Decision : Upheld
Decision date : 30 Nov 2021
The Ombudsman's final decision:
Summary: Mr X complained the Council refused to pay for new bins to replace the damaged bins at a block of flats he manages. The Council was at fault. Its policy does not clearly specify when it will and will not pay for a replacement bin. In addition, the Council said the bins have been damaged by residents misusing them but it has no records which indicate this. The Council has agreed to review its decision to charge Mr X to replace the bins and to review its policy and its record keeping.
- Mr X complained the Council refused to pay for replacement bins used by residents of a block of flats. Mr X said the bins were damaged due to fair wear and tear over time and were no longer suitable for waste storage. However, the Council said the damage to the bins was caused by the residents. Mr X has had to pay to replace some of the bins. He would like the Council to reimburse him the costs he paid and replace the remaining bins.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I considered the information provided by Mr X and spoke to him about his complaint.
- I considered the information provided by the Council and spoke with Council Officers about the complaint.
- I considered our published guidance on ‘Principles of Good Administrative Practice’.
- Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.
What I found
Legislation and guidance
- The Environmental Protection Act 1990 Section 46, states where a Council has a duty to arrange collection of household waste from any premises, it may require the occupier to place the waste for collection in receptacles identified by such means as may be specified.
- A Council may determine to provide the receptacles to the occupier free of charge or it may determine to charge the occupier for the receptacles.
The Council’s Recycling and Waste Policy
- The Council’s policy states, “any replacement of a Council provided container may be subject to a charge depending on the circumstance of the loss”. It says should a container go missing, be damaged or destroyed through no fault of the Council, the Council will offer a replacement and a charge will be made for this.
- The Council’s policy under damaged containers states, “if a container has been damaged through day-to-day usage then a request can be made for a repair or if appropriate a replacement container. This service may be subject to a charge”.
- The Council’s Provision of Household Recycling and Waste Service ‘Information for developers, architects and managing agents’ sets out, “the Council will charge for the replacement of any wheeled bin that has gone missing, become damaged or destroyed through no fault of the Council’.
- Mr X is the manager of a block of approximately 500 residential flats and oversees the maintenance of them.
- In January 2021, Mr X contacted the Council and raised his concerns about the condition of the communal bins used by the residents. He said all 44 bins had become corroded and not fit for use. He said some bins had been turned over by the Council’s refuse collection team and left on their side because they could not be used. This reduced the number of bins to use and the bins which were still standing were being overfilled. Mr X said this caused an overspill of rubbish which then attracted vermin. Mr X said he has then had to pay for pest control to eradicate the problem. Mr X asked the Council to replace all bins.
- Mr X said previously, the Council used to turn over the bins which were not fit for use, collect them and replace them with new bins. He said the Council stopped doing this around four years ago.
- The Council responded to Mr X and said its policy states that all bin replacements or repairs are the responsibility of managing agents, landlords, freeholders, developers or housing associations. It said if the bins have been corroded, they would need replacing. The Council gave Mr X the cost of a new bin.
- Mr X said the Council was being unfair. He said the Council stated it owned the bins however when the bins were not fit for use due to wear and tear, he was expected to pay for new bins. Mr X complained to the Council.
- The Council responded to Mr X’s complaint and said the damage to the bins was caused by the residents of the property. It said on each occasion it had visited the property, it saw that bins were not placed in sheltered locations and the lids of the bins were left open. It said this would allow rain to enter the bins and if the rain was mixed with liquids from the waste, this would cause the bins to corrode. The Council said the bins needed to be protected from rain and the lids needed to be closed after use. The Council repeated that it was the responsibility of managing agents, landlords etc. to make sure suitable arrangements were put in place to allow proper use and storage of bins. It suggested meeting with Mr X to discuss potential solutions to the problem they both could implement.
- Mr X and the Council met at the property and after assessing the bins, they decided 20 of the 44 bins required an immediate replacement. Mr X said the decision not to replace all bins at once was due to affordability and the Council not having that amount of bins in stock. Mr X paid £10,046.80 plus VAT for the replacement of 20 bins. He said he should not have paid as the damage to the bins was not caused by the residents and instead they have corroded over time. He remained unhappy and complained to us.
The Council’s response to my enquiries
- In response to my enquiries, the Council provided me with the following information:
- The Council does not hold a record of when the bins were supplied to the property however, the Council said, “the bins at this site have been there since the flats were built which was quite some time ago”. The Council does not know when the flats were built. Mr X also said the bins were provided by the Council when the flats were built. He believes the flats were built in the 1980’s.
- In addition to the above, the Council said with proper storage and maintenance, the lifespan of a bin can exceed 20 years.
- The Council believes the bins have been damaged by the residents using the bins incorrectly. It said it followed its procedures correctly in charging for replacement bins due to them being misused and it would not reimburse Mr X with the cost he has paid.
- The Council said it visited the property and assessed the bins on four occasions between 2019 and 2021. It does not have a record of the exact dates it visited the property and it does not have a report of findings of each visit. It said when its Officer visited the property, they saw bin lids were left open, there was damage to bins from corrosive materials and due to them being overfilled. The Council does not have any photographs of what the Officer saw.
- As outlined in paragraph 8, the Council can determine if it charges for a waste collection bin.
- The bins at the property Mr X complains of, have not been damaged or destroyed through the fault of the Council. Mr X said the bins have been damaged over time. The Council’s policy states if a bin has been damaged through day-to-day use, it can repair or replace the bin however this service may be subject to a charge. The Council’s policy is not clear in which circumstances it will charge for this service and in which circumstances it will replace the bin for free. This was fault.
- The Council believes the bins have been misused by the residents at the property as they have left the lids open which caused the bins to corrode with rain. It also says the bins have been overfilled with rubbish. However, the Council has no record that this is how the bins were damaged. It only has a rough indication of when it visited the property and the Officer’s account of what they saw, but none of this information has been properly recorded. The Council’s failure to keep proper records of visits was fault and is not in line with the principles of good administrative practice. The Council has not provided any evidence to support its claim the bins have been misused.
- The Council is entitled to charge an occupier for a replacement bin. However, the Council has not demonstrated it has properly considered if the bins were damaged through fair wear and tear, given the age of the bins and their expected lifespan. It said it will not replace bins damaged by misuse but has not been clear on whether it will replace bins damaged by fair wear and tear.
- Within one month of this final decision, the Council has agreed to:
- Review its decision to charge Mr X for replacement bins and clearly set out its decision making in writing to Mr X.
- Review its process for record keeping to ensure staff keep proper and appropriate records of site visits and meetings.
- Review its Recycling and Waste Policy and make it clear in which circumstances it will charge for a replacement bin and repairs.
- I have now completed my investigation. There was evidence of fault by the Council causing an injustice which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman