Summary: We will not investigate this complaint about the Council’s decision on where refuse bins should be presented for emptying, and it subsequently serving an abatement notice on the complainant. There is not enough evidence of fault in the way the Council reached its decision on the collection point, and it is reasonable to expect the complainant to have used their right of appeal against the abatement notice.

The complaint

1. Company X, a management company for a block of flats, complains the Council has failed to properly consider where the waste bins should be collected from. It says the Council is being discriminatory as it is still not collecting the waste, despite them adhering to its demands, and has served them with an abatement notice in retaliation for their complaint.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. So, we do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. And, 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)

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How I considered this complaint

6. I considered information provided by Company X and the Council, which included their complaint correspondence and an update on what has happened since the Council issued its final complaint response.
7. I also considered the Ombudsman’s Assessment Code.

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My assessment

8. I appreciate Company X disagrees with the Council’s decision that the bins need to be moved to the pavement for collection and then returned to the yard/alley after emptying.
9. But, Council’s have broad discretion to decide how it meets its duty to collect household waste, including where bins should be presented, and the Ombudsman is not an appeal body. This means we do not overrule Council decisions or tell it how it should operate its services. Rather, we look at whether there was fault in the way it makes its decisions. If we decide there was no fault in how it did so, we cannot question whether it should have reached a particular decision or say it should have reached a different outcome.
10. I find there is not enough evidence of fault by the Council to justify starting an investigation into the complaint about the collection point. In reaching this view I am mindful that:

• The Council says it has reviewed the independent health and safety advice submitted by Company X, but maintains the view that the bins should be moved to the pavement for collection. Company X may well disagree with this decision, but it is made by officers exercising their professional judgement, and having regard to the Council’s own internal advice. The merits of such judgements are not open to review by the Ombudsman, and it is not fault for a council to properly make a decision with which someone disagrees.
• In reaching its decision, the Council has explained it considered the distance the bins have to be pulled to the kerbside, the surface(s) over which the bins are pulled, and the need to limit the time that refuse vehicles are stopped at this busy location.
• The same collection arrangement applies to other users who store their bins in the yard/alley area.
• The Council has previously offered to change the collection day (to assist with making arrangements for the bins to be presented), to put Company X in contact with another management company that employs someone to move their bins, and it has cleared the alleyway area of accumulated waste on two occasions.
• Since issuing its final complaint response, the Council has been monitoring collections at this location, and says the bins have only been presented on the pavement for collection a handful of times.

11. And, with reference to paragraph 5 above, we will not investigate any parts of the complaint about the Council serving an abatement notice in late-November 2023. This is because the law says we usually cannot investigate a complaint where someone could have taken the matter to court. Anyone receiving an abatement notice has 21 days to appeal to the magistrates court if they want to challenge it. The abatement notice informed Company X of this appeal right, so I see no reason why it should not be expected to have used this court remedy if it considered the notice was defective, served on the wrong person, or was unjustified.

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Final decision

12. We will not investigate this complaint because there is not enough evidence of fault by the Council in relation to its decision on the bin collection point, and it is reasonable to expect Company X to have used its court remedy if it wanted to challenge the abatement notice.

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Investigator's decision on behalf of the Ombudsman