Summary: Mr X complains the Council failed to provide a waste collection service that removes all rubbish and ensures fly-tipping does not occur near his property. He also complains about the location of a household communal waste collection point. He says this has caused him distress and prevented him from enjoying his property. The Ombudsman has decided to uphold Mr X’s complaint that there was not sufficient sweeping around the communal bins. This caused Mr X frustration and distress. To remedy this, the Council has agreed to apologise to Mr X and carry out a period of monitoring of its sweeping service.

The complaint

1. The complainant, who I shall refer to here as Mr X, complains the Council:
1. failed to provide a service that consistently removes all waste from the communal bins. He says this leads to frequent overspill of the bins, which blocks the alleyway behind his property;
2. failed to resolve the fly-tipping issues he has reported;
3. failed to address his reports of local businesses using the communal bins to dispose of commercial waste. He says the Council has failed to tell him what action it has taken against such businesses;
4. failed to make sure communal bins are free from pests and flies;
5. failed to ensure areas around the bins are appropriately cleansed or tell him how frequently the Council’s contractors carry this out. He says this means the Council is in breach of the Environmental Protection Act 1990 because the Council has failed to prevent the escape of waste from its control or that of any other person;
6. failed to position the communal bins in such a way that they do not block access to his garden wall; and,
7. refused to remove the communal bins from outside his wall or repair the damage to his wall.
2. Mr X says the communal bins have caused damage to his wall. He says he cannot use his back garden as it is full of flies due to the issue with the bins and their smell. He says he cannot open windows that face out towards the bins due to the smell.
3. He says the site of the bins causes stress and distress. He is concerned about the overspill and fly tipping issues impeding access of emergency services to the properties. Mr X says he has gone to time and trouble reporting the issues to the Council.

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What I have investigated

4. I have investigated parts a to g of Mr X’s complaint. The last section of this decision explains why I have not investigated Mr X’s complaint the Council failed to consult residents before installing communal waste and recycling containers in 2011.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
9. 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

10. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint.
11. Mr X 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

The law, policy and practice

Waste and recycling services

12. Councils have a legal duty under the Environmental Protection Act 1990 to collect household waste and recycling free of charge. The collections do not have to be weekly and councils can decide the type of bins or boxes people must use. They do not have to consult with residents about this. Councils can also make a charge to replace stolen or damaged bins.
13. Most councils also provide discretionary services to collect garden waste and bulky items. Councils increasingly charge for these services. Councils also charge to collect waste generated by businesses (commercial waste).
14. Many councils use a contractor to provide their waste and recycling services on their behalf. In such cases the council retains ultimate responsibility for ensuring the quality of the service and being accountable if things go wrong. The contractor may initially respond to reports of problems or complaints but the council retains ownership. Outsourced should not mean out of touch.

Fly tipping

15. The Environmental Protection Act 1990 gives councils powers to require occupiers and landowners to remove waste unlawfully deposited on land (called ‘fly tipping’). Councils can investigate allegations of fly-tipping in various ways such as taking witness statements, visiting the location and voluntarily obtaining CCTV footage.
16. Depending on what the evidence shows, councils can decide to remove the fly-tipped waste themselves or can issue formal notices requiring the person responsible to remove the waste. If the person refuses to remove the waste, the council can consider taking further legal action. Councils should also consider taking action to prevent reoccurrence of problematic fly-tipping.

What happened

17. Mr X lives in a house where the Council has located several communal bins behind his garden wall.
18. In August 2020, Mr X complained to the Council. He said the communal bins were causing him several problems. These were primarily that the communal bins were:

• causing an increase in fly-tipping and pests;
• causing damage to his garden wall; and,
• receiving an inadequate level of collections and cleansing from the Council’s contractors, Contractors D. He said this led to waste building up around the containers between collections and cleansing.

19. In September, Mr X complained again to his local Councillor.
20. At the end of November, the Councillor sent Mr X the Council’s stage one complaint response. It provided Mr X with details on how to report fly-tipping and waste-related issues to the Council. It did not uphold the majority of Mr X’s complaint. However, it did uphold Mr X’s complaint that the cleansing around the communal bins needed to be improved.
21. In January 2021, Mr X complained to the Council again.
22. In February, the Council sent Mr X a further stage one reply. It did not uphold Mr X’s complaint.
23. Mr X asked for his complaint to be escalated.
24. In March, the Council sent Mr X its stage two complaint response. It said it agreed with the findings and conclusions of its stage one investigation from February.

Analysis – was there fault by the Council causing injustice?

The Council’s waste collection service

25. In August 2020, Mr X complained to the Council about waste from communal bins overspilling between collections and insufficient levels of cleansings around the bins by Contractors D, which he said had caused an increase in pests and flies (parts a, d and e of the complaint). Mr X provided photographic evidence showing the level of waste that was overspilling from bins over the course of a week. The photos showed waste around the communal bins and household, bulky items left in the alleyway.
26. The Council says the area around containers should be swept once per week (on the last collection day of the week), with a more detailed cleanse every 12 weeks.
27. In the Council’s stage one complaint response from November 2020, it said that it upheld Mr X’s complaint that cleansing around communal bins needed improving. It said it was working with its contractors, Contractors D, on this.
28. I have not seen any evidence to show how the Council worked with Contractors D to improve cleansing around the communal bins or carried out inspections or monitoring of whether it was providing a service that met its sweeping standards. This is fault. I, therefore, uphold part e of Mr X’s complaint. I would have expected, for example, the Council to have carried out a period of monitoring to identify any issues and decide how to improve cleansing. This caused Mr X uncertainty and he went to time and trouble complaining again about the issue without a satisfactory response. In the Council’s second stage one response from February 2021 and its final response from March, the Council explained the sweeping schedule, but did not confirm what action it had taken since its first stage one response to improve this.
29. When Mr X complained to the Council in January 2021, he complained again that the communal bins did not have sufficient capacity to ensure overspill of waste did not occur between collections. He sent further photographic evidence showing a communal bin overflowing with waste, with bags of waste present at the foot of the bin and on top.
30. The law allows the Council to decide the type and size of bin it will provide. In Mr X’s case, it has decided communal containers are appropriate. In its complaint response from November 2020, it confirmed to Mr X that the number of communal bins in his area have enough capacity for the number of households on his street. I, therefore, do not find the Council at fault here. This is a decision the Council is entitled to make and, without fault in its decision, I cannot question its content.
31. The Council told us that Mr X’s communal bins’ waste is collected by Contractors D once per week for recycling waste and twice per week for general waste. I understand this was increased to three times a week for general waste during the period under consideration. It said its records show only one record of a missed bin collection in this location over the last two years.
32. The Council said the number of collections is far higher than most of its authority area, where collections are usually once every two weeks (as stated in its 2017 Domestic Waste and Recycling Service Standards). On balance, this shows the Council identified the general waste collection service before was not sufficient and took steps to address this. I do not find the Council at fault here.
33. In response to questions I asked, the Council told us that it provides a food waste collection service to reduce the volume of waste that may attract pests. In the Council’s stage one complaint from November 2020, it signposted Mr X to its pest control service. It is my understanding that pest control falls within the Council’s environmental protection team. The Council told us pest control may act on reports of pests on land controlled by the Council. I, therefore, do not find the Council at fault in relation to part d of Mr X’s complaint. If Mr X is experiencing issues with pests it is open to him to report these to the pest control team.

The Council’s action against fly-tipping and commercial waste disposal

34. Mr X complains the Council failed to:

• resolve the fly-tipping issues he had reported (part b of the complaint); and
• address his reports of local businesses using the communal bins to dispose of commercial waste. He says the Council has failed to tell him what action it has taken against such businesses (part c of the complaint)

35. The Council told us that its records showed Mr X had made eight reports of fly-tipping between March and August 2021. The Council took the following action in response to these reports:

• one incident was witnessed by Mr X. A Council Officer contacted Mr X to provide a statement, but they did not receive a response to this. The Officer visited the site, but there was no waste present to investigate; and
• seven of the incidents reported were not witnessed meaning it had no basis to investigate further. The Council instructed Contractors D to remove the waste instead.

36. I do not find the Council at fault for its response to Mr X’s reports of fly-tipping. Although it decided it would not investigate the reports further, it took action to make sure the waste was removed or no longer present. I am satisfied with the action taken by the Council.
37. Regarding reports of fly-tipping by domestic and commercial premises more broadly in Mr X’s area, the Council has confirmed that over the last two years:

• it received seven reports against commercial premises. The Council served eight notices on commercial premises to resolve issues of waste mismanagement; and
• it received 16 reports of fly-tipping and decided to serve seven notices requiring the person responsible to remove the waste.

38. Mr X is understandably concerned about the fly-tipping in his area. He has drawn the Council’s attention to the problem. Based on the Council’s responses above, it has responded and acted appropriately in line with the law and its powers and duties. It has considered reports of fly-tipping received and, where it deemed necessary, served notices on the domestic and commercial premises to remove the waste. I, therefore, do not find the Council at fault in relation to parts b and c of the complaint.

Location of the communal bins

39. Mr X complains the Council:

• failed to position the communal bins in such a way that they do not block access to his garden wall (part f of the complaint); and
• refused to remove the communal bins from outside his wall or repair the damage to his wall (part g of the complaint).

40. In February 2021, the Council confirmed in its stage one complaint response that it had visited the location where the communal bins were placed. It said the location was appropriate to ensure residents could access them and crews could service them. It said the communal bins needed to be close to the mouth of the alleyway and a dropped kerb given how heavy the bins could become when full. I find the Council considered this aspect of Mr X’s complaint and explained the reasons why the location of the communal bins was acceptable. I do not find fault in the Council’s decision-making here and so cannot question its content (part f of the complaint).
41. The Council told us that it has not refused Mr X’s request for individual bins. Rather, it will decide whether or not this is possible if Mr X and local affected residents can demonstrate the majority of residents served by the communal bins would like individual bins instead. I do not find the Council at fault here as it has explained how Mr X may request the Council consider this option. I understand Mr X and local residents have separately followed up on this with the Council. This is a matter that falls outside the scope of this complaint.
42. The Council said in its stage one complaint response that, during its inspection, it had not found any damage to Mr X’s wall that was consistent with damage due to waste and recycling containers. The Council told us that it did not accept Mr X’s claim that the communal bins had caused damage to his walls and, if Mr X does believe this to be the case, he may wish to consider pursuing a legal claim for compensation. Mr X can make a claim to the Council’s insurers if he considers the communal bins have damaged his wall. If it refuses, it would be reasonable for Mr X to ask the court to consider his claim for compensation (see paragraph eight above). Allegations of damage and claims for damages are for a court to consider. Only a court can decide on liability and award compensation.

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Agreed action

43. Within four weeks of my final decision, the Council has agreed to:

• apologise in writing to Mr X for the injustice caused by its failure to take the remedial action it had committed to doing.

44. Within two months of my final decision, the Council has agreed to:

• carry out a period of monitoring with Contractors D of Mr X’s communal bins’ cleansing process to identify and resolve any issues. This period of monitoring should take place over two months following my final decision.

45. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

46. I have completed my investigation.
47. I have decided to uphold part e of Mr X’s complaint because there was fault by the Council causing injustice. The Council has agreed to the above recommendations as a suitable way to remedy this.
48. I have not upheld parts a to d, f and g of Mr X’s complaint because there was no fault by the Council.
49. I consider it reasonable for Mr X to consider making a claim for compensation for any alleged damage to his wall resulting from the communal bins. The Ombudsman cannot decide on this matter; only a court can decide on liability and compensation (part g of the complaint).

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Parts of the complaint that I did not investigate

50. Mr X complains the Council failed to consult residents before installing communal waste and recycling containers in 2011.
51. The law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us.
52. Mr X has explained why he did not complain sooner and I have considered his reasons. In Mr X’s case, I think that he could have complained sooner if he had wished to pursue matters from 2011. Given the amount of time that has passed and the likely difficulties with obtaining records from so long ago, I do not think I could confidently reach a clear enough view on the issues Mr X has raised. I have, therefore, decided not to investigate this aspect of Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman