Decision : Upheld
Decision date : 10 Apr 2022
The Ombudsman's final decision:
Summary: Ms X complained the Council incorrectly issued her with a Fixed Penalty Notice (FPN) for fly-tipping. We find the Council’s policy for issuing FPNs is flawed. We recommend the Council apologises to Ms X, cancel the FPN issued to her, rewrite its policy on issuing FPNs and take action to remedy injustice to any other affected parties.
- Ms X complains the Council has acted incorrectly when issuing her with a FPN for fly-tipping when she left her bins out 40 minutes before her collection time. Ms X says this has caused her a lot of stress and she has had to spend time trying to get the Council to overturn its decision.
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)
- 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)
- We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 spoke to Ms X and considered the information she has provided.
- I considered:
- The Environmental Protection Act 1990
- Government guidance – Household waste bins: when and how councils may issue fixed penalties.
- The Council’s published policies for bin collections, fixed penalty notices, and fly-tipping and dumped rubbish.
- The Ombudsman’s Principles of Good Administrative Practice
What I found
Environmental Protection Act 1990
- Councils have a duty under the Environmental Protection Act 1990 (the Act) to collect household waste and recycling from properties in their area. Collections do not need to be weekly, and councils can decide which receptacles people must use.
- Section 33 of the Act gives councils the power to issue an FPN where it has reason to believe a person has committed a waste deposit offence, such as fly-tipping. Councils can issue FPNs up to £400 and there is no formal appeal process.
- Section 46A explains councils may issue written warnings where a person has failed to comply with its waste collection requirements. If the person then fails to comply with the requirements identified in the written warning, a council may issue a fixed penalty.
- The Government published guidance on when and how councils may issue fixed penalties relating to household waste and bins in April 2018.
- The guidance explains councils may issue fixed penalties to people who do not follow their waste collection rules if this is likely to cause a nuisance or have a negative effect on local amenities.
- The guidance explains councils cannot issue fixed penalties for minor problems. These include accidentally putting items in the wrong receptacle, forgetting to close bin lids, and leaving bins out for a few hours before a collection.
- The guidance says the maximum full penalty is £80.
The Council’s policy for waste collection
- The Council’s policy explains people living in flats above shops or businesses with commercial collection will have timed collections. This means the Council will collect rubbish in one-hour slots twice a day.
- It explains it will consider waste presented outside of the allocated time as fly-tipping and this will incur a £400 fine.
- The Council’s policy explains there is no formal grounds of appeal for an FPN. It explains people must pay FPNs within 14 days or they will be issued with a summons for a case to be heard in the Magistrate’s Court which could mean a £2,500 penalty.
Principles of Good Administrative Practice
- In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils.
- This document explains councils should ensure decisions and actions are proportionate, appropriate and fair.
- Ms X lives in a flat above a shop and has timed rubbish collections.
- On 10 August 2021, an environmental officer for the Council identified rubbish belonging to Ms X was left out around 35 minutes before her designated collection slot.
- The Council wrote to Ms X on 19 August with a caution letter. This explained it was investigating a case of fly-tipping it suspected related to her. The Council described the rubbish it found on 10 August and invited Ms X’s comments, explaining it may issue an FPN.
- Ms X responded to the Council on 21 August. She explained she could not understand what the problem was. Ms X said she had always been told to leave her rubbish bags on the road as she has no wheelie bin and asked if that was no longer correct.
- The Council responded to Ms X on 24 August pointing out it was looking into the time it found the rubbish. It said it would get back to Ms X within seven days.
- The Council sent Ms X a letter dated 28 September. This letter explained Ms X could avoid further legal action by paying the FPN within 14 days of the date of issue, which was given as 18 November. The enclosed FPN was actually dated 7 October and Ms X says she received this on 13 October as it was sent by second class post.
- On 15 October, Ms X wrote to the Council explaining she felt it was wrong to classify her as a fly-tipper. She explained she felt the Council should have dealt with the situation under the Government’s guidance for issuing fixed penalties relating to household waste.
- On 20 October, Ms X wrote to the Council to make representations against the FPN. She repeated her claim that this was not a fly-tipping offence. She also pointed out she did not receive the letter dated 28 September until 13 October.
- On 24 October the Council wrote to Ms X to explain it believed it had issued the FPN correctly. It explained Ms X’s area had timed collections and it treats rubbish left outside of these times, as Ms X’s was, as unlawfully deposited waste.
- Ms X contacted the Ombudsman in November 2021 as she disagreed with the Council.
- In response to a first draft of this decision, the Council explained it believed the FPN had been issued fairly and proportionately. However, it decided to withdraw the FPN as it felt it would not be in the public interest to pursue it.
- The government guidance on when and how councils can issue fixed penalties for household waste and bins explains councils should be relying on Section 46A of the Act. It explains councils should not issue FPNs for minor problems, such as leaving waste out early.
- The Council’s policy for rubbish left out outside of designated collection times seems to rely on Section 33 of the Act instead, which concerns fly-tipping.
- The law does not specifically state councils cannot use Section 33 of the Act to deal with rubbish that has been left out outside of collection times. However, the Ombudsman’s Principles of Good Administrative Practice does state councils should act proportionately, appropriately, and fairly. It is not proportionate or in the spirit of the government guidance to treat rubbish left out 35 minutes early as fly-tipping, which is a criminal offence.
- This means there is fault in the way the Council’s policy has been written and any decision making that relies on it is flawed.
- The fault with the Council’s policy means Ms X has faced a high penalty charge and this has caused her considerable distress and uncertainty.
- The Council acknowledged Ms X’s response to the caution letter and said it would respond within seven days. The Council did not respond to Ms X’s points as it said it would but went on to issue the FPN a month later. This is fault and would have caused further distress and uncertainty for Ms X.
- When the Council did issue the FPN it delayed sending it which meant Ms X did not have the full 14 days to make payment. The Council also misquoted relevant dates. While there is fault with the Council for delaying sending the FPN and giving inaccurate dates, there does not appear to be a significant injustice to Ms X. I say this because she is yet to pay the FPN so it is unlikely she would have done even if it had been issued on time and with the correct dates listed.
- To remedy the injustice set out above, I recommended the Council:
- Within one month:
- Provide Ms X with a written apology for incorrectly issuing her with an FPN.
- Pay Ms X £100 to recognise the distress and uncertainty she was caused by receiving the FPN.
- Write to Ms X to confirm it will cancel the FPN that was issued.
- Amend its current policy relating to rubbish left out outside of scheduled collection times to reflect the government guidance. That is, by not relying on Section 33 of the Act. Rather by applying the government guidance on when to use Section 46A.
- Identify all individuals who had been issued a FPN in the past 12 months. Ensure any outstanding FPNs issued because of rubbish being left out outside of the relevant collection times are cancelled, and any that have been paid are refunded.
- I find fault with the Council’s policy for issuing FPNs and make the recommendations set out above. The Council has now accepted the recommendations above and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman