Summary: Mr B says the Council introduced charges for communal recycling bins when it had agreed not to, breached the Environmental Protection Act by doing so and is charging an unreasonable amount for the bins. There is no fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Mr B, is a director of a company which is the freeholder of a block of flats located in the Council’s area. The leaseholders of the flats pay service charges to the company to manage and maintain the block on their behalf. I will refer to the company as the managing agent. Mr B complained the Council:
• introduced charges for communal recycling bins when it said in 2016 it would not do so which means it has breached its contract with the managing agent;
• in introducing charges, has breached the Environmental Protection Act 1990 as it is a thinly disguised charge for the collection of household waste; and
• is charging an unreasonable amount.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
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. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered Mr B’s comments on my draft decision; and
• gave the Council an opportunity to comment on my draft decision.

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What I found

Environmental Protection Act 1990

5. This says where a waste collection authority has a duty to arrange for the collection of household waste from any premises the authority may require the occupier to place the waste for collection in receptacles of a kind and number specified.
6. The Act goes on to say the authority may, as respects the provision of the receptacles:
• (a)determine that they be provided by the authority free of charge;
• (b)propose that they be provided, if the occupier agrees, by the authority on payment by him of such a single payment or such periodical payments as he agrees with the authority;
• (c)require the occupier to provide them if he does not enter into an agreement under paragraph (b) above within a specified period; or
• (d)require the occupier to provide them.

Background

7. In 2016 the Council’s contractor contacted the managing agents about placing recycling bins on the grounds for the block of flats. That was due to issues with the bins on the footpath. The contractor told the managing agent it would not charge for the recycling collection for the block or if a bin went missing.
8. On 14 February 2017 the Council approved a weekly hire charge for household bulk recycling bins of £2.80 per week, rising to £2.85 per week. The report considered by the Council noted the weekly hire charge covered the purchase cost of the bin and any repairs. The Council introduced the charges in October 2017. The Council wrote to landlords and managing agents to tell them about the charge. It did not write to the managing agent for Mr B’s block. Nor did the Council make any charge for the hire of the recycling bins for Mr B’s block between 2017 and 2019.
9. In 2019 the Council identified that Mr B’s block of flats did not pay for the hire of the recycling bins and sought to introduce the charge. Mr B put in a complaint.
10. On 8 April 2019 the Council wrote to the managing agent. The Council said it did not consider provision of recycling bins historically amounted to a contract to provide them free of charge. The Council told the managing agent it had hired bulk bins for residual waste for some time. The Council said it had written to landlords and managing agents who use the Council’s bins in April 2017 to advise it would be extending its charges to the hire of recycling bins as well as residual bins. The Council said it did not write to the managing agent for this set of flats and therefore residents had the use of the bins at no cost for 18 months. The Council said it would not apply the charge retrospectively but would apply it from 1 April 2019 at £2.85 per week per recycling bin. The Council told the managing agent it charged all landlords and managing agents for the hire of its bins and could not make an exception. The Council told the managing agent if it did not wish to pay the charge the Council could remove the bins. The Council reminded the managing agent every landlord had a duty of care and this involved tenants using the correct type of waste and recycling containers. The Council offered to assess the bin capacity for the development. The Council said if the managing agent did not wish to hire the Council’s recycling bins it would withdraw them. Mr B declined the offer to assess the bin capacity for the development.

Analysis

11. Mr B says the Council introduced charges for communal waste recycling at his block of flats in 2016 when it said it would not do so. Mr B says at the time the Council confirmed it would place the recycling bins on site for the flats and there would be no charge for the recycling collection or if a bin went missing. Mr B says by introducing charges for communal recycling the Council has breached its contract with the managing agent.
12. There is clearly a difference of opinion between the Council and the managing agent as to whether a contract to provide the recycling bins free of charge exists. The issue of whether a contract exists and whether there has been a breach of contract is not a matter for the Ombudsman. That is a matter for the courts. I will therefore not comment on whether a contract exists or has been breached. If Mr B wants to pursue that further he will need to consider legal action.
13. Mr B suggests by introducing the charge the Council has breached the Environmental Protection Act 1990. Mr B says because the Council will only collect recycling waste from a bin which it approves and seeks to provide, setting an annual hire charge is a thinly disguised charge for collection of household waste. I have carefully considered the relevant paragraphs of the Environmental Protection Act 1990 which I refer to in paragraphs 5 and 6. As those make clear, the Council can decide to charge for the provision of bins either by charging a single payment or periodic payments. So, the principle of charging for the hire of the bin is not contrary to the Environmental Protection Act. Mr B suggests it is on the basis the managing agent has no option but to use the bins provided by the Council. However, I am satisfied that is not the case. The Council has made clear in communications with the managing agent and the Ombudsman that if the managing agents do not wish to keep the Council’s bins it will remove them. It will then be for the managing agents to sort out suitable receptacles for recycling waste. While those receptacles have to the ones which are acceptable to the Council that is not contrary to the Environmental Protection Act. So, I am satisfied charging for the hire of communal recycling bins is not contrary to the Environmental Protection Act and does not constitute a charge for the collection of household waste.
14. Mr B also suggests because the Council did not provide a bulk hire contract to incorporate charges for bulk recycling bins when it introduced the charges in 2017 it cannot now charge for those bins. However, there is nothing in the Environmental Protection Act which suggests the Council can only introduce charges as part of a bulk hire contract. Instead, the Environmental Protection Act makes clear the Council can make charges for the provision of bins if the occupier agrees. If the occupier does not agree it is open to him or her to refuse to enter into any agreement and to provide their own receptacles. I am satisfied that is still an option open to Mr B.
15. Mr B says the bins remain a facility for the local area and therefore it is not possible for the Council to secure them for the residents of the flats only. I understand Mr B’s concern about other people using the bins. However, I do not consider that situation is any different from any other communal area with bins. As I have made clear, the Council can decide to charge for the provision of bins, as it has done in this case, and there are therefore no grounds on which I could criticise it.
16. In reaching that view I note Mr B says making a charge unfairly prejudices residents of the flats because the Council does not make a charge for the smaller recycling bins provided to individual council taxpayers. I understand Mr B’s concern. However, the Council decided to introduce the charge in 2017 after considering a report. As I said earlier, the Council can charge for the provision of bins if it chooses to do so and I am satisfied the charge applies equally to all residents who require a communal recycling bin of the size provided to Mr B. As I have made clear though, it is open to Mr B to seek to provide his own bins for the flats in question should he be concerned about the charge the Council is making.
17. Mr B has raised concerns about the charge the Council has introduced. Mr B says the charge significantly exceeds the cost of providing the bins and creates a profit. I am satisfied though there are many councils which charge for the hire of recycling bins. Some of those councils charge considerably more than the Council charges in this case. I therefore could not say the Council’s decision to charge £2.85 per week is perverse. In any event, as I have made clear, there is no requirement for Mr B to accept the charge as the managing agents can decide to provide their own receptacles for rubbish rather than those provided by the Council.

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Final decision

18. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman