Summary: Mr X complains the Council has failed to prevent residents leaving their rubbish bins on the footpath, affecting his use and enjoyment of the path. The Ombudsman finds fault by the Council because of its delay and failure to follow a proper decision making process. The Ombudsman recommends the Council provides an apology, pays Mr X an amount for time, trouble and distress, takes action to address Mr X’s complaint and action to prevent recurrence.

The complaint

1. Mr X complains the Council has failed to prevent residents leaving their bins on the footpath, despite agreeing to act in August 2019. He says this is unsightly, encourages fly tipping and causes an obstruction.

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The Ombudsman’s role and powers

2. 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)
3. 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 spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered any comments provided.

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What I found

Highways Act 1980

6. Under s130 of the Highways Act the highway authority has a duty to protect the rights of the public to the use and enjoyment of a highway.
7. The highway authority also has a duty to prevent, as far as possible, the stopping up or obstruction of the highway.
8. S137 says a person may be liable to a fine if they wilfully obstruct a highway.

Environmental Protection Act 1990

9. Under section 46 of the Environmental Protection Act a council can serve a notice on an occupier requiring them to place household waste for collection in a specified receptacle and where they should place that receptacle for collections. If an occupier fails to comply with the notice they can be prosecuted and fined.

Council policy

10. The Council has provided a copy of its Enforcement and Prosecution Policy 2017. This sets out general principles and refers to service specific policies that are available on the Council’s website. There are said to be service specific policies in relation to environmental health, highways and parking, however I cannot locate these on the Council’s website.

What happened

11. Mr X complained to the Ombudsman that the Council took from March 2018 to August 2019 to respond to his complaints about bins obstructing the footpath along his street.
12. In its complaint response of 13 August 2019 the Council apologised for its delay. It confirmed that from the start of September the Highways team would take action where bins were obstructing the highway under section 137 of the Highways Act 1980. It would issue warnings to the relevant households, monitor these properties and, if no remedial action is taken issue a formal section 137 notice. It also offered a site visit with a Streetscene officer to discuss concerns about the overall cleanliness of the street.
13. The Ombudsman decided not to investigate further, given the action agreed by the Council.
14. On 19 August 2019 Mr X asked the Council to arrange a site visit as offered.
15. On 26 September the Highways Case Management Team agreed to undertake a review of all enquiries that involved highways obstruction by refuse bins, to ensure action was taken as appropriate to the Stage 2 response.
16. The Council has provided a chronology which shows there were discussions within the Council about whether Highways had any powers of enforcement and whether the issue should be addressed by Highways or Street scene.
17. On 15 November a Highways officer visited the site and judged the bins were neatly stored at the back of the footway and would not be deemed as a highway obstruction.
18. On 25 November the Council asked Highways to revisit the site to ensure the bins were stored appropriately, but noted it could only speak to the resident(s) to address the behaviour if it continued, as it had no enforcement remit. I note the Council has not explained how it reached its decision that Highways could not take enforcement action.
19. On 26 November the Council posted notice cards at all addresses where bins were left out that day as a reminder not to obstruct the public highway. In internal emails the Council has referred to these as s137 enforcement notice cards. I note the Council has not explained why it could not take this action in September as agreed. This action appears to contradict the suggestion that there was no obstruction. And it is unclear why the Council issued s137 notices if it thought it had no enforcement remit.
20. On the same day the Council told Mr X that Streetscene would send information to residents alongside Christmas holiday collection dates.
21. From August to December Mr X chased the Council to arrange a site visit. He also asked for updates on what action it was taking.
22. In March 2020 Mr X told the Council he did not receive information from Streetscene and so questioned if this was sent.
23. The Council confirmed Streetscene sent information to residents in December 2019. It explained the site visit had not yet taken place with him because Highways and Streetscene were still deciding who should deal with the matter.
24. I note there was a national lockdown at the end of March due to the Covid pandemic. However, the Council has not explained how this affected its services, if at all.
25. On 20 July 2020 a Highways Officer visited the site to assess the bins. They found all bins were stored neatly at the back of the footway, leaving a clearance of approximately 1.6m.
26. In response to enquiries the Council said it had not issued s137 notices due to ongoing discussions about whether the enforcement of bins falls under s137 of the Highways Act or s46 of the Environmental Protection Act. Whilst these conversations were ongoing the three leading Officers left the organisation. The Council said officers will now resume discussions and aim to provide a resolution for enforcement powers by October 2020.

Findings

27. In August 2019 the Council agreed to issue warnings, monitor and take action under the Highways Act 1980, from the start of September. However, the Council delayed issuing warnings until November. The Council has provided no evidence it monitored the site between November 2019 and July 2020. And, the Council has not decided on who should take any enforcement action in over 12 months. The Council’s delay, lack of action and failure to follow a proper decision making process amounts to significant fault.
28. In August 2019 the Council offered Mr X a site visit with its Streetscene officers to discuss his concerns about the cleanliness of the street. However, the Council has not undertaken this site visit in over 12 months. That the Council has not decided who should take enforcement action is not a relevant reason for failing to meet Mr X to discuss his concerns. I find the Council’s significant delay is fault.
29. Mr X has been put to time and trouble contacting the Council to no avail. He has also suffered distress due to the Council’s failure to act as agreed. I will make recommendations to address the personal injustice he has suffered. The Council does not appear to have any effective policy in place for dealing with complaints about highway obstructions and/or street cleanliness. I will make recommendations in this respect to prevent recurrence.

Agreed action

30. To remedy the injustice set out above I recommend the Council carry out the following actions:
31. Within one month:
• Provide Mr X with a written apology for its delay;
• Pay Mr X £100 for time and trouble;
• Pay Mr X £100 for distress;
• Arrange for a Streetscene officer to visit the site with Mr X to discuss his concerns;
• Write to Mr X setting out:
1. What action, if any, it will take to address the problems complained of,
2. Reasons for its decision, and
3. When it will take any action.
32. Within three months:
• Ensure it has a written policy in place which sets out which team is responsible for dealing with complaints of this nature and their enforcement strategy.
• Ensure the policy is published on its website.
33. The Council has accepted my recommendations.

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Final decision

34. I find the Council at fault because of its delay and failure to follow a proper decision making process. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman