Summary: Mr B says the Council failed to act when his neighbours continued to place refuse bins outside his property. There is no fault in how the Council dealt with that issue. However, the Council gave Mr B and his MP incorrect information and failed to respond to an email from Mr B. An apology and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council failed to act when his neighbours continued to place refuse bins outside his property, in breach of the Council’s guidance on where to place bins.
2. Mr B says the Council’s failure to act has led to him and his wife continuing to experience antisocial behaviour which has affected their mental health.

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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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mr B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
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, Mr B's comments and the evidence Mr B provided;
• 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

What should have happened

7. Section 46 of the Environmental Protection Act 1990 (the Act) says where a waste collection authority has a duty to arrange for the collection of household waste from any premises, the authority may, by notice served on him, require the occupier to place the waste for collection in receptacles of a kind and number specified.
8. The Act says where a waste collection authority in England is satisfied that:
• (a)a person has failed without reasonable excuse to comply with a requirement imposed by the authority, and
• (b)the person's failure to comply:
• (i)has caused, or is or was likely to cause, a nuisance, or
• (ii)has been, or is or was likely to be, detrimental to any amenities of the locality,
• the authorised officer may give a written warning to the person.
9. Where a written warning has been given in respect of a failure to comply that is continuing, an authorised officer of the waste collection authority may require the person to whom the written warning was given to pay a fixed penalty to the authority.
10. The Council’s webpage for refuse bin placement states the bin should be left for collection on the front boundary of the resident’s property.
11. The Council’s Environmental Health, Waste Crime and Community Protection Enforcement Policy (the policy) provides for a wide range of actions available to the authority for enforcement. This lists those actions as including no action, advice and guidance and various formal enforcement options. The policy makes clear enforcement will be proportionate to the offence.

What happened

12. Mr B contacted the Council and the police about issues with his neighbours placing refuse bins outside his property from 2020 onwards. The Council wrote to properties on Mr B’s road, reminding them of the need to place bins on their own property and return their bins to their property following collections. The letter Mr B received said failure to do so may result in the collection being marked as not presented which may mean the resident could miss future collections.
13. Following further contact from Mr B about issues with the bins the Council emailed him in May 2021 to advise it did not have any powers of enforcement in relation to placement of waste bins. I understand Mr B has tried mediation but his neighbour has refused to cooperate.
14. Mr B escalated his complaint to his MP in June 2021. Mr B’s MP contacted the Council on his behalf. The Council told the MP its waste manager had visited Mr B’s road the previous week to observe the bin presentation and was satisfied it was tidy and there was no grouping outside any particular property to cause offence. The Council therefore advised it could not justify further action.
15. Mr B contacted the Council again in August 2021 as he was concerned a number of garden waste bins had been placed outside his property despite the fact not all residents had registered for the garden waste collection service. The Council did not respond to that email. However, when responding to contact from Mr B’s MP about the same issue the Council advised for the issue of bin placement the only option available to it was removal of the bins which would likely result in worse issues.

Analysis

16. Mr B is concerned the Council failed to act, other than writing to neighbours, when they placed refuse bins outside his property rather than on their own boundary. Mr B says the bins are blocking the path, causing a hazard and are preventing him parking outside his own property. I understand Mr B’s concern given it appears his neighbours are deliberately placing their bins outside his property. However, I am satisfied the Council has decided the case does not warrant further action after sending a waste manager to view the way in which the bins are presented. The waste manager’s view is the bins are being sensibly presented and are not crowding any particular property. I recognise Mr B is likely to strongly disagree with that view. However, as I said in paragraph 3, it is not the Ombudsman’s role to comment on the merits of a decision reached by the Council unless there is evidence of fault in how that decision has been reached. As the Council has decided the way in which Mr B’s neighbours present their bins is acceptable after visiting to view it I have no grounds on which I could criticise it.
17. In reaching that view I am aware Mr B believes the Council should take enforcement action as its website makes clear refuse bins should be left for collection on the front boundary of the resident’s property. As Mr B’s neighbours are not placing the refuse bins on their own boundary Mr B believes the Council should take action. I understand why Mr B would want that to happen. However, as I set out in paragraph 11, the Council’s enforcement powers are discretionary. What that means is the Council is under no obligation to take enforcement action if it does not consider it necessary. I am satisfied the Council took action initially by writing to neighbours to ask them to present their bins for collection on their own property and to return them to their property following the bins being emptied. I recognise the letter Mr B received also advised if bins were not presented outside the resident’s property on their property boundary this may result in collections being marked as not presented which may mean the resident misses a collection. Mr B has interpreted that as meaning the Council should have followed through with that. However, as I said earlier in this paragraph, the Council is under no obligation to take enforcement action. In this case the Council has decided enforcement action is not appropriate after visiting Mr B’s road to see how the bins are presented. I therefore cannot criticise the Council for the decision it reached.
18. I am, however, concerned about some inaccuracies in the Council’s communications with both Mr B and his MP. When emailing Mr B in May 2021 the Council said officers did not have any powers of enforcement for placement of waste bins. Then, in communication with Mr B’s MP in September 2021 the Council said the only option it had in relation to bin placement was removal of the bins. I refer to section 46 of the Environmental Protection Act 1990 in paragraph 7-9. As that section makes clear, the Council has enforcement options open to it, including written warnings and financial penalties, if it is satisfied a person has failed to comply with a requirement the Council has imposed. Telling Mr B and the MP the Council had no options or that the only option available was to remove the bin is therefore inaccurate and is fault.
19. In this case I do not consider those inaccuracies have affected the Council’s decision-making as it is clear from the Council’s records that having visited the site it does not consider the placement of the bins sufficiently serious to warrant enforcement action. In those circumstances I consider Mr B’s injustice is limited to his frustration at being given incorrect information. The Council had also failed to respond to Mr B’s email in August 2021, which is also fault. I consider an apology a suitable remedy for those failures. I also recommended the Council provide officers dealing with complaints about waste collection a copy of my final decision statement in this case so incorrect information is not passed on to residents in future. The Council has agreed to my recommendations.

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Agreed action

20. Within one month of my decision the Council should:
• apologise to Mr B for the inaccuracies referred to in this statement and for failing to respond to an email; and
• send a copy of my final decision statement to officers dealing with waste complaints so they are aware of the provisions of the Environmental Protection Act.

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Final decision

21. I have completed my investigation and found fault by the Council in part of the complaint. The action the Council will take is sufficient to remedy Mr B’s injustice.

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Investigator's decision on behalf of the Ombudsman