Summary: Mr X complains the Council has failed to act on bins that obstruct a highway, which has caused a disadvantage to Mr Y who has a disability. The Ombudsman finds fault with the Council for failing to evidence how it given due regard to its Public Sector Equality Duty. The Council has agreed to pay a financial remedy and remake the decision with consideration to its duty.

The complaint

1. Mr X complains the Council has not given due regard to the Equality Act when deciding not to take enforcement action about refuse and recycling bins near Mr Y’s house.
2. Mr X complains the Councils decision disadvantages Mr Y, who cannot gain full access to his property and road because of the obstruction by the refuse and recycling.

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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. If we are satisfied with an organisation’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 considered information from Mr X and Mr Y. I also considered information from the Council.
6. I considered comments from Mr X, Mr Y and the Council on a draft of my decision.

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What I found

Legislation and guidance

Equality Act

7. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
8. 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 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
9. The ‘protected characteristics’ referred to in the Act are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex; and
• sexual orientation.

10. Indirect discrimination
    
    Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.
11. Public sector equality duty
    
    The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not; and
• foster good relations between people who share a protected characteristic and those who do not.

12. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Government guidance

13. The Government has issued guidance to Councils about when to act on bins obstructing highways. The guidance says
14. Councils may issue fixed penalty notices when householders do not follow waste collection rules, and their failure to comply does one of the following:

• causes or is likely to cause a nuisance
• has a negative effect or is likely to have a detrimental effect on local amenities

15. Examples of when fixed penalty notices can be given are if householders put waste out so it:

• causes an obstruction to neighbours, such as forcing people using wheelchairs or buggies to walk on the road
• restricts access to the pavement or street, for example leaving waste receptacles (bins or bags) out for several days
• is likely to attract vermin like foxes and rats, such as leaving bags or open receptacles out days before a waste collection
• is unsightly (torn bags or overturned receptacles are left out)

What happened

16. Mr Y has physical disabilities and lives next to a road where his neighbours have been storing their bins. Mr Y needs to access the road so he can access his driveway and access to his house.
17. Mr X complained to the Council for Mr Y. He told the Council the bins were obstructing Mr Y, and because of his disability, he could not physically move the bins.
18. Mr X asked the Council to issue fixed penalties to the neighbours to ensure the bins were stored correctly and prevent Mr Y being impacted because of his disability. He outlined the government guidance which said the Council had the power to ensure people’s bins did not cause nuisance or obstruction.
19. The Council responded to Mr X’s complaint. It said the Council had discretionary powers to deal with bins left on highways. It said although government guidance allows for fixed penalty notices, it is down to the Councils discretion how to best deal with the issue. The Council said writing letters to the neighbours to remind them to be consideration was the most suitable action.
20. Mr X remained unhappy with the Councils response and bought a complaint to the Ombudsman for Mr Y.

Analysis

21. As part of my investigation, I asked the Council to show how it had given due regard to its duty under the Equality Act when deciding not to take further action about the bins.
22. The Council’s response said “The Government guidance is to use a measured and balanced approach before taking more formal action, to attempt to resolve problems. The council considers in this case writing to residents and monitoring any further problems was the appropriate and balanced approach to attempt to resolve the issues being experienced by this complainant.
23. Mr X and Mr Y had clearly told the Council of Mr Y’s physical disabilities and how the bin obstruction putting him at a disadvantage because of his disabilities.
24. The Councils response to Mr X and the Ombudsman does not evidence how the Council considered Mr Y’s disabilities during the decision-making process.
25. In response to my draft decision, the Council said it had considered Mr X’s disabilities when discussing the matter over the phone. However, it could not provide evidence of this. The Council recognised that it should have been clearer how it would monitor the situation and this meant it had not given consideration how the situation would cause continuing impact to Mr X. The Council accepted this meant it had not given due regard to its duty under the Equality Act 2010.
26. The Council has not been able to evidence how it considered its public sector duty under the Equality Act when deciding not to take further action. This was fault by the Council causing Mr Y injustice. The decision-making by the Council was flawed and therefore cannot be relied upon.

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Agreed action

27. Within 4 weeks the Council has agreed to

• Write to Mr Y and apologise for the fault identified.
• Pay Mr Y £150 in recognition of the injustice caused.
• Reconsider whether the Council should take further action, clearly showing how it has considered its duty under the Equality Act and make the decision without flaws.
• Remind staff of the Councils duty under the Equality Act to ensure that it evidences consideration during decision making where somebody has a protected characteristic.
• The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have now completed my investigation. I find fault with the Council for failing to have due regard to its Public Sector Equality Duty.

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Investigator's decision on behalf of the Ombudsman