Summary: There was fault by the Council, because it relied on the wrong part of the law to issue a fine to the complainant, when she left waste bags out for collection on the wrong day. The Council has agreed to apologise to the complainant and refund the fine, and to ensure its staff and contractors understand the Government’s guidance on this matter.

The complaint

1. I will refer to the complainant as Ms B.
2. Ms B complains the Council issued her a fixed penalty notice (FPN) for fly-tipping, because she left bagged refuse at the designated collection point on the wrong day. Ms B says this was disproportionate because she was acting in good faith. She also complains that Government guidance says councils should issue a written warning before serving an FPN in this type of case, but she did not receive any warning. Ms B says she has suffered distress and uncertainty because of this matter, and considers the Council should refund her the money she has paid.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

4. I reviewed Ms B’s correspondence with the Council’s enforcement agency, notes and other evidence provided by the Council, and advice from the Department for Environment, Food & Rural Affairs (Defra).

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What I found

5. Ms B lives in a flat above a shop. The Council’s procedure for collecting waste from properties like this is for residents to leave it on the street on collection day, at an obvious location such as a public bin. The Council provides residents with council-branded bags for this purpose, with different colours for general waste and for recycling.
6. Alongside the bags, the Council provides a leaflet for relevant properties explaining the procedure. The leaflet warns residents that leaving their waste out on the wrong day will be considered fly-tipping and may attract a fine.
7. There is a public bin directly outside Ms B’s property. On a lamppost next to it, the Council has erected a sign which tells residents they must place their waste bags by the public bin. The sign also warns residents that placing their bags out on the wrong day will be considered fly-tipping and may attract a fine.
8. On 27 December 2022, enforcement officers acting on the Council’s behalf found a pile of waste had been left next to the bin outside Ms B’s property, which included several branded bags. In one of the bags the Council found a piece of paper which included Ms B’s name and address.
9. The Council has explained its policy is not to issue an FPN for waste left out the day before or the day after the designated collection day. However, the previous collection day for Ms B’s property was 22 December, and the next was 31 December, and so this fell outside the three-day window. The enforcement agency therefore issued Ms B with an FPN on 4 January, under section 33 of the Environmental Protection Act 1990, requiring her to pay £400 within 14 days to avoid prosecution for fly-tipping. In describing her offence, the FPN said “a clear bag was found with evidence of offenders and name and address on it”.
10. Ms B emailed the enforcement agency on 9 January. She said what she had done was not fly-tipping but simply leaving her waste out on the wrong day, and that she had acted in good faith. Ms B highlighted Government guidance which said councils should not use FPNs for minor issues such as this, and also that a written warning should be issued before serving an FPN for a more serious offence. She asked the agency to reconsider its decision to issue the FPN.
11. The enforcement agency responded by email on 12 January to say it was satisfied the FPN was issued correctly. It explained there was no formal right of appeal against an FPN, but that, if Ms B wished to dispute the fine, she had “the right to appeal via the Magistrates Court”. However, the agency extended Ms B’s deadline for payment to 3 March.
12. Ms B complained to the Ombudsman on 19 February. She pointed out we had recently investigated and upheld a very similar complaint about the London Borough of Haringey (21 011 712 - Local Government and Social Care Ombudsman), and asked us for help with having the FPN revoked.
13. Before I began my investigation, Ms B paid the fine on 4 March. She says she did this to avoid prosecution and the possibility of a much larger fine, and not because she accepted liability for the offence.

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Legislative background

Fixed penalty notices

14. An FPN notifies the recipient they have committed a criminal offence, but that they may discharge liability – and therefore avoid prosecution for the offence – by paying a fine within a specified period. If they do not pay, they may be prosecuted, which can lead to a greatly increased fine, a criminal record, and for some offences potential imprisonment.
15. There is no formal right of appeal against an FPN, although it is good practice for councils to consider any representations a person makes, before deciding to prosecute them. If a person wishes to dispute the offence in court, they may wait to be prosecuted for it.

Environmental Protection Act 1990

16. 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.
17. 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.
18. Section 46 of the Act 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. This carries a right of appeal to the First-tier Tribunal.

Government guidance

19. The Department for Environment, Food & Rural Affairs has issued guidance on the gov.uk website for waste authorities on the use of penalties for failing to comply with collection rules.
20. The guidance says:

“The use of these penalties should focus on those who cause genuine harm to the local environment. It is good practice to try and inform the household about any issues on the presentation of their waste bins. For example, you could use a letter or information notice. You should do this before moving to the process of issuing penalty notices outlined here. Where you chose to do so, you must follow these rules when issuing fixed penalties under section 46A of the Environmental Protection Act 1990.

“You can issue fixed penalties 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 …

“You cannot issue them for minor problems, such as when householders:

• put something in the wrong receptacle by mistake
• forget to close receptacle lids
• leave receptacles out for a few hours before a collection”

21. The guidance explains an authority should follow a three-stage process to enforce against offences. It should first write a warning letter to offenders, explaining how they have broken the rules; then send a notice of intent that it is considering issuing a penalty notice, and giving the offender the opportunity to make representations. At the third stage it should issue the offender with a penalty notice, but the guidance says the maximum fine should be £80.
22. Defra has also issued a code of practice for waste authorities. This says that, for ‘domestic waste receptacle offences’, authorities should use a ‘civil penalty’ scheme and not an FPN.

Council policy

23. The Council’s website includes information on how it enforces against fly-tipping. It says:

“[Enforcement] officers focus on fly-tipping, but they also look for other environmental crimes. This includes … bins left out on the highway on non-collection days (£60 fine).”

The Legislative and Regulatory Reform Act 2006

24. Section 21 of the Legislative and Regulatory Reform Act 2006 says that regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent; and regulatory activities should be targeted only at cases in which action is needed.
25. The enforcement of waste offences is a regulatory activity for the purposes of the 2006 Act.

Principles of Good Administrative Practice

26. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils.
27. This document explains councils should ensure decisions and actions are proportionate, appropriate and fair.

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Analysis

28. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
29. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
30. What this means is that, in the narrow sense, it is not for us to decide whether Ms B committed an offence. The law gives the Council the power to make this decision, and we have no grounds to criticise the Council just for the fact it did so.
31. However, in issuing Ms B with an FPN, I am concerned the Council has relied upon the wrong part of the law.
32. The Council has explained to us that it considers Ms B’s offence to be one of fly-tipping. This is a criminal offence under s33 of the Environmental Protection Act, and an offender may be prosecuted, or receive an FPN as an alternative to prosecution.
33. But the guidance published by Defra says the act of leaving waste receptacles “out for several days” is one which should be dealt with under s46 of the Act instead. And this, it appears, is precisely what Ms B did. The FPN itself referred only to officers finding a clear bag of waste containing evidence of her name and address – and the photographs the Council has provided show this was a Council-branded recycling bag.
34. So Ms B left appropriately separated waste, in the correct Council-branded bags, at the designated collection point. But she did so on the wrong day, meaning it would be left there for several days before the Council came to collect it. This is what Defra says should be treated as an offence under s46.
35. I should note, at this point, there appears to be a contradiction in some of the information published by Defra. Defra’s guidance says offences under s46 can attract a ‘fixed penalty’, and this is the same term which is used in the Environmental Protection Act. However, Defra’s code of practice instead uses the term ‘civil penalty’ for the sanction available for s46 offences instead. This is somewhat confusing, but from context it appears both terms are intended to mean the same thing – and, critically, that a s46 ‘fixed penalty’ in this context is not the same as an FPN issued under s33 of the Act.
36. In its response to my enquiries, the Council said s46 only applies to a failure “to comply with the wheeled bin and recycling scheme … as per guidance from Defra”. It says Ms B instead illegally deposited waste on the public highway, which is classed as fly-tipping.
37. But there is nothing in the Defra guidance that says s46 should only apply to wheeled bins; and in fact the guidance refers explicitly to “bins or bags”, which clearly means councils should treat both offences in the same way.
38. We are conscious the definition of fly-tipping under s33 is broad, and in the strict sense, there is nothing which precludes a council from using it in the circumstances presented here. However, the law requires councils to act proportionately in discharging their regulatory duties. I am not persuaded the Council has shown the use of s33, and a £400 fine, to be a proportionate response to a bag of recycling waste left at the collection point on the wrong day.
39. And, critically, I note also the Council’s own website says that leaving bins out on the highway “on non-collection days” will attract a fine of £60. This is the level of fine set out in Defra’s guidance for a s46 offence. Even the Council’s own published policy, therefore, says that Ms B’s offence should be treated this way, and not under s33.
40. Taking this together, I am satisfied the Council’s use of s33 in this case was fault.
41. This fault has significant implications. First, as I have described, the guidance says the fine for a s46 offence should be between £60 and £80, far less than the £400 fine the Council issued to Ms B. So, by this measure, Ms B should have received a much smaller fine than she did.
42. This is an injustice to her for obvious reasons; but in fact, I do not consider Ms B should have received a fine at all at this stage.
43. As I have explained, the law sets out a three-stage procedure for fines under s46, and the first stage of this procedure is for the offender to receive a written warning.
44. I do note the Environmental Protection Act itself says only that authorities “may” issue a written warning, which appears to give them discretion whether to do so. However, Defra’s guidance says that authorities “must” issue a written warning, and we consider authorities should adhere to Government guidance such as this, unless they can provide a clear reason not to.
45. The second stage is for the authority to issue a notice of intent, explaining why it considers a fixed penalty is appropriate, and giving the alleged offender the opportunity to make representations against it. Then, at the third stage, the authority can serve a final notice 28 days after the notice of intent, issuing the fixed penalty, and explaining there is a right of appeal to the First-tier Tribunal against the penalty.
46. But here the Council did none of these things. It gave Ms B no warning, did not provide her with an opportunity to make representations, and did not explain she could appeal against a fine to the Tribunal.
47. In recommending remedies for a complainant, our principle is, where possible, to put them back in the position they would have been, had there been no fault.
48. In this case, had there been no fault, the Council would simply have issued Ms B a written warning, at the point it discovered the bags of waste. This being so, I consider the appropriate remedy for the injustice she has suffered is for the Council to refund the fine in its entirety.
49. It is also important for the Council to ensure its own relevant staff, and those of the enforcement agency, are aware of and understand Defra’s guidance about domestic waste receptacle offences and s46 of the Act. To this end, the Council should provide guidance to staff in both organisations on when and how to issue fines under s46. It may be beneficial, as part of this, to ask officers to ensure they read this report, though I will leave this decision to the Council.
50. On a separate point, in its response to Ms B’s representations, I also note the enforcement agency told her she had the right to appeal against the FPN in the magistrates’ courts.
51. This is incorrect. An FPN carries no formal right of appeal to any court or tribunal. Rather, a person who receives an FPN may refuse to pay it, and then wait to be prosecuted to put their case to court.
52. I do not consider this fault represents an injustice to Ms B, because there is no suggestion she sought to appeal the FPN, and it should not have been issued to her anyway. But the Council should ensure the enforcement agency understands clearly what an FPN is and that it does not carry a right of appeal.

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Agreed action

53. Within one month of the date of my final decision, the Council has agreed to:

• apologise to Ms B for wrongly issuing her with an FPN under s33 of the Environmental Protection Act;
• refund Ms B the full £400 she paid in response to the FPN;
• provide guidance to relevant Council staff, and to the enforcement agency, to ensure they are aware of and understand the Department for Environment, Food & Rural Affairs guidance on the use of fixed penalties for domestic waste receptacle offences; and
• provide guidance to the enforcement agency explaining the purpose of an FPN and that it does not carry a right of appeal.

54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman