Summary: Mr X complained the Council wrongly issued him with a fixed penalty notice when he left his domestic refuse out for collection at the wrong time. We have found fault by the Council in not considering the full range of powers when deciding to issue the notice. We consider the agreed action by the Council of a refund of the amount paid by Mr X and an apology provides a suitable remedy.

The complaint

1. The complainant, Mr X, complains the Council wrongly issued him with a fixed penalty notice (FPN) when he left his domestic refuse out for collection at the wrong time. Mr X would like a refund of the £150 he has paid.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 read the papers provided by Mr X and discussed the complaint with him. I have also considered information from the Council. I have explained my draft decision to Mr X and the Council and provided an opportunity for comment.

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What I found

Legal and administrative background

Fixed penalty notices

6. 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.
7. 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

8. 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.
9. 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.
10. Section 87 says that a person is guilty of an offence if they throw down, drop or otherwise deposit any litter in any place to which this section applies and leaves it. This section applies to any place in the area of a principal litter authority which is open to the air.

Government guidance

11. Defra has issued guidance for waste authorities on the use of penalties for failing to comply with collection rules. 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 …

“London councils can issue penalty charges instead of fixed penalties - the same rules apply.

“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”.

12. The guidance explains an authority should follow a three-stage process to enforce against offences. It should first send 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.
13. 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.

The Legislative and Regulatory Reform Act 2006

14. Section 21 of the Legislative and Regulatory Reform Act 2006 says that these 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.
15. The enforcement of waste offences is a regulatory activity for the purposes of the 2006 Act.

Principles of Good Administrative Practice

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

Key facts

18. Mr X lives in a flat. The Council collects Mr X’s household waste and recycling from outside the flat using refuse sacks.
19. The Council uses time-banded collections for some flats that are above shops or where the entrance to the property is on a street with high footfall. This means rubbish and recycling must be put out at certain times of day.
20. Mr X received an FPN for fly tipping with a penalty of £400 as two bags had been found on the pavement on the wrong day which were identified as belonging to Mr X.
21. Mr X complained to the Council’s contractor as he had not been told there had been a change to his collection day. Mr X says he was made aware of the change on the day he received the FPN. The Council’s contractor responded to say it was satisfied the FPN which referred to section 87 of the Act was issued correctly as Mr X had left his waste out on the wrong day. However, the contractor advised the FPN had been reissued for £150, or £100 if paid within 10 days.
22. The Council subsequently provided a response to Mr X under its complaint procedure. The Council did not uphold Mr X’s complaint and noted section 87 of the Act defined littering as “A person is guilty of an offence if they throw down, drop or otherwise deposits any litter in any place to which this section applies and leaves it”. The Council explained it was reviewing the use of FPNs and planned to introduce Penalty Charge Notices (PCNs). The Council noted the relevant legislation would be section 46 but that it did not propose to issue a warning before issuing a PCN.
23. Mr X paid the £150 fine and complained to the Ombudsman.

Analysis

24. Mr X says the Council’s actions were disproportionate because he was acting in good faith by putting his bagged refuse at the usual collection point on the day he believed to be the collection day. Mr X says the Council should not have issued an FPN in these circumstances. Mr X noted the Council should have considered section 46 in any action it had taken and should have issued a warning before issuing a penalty notice.
25. 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 council to address these.
26. However, we do not make 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, we cannot question it no matter how strongly a complainant feels it is wrong.
27. So, it is not for us to decide whether Mr X committed an offence. The law gives the Council the power to make that decision, and we have no grounds to criticise it just for the fact it did so. However, in issuing Mr X with an FPN, we are concerned the Council has not shown how it considered the various options available to it.
28. 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. It would appear this is precisely what Mr X did. The FPN itself referred to household waste. Mr X left waste in bags on the pavement close to his property for collection. Mr X did so on the wrong day in error. This is what Defra says should be treated as an offence under s46.
29. We should note, at this point, there appears to be a contradiction in some of the information published by Defra. The 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 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 s87 of the Act.
30. We also note the definition ‘litter left to the open air’ under s87 is broad, and it is important to highlight that councils can consider their full range of powers when they find wrongly deposited waste. However, the law requires councils to act proportionately in discharging their regulatory duties. We are not persuaded the Council has shown how the use of s87 was a proportionate response to bags of waste left at its usual collection point early, or how it would generally differentiate between the various powers it has at its disposal.
31. Since Mr X’s complaint, the Council has introduced the use of PCNs. The Council’s website now says, ‘You may have to pay a penalty charge notice (PCN) if you put out your waste for collection at the wrong time.’ The Council’s website does not explain the legislation under which the Council would issue a PCN or how it has applied the guidance from Defra about a warning and notice of intent.
32. Taking this together, I find the Council at fault, on the basis that it was not clear how it considered the full range of powers available to it before deciding to issue a FPN under s87.
33. However, the Council has now offered to refund the FPN in full, which we consider represents a suitable remedy.
34. It is also important for the Council to ensure relevant staff are aware of and understand Defra’s guidance about domestic waste receptacle offences and s46 of the Act, and when it would be more appropriate to enforce domestic waste offences under these powers. To this end, the Council should provide guidance to staff on when and how to issue fines under s46, as well as the occasions where it would be proportionate to enforce contraventions under more stringent powers.

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Agreed action

35. The Council will take the following action within one month of my final decision:
1. apologise to Mr X for wrongly issuing the FPN;
2. refund Mr X the £150 he paid under the FPN; and
3. provide guidance to relevant staff 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.
36. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman