Summary: there was no fault in the way the Council decided to stop collecting household waste and recycling from a first floor balcony at Mrs X’s home.

The complaint

1. Mrs X complains about the Council’s decision to stop collecting bagged household waste from the decked balcony of her first floor flat.
2. She disagrees with the Council’s decision that collecting waste from the balcony posed a risk to the health and safety of its refuse contractors. She says the Council’s alternative arrangements are not suitable because she is disabled and not mobile. She has been bedbound for several months and cannot take refuse outside to put it in wheeled bins. Mrs X says her carers provide personal care and are not employed to take out the refuse. She wants the Council to reinstate the previous service.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have spoken to Mrs X and considered all the evidence she and the Council sent me.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The relevant law

7. Councils have a duty under the Environmental Protection Act 1990 to collect household waste and recycling free of charge. Section 46 of the Act allows councils to specify the type of bins or boxes residents must use to store waste and where they must be placed for collection. The Act says councils do not have to collect household waste which is not presented for collection in the appropriate way.
8. Councils provide an assisted collection service to residents who cannot move their bins or boxes to the collection point at the roadside because they are elderly or disabled. In these cases, the collection crew should return the storage bins and boxes to the storage point after each collection.
9. If a council uses a contractor to provide waste and recycling services, it is still accountable for the quality of the service and is responsible for putting things right if there is a problem with the service.
10. All employers have a duty under the Health & Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety, and welfare at work of all their employees.
11. The Equality Act 2010 says anyone who provides services to the public, or a section of the public, who finds there are barriers to disabled people using a service must consider making adjustments to their process. If those adjustments are reasonable they must be made.

The Council’s waste collection policy

12. The current policy was introduced in March 2011.
13. The Council operates alternate weekly collections of household waste, collecting residual waste one week, and recycling the next. Residents may also choose to opt into a garden waste collection service which is chargeable.
14. The Council issues each property with a black wheeled bin for residual waste and a green wheeled bin for mixed recycling.
15. Residents must take their bins to the edge of the property, unless they receive an assisted collection, by 6am on the collection day.
16. The Council’s policy says elderly, infirm or disabled residents, who cannot move wheeled bins to the edge of the property, may ask for an assisted collection. If an assisted collection is agreed, the contractors collect and return the wheeled bins to a storage point at the property on the collection day.

The key facts

17. Mrs X has a long term medical condition which limits her mobility. She told me she has been confined to bed since an accident in November 2019. Mrs X has received an assisted collection for several years due to her disability.
18. Mrs X lives alone in a first floor flat. The flat has a door which opens on to a decked balcony with a spiral iron staircase down to the yard below.
19. The Council sent me a photograph of the balcony and spiral staircase. It shows plants and vegetation growing over the handrail of the staircase and through some of the lower open treads. An overgrown rose bush is at the top of the staircase next to the decked area.
20. Mrs X says the rest of the building is unoccupied so she does not have neighbours who could put out her refuse. She has paid carers but Mrs X says they do not have time to put out the refuse.
21. For many years, Mrs X left bags of household waste on the decked area of the first floor balcony. On the collection day, a refuse contractor went up the spiral staircase, threw the bags down to the yard below, and then went down the staircase and took them to the collection vehicle. Mrs X did not use the wheeled bins provided by the Council to store her refuse. Mrs X said this arrangement had been in place for more than fifty years without any problems.
22. The Head of Service says its general policy is that waste operatives should only collect waste from the ground floor. This also applies to residents who are entitled to assisted collections. The “assisted” element of the service allows operatives to collect wheelie bins from the rear or side of the property. This means the resident does not need to move bins to the roadside.
23. During a regular contract meeting, a supervisor for the Council’s waste contractor told the Head of Service about increasing concerns for the health and safety of the refuse collectors when they collected bags of waste from the balcony. The Council says it has no record of when this concern was raised.
24. The Head of Service attended the property with the supervisor. He then asked the contractor to carry out a risk assessment for the property.
25. On 30 September 2019 two members of the contractor’s staff visited the property to complete a risk assessment. Mrs X complained to the Council that they entered her property without prior notice or her consent. They identified the following risks and recorded them on a risk assessment form:
• risk of operative slipping on spiral staircase or decking;
• overgrown and uneven gully to access this area;
• increased manual handling risk.

The overall risk was identified as high.

26. On 9 October the Head of Service wrote to Mrs X to give her notice that the contractors would no longer collect bags of waste from the first floor balcony. He explained the health and safety risks which had been identified. He said the contractors would collect waste and recycling from the wheeled bins at the rear of her property instead. The manager recognised Mrs X could not put waste in the bins herself because she is disabled. He suggested she should ask friends, family members or carers to help her, or contact the County Council’s Adult Social Care team if necessary. He said the new collection arrangements would start on 21 October. He invited Mrs X to telephone the Council if she wanted a further explanation of the reasons for the decision.
27. The Head of Service spoke to Mrs X on 11 October. He explained the health and safety risks to the crew. He said her waste would only be collected from the bins on the ground floor. According to the Council’s notes, Mrs X would not listen and kept talking over him.
28. Mrs X complained to the Council. The Council’s records show Mrs X also made several telephone calls to express her dissatisfaction with the withdrawal of the previous service. The Council said it considered the complaint but had identified health and safety risks with collecting waste from the balcony so it could not provide the outcome Mrs X wanted.
29. In early February 2020 someone from Mrs X’s care agency spoke to an officer in the Council’s Cleansing service about the accumulated refuse on the balcony. He requested bins and an assisted collection. He said carers would put Mrs X’s refuse in bins at the foot of the stairs but he was not willing for carers to remove the pile of waste from the balcony. The Council officer told him the refuse collection contractors could not go up the staircase to remove that waste. The care agency employee agreed to speak to Mrs X about getting the waste moved down to ground level. The Council told him it would deliver bins and provide an assisted collection service from the side of the property.
30. The care agency employee contacted the Council again later on the same day. He said he had taken 40 to 50 bags of waste downstairs ready for collection. He asked the Council to leave the bins in the passage at the roadside of the gate and he would arrange for Mrs X’s carers to put the bags in the bins. He also said his company would no longer be providing a service to Mrs X.

Mrs X’s views

31. Mrs X considers the spiral staircase is safe and secure. She sees no reason why the previous collection arrangements should not continue. She sent us a letter an Environmental Health Officer (EHO) from the Council’s Private Housing Service had sent to her in March 2016. The EHO had inspected the access and spiral staircase to assess potential hazards using the Housing Health and Safety Rating System (HHSRS) under the Housing Act 2004. In the letter, the EHO made the following observations:
• the path was even with no trip hazards;
• the spiral staircase is steep and winding but it was secure and well-lit. She noted there was an alternative internal staircase to access the flat.
32. Mrs X told me she is confined to bed. Even before she was bedbound, her mobility was so limited that so she could not take refuse down to the wheeled bins outside the property. She asked the Council to remove the wheeled bins because she is not using them. She says her neighbours cannot help and her paid carers are too busy with other duties to put refuse in the bins..
33. Mrs X says she paid for a commercial company to remove about 40 bags of refuse which had accumulated on her balcony. She says the bagged refuse is now building up again. Her carers now drop the bags over the balcony where they remain in the open air in the yard below. Mrs X says this is an eyesore and a risk to public health as it is attracting rats.

Analysis

34. Due to her disability, Mrs X cannot take her household waste and recycling outside to put it in the wheeled bins the Council provided. The Council accepts she meets the criteria for an assisted collection.
35. However an assisted collection means the resident does not have to move the bins to the roadside for collection. The refuse collection contractors move the bins on the collection day to empty them and then return them to a designated storage point. The law allows councils to specify that waste must be placed in wheeled bins for collection rather than bags.
36. For many years, the refuse collection crew went up the spiral staircase to the first floor balcony to remove bags of waste left there for collection. Mrs X was satisfied with this arrangement. She does not consider there were any health and safety risks to crew. She says the March 2016 letter from the Council’s Environmental Health Officer supports this view. She is very upset and angry that this service ended.
37. In September 2019 the Council’s contractors expressed concerns about slip hazards for the crew on the open treads of the staircase and the decking. They also raised concerns about the overgrown vegetation. The Council asked the contractors to visit the site and complete a risk assessment. Having visited the site himself and considered the risk assessment, the Head of Cleansing decided it was not safe for the collection crew to continue removing waste from the balcony. He wrote to give Mrs X notice of the change to the waste collection arrangements and the reasons for his decision.
38. Mrs X strongly disagrees with this decision. However the Ombudsman cannot criticise the merits of a decision if we find no fault in the way it was made. The decision to end the balcony collection was made following a site visit and proper consideration of the contractor’s risk assessment. I do not consider the March 2016 letter from the Environmental Health Officer means the decision made in September 2019 is wrong. The EHO was assessing the potential risks to a residential occupier of the building. Her assessment of the spiral staircase took into account that it was not the only means of access to Mrs X’s flat. The EHO inspected the staircase for an entirely different purpose and she was not assessing the specific risks for the refuse collectors.
39. The Council gave Mrs X appropriate written notice before it introduced the new collection arrangements. It also advised her to contact the Adult Social Care team at the County Council if she needed help because she had no friends, family members or carers who could take refuse out to the bins.
40. The Council owes Mrs X a duty under the Equality Act 2010 to make reasonable adjustments to its service to meet her needs as a disabled person. But that does not mean it must collect waste from the balcony. It must also consider its legal duty to protect the health and safety of its employees and contractors. In this case, the Council gave proper consideration to both duties and there was no fault in the way it made the decision to change the collection arrangements.

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Final decision

41. I have completed the investigation and found no fault in the way the Council made the decision to stop collecting waste from Mrs X’s balcony and to make alternative arrangements.

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Investigator's decision on behalf of the Ombudsman