Summary: Mr X complained the Council routinely fails to collect household waste and recycling from his area and that full and overflowing bins are left on the pavement causing an obstruction. We find the Council’s lack of transparency regarding the likelihood of the Public Space Protection Order proceeding and its failure to inform Mr X when it decided not to proceed is fault. This fault has caused Mr X an injustice.

The complaint

1. The complainant, Mr X complained the Council routinely fails to collect household waste and recycling from his area. He complains the full and overflowing bins, including broken bins are left on the pavement causing an obstruction. Mr X complains the Council does not tag contaminated recycling bins and the waste remains on the street uncollected.
2. Mr X also complains that when the bins are emptied they are not returned properly but are gathered on street corners where residents cannot find them.
3. Mr X would like the Council to take effective enforcement action to ensure the waste is collected and the bins are not left obstructing the pavement.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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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What I have and have not investigated

7. Mr X says the problem has been ongoing since the introduction of wheelie bins almost a decade ago and that the Council has been aware of the issue for a number of years. However my investigation will only focus on events since 2023.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X;
• Mr X 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

What happened here

9. Mr X is not complaining about failings in the waste collection service he receives from his own property, but rather about broader failings in services provided in his local area. He complains waste is not routinely collected so residents leave their bins permanently on the pavements causing obstructions. Mr X also complains about fly tipping and broken bins that are not removed. He says the waste accumulating on the streets is a health hazard.
10. When the bins are emptied Mr X says the collection crews do not return them properly to their respective properties but leave them on street corners and across pavements. Where they again cause obstructions.
11. Mr X has raised his concerns with the Council, his local councillors and MP and says they all blame residents and government funding rather than take any action. In February 2023 the Council confirmed the Waste Enforcement Unit was already aware of the issue and an officer was carrying out an investigation.
12. The Council advised Mr X that bins left on the street were a civil matter and the Council had no effective enforcement powers to resolve it. It explained the Council was looking at long term solutions to the problem of bins being left constantly on streets.
13. In September 2023 Mr X asked for an update and an indication of when they could expect some kind of solution. The Council advised Mr X it was exploring the option if a Public Space Protection Order (PSPO) for the area which would give the Council powers to tackle the issues. If this progressed the Council would be asking for feedback from residents via a consultation. Mr X asked for a timeline for the consultation and whether the Council would educate residents on the use of their bins in the meantime.
14. The Council confirmed the Waste Prevention team would write to the relevant properties on the use of their bins. In relation to the PSPO consultation the Council advised that meetings were progressing but due to the Council’s current financial constraints the spending for this project needed to be approved.
15. The Council had recently issued a notice under section 114 of the Local Government Act 1988 as its expenditure was greater than the resources available to it. As a result it had to cease all non-essential expenditure and reduce the Council’s operation and service delivery costs. It did not therefore have a timeline as yet.
16. Mr X made a formal complaint about the lack of action pending a longer term solution in October 2023. He said the area was mainly Houses in Multiple Occupation (HMOs) and that the tenants were not aware of waste procedures. Recycling bins were being used incorrectly so could not be collected as they were contaminated. Mr X noted the usual procedure was to tag contaminated bins and empty them the following week, but this was not happening here.
17. In addition Mr X complained the Council’s refusal to carry out educational visits meant the pavements were continually full of overflowing, contaminated waste. He also noted that on streets where residents do not have wheelie bins they leave bin bags on the pavement, which also cause an obstruction or block the pavements. He asked the Council to follow its waste procedures by tagging contaminated waste and then emptying the bins. And to educate residents on waste disposal procedures and where to store their bins.
18. Mr X also complained that commercial bins were blocking some pavements and needed to be moved.
19. The Council’s response advised an officer had visited and noted the commercial bins were present and well presented with plenty of room for pedestrians and wheelchair users. The bins were neatly on the pavement and kept there due to restricted access made worse by the parking situation. The Council said it had considered other options but the current location was the best place for the bins.
20. The Council also advised that the contents of tagged bins needed to be rectified and separated before the next collection date.
21. In relation to the PSPO the Council advised this was a lengthy process and its intentions were to have it in place by next year. The PSPO would prevent residents from leaving their bins on the street, landlords from keeping illegal waste on the pavement and letting agents from allowing this type of behaviour/ offences from properties they manage.
22. The Council also confirmed its Waste Prevention team continued to carry out education in the area and were trying to deal with the matter. It apologised for any inconvenience and frustration and thanked Mr X for his patience.
23. Mr X was not satisfied by the Council’s response and asked for his complaint to be considered further. He asserted the commercial bins could be stored other than on the pavement and disputed that contaminated bins were being tagged or educational letter sent to residents. Mr X also asked for broken bins to be removed from the streets.
24. The Council reviewed Mr X’s complaint and advised the Waste Prevention team had visited all of the roads and properties that had been reported on multiple occasions. They had also sent out 1690 educational letters that year. All broken bins had been reported to the Stores department for replacement bins to be issued. But the Stores department had a large backlog.
25. The Council reiterated that implementing a PSPO would take time. It also said that due to the financial circumstances the Council currently faced, there was no guarantee the PSPO would be implemented.
26. As Mr X remains dissatisfied he has asked the Ombudsman to investigate his concerns. He says household waste is not collected every week and the recycling is left for months. As a result, the bins are permanently left on the pavement blocking access. Mr X says the accumulation of waste also attracts rats and encourages fly tipping. He has to walk past the smelly over flowing rubbish every day and would like the Council to ensure the bins are emptied as scheduled.
27. He would also like the Council to enforce the licensing conditions of the HMOs in the area in relation to waste storage.
28. In response to my enquiries the Council has provided details of the actions taken by both the Waste prevention team and the Waste Enforcement team in relation reports of fly tipping and waste on the streets. In addition to Mr X’s reports of fly tipping and uncollected waste, the Council received 25 requests for assistance from other residents in the last year.
29. The Council says officers from the Waste Enforcement Unit engaged with Mr X and explained they were pursuing a PSPO and that the issues would be covered under that procedure. Officers also explained that the decriminalisation of offences under section 46 of the Environmental Protection Act meant that local authorities were struggling to enforce the issue of domestic waste presentation. The Council says it made Mr X aware there were unlikely to be individual actions with regards to the complaints.
30. The records show that where officers visited the areas the waste had often been removed by the time of their visit. Where possible the Council spoke to or contacted the alleged perpetrator but in a number of reports a lack of evidence meant the Council could not take any further action.
31. The records also show the Waste Prevention team regularly sent educational letters to residents as part of their investigations in to reports of fly tipping and bins left on the street.
32. The Council says it closed its Waste Prevention team in April 2024. This was a non-statutory service and was closed due to the Council’s current financial circumstances. It is therefore unable to distribute further educational leaflets on the correct ways to recycle.
33. Where the Council identifies contaminated recycling waste it informs resident via their online BRUM accounts that their bin is contaminated. In addition, if the crews have any tags, they will place them on the bin to make the resident aware their bin is contaminated. The Council’s financial constraints meant that for a period crews were unable to tag bins, but the Council says this should not be an issue going forward.
34. The Council says its policy on contaminated recycling is that it will only empty the bin once the resident contacts the Council to confirm they have removed the contaminated materials. It says it does not pick up or empty contaminated bins.
35. In relation to the PSPO the Council says it held initial discussions into the viability in December 2022. Officers spent time with another local authority that had implemented a PSPO and spent time drafting all the documents and contacting external stakeholders. Proceedings were then put on hold in September 2023 when the Council issued a Section 114 notice regarding its finances.
36. The Council says officers have held further meetings this year and are trying to get confirmation they can go ahead with the PSPO.
37. However in response to the draft decision the Council says the Waste Enforcement Unit’s indications that it was still considering a PSPO were an error. It has now confirmed the deletion of the Waste Prevention team made the PSPO almost certainly unactionable.
38. The Council notes the Anti-social Behaviour, Crime and Policing Act 2014 does not impose a statutory duty on the Council to undertake an PSPO. Similarly there is no statutory requirement under the Environmental Protection Act 1990 to investigate complaints of waste being presented incorrectly, nor the advancement of domestic waste bins.
39. As a result of the Section 114 notice the Council must seek approval for monies to be spent on the PSPO and says that is not forthcoming. It says there is no money for the signage required where a PSPO is declared.
40. The Council also says that the deletion of the Waste Prevention team means there is no longer an educational team to intervene or advise of the offence. There is also no team to undertake the educational side of the work that would make the PSPO proportionate.
41. In addition, the Council says the proportionality of enforcement is an issue. The nature of the accommodation in the area means there is a transient population that needs to be engaged. The Waste Prevention team, which was responsible for serving formal notices on how waste should be presented, has been deleted.
42. The Council acknowledges it should have kept Mr X informed and advised him it was not proceeding with a PSPO.

Analysis

43. There is no dispute there is an issue with waste left on the streets in Mr X’s area. And it is clear from the documentation available that the Waste Prevention team and the Waste Enforcement team have both tried to tackle this issue. Officers have visited the area, tried to identify perpetrators, and sent a significant number of educational letters to residents. The also Council identified a potential long term solution to the problem in the form of a PSPO.
44. However the Council’s efforts to tackle this issue are now hampered by the financial restraints in place following the Section 114 notice.
45. The closure of the Council’s Waste Prevention team means the Council no longer has the resources/ staff to carry out further educational work or serve formal notices. It is has also now confirmed it is unable to proceed with the PSPO.
46. I recognise Mr X will be disappointed with the Council’s decision not to proceed with a PSPO, but this is a decision the Council can take. The Council has the power to implement a PSPO but there is no statutory duty that requires it to.
47. It is however unfortunate that the Council has not made its position regarding the PSPO clear sooner. Although the Council did not offer Mr X any guarantees it would implement the PSPO, its communication does suggest this was still under consideration and progress was being made. I consider the lack of transparency regarding the likelihood or otherwise of the PSPO proceeding is fault. This fault has raised Mr X’s expectations and led to frustration and disappointment. For which the Council should apologise.

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Agreed action

48. The Council has agreed to apologise to Mr X for the failure to inform him of its decision not to proceed with a PSPO and the frustration and disappointment this has cause.
49. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Final decision

50. The Council’s lack of transparency regarding the likelihood of the PSPO proceeding and its failure to inform when it decided not to proceed is fault. This fault has caused Mr X an injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman