Summary: there was fault in the way the Council decided to stop providing a doorstep waste and recycling collection service for Mr X and other residents in his road. This caused injustice and the Council has agreed to provide a suitable remedy.

The complaint

1. Mr X is the lead complainant. He also represents eight other households in the road.
2. Mr X complains that the Council withdrew the doorstep refuse and recycling collection service to properties in his road without consulting residents, adequately explaining its health and safety concerns and providing sound reasons for the decision. He says the Council has not explained why it cannot continue the service using a small caged collection vehicle as it has done for many years without incident.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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

6. I have spoken to Mr X and considered all the information he sent me. I considered the Council’s comments and relevant records and correspondence.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The relevant law

8. Section 45 of the Environmental Protection Act 1990 (‘the Act’) says councils must collect residents’ household waste unless a property is so isolated or inaccessible that collection costs would be unreasonably high. In such cases, councils must be satisfied that the person controlling the waste can reasonably make adequate arrangements to dispose of it.
9. Section 46 of the Act says councils may serve a notice on occupiers specifying:
• the type of bins or containers that must be used to store waste;
• where the bins or containers must be placed for collection, including on a public highway;
• the steps residents must take to facilitate the collection of waste;
• the times when the bins or containers must be placed for collection and removed.
10. Section 46 says a council cannot require bins or containers to be placed on a public highway unless:
1. the relevant highway authority has given its consent; and
2. arrangements have been made as to liability for any damage arising out of the receptacles being placed on the highway.

The key facts

11. Mr X, and the eight households he represents, live on an adopted road in a rural location. It is a single track no through road with passing places for vehicles. The road is quite steep in places and has sharp bends. It adjoins a busy main road.
12. For many years, the Council collected household waste and recycling from the properties in the road using a small caged vehicle from its street cleansing fleet. Mr X says this service operated for decades and he is not aware of any accidents, injuries or damage to vehicles in the road.
13. On 12 September 2019 a manager in the Council’s Waste & Recycling service wrote to Mr X and other residents to give them notice of a change to the waste and recycling collection arrangements from 30 September. It said the doorstep collection service would end and residents would have to take bagged waste and recycling to a designated collection point on the main road. The letter was addressed to each resident but the content was based on a standard template as the Council had written in similar terms to residents in other locations.
14. The letter explained that the change followed site visits by a supervisor and the Council’s Health & Safety Officer to properties in rural locations to assess if they were suitable for a continued doorstep collection or should move to a “lane end collection” at the junction with the adopted highway.
15. The Council said it had considered the following criteria when deciding whether to continue with a doorstep collection:
• Residents living on unadopted roads must present their waste for collection at the nearest public highway (unless the Council has agreed a suitable collection point on the residents’ road);
• Damage to collection vehicles is a major factor when considering whether to provide a service on a private or unadopted road;
• A collection point must have:
1. A minimum turning circle of 23 metres at the end of a dead end road;
2. The turning circle must be kept clear of obstructions on the collection day;
3. The road must be at least 5 metres wide;
4. The bearing strength of the road must be suitable for a 26 tonne vehicle;
5. The condition of the road surface must be acceptable;
6. There should be no soft verges on narrow roads;
7. There should be no overhanging or projecting trees or bushes which may cause damage to the vehicle;
8. Road gradients should not be excessive.
16. On 25 September Mr X wrote to complain about the decision to withdraw the doorstep collection service. He made the following key points:
• The Council had not consulted affected residents before making this decision;
• The road is an adopted road and therefore part of the public highway;
• He was not aware of any accidents, injuries or damage to collection vehicles in this road – the letter referred to large refuse collection vehicles but the Council had been using a smaller vehicle for decades to collect waste without any incidents;
• He raised concerns about the safety and suitability of the collection point on the main road;
• He asked whether Lancashire County Council, as the highways authority, had been made aware of the decision and asked who would be liable in the event of an accident at the collection point;
• the Council would need to arrange an assisted collection for one resident in the road so the same vehicle could collect waste from the other properties.
17. On 26 September the Council sent a further letter to Mr X and the other residents about the changes. This dealt principally with arrangements to deliver free refuse and recycling storage bags, assisted collections and arrangements to place bins at the collection point. It referred to the road again as an unadopted road
18. The service manager replied to Mr X’s complaint on 27 September. He said the Council had given residents two weeks’ notice of the change to the collection arrangements and he considered this was reasonable. He did not address Mr X’s point about the lack of consultation with residents. He made the following comments:
• the reference in the letter to an unadopted road was an error but it did not affect the decision;
• the Council’s Health and Safety Officer had recently carried out the assessment and decided collecting waste and recycling directly from the properties in Mr X’s road was “unsatisfactory”. He had based the assessment on the current collection method and vehicle;
• the Council would not change the collection point due to the risks identified by the Health and Safety officer;
• the Council uses four types of waste & recycling collection vehicles (ranging from 12 to 26 tons), none of which can access Mr X’s road. The Council had therefore used a 3.5 ton street cleansing caged vehicle to collect waste. The recent health and safety assessment indicated that this collection method was no longer acceptable.
• the collection point on the main road was chosen because it was the most convenient location to Mr X’s road where the pavement was wide enough for the expected number of refuse and recycling bags. The Council was willing to review the location if residents wished to suggest an alternative;
• Lancashire County Council is aware that residents in the Rossendale area present their bins or bags of waste and recycling on the public highway;
• liability for an incident would depend on the specific circumstances so he could not comment;
• the assisted collection service is only for residents who are elderly or disabled and cannot be extended to other residents.
19. Mr X was not satisfied with this reply. He asked for his complaint to move to the second stage of the Council’s complaints procedure. He noted that the first response did not address his point about the lack of consultation with residents. He asked for a copy of the health and safety risk assessment and for data about recorded incidents of accidents, damage, injury or near misses in his road. He made the point that the Council’s letter to residents referred to the risks posed to full size refuse collection vehicles rather than the smaller caged vehicle used to collect waste from the properties in his road. He also asked the Council to reconsider its decision taking into account that it was an adopted road.
20. A senior manager replied to Mr X’s Stage Two complaint. He said:
• the decision to change the collection arrangements was taken to mitigate concerns raised in a health and safety evaluation. This limited the Council’s ability to carry out a consultation. Any delay in implementing changes to address an identified risk could make the Council liable for any accidents or incidents that occurred before the service change;
• there was no proposal to change policy across the whole borough, or for all “hard to reach” properties in the borough, so it was not a matter that had to be decided by Councillors. It was the responsibility of professionally trained officers to make operational decisions involving health and safety considerations;
• the health and safety report raised concerns about current and future risks – the specific concerns relate to the width of the road, a sharp right hand bend, the condition of the road and the lack of a safe turnaround location for the collection vehicle;
• in the past eight years there had been 91 incidents of damage and accidents relating to vehicles servicing hard to reach properties. However the records do not show whether any of these incidents had occurred in Mr X’s road.
• Lancashire County Council had been informed about the change to the service. This had not been in writing so there was no correspondence. The information the Council gave Lancashire County Council was not about the specific collection point for the properties in Mr X’s road. He would now ask officers to inform the County Council.
• liability for any incident would depend on the specific circumstances so he could not express a view on this matter. He said all residents must be mindful of their actions when they place waste and recycling out for collection.
21. In later correspondence with Mr X, the manager told him two officers had undertaken the health and safety assessment for his road in May 2019.
22. In response to my enquiries, the Council provided a copy of the health and safety assessment report for Mr X’s road. It is fairly brief. It describes the accessibility as “very narrow with a sharp right turn into the lane and a very difficult turnaround area”. The overall access rating was “very poor”. It said it was hard to identify a safe collection point because of the narrow lane. The report did not include any measurements of the road width or the dimensions of the turning space. It did not refer to the type of collection vehicle that would be used. The Council says the assessment was based on continued use of the small caged vehicle.

The impact on Mr X and other residents

23. One resident is entitled to an assisted collection so the Council still collects waste from that property. Mr X and all the other residents must take their waste and recycling every week to a collection point on the main road.
24. Mr X says it is inconvenient and unhygienic to transport bagged waste in his car. He says the collection point is about half a mile from his home on a busy main road. There is no lay-by or verge so he must park on the carriageway while he unloads and deposits the bagged waste. He is worried this may cause an accident. He does not believe the Council has properly considered the risks to residents. He says it has not established liability in the event of an accident which caused some injury or damage to a vehicle or other road users.
25. Mr X and the other residents want the Council to reinstate the previous doorstep waste and recycling collection service.

Analysis

26. The Council was at fault because it did not seek consent from Lancashire County Council, as the highway authority, before changing the arrangements and requiring residents to start placing waste and recycling on the pavement at the collection point on the main road. This is part of the public highway. So it had a duty under section 46 of the Environmental Protection Act 1990 to seek prior consent from the highway authority. The Council’s failure to do that was fault. Informing the County Council after the decision was made, and the collection point was established, did not comply with this duty. The Council also failed to establish arrangements for liability if the waste deposited at the collection point caused any damage.
27. The Council told Mr X it did not have time to consult residents on the change to the collection arrangements. It said it had to act promptly to mitigate identified health and safety risks. There is no statutory duty to consult residents on changes to collection arrangements under section 46 of the Environmental Protection Act 1990. But the Council’s response to Mr X’s complaint was disingenuous. Officers completed the health and safety assessment for his road in May 2019 but the changes to the service were not introduced until late September 2019. This suggests the situation was not urgent. In the intervening four months, the Council could have informed residents about the proposed changes.
28. The letters sent to residents in September 2019 were unclear and caused confusion. The wording indicates the changes applied to unadopted roads where larger vehicles were used to collect waste and recycling. But Mr X lives on an adopted road where a much smaller street cleansing vehicle was used to collect the refuse and recycling. The letters were based on a standard template and not tailored to reflect the specific circumstances in each location.
29. Finally, the record of the health and safety assessment carried out in May 2019 is not sufficiently detailed. In the letters to residents, the Council gave a set of very clearly defined criteria to determine whether a location is suitable for a doorstep collection. These include a minimum road width and dimensions of the turning circle. But the health and safety assessment report for Mr X’s road did not include any measurements. Furthermore it is not clear whether the measurements in the Council’s criteria applied only to the larger vehicles in the refuse collection fleet or also to the smaller caged street cleansing vehicle used in Mr X’s road.
30. I have considered Mr X’s point that the Council could not produce evidence of any reported accidents or near misses in his road using the smaller caged vehicle. But when it carries out a health and safety risk assessment, the Council must also consider the potential risk of future accidents and not just past incidents.
31. The Council was at fault. This caused injustice to Mr X, and the residents he represents, because they cannot be satisfied that the decision to end the doorstep collection was properly made.
32. The Ombudsman cannot direct the Council to reinstate the doorstep collection service. That is a decision the Council must make after evaluating all the relevant evidence. However the Ombudsman can ask the Council to reconsider the decision when there is fault in the way it was made.

Agreed action

33. After the Council received my draft decision, it arranged a site visit in late July. It used a drone and dashcam to record the small caged vehicle as it drove along the road. Officers were also on site to observe progress.
34. Within one month of this decision the Council will:
• apologise to Mr X, and the other residents he represents, for the faults identified in this statement;
• consider the evidence from the recent site visit and write to Mr X and the other affected residents to inform them of the outcome of its review;
35. Following the review, if it decides to continue with the current collection arrangements, it must inform Lancashire County Council and send a map showing the location of the collection point on the main road and seek its consent.
36. It will liaise with Lancashire County Council to determine liability for any accidents that occur if refuse and recycling bags are placed at the collection point.
37. It will send the Ombudsman:
• a copy of the letter to residents;
• the new health and safety risk assessment report;
• its correspondence with Lancashire County Council.

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Final decision

38. The Council was at fault and this caused injustice to Mr X and the other residents he represents. I have completed the investigation because the Council has agreed to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman