Summary: Mr B complained the Council failed to provide its garden waste service, deliver his bin, and wrongly refused to his refund request. We found the Council failed to deliver the agreed service to Mr B due to circumstances outside its control. It was at fault for its failure to provide Mr B with a bin and its refusal to refund his subscription payment as set out in its terms and conditions. The Council agreed to apologise to Mr B and make payment to acknowledge the injustice it caused.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the Council’s waste collection service, which is delivered by a contractor (the Contractor). He said it failed to provide:
• the agreed garden waste collection service since July 2021;
• a garden waste bin as promised and one-off waste collections; and
• a refund of his subscription fee when he requested it.
2. As a result, Mr B said he experienced distress due to the uncertainty about when his garden waste would be collected, and the service would resume. He also had time and trouble to dispose of his garden waste himself.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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

7. As part of my investigation, I have considered Mr B’s complaint and the Council’s responses. I also discussed the complaint with Mr B and considered the relevant law and Council Policy for garden waste collections.
8. 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

Relevant law and Policy

Garden waste

9. Councils have a duty under the Environmental Protection Act 1990 to collect household waste and recycling from properties in its area. They may charge service users for some waste collections. This includes garden waste.

The Council’s Garden Waste collection service

10. In 2019 the Council arranged for a contractor to operate its waste collection services. This included all residential waste collection, including garden waste.
11. It is the Council’s policy to charge for its fortnightly garden waste collections. Customers sign up through the Council’s website and pay an annual subscription. The terms and conditions say:
• subscribers will receive a brown wheeled bin from the Council within one month of signing up;
• the agreement starts when its bin is delivered; and
• no refunds are offered if cancelling the service during the year, unless this is before the bin is delivered.

What happened

12. In 2021 the Council’s waste collection contractor (the Contractor) told the Council it had a shortage of heavy good vehicle drivers (HGV), which meant it could not deliver the services as agreed with the Council.
13. The Council and its Contractor met to discuss their agreement and what services could be delivered with the shortage of HGV drivers. The Council decided its Contractor should prioritise its household and recycling waste collections, but it had to suspend its garden waste collection service.
14. In June 2021 the Council told registered service users it had suspended its garden waste service collections indefinitely.
15. Mr B lives the Council’s area. He signed up to the Council’s garden waste collection service in July 2021 and paid the annual subscription. He said he was told he would receive his garden waste bin by the end of August 2021.
16. In August 2021 Mr B asked the Council why he had not received his garden waste bin as promised. He was told the Council’s garden waste service was suspended.
17. Shortly after, Mr B said he received an email from the Council, in which it explained its garden waste collection service was suspended. It also said no refunds would be provided.
18. In October 2021 the Council told it registered garden waste collections users its suspension would continue, but it would provide a one-off collection by December 2021 for all its service users.
19. Mr B said he asked the Council if he would receive a one-off collection, but the Council told him he would not as he did not have a garden waste bin.

Mr B’s complaint

20. Mr B complained to the Council about its handling of its garden waste service suspension. He said it failed to provide:
• the agreed garden waste collection service since July 2021;
• the promised garden waste bin and one-off waste collections; and
• a refund of his subscription fee when he requested it.
21. Mr B said the Council had breached his consumer rights, so it should refund his subscription fee and compensate him for the distress he experienced.
22. In response, the Council told Mr B it did not know when it would be able to reinstate its garden waste collection service. It apologised for the inconvenience this caused. It also explained:
• it had suspended its garden waste collection service due to a shortage of HGV drivers, which had been reported on both locally and nationally over the past months. It was working with its Contractor to prioritise services, and recruit more drivers;
• the Consumer Rights Act 2015 did not apply to its garden waste collection service as it was not a service provided by a trader to a customer. Instead, its service is part of a statutory power exercised by the Council;
• its terms and conditions were available to all users before signing up to its service. This included its right to suspend its service in certain circumstances and it would not provide refunds for service cancellations; and
• it had decided to extend the subscription period for its service users without additional charges. All users would therefore receive the amount of collections they paid for.
23. Mr B remains unhappy about how the Council handled his waste collection services complaint. He said the Council has still not provided a garden waste bin as promised. He has therefore not received two one-off collections which other registered users received. Mr B asked the Ombudsman to consider his complaint.
24. The Council’s website says in March 2022 the Council’s garden waste service resumed as normal. Mr B has also confirmed the Council has since delivered his bin and he is now receiving his garden waste collections.

Analysis

25. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.

The service suspension and Mr B’s registration

26. The Council suspended its garden waste collection service, and agrees it has therefore failed to deliver its service as agreed with Mr B. This was therefore a service failure which the Council was responsible for.
27. I accept the cause of the Council’s garden waste suspension was not within the Council’s control, and it was correct to tell Mr B the Consumer Rights Act 2015 does not apply to his agreement. This is because the service is provided under the Council’s powers in the Environmental Protection Act 1990.
28. However, the Council also failed to tell Mr B its service was suspended before he signed up to it in July 2021. This was fault. The Council should have stopped new user registrations for its garden waste service in June 2021 when it suspended its service indefinitely, or at least have a disclaimer warning any interested users about its service status at the time.

Bin delivery and refund

29. The Council’s terms and conditions for its garden waste service says:
• it will provide new users of its service with a bin; and
• the agreement first starts when the Council delivers the bin, and refunds cannot be offered after this.
30. The Council told Mr B it would provide him a bin in July 2021. However, Mr B did not receive his bin as promised by the Council. This was fault. This is because the Council’s promise came after it suspended its service, I would therefore expect the Council to have delivered its bin to Mr B as agreed without delay.
31. Also, as the Council failed to deliver Mr B’s bin, the agreement had not started. Mr B was therefore entitled to have a refund. The Council was therefore at fault for refusing to offer Mr B a refund of his waste collection subscription as set out in its terms and conditions.

One-off garden waste collections

32. The Council offered all its garden waste collection users’ one-off collections in late 2021 and again in spring 2022.
33. Mr B was a registered garden waste user and he had paid his subscription. He should therefore also have received the one off-collections. The only reason he did not receive these were because of the Council’s failure to provide him with a bin.

Injustice

34. I found fault by the Council for failing to:
• inform Mr B its garden waste collection service was suspended before he signed up for it; and
• deliver his bin as set out in its terms and conditions, and as promised by the Council.
35. In found this caused Mr B some distress due to the uncertainty about when he would receive his bin and when he would be able to have his garden waste collected. He also had some time and trouble to bring his concerns to the Council’s attention and to dispose of his garden waste himself.
36. I understand the Council has resumed its garden waste service as normal from March 2022. It also said it will roll-over collections so service users will get the amount of collections they paid for. Mr B has now received his bin and his garden waste collections.

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Agreed action

37. To remedy the injustice the Council caused to Mr B, the Council should, within one month of the final decision:
3. apologise in writing to Mr B, and pay him £100 to acknowledge the uncertainty, and time and trouble he experienced as a result of the Council’s failure to inform him about its garden waste service suspension before he signed up to its service and deliver his bin as promised.
38. Within three months of the final decision the Council should also:
3. remind its staff about the Council’s garden waste service terms and conditions to ensure bins are delivered to users within one month from the date a request is made, and to accept requests for refunds if these are made before its bins have been delivered.

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Final decision

39. There was fault leading to an injustice. It is on this basis I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman