Summary: Mrs X complained about the amount the Council charged her for removing fly-tipped waste from an alleyway behind her property. Mrs X has said this has caused her mental and financial stress as she cannot afford to pay the cost and she believes the Council’s actions amount to discrimination. We do not find fault with the Council’s decision to charge Mrs X or the amount it has asked for.

The complaint

1. Mrs X complains about the amount the Council has charged her for removing fly-tipped waste from an alleyway that runs behind her house. Mrs X feels the cost should have been split between a number of houses and the Council’s decision to charge just her and one other property has created mental and financial stress as she cannot afford to pay the cost. Mrs X has said she believes the Council’s actions amount to discrimination.

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The Ombudsman’s role and powers

2. 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)
3. 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 spoke to Mrs X and considered the information she provided.
6. I also considered all the information the Council has provided.
7. Mrs X and the Council had an opportunity to respond to a draft of this decision and I considered their comments before making this final decision.

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What I found

Public Health Act 1936

8. Section 78(1) of the Public Health Act 1936 gives councils the power to sweep and cleanse a court, yard or passage used by the occupants of two or more buildings.
9. Section 78(2) allows a council to recover any reasonable expenses incurred from the occupiers in the proportions that it deems to be appropriate.

Environmental Protection Act 1990

10. Section 89(1) of the Environmental Protection Act 1990 places a duty on councils to keep relevant land clear of refuse and litter.

The Local Government Act 1974

11. Section 36 of the Local Government Act 1974 allows a council to recover costs associated with establishing who is responsible for the cost of work or services.

The Equality Act 2010

12. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection in employment, the provision of goods and services, housing, transport and the carrying out of public functions.
13. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act.

Direct discrimination

14. Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic.
15. Direct discrimination is generally unlawful. However, it may be lawful in the following circumstances:
• In relation to the protected characteristic of disability, where a disabled person is treated more favourably than a non-disabled person;
• Where the Act provides an express exception which permits directly discriminatory treatment that would otherwise be unlawful (for example, a faith-school admissions policy may lawfully discriminate on the grounds of an applicants’ faith)
16. To decide whether a service provider has treated a service user ‘less favourably’, a comparison must be made with how they have treated other service users or would have treated them in similar circumstances. If the service provider’s treatment of the service user puts the service user at a clear disadvantage compared with other service users, then it is more likely that the treatment will be less favourable. Less favourable treatment could also involve being deprived of a choice or excluded from an opportunity. If the quality of the service being offered or the manner in which it is offered is comparatively poor, this could also amount to less favourable treatment.
17. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.

What happened

18. The Council received a report of dumped rubbish in a shared alleyway that runs behind Mrs X’s home.
19. The Council carried out a site visit and found multiple bags of rubbish in the alleyway which made it inaccessible.
20. The following week, the Council carried out another site visit to determine the exact location of the rubbish.
21. The Council then sent individual letters to the residents of the five occupied properties that backed onto the littered area.
22. The Council issued the letters under Section 78 of the Public Health Act 1936. The letters explained rubbish was found in the alleyway and it was the residents’ responsibility to clear it. The letters explained this was not an accusation of fly-tipping but if the rubbish was not cleared within 14 days, the Council would serve notices which may result in charges.
23. Mrs X spoke to the Council and says she was told any bill for clearance would be split between all residents and her total liability would not be in the hundreds.
24. The call notes from the time show Mrs X did call the Council to discuss the removal costs and was told she would only have to pay her portion. There is no record the Council gave any indication of the total cost or the number of residents who would be charged.
25. Site visit notes and photos dated after the letters were sent showed one of the residents had cleared the litter from the section of land closest to their property.
26. Following this, the Council issued notices to the residents who it considered had not cleared any rubbish. The notices explained the residents had a further seven days to clear the rubbish from their section of the alleyway before the Council arranged for removal which may result in charges.
27. Site visit notes and photos from the following week show the area behind two more properties was now clear, meaning the occupants of just two properties had not cleared their area.
28. The Council then asked a third party for a quote for clearing the waste. The Council received a quote for £276, which it authorised, and the rubbish was cleared by the contractor three days later.
29. After the rubbish was cleared, the Council delivered letters to the two residents who had not cleared their sections. These letters explained the Council had been charged £276 for the removal and was adding £117 to recover the “establishment costs”. This meant a total of £393 to be split between the residents. The letter sent to Mrs X sought payment of £196.50 – her half of the total amount.
30. Mrs X complained to the Council. She explained she was not responsible for the rubbish and had been under the impression the cost to clear it would be split between residents or eight properties.
31. The Council responded to explain it had followed the correct process when deciding who to charge. It explained it had contacted all relevant parties as it should have done and only charged the residents who did not clear their sections.
32. Mrs X disagreed with the Council. She explained she believed the charge should have been shared between more than two properties. Mrs X said not all relevant properties received letters about the rubbish and most did not clear their section of the alleyway.
33. The Council responded to explain it contacted all the relevant residents about the rubbish to give them an opportunity to clear their section. The Council explained just two residents failed to clear their sections and so it divided the cost equally between them.
34. Mrs X responded to the Council to explain she remained unhappy. Mrs X said she suspected some of her neighbours were using the alleyway to dispose of their personal waste. She explained her household was not personally responsible for any rubbish found in the alleyway and she was previously told the cost would be split between many residents.
35. The Council explained it had investigated and was not able to conclude who was responsible for the rubbish. Because of this, the rubbish became the responsibility of the residents. The Council explained all residents had an opportunity to clear the waste themselves and most residents did this. It explained Mrs X would now need to pay the invoice and could contact it to discuss a payment plan if needed.
36. Mrs X remained unhappy with the Council’s explanation and referred her complaint to the Ombudsman.
37. The Council has provided me with:
• Site visit notes and photos to show where the rubbish was located and how it determined liability for each property at each stage of the process.
• Copies of the informal letters sent to each property notifying the resdients of the rubbish and giving 14 days to clear it.
• Copies of the notices it sent out to each property giving seven days to clear their section of the alleyway.
• Mrs X’s complaints and the Council’s responses.
• Phone call notes between the Council and Mrs X about the cost.
• An estimate for the rubbish removal.
• A breakdown of how it calculated the “establishment costs”.

Analysis

38. Under the Public Health Act 1936 and the Environmental Protection Act 1990, the Council has a duty to clear dumped rubbish and is entitled to recover any reasonable costs associated with this from those who use the passage. It is not relevant who dumped the rubbish.
39. The Council’s notes show it first tried to find out who was responsible for the fly-tipped rubbish based on the content of the rubbish itself. When this failed, it assessed the liability of the surrounding properties based on which sections of the alleyway they backed onto.
40. The Council was entitled to decide to split the cost equally between residents who did not clear their sections, in accordance with the law. The evidence provided shows the Council followed the process and charged Mrs X accordingly. There is no evidence the Council took account of irrelevant factors in deciding to charge Mrs X, such as her protected characteristics. And there is no evidence to suggest the Council treated Mrs X less favourably than others due to any protected characteristics. I therefore find no fault in the Council’s decision making. I also find no evidence it failed to have due regard to its Equality Act duties.
41. Mrs X has said the Council did not notify residents of all the properties as it should have done. The Council has provided me with photos of the rubbish and copies of the letters it sent to evidence it did notify all the relevant residents. I therefore do not find fault with the Council.
42. The Council’s site visit notes and photos show, just Mrs X and one other resident had failed to clear their section. The Council then charged Mrs X and the other resident. While I appreciate Mrs X expected the cost to be split between more than two people, I cannot find fault with the Council here as it has only charged the residents it established as having not cleared their section.
43. Mrs X says the Council assured her the bill would be split with many other residents. The Council’s call notes do not reflect this. It is difficult for me to say with any real certainty what was discussed with Mrs X but there is not enough evidence for me to say, even on balance, the Council misled her about the cost.

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Final decision

44. For the reasons explained in the Analysis section, I have completed my investigation and do not uphold Mrs X's complaint.

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Investigator's decision on behalf of the Ombudsman