Summary: Ms B complains the Council failed to regularly empty market trade bins and prevent human fouling and litter near her home. We find no fault as the Council responded promptly to Ms B’s reports and concerns. We cannot question the merits of the approach the Council took to bin collections and street cleaning during the lockdown due to the COVID-19 pandemic. This is because the action was in line with government guidance at the time.

The complaint

1. The complainant, who I have called Ms B, complains the Council has failed to ensure the bins near her home were emptied regularly or to prevent antisocial behaviour through fly-tipping, littering and public urination and defecation in the streets outside her home. Ms B says the Council repeatedly ignored her reports about these issues. Ms B says the smell and pests (flies and rats) caused by the waste prevented her from opening her windows during hot weather and significantly impacted on her enjoyment of her home. She had to move out of her property as the situation became unbearable. Ms B feels the Council treated her and her concerns with contempt and this, together with the impact of the situation, has caused her significant distress and frustration.

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The Ombudsman’s role and powers

2. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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 Ms B and considered the information she provided in support of her complaint.
6. I have considered the information the Council provided in response to my enquiries.
7. Ms 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

Relevant guidance

8. The Government published non-statutory guidance to councils on 7 April 2020 (updated 3 June 2020) on the prioritisation of waste and recycling collections services during the COVID-19 pandemic.
9. Waste collection services are prioritised by three categories within the guidance:

• High priority – These services are the most important and should continue as normal. These services are a legal requirement and/or otherwise there are likely to be severe impacts on environmental and human health if they are suspended completely. Council residents are most likely to rely on these high priority services.
• Medium priority – If these services are stopped there will be some disruption, but the impacts will not be as severe as the high priority services being suspended. There will be less risk to human health than if high priority services are suspended. These services are important although local authority residents are less reliant on these services than high priority services.
• Low priority – There will be minimal or no impact or disruption if these services are suspended. There will also be minimal or no risk to human health if these services or stopped.

10. Trade waste collections are categorised as medium priority and guidance recommends councils review their collection schedules and consider reducing the frequency of these for low volume, low risk customers where certain businesses and venues have had to close.
11. The Environmental Protection Act 1990 imposes duties on councils to keep public highways clean, as far as practical. The Code of Practice for Litter and Refuse 2006 (the Code) issued by the Department for Environment, Food and Rural Affairs (DEFRA), provides a practical guide to enable a council to carry out these duties.
12. Under the Code, councils are expected to set cleansing schedules to keep land clear of litter and refuse. The Council’s policy for the area relevant to Ms B’s complaint states cleansing involving litter picking and mechanical sweeping should occur regularly after 18:30 Monday to Saturday.
13. The caveat under the litter duty concerning practicability is very important. On some occasions, circumstances may render it impractical for councils to discharge their duties under the Code. Examples where it may be considered impractical include:

• severe weather conditions;
• special events that present practical difficulty in keeping to usual cleansing response timescales;
• health and safety considerations;
• to avoid damage to sensitive areas (for example natural habitats or preserving forensic evidence at crime scenes);
• where advance notice is needed for traffic management.

What happened

14. This chronology covers details of key events but does not include everything that happened.
15. Ms B first started to raise concerns about the cleanness of the area around her home with the Council at the end of 2019. In March 2020, she reported concerns about the state of the street on her front doorstep. She said the area was filthy and the smell of fouling and waste from the nearby market bins was unbearable.
16. The Council closed the public toilets serving the market near Ms B’s home at the start of the first lockdown because of the COVID-19 pandemic on 24 March 2020. In early April 2020, Ms B reported human fouling and street waste directly outside her home. In early May 2020, Ms B emailed the Council to ask it to deep clean the street outside her home and to cover the market bin store to help minimise the strong smell of waste affecting the air quality for local residents and visitors to the market.
17. The Council responded to Ms B’s concerns on 12 May 2020. It explained a cover or roof to the market bin store was likely to hinder emptying of the bins. The Council told Ms B that it was unable to empty the market bins twice daily as usual because of the lockdown. The Council explained it had inspected the area on 5 May 2020 and would be increasing the frequency of bin collections to three times a week.
18. Ms B complained the following day and reported that bins were overflowing in the market bin store. Ms B was also unhappy the Council had not responded to her concerns about fouling on her doorstep. The Council’s Street Cleaning Team undertook cleaning of the street outside Ms B’s home on 18 May 2020 and made a further visit on 28 May 2020 to pressure wash and disinfect the area.
19. In June 2020, Ms B continued to report her concerns about the fouling near her home and the state of the market bin store. She raised concerns with her local Councillor, who referred the matter to the relevant team.
20. The Council responded to Ms B’s concerns on 2 July 2020 under stage two of its complaint procedure. It apologised for the distress caused to her by the state of the market bins and the street outside her home. The Council explained it had increased bin collections on weekdays but could not confirm when Saturday collections would resume. The Council said it had also implemented weekly cleaning of the market bin store from 29 June 2020 and had arranged for increased cleaning of the bins themselves during the hotter summer months. The Council explained it would continue to monitor the situation and would consider installing a cover/roof to the bin store if the regular bin and store cleaning did not resolve the issues with the smell. The Council also confirmed the public toilets near the market (and Ms B’s home) had recently been reopened. The Council invited Ms B to continue to report any further issues to the Street Cleaning Team and that incidents of human fouling needed to be reported to the police.
21. Ms B remained dissatisfied with the Council’s response and brought her complaint to us in July 2020. She felt adding extra bins to the store would exacerbate instead of alleviating the problem.
22. In September 2020, Ms B reported that a Council employee had relieved themselves near her front doorstep. Ms B was unable to provide details of who precisely had fouled on the street outside her home as she had not seen the person doing it. The Council could not investigate this issue further as a result. It did however send the Street Cleaning Team to clean the area a few days later.

Analysis

23. It is clear the Council deviated from its usual procedure and routine for street cleaning and bin collections in the market and near Ms B’s home when the COVID-19 pandemic struck, and the national lockdown commenced. This was unavoidable in the circumstances. The Council continued a reduced frequency of bin collections of the market bin store for a total period of three months and 10 days (1 April to 11 July 2020). The Council appears to have followed government guidance given the medium priority given to trade waste collections. The Council also appeared to follow the Code of Practice for Litter and Refuse in its consideration of the health and safety of Street Cleaning and Bin Collection Crews. While the reduced frequency of bin collections and street cleaning no doubt caused Ms B frustration, I do not find the Council at fault for the approach it took as this was in line with government guidance at the time.
24. The public toilets near the market and Ms B’s home had to be closed for health and safety reasons during the first national lockdown. Again, I do not consider the Council’s action in this respect to be fault. It took account of the circumstances in that the market was closed during the national lockdown and the usual footfall of visitors to the area was significantly reduced.
25. The Council has sought to address Ms B’s concerns and reports of waste promptly. It has apologised to her for the distress caused by the incidents she reported. I have not seen anything within the Council’s correspondence with Ms B that suggests it was not taking her concerns seriously or treating her with contempt. While I understand Ms B wanted the Council to take the actions she had suggested, it was entitled to reach its own view on those and to choose to take an alternative approach. This action was not fault.
26. In summary, I consider the Council’s prompt responses to Ms B’s reports and apology for the distress caused were proportionate responses to the issues Ms B highlighted based on the challenging circumstances presented by lockdown due to the COVID-19 pandemic.

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Final decision

27. I have completed my investigation and found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman