Summary: The Ombudsman finds fault with the Council for failing to properly manage Mr X’s complaint about incorrect storage of commercial waste bins. It also delayed investigating Mr X’s reports of statutory nuisance caused by the bins. The Council will apologise to Mr X, review its complaints policy, ensure monitoring and make him a payment for the inconvenience.

The complaint

1. The complainant, who I refer to as Mr X, complains the Council failed to investigate his reports of missed commercial waste collections and of incorrect storage of commercial bins and did not respond to his formal complaint.
2. Mr X says the Council also failed to investigate his reports of nuisance which included fly-tipping, bins causing obstruction and vermin problems.
3. Mr X says he could not enjoy his garden because of the smell from the waste and experienced inconvenience and frustration trying to resolve the issue.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended
6. The Council contracted with Veolia to provide commercial waste collection on its behalf. We can therefore investigate Veolia.
7. 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

8. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint.
9. I considered relevant legislation, guidance and the information available on the Council’s website.
10. Mr X and the Council now had an opportunity to comment on my draft decision. I carefully considered all the comments I received.

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What I found

Legislation, guidance, and policies

Waste disposal legislation and guidance

11. Section 45 of the Environmental Protection Act 1990 (‘the Act’) outlines local authorities’ duties to collect domestic and commercial waste.
12. Section 47 of the Act outlines duties to provide receptacles (bins) for commercial and industrial waste. The authority must also make provision for the placing of the bins to facilitate emptying.
13. Section 47 (5) of the Act states bins cannot be placed on a highway or a road unless the highway authority has given consent and there are arrangements about liability for any damage.
14. Section 89(1) of the Act places a duty on councils to keep relevant land and roads clear of refuse and litter and (2) to keep public highways clean.
15. Section 79 (1) of the Act defines a statutory nuisance to include “any accumulation or deposit which is prejudicial to health or a nuisance.” It goes on to say “it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with’ and where a complaint of a statutory nuisance is made to it ‘by a person living within its area, to take such steps as are reasonably practicable to investigate the complaint”.
16. The Council’s website states it aims to resolve reports of fly-tipping within two working days, that it will take legal action against fly-tippers and its enforcement patrols will target litter hotspots if there is a pattern of fly-tipping

Council policy on waste management

17. The Council’s website tells residents how to report waste problems under the ‘Bins and Recycling’ and ‘Environment’ tabs. Residents who wish to make a report about commercial waste need to email the Commercial Waste and Recycling Team.
18. Fly-tipping reports can be online or by phone. Residents can also download a mobile phone application ‘Don’t mess with Croydon’ to report fly-tipping directly.
19. The Council’s Commercial Waste Collection policy states:
• Veolia will ensure all of its operatives “receive full training.... [to include] the appropriate collection and return of receptacles, undertaking collections in a considerate and sensitive manner.. and checking for contamination”.
• “Crews will be vigilant in monitoring trade waste abuse” and “where waste is not presented in a branded container the crews will report it to the Street Cleaning Mobile Response Team for collection as a fly tip material”. It also says the Mobile Response Team will “gather evidence at the scene to assist the Borough’s Enforcement Teams”.
20. The Council told me it did not have a statutory nuisance policy.

Complaints’ procedure

21. I have summarised relevant sections of the Council’s corporate complaints policy below:
• Section 2.4 defines a complaint as “an expression of dissatisfaction, however expressed, whether justified or not” and may include a failure to provide a service or poor communication
• Section 1.1 says the policy covers contractors who provide services on behalf of the Council
• Section 2.2 says the Council listens and treats people as valued customers and it aims to ensure a proper and adequate investigation of a complaint
• Section 2.8 says a customer can complain by email, letter or phone
• Section 3 sets out a two stage complaints procedure with a target response time of 20 working days from the receipt of the complaint for both stages. The person who first receives the complaint needs to log it on the Council’s system. Where it is not possible to give full response within the timescale, the customer will receive a new timescale for a full response.

What happened

22. Mr X lives on the corner of a side road which runs off a high street parade of shops. Before Mr X’s property, there is an access path which leads to the back of those shops. Mr X says the Council previously collected and returned commercial waste bins from the back of each shop.
23. On 4 February 2020, Mr X e-mailed Veolia and copied the Council’s complaints department. He said commercial waste bins were being left for many days on the road next to his home before and after collection. He identified the shops the bins belonged to and provided their addresses. He also explained the bins obstructed the road, were a health hazard due to rotting food waste and were attracting fly-tipping. Mr X requested confirmation the shop owners and waste collection crew would be advised to store the bins correctly.
24. The Council logged Mr X’s e-mail as a service report rather than a formal complaint and left it to Veolia to manage the situation.
25. Mr X emailed Veolia again on 4 and 24 March with photos showing the situation was getting worse. Veolia acknowledged Mr X’s email on 20 March 2020 and advised it would raise a query with its commercial team and update Mr X.
26. Mr X followed up with a further email on 2 April, saying the bins contained decaying food, had obstructed the road for two days and the shops had told him Veolia had instructed them to leave the bins in the road.
27. The Council’s complaints team made enquiries with Veolia on 3 April to confirm an officer had been assigned to investigate and updated Mr X.
28. Veolia reported back to the Council on the same day saying there were no access issues and their bin crews “had been reminded to return the bins to the hard standings at the rear of the properties from where they are collected”. It appears Mr X did not receive an update to reflect this from either Veolia or the Council.
29. Mr X continued to send further emails on 13,18,19 and 28 April. He again attached photos of the bins left in the road and of black bin bags which were open with rubbish spilling out.
30. In his 28 April email, Mr X said he had noticed the bins had been collected from the correct place but had then been left in the road again. He requested a clear up of the rubbish left on the road and an update of the Council’s investigation. Mr X did not receive any response from either Veolia or the Council.
31. Mr X sent a further email on 19 May, attaching more photos of the bins left on the road along the wall edges which he said had resulted in more fly tipping. The Council sent him a response on the same day saying it would investigate and get back to him.
32. Mr X waited till 29 June and emailed again seeking an update from the Council. The following day, he sent the Council a further email with photos of the bins placed against the back of his garden wall, saying it this was causing damage and an unpleasant smell. Mr X threatened to take legal action if things did not improve.
33. On 22 September, Mr X emailed the Council and Veolia again, reminding them he had repeatedly complained about breaches of environmental and highway laws, and nothing had improved. He said he felt ignored and was keeping a daily log of the bins on the highway and the fly tipping.
34. Mr X sent a final email to the Council and Veolia on 29 October before complaining to us. He stated he had previously complained, and this was a further formal complaint which the Council should act on. He provided further photos. Mr X did not receive a response from the Council or Veolia.
35. Mr X provided copies of further emails to the Council on 3 and 27 November and on 23 December reporting fly-tipping and bin storage issues. He confirmed in those emails that he was complaining. Further emails followed on 26 January, 9 February, 8 and 15 and 16 March 2021 reporting the same issues.
36. On 17 March 2021 the Council’s public safety team responded that the matter had been logged for investigation by the Neighbourhood Safety Team and copied in the complaints department.
37. Mr X provided a copy of an email to the Council on 18 August which included more photographs of incorrect bin storage and fly-tipping. He stated there were rats in the area due to the rubbish.
38. Mr X sent us further photos of the bins being stored incorrectly and of fly-tipping in January 2022. This suggests the problem is continuing.
39. The Council provided a screenshot of Mr X’s Council waste account as evidence that no missed collections were reported by him. It is unclear if this report relates to residential collections or includes commercial waste collections. Mr X says he reported the missed commercial waste collections by email and provided copies of these.

Was there fault causing injustice?

Complaint handling

40. The Council treated Mr X’s first report as a service issue for Veolia to deal with. This approach was acceptable as a first response as the Council facilitated contact and reminded Veolia’s waste collection crew to store bins correctly. Mr X did not receive a response to his report. This was poor customer service and was fault. Mr X’s multiple emails between May and October 2020 showed none of the issues he was raising had been resolved.
41. Mr X’s further emails met the definition of a complaint as set out in the Council’s policy. He was clearly expressing his unhappiness with the poor performance of a council service.
42. The Council has not given an appropriate reason for failing to respond to Mr X’s complaint under its complaints’ procedure. Mr X was instead sent sporadic assurances the matter was being investigated. This was followed by long periods of inactivity, which meant he had to send chaser emails, totaling 15 by 29 October and nine more after he had complained to us.
43. I find fault with the Council for not managing Mr X’s complaint in line with its complaints policy. The Council also failed to oversee the complaint in the way it should have done. It did not address Mr X’s concerns promptly, or at all and failed to give him regular updates. This caused Mr X avoidable inconvenience and frustration.

Failure to investigate incorrect storage of commercial waste bins

44. The commercial waste bins were meant to be collected and returned from hard standings at the back of the shops. Mr X provided the Council with photos of the bins being stored on the road on 17 occasions and of fly-tipping. On the available evidence, the Council’s highway authority had not authorised the bins to be left on the highway. This indicates Veolia should not have left them there and suggests a potential breach of s47(5) of the Act.
45. My view is the Council did not take a pro-active approach with Veolia to understand why the bins continued to be left on the highway and were not returned to the hard standing area. It was clear from Mr X’s continued emails that Veolia’s single reminder to its waste collection crew in March 2020, did not result in any permanent improvement. I consider the Council failed to take acceptable action to ensure Veolia’s operatives had received full training in collecting and returning bins to the correct place. There was therefore a failure to act in line with the Commercial Waste Collection Policy as I have described in paragraph 19.
46. After a long delay, the Council escalated Mr X’s reports to the Public Safety Team for investigation in March 2021. Site visits took place on 13 March, 15 and 21 April and 9 September 2021. But the bins were found to be correctly stored, and there was no evidence of fly tipping. The report was therefore closed on each occasion. This was an appropriate action, although it should have happened sooner.
47. The site inspections happened 12 months after Mr X’s first complaint and are, a late and inadequate response to a long-standing and continuing problem. I find the Council at fault for delays in investigating and taking appropriate action. The Council could have appointed a specific point of contact for Mr X, called him to get further information or arranged a meeting to discuss his concerns in person and to explain how they would be tackled.
48. The fault caused Mr X to experience inconvenience and frustration over a long period. He spent time taking photos and sending emails. The photos showed the bins were left on occasion against the back of his garden wall. He said this was causing damage and meant he couldn’t enjoy the garden due to the foul smell.

Failure to investigate fly-tipping

49. Mr X sent multiple reports of fly-tipping incidents by email. This is not one of the Council’s published methods of reporting, but it was made aware of the problem. The Council should have liaised with Mr X and provided him with guidance about what he should do to report fly tipping formally, gather evidence and help with any further proposed Council action. This did not happen and so was fault.
50. Mr X’s view is fly tipping was encouraged by incorrect bin storage. I cannot say if this was the cause, but the Council should have responded to Mr X’s emails.
51. It was open to the Council to treat Mr X’s reports of fly-tipping as evidence of a regular pattern and to target the area with enforcement patrols, or to deal with his reports as requests for clear ups. The number and frequency of Mr X’s reports suggests a more direct approach from the enforcement patrols would have been an appropriate response. This is because there was a clear pattern to the fly tipping and the area could have been assessed as a hotspot which needed further investigation. The failure to investigate or at least explain to Mr X why it wasn’t being done is fault which caused Mr X avoidable frustration and time and trouble chasing up the matter.

Failure to investigate a potential statutory nuisance

52. Mr X reported the bins as a source of nuisance as they obstructed the road and contained rotting waste. He said he had also seen rats in the area due to the fly-tipping. Mr X felt these matters constituted a health hazard which constituted a statutory nuisance and bought it to the Council’s attention.
53. Section 79 (1) of the Act places a duty to take reasonable steps to investigate. The Council assured Mr X it was investigating on various occasions, but there was a significant delay till it escalated the matter to the Public Safety team who undertook three site visit inspections in March, April and September 2021. On the inspection days, the Council recorded no problems with overflowing bins obstructing the highway and noted the bins were stored correctly according to shop owners.
54. It is not our role to decide a statutory nuisance, this is for the Council. However, the Council should have taken reasonable steps to investigate including within a reasonable timeframe of receiving reports. It failed to do so in this case which is fault. The Council could have also kept Mr X better updated. This may have reduced his distress from what seemed like a perceived lack of action and feeling like he was being ignored.

Failure to investigate reports of missed collections

55. It is unclear from the Council’s screenshot of Mr X’s Council waste account if the report relates to residential collections or includes commercial waste collections. Mr X said he reported the missed commercial waste collections by email. There is not enough evidence for me to conclude commercial waste collections were missed. So, I do not uphold this aspect of the complaint.

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Agreed Action

56. The Council will, within a month of this decision:
• Write to Mr X to apologise for failing to respond to his complaint according to its complaints policy.
• Review its complaints policy to specify circumstances where service issues should be managed as formal complaints. Any changes should state how officers will distinguish between service issues and formal complaints to prevent future delays.
• Monitor the commercial waste collections for six weeks and ensure the bins are stored correctly by the respective shops and waste collection crew.
• Complete a twice weekly check of the road for six weeks to see whether it is affected by fly tipping which merits further investigation.
• Pay Mr X £200 to recognise his frustration, distress and time and trouble.

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Final Decision

57. I find fault with the Council for:
• failing to process Mr X’s complaints according to its own policy.
• failing to keep him informed of the progress of his complaint and any substantive action taken in response to the issued he raised.
• delays in investigating his reports of incorrect bin storage and its physical impact on his property and his right to enjoyment of it.
• delays in taking action to investigate Mr X’s reports the bins were also causing obstruction, attracting fly tipping and were a health hazard which caused a nuisance.
58. These faults caused Mr X avoidable frustration and inconvenience. The Council will take the action I have recommended in the previous section to remedy the injustice.
59. There is no fault in relation to the missed commercial waste collections.
60. As the Council has agreed to implement my recommendations, I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman