Summary: the Council failed to carry out cleansing of the lane next to Mr B, confiscated his bin without notice, delayed returning the bin and delayed responding to his complaint. This caused Mr B distress, led to him having to dispose of his own refuse and led to him going to time and trouble to pursue his complaint. An apology and payment to Mr B, along with a monitoring schedule to ensure the lane is cleansed fortnightly, is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to clean the back lane next to him for more than four years;
• confiscated his bin without notice and refused to return it until he paid for a new bin; and
• delayed responding to his complaint.
2. Mr B says the Council’s failures have meant he has had to dispose of his own refuse.

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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. 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 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.
6. Mr B 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

Legal and administrative background

7. Under section 41 of the Highways Act 1980 the Council has a duty to maintain the highway.
8. Under section 89 of the Environmental Protection Act 1990 the Council has a duty to keep land and highways clear of litter and refuse, as far as is practicable.

Background

9. Mr B lives in a property which has a lane to the rear where his and other residents/businesses wheelie bins are kept. Mr B has reported concerns about cleansing of the back lane as far back as 2011. However, my investigation will concentrate on what has happened since 2018.
10. Mr B reported rubbish in the back lane and that his recycling collection had been missed for a third consecutive time in September 2018. A Council operative visited to clear the lane but could not access it due to cars blocking the access.
11. Another resident reported refuse dumped around the bins in November 2018. An officer visited and identified overflowing rubbish and weeds. The street cleansing manager visited and noted once bins and rubbish bags had been removed the Council could clear the lane.
12. As part of clearance of the lane the Council removed various wheelie bins in December 2018. That included Mr B’s bin. Mr B’s wife complained about that. The Council acknowledged receipt of the complaint and said it would respond by 16 January 2019. The documentary records show the Council intended to replace the bin but there is no record of it doing so. Nor is there any evidence the Council responded to the complaint.
13. In June 2019 and January 2020 the fire and rescue service reported litter and rubbish lying around in the lane. The Council’s records show it removed rubbish in January 2020.
14. Following a complaint to the Ombudsman the Council wrote to Mr B in July 2020 to apologise for the failure to cleanse the lane and for removing his bin. The Council said it had scheduled clearance of the lane to ensure it was kept to an acceptable standard and said it would provide Mr B with a new bin.
15. Further cleansing of the lane took place in January 2021.
16. The Council has begun monitoring of cleansing of the lane over a six-month period and intends to ensure a regular hand sweep of the lane.

Analysis

17. The Council accepts it failed to cleanse the lane by Mr B over an extended period. The Council says this is due to the narrowness of the lane and obstructions which means it cannot cleanse the lane mechanically.
18. It is clear from the Council’s documentary evidence it originally intended to cleanse the lane on a fortnightly basis. Clearly that has not happened and this is fault. As far as I can see the Council has only carried out cleansing to the lane on less than a handful of occasions over the last two years and has only done that in response to complaints from local residents and businesses. I welcome the Council’s intention to monitor cleansing of the lane for a six-month period and ensure it is manually cleansed. However, I consider Mr B has suffered an injustice here as he has had to live next to land which has not been properly maintained by the Council and has had to go to time and trouble to pursue his complaints.
19. Mr B says the Council confiscated his bin in December 2018 without notice and initially refused to replace it without payment for a new bin. The Council accepts it removed bins, which included Mr B’s bin, following complaints in December 2018. It is clear from the Council’s documentary evidence before removing bins the Council should have written to those residents affected. That is also what the Ombudsman would expect. However, there is no evidence the Council did that. That is fault. I am also concerned the Council did not replace Mr B’s bin until after he complained to the Ombudsman in 2020. That is despite the fact Mr B’s wife put in a complaint in December 2018. There is no evidence the Council responded to that complaint. That again is fault. That means Mr B has been without his bin for more than 18 months longer than he should have. That is a serious injustice because Mr B has had to dispose of his own refuse during that period.
20. I consider a reasonable outcome for the complaint would be for the Council to apologise to Mr B and pay him £500 to reflect the loss of service over an 18 month period, the time and trouble he has had to go to and the impact living next to an un-cleansed lane has had on him. I further recommended the Council continue with its monitoring of the cleansing of the lane over a six-month period to ensure fortnightly hand cleansing takes place. The Council has agreed to my recommendations.

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Agreed action

21. Within one month of my decision the Council should apologise to Mr B and pay him £500.
22. The Council should continue its six monthly programme of monitoring of cleansing of the lane to ensure fortnightly cleansing takes place.

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Final decision

23. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman