Summary: Mr X says the Council is at fault in its decision to charge him for a replacement wheelie bin because its contractors damaged the bin. He also says the Council’s investigation of this matter was flawed. The Council has agreed to replace Mr X’s wheelie bin free of charge and send him a written apology. He also recommended the Council amend its Recycling and Waste Discretionary Fees and Charges policy. The Council agreed.

The complaint

1. The complainant, who I shall call Mr X, says the Council’s contractors damaged his landfill wheelie bin (the bin) through an act of gross negligent mishandling. For this reason, he says the Council is wrong to charge him for a replacement. Mr X also says the Council failed to properly investigate both how his bin was damaged and his subsequent complaint.

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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 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. As part of my investigation I considered Mr X’s complaint and correspondence from him. I made enquiries of the Council and considered its response, the relevant council policy, legislation and the Council’s replies to Mr X’s complaint. I set out my initial thoughts on the complaint in a draft decision statement and invited Mr X to comment.

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What I found

Relevant Polices and legislation

Folkestone and Hythe District Council Guidelines/ Procedures for the application of Recycling and Waste Discretionary Fees and Charges

6. The policy says that charges for replacement wheeled bins should be charged to the resident including replacements for age, wear and tear. An exception to the policy would be for wheeled bins lost or damaged during collection operations. The charge is £49.99 for a replacement wheeled bin.
7. The policy does not provide any details on how the Council will assess if a bin was damaged as part of collection operations or due to age, wear and tear.
8. The Council does not charge to replace recycling bins that are damaged during collection.

The Environmental Protection Act 1990, Section 46

9. This explains how a resident can challenge a local authority decision to charge for a replacement bin. It provides a right to appeal the charge in a magistrates’ court if the council has served the appropriate formal notices.

Background

10. One of the axle brackets on the Mr X’s bin was damaged during a collection. He told the Council about the damage.
11. The Council’s contractor inspected the bin and left Mr X a message explaining the bin had been damaged because it was old and brittle. For this reason, he would need to pay for a replacement bin.
12. Mr X complained to the Council. He said only one of the axle brackets had been damaged which demonstrated uneven force had been used. He also said his other bins of the same age had not been damaged.
13. The Council’s Waste Services Manager replied that one of the wheels and both axles were damaged by its contractor when it was collected. She attributed this to the age of the bin and so Mr X would need to pay for a replacement.
14. Mr X argued the Council’s description did not correctly describe the damage and so it was unlikely the contractor had inspected the bin. He requested the Council escalate his complaint.
15. The Council asked another senior officer from a different department to respond to Mr X’s complaint. The officer upheld the Council’s earlier decision.
16. Mr X says the investigation was flawed as it continued to rely on the inspection by the Council’s contractor. He then complained to us.
17. In its response to my enquiries, the Council said:

• It assesses if damage to was caused by wear and tear by the look of the bin, how old it appears, any evidence of general wear and tear, if it has faded in the sun and become brittle, if it has the new Council logo and the type of damage.
• It will ensure the bin has been subject to the above assessment before it decides to charge for a replacement.
• It did not issue Mr X with a Section 46 Notice as this was not necessary as it had not refused to collect Mr X’s waste. It says it provides sacks for collection of waste while it decides if a charge should be made for a replacement bin.

18. As part of its response to my enquiries the Council also said it would use its discretion and provide Mr X with a replacement bin without charge.

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Analysis

19. I consider the free replacement provides a remedy for the substantive injustice claimed by Mr X. I therefore do not intend to investigate his concerns further.
20. I am however concerned the Council’s policy does not provide any guidance or criteria on how it will determine the cause of any damage. To ensure consistency in decision making, the policy should have included this information.
21. In this case the Council did not refuse to collect Mr X’s waste and it has now provided a new bin. Therefore, there was no need it for it to issue a Section 46 notice.
22. However, if a resident refused to pay for a replacement bin, a Section 46 notice would provide a means of challenging the Council’s decision to charge. The Council’s policy does not refer to this.

Agreed action

23. The Council has provided Mr X with a replacement bin free of charge. It should also write a letter of apology to Mr X for the time and trouble he has been put to in pursuing this matter.
24. The Council should update its Domestic Bins and Container Charges policy is updated so that it includes details of the notices that are required by the legislation and ensure these are issued where appropriate. It has agreed to do so.
25. The Council has also said that it will now replace all wheeled bins that are lost or damaged on collection day free of charge. It has updated its policy to reflect this.
26. The Council should provide evidence of the above policy changes within 12 weeks of my decision.

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Final decision

27. I have ended my investigation of this complaint as the Council has acted on my recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman