Summary: We will not investigate this complaint about the terms and conditions of the Council’s Garden Waste Subscription Scheme. This is because Mr X has a remedy through the courts if he believes the Council’s terms and conditions are unfair and contrary to legislation.

The complaint

1. Mr X complains about the unfair nature of the Council’s terms and conditions for its Garden Waste Subscription Scheme which cover the circumstances it will offer a refund of fees. Mr X says there should be a refund for every missed collection.

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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. 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)
4. We 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. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by the complainant and the Council, including its response to the complaint.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complained to the Council that the terms and conditions which form part of its Graden Waste Subscription Scheme are unfair and should offer financial reimbursement for every missed collection.
8. Having consulted its Legal Team, the Council advised Mr X that it was not, contrary to his claim, in breach of the Unfair Contract Terms Act 1977 and that it would not be changing its policy. It told him he could take action through the courts if he wanted to challenge its position.
9. The restriction highlighted at paragraph 3 applies to Mr X’s complaint. It will be for courts to determine whether the Council’s terms and conditions are in breach of the 1977 Act and if Mr X wants to change their legality it is open to him to take action through the courts. As he has this alternative remedy available which we would reasonably expect him to use, the complaint falls outside our jurisdiction and will not be investigated.
10. Moreover, the service provided under the Scheme is an optional one from which Mr X can opt out if he so chooses. That the nearest waste disposal site to Mr X is some miles away from his home does not change this point.

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Final decision

11. We will not investigate Mr X’s complaint because he has a remedy through the courts if he believes the Council’s terms and conditions are unfair and contrary to legislation.

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Investigator's decision on behalf of the Ombudsman