This is because the Ombudsman cannot achieve the outcome the complainant seeks.

The complaint

  1. The complainant, to whom I will refer as Mr P, says the Council’s waste collection rounds begin unreasonably early.

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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. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended)
  3. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
  4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. I reviewed Mr P’s correspondence with the Council, and its waste and recycling collection policy.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. Mr P lives on a main road. A minor, unadopted road runs down the side of his property, which leads to a small housing estate. On the other side of the main road, there is a cul-de-sac.
  2. In 2015, Mr P complained to the Council that it was making waste collections from the minor road too early, causing him to be disturbed by the noise.
  3. In response, the Council said its policy was for collections for main roads to occur no earlier than 6.30am, and from minor roads no earlier than 7am. The Council accepted collections had been occurring from the minor road near Mr P’s home earlier than 7am. It apologised, and ensured him it would take steps to prevent this. Mr P says this largely resolved the problem at the time.
  4. In June 2018, Mr P contacted the Council again. He complained there had been three occasions in as many weeks where collections had been made from the minor road before 7am.
  5. The Council replied on 4 July. It explained there had been a temporary change in the collection schedule in recent weeks because of nearby roadworks, but apologised if Mr P had experienced early collections. It said it had reminded its waste collections crews about the timing of collections, and said it would monitor collections from the minor road for a period to ensure compliance.
  6. Mr P emailed the Council again on 17 August. He said, despite the Council’s assurances, collections were still occurring before 7am. That morning there had been a glass recycling collection at 6.45am, which Mr P explained was particularly noisy. Mr P said he did not understand why the waste collection service could not comply with the times stated in the policy on every occasion.
  7. The Council’s Chief Executive replied to Mr P the same day. He said the glass collection that morning had been from the main road, not the minor road, and so had been in accordance with the Council’s policy. He said the vehicle’s tracking device showed it had not entered the minor road, but the policy meant the crew should also not have entered the minor road, and asked Mr P if this was what had happened. He said the Council would remind the crew again about not entering the road before 7am.
  8. In October, Mr P contacted the Council to say he had received a letter, asking him to cut back growth from his garden bordering the minor road, as it was causing access issues for the waste collection vehicle. The letter warned the Council could potentially make an insurance claim if damage were to occur to the vehicle.
  9. Mr P said he had spoken to the letter’s author, who had suggested Mr P’s desire to sleep later than 6.30am was a “lifestyle choice”. Mr P complained about this comment. He also said he was happy to trim the growth from his garden, but believed the Council should make later collections as part of this agreement. Mr P also said he would consider taking legal action against the Council if the vehicle caused damage to his property.
  10. The Council provided a formal response to Mr P’s complaint on 27 February 2019.
  11. The Council said it had tried to contact Mr P personally to discuss the problems with accessing the minor road. It said it had dealt with Mr P’s complaint about the member of staff’s comment under its personnel procedures.
  12. The Council acknowledged Mr P had reported early collections. It explained waste was collected between 6.30am and 2pm across the borough, and although it strove to maintain the 7am limit, this was not always possible. The Council explained there was no statutory time limit on waste collections.
  13. The Council said all its processes were subject to risk assessments. It said it felt its current practices provided a balance between staff safety and consideration for residents. It also explained adjusting the time of individual collections had the potential to affect all collections.
  14. Mr P raised a stage 2 complaint on 11 March. The Council responded on 29 April.
  15. The Council acknowledged Mr P’s original complaint of 2015, and reiterated collections should not have been taking place before 7am at that time. However, it highlighted the difficulty it had in maintaining compliance given the number of collections it needed to make across the borough.
  16. The Council noted Mr P had trimmed the foliage as requested, in December, and thanked him for his cooperation. It repeated that an attempt had been made to contact Mr P to discuss this on 17 August.
  17. Mr P had said he found the Council’s stage 1 response “disrespectful and insulting”. The Council said it found nothing in the response to warrant this description, and pointed out it had thanked Mr P for bringing his concerns to the Council’s attention.
  18. In May 2019, the Council published a new waste collection policy. It now said all waste must be ready for collection at 6.30am on the relevant days, without differentiating between main and minor roads.
  19. On 11 June, Mr P referred his complaint to the Ombudsman. He explained there were now three separate collections for each of the main road, minor road and cul-de-sac, each occurring before 6.30am. He complained particularly about the noise from the monthly glass collections for each road, which took place on two consecutive days.
  20. Mr P accused the Council of threatening him, with regard to its ‘insurance claim’ letter. He also said the Council was lying about its policy, as it does not state a start time for collections, simply a time for residents to have their waste ready for collection.
  21. Mr P went on to say he had made a Freedom of Information request, with regard to the Council’s claim to have undertaken risk assessments, and said it had not supplied all requested information in response. Mr P also said he believed the waste collection crew members were being paid for hours they were not working, at public expense.
  22. Mr P asked the Ombudsman to advise the Council on appropriate waste collections times, for an apology from the Council for what he considered to by untruths, for the Ombudsman to ensure the Council was using public money appropriately, and to ensure its published policy was up-to-date.

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Analysis

  1. I will discontinue my investigation of this complaint.
  2. The Ombudsman’s role is to review the adherence to procedure of bodies in his jurisdiction. The Ombudsman cannot make decisions on their behalf, and he does not have the power to decide what a local authority’s policy should be.
  3. As the Council says, there no hours prescribed in statute for when waste collections must be made. This means the Council can decide what those hours should be.
  4. I appreciate the Council’s policy, previously, meant two of the roads near Mr P should not have had a collection before 7am. The Council accepted there had been a transgression of this policy in 2015; and Mr P reports further, more recent, transgressions in 2018.
  5. However, the Council’s new policy – which is published on its website – sets a start time of 6.30am for all collections, regardless of location. Whatever the previous situation, there is no ongoing failure to follow the policy with which the Ombudsman could find fault; and the Ombudsman cannot instruct the Council to start its collections later, or in a different location. There is nothing worthwhile an investigation of this could now achieve for Mr P.
  6. Mr P says the Council has lied to him about its policy, as it does not quote a start time.
  7. The policy says all residents must have their waste ready to collect by 6.30am (or, in the previous policy, 7am, depending on location). I accept this does not specifically say when collections will start, but I consider this to be the obvious implication of the policy. There would be no reason for the Council to ask residents to have their waste ready by a particular time if collections did not start until later. I do not agree the Council has been dishonest about this.
  8. Mr P says the Council threatened him, with regard to the ‘insurance claim’ letter.
  9. I have read this letter. It is addressed to ‘The Resident’, not Mr P specifically. It explains why it is asking for the action to be taken, and says the matter could potentially lead to an insurance claim if the requested action is not taken.
  10. I appreciate receiving such a letter is unpleasant, but I do not agree it is ‘threatening’. I would consider it unhelpful if it did not advise the reader of the possibility the matter might be escalated if they fail to take action. I also note Mr P complied with the request, receiving the Council’s thanks for this. I do not consider the receipt of this letter represents an injustice which would warrant an investigation by the Ombudsman.
  11. Mr P says the Council has not fully complied with his FOI request. Such complaints are best made to the Information Commissioner’s Office (ICO), which is a specialist body with a specific remit to determine whether a body has complied with data governance legislation.
  12. Mr P also complains the Council’s waste collection crews are not working the hours for which they are paid. The general use of Council’s resources, including public money, is a matter affecting all or most people in the Council’s area. The Ombudsman is specifically barred from investigating such matters, as explained at paragraph 4.
  13. Mr P says, since making his complaint to the Ombudsman, he has made a claim for damages to his fence, which he believes were caused by a waste collection vehicle. Mr P says the Council has failed to respond to this.
  14. Liability for injuries or damage to property is a matter for the courts. The Ombudsman has no power to make findings on this. If the Council has not responded to Mr P’s claim for damages, I would recommend he seek legal advice.

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Final decision

  1. I have discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman

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