Summary: Mr X complained the Council acted disproportionately when it issued him with a fixed penalty notice (FPN) for fly-tipping. We have not found the Council at fault for the procedure it followed when issuing the FPN to Mr X. We cannot therefore question the Council’s decision.

The complaint

1. Mr X complained the Council wrongly issued him with a fixed penalty notice (FPN) for fly-tipping when he left his refuse out for collection, but did not properly present it within the bins provided. Mr X said the Council did not consider the full range of its enforcement powers when deciding to issue the FPN. He said this led the Council to act disproportionately, in contravention of published guidance.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. The Ombudsman’s role is to review how councils have made decisions, in the course of performing their duties. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant evidence, or not properly explained the reason it has made a decision. We call this ‘fault’, and, where we find it, we can consider the consequence of the fault and ask the council to address this. But we do not provide a right of appeal against a council’s decisions, and we cannot make operational or policy decisions on a council’s behalf.
5. 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

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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Relevant legislation, guidance and policy

Fixed penalty notices

8. 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.
9. 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

10. 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.
11. 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 of up to £400 and there is no formal appeal process.
12. Section 34(2A) of the Act gives Councils the power to issue an FPN when a person appears to have failed in their duty of care to take all available reasonable measures to transfer their household waste to an authorised person for disposal, where this then leads to fly-tipping or improper disposal. An “authorised person” in this context would include the Council.
13. Section 46A 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 of up to £80. This carries a right of appeal to the First-tier Tribunal.

Government guidance

14. The government has published guidance on how local authorities should consider and use the powers available to them under the Act. The guidance encourages proportionality, transparency and accountability.
15. Regarding failures to comply with waste collection rules (S46A offences), the guidance says councils can issue fixed penalties if householders put out waste in such a way that it:
• causes an obstruction forcing people using wheelchairs or buggies to walk on the road;
• restricts access to the pavement or street;
• is likely to attract vermin like foxes and rats, such as leaving bags or open receptacles out days before a waste collection; and
• is unsightly, with torn bags or overturned receptacles being left out.
16. Regarding penalties for duty of care breaches (S34(2A) offences), the guidance says councils should not issue an FPN citing this legislation when an individual intends for the council to collect their waste, which has been put out as household waste or recycling. The guidance says it is reasonable to believe the council is an authorised person. In putting the waste out for the council to collect, the individual has taken all reasonable steps to ensure they transfer it to an authorised person. The guidance says other penalties are already available when individuals do not comply with waste receptable requirements. It says FPNs issued under 34(2A) are not substitute penalties for these cases.

Principles of Good Administrative Practice

17. In 2018, the Ombudsman published a document setting out principles of good administrative practice and what we expect to see from councils.
18. This document explains councils should ensure decisions and actions are proportionate, appropriate and fair. It also stressed the importance of explaining the reasons for decision making, and keeping proper, suitable records.

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What I found

Key events

19. In early September 2024, Mr X moved out of his property. Mr X said he attempted to put as much of his refuse into the provided wheelie bins as possible, but there was not enough space. Mr X said he contained the excess waste by bagging this up and leaving it next to the wheelie bins for collection. Mr X said the contained bags did not protrude beyond the threshold of the bins themselves.
20. On 17 September 2024, the Council inspected the area. It found Mr X’s refuse spread across the street and decided this was fly-tipping.
21. On 30 September 2024, the Council wrote to Mr X with its consideration of proceedings:
• The Council said it had found a large fly tip, which had been reported as creating an environmental issue and a safety concern. The Council said the refuse also caused a trip hazard, as it obstructed the footway.
• The Council said the fly tip consisted of blue and black bags, with varied types of household waste, and several unfolded boxes. The Council identified Mr X through delivery notes found on the refuse. The Council provided pictures.
• The Council said it believed Mr X had completed an offence contrary to S33 of the Act. The Council gave Mr X the chance to comment.
22. On 9 October 2024, Mr X returned a completed voluntary postal statement, providing an explanation:
• Mr X said he had attempted to contain as much of the waste inside the wheelie bins as possible, but these were already mostly full. Mr X said he put the excess waste neatly in bags within the threshold of the bins, so they did not protrude onto the pavement. Mr X said he had done this many times in the past, without issue.
• Mr X said between when he left the property and when the Council inspected, cleaners from the property and the Council’s own waste operatives had interacted with the bins, leading to the situation shown in the Council’s photographs.
23. I understand the Council issued Mr X with an FPN on 17 October 2024 for £200.
24. On 22 October 2024, Mr X wrote to the Council to ask it to review the FPN:
• Mr X said the Council had disregarded government guidance. Mr X said S33 of the Act was intended to punish fly-tippers, not to charge residents leaving out recycling refuse with a criminal offence. Mr X said this action was not proportionate, nor in the spirit of the updated guidance.
• Mr X cited government guidance on issuing FPNs for household waste, which said occupiers had a duty to take reasonable measures to ensure their waste was transferred to an authorised person. Mr X said he left his waste in a contained state next to a receptacle provided by the Council, so it could be collected. Mr X said if there was an issue with how the waste had been left for transfer, the Council should have acted proportionately under section 46A of the Act, rather than relying on S33.
25. On 21 November 2024, the Council responded to Mr X:
• The Council said it had decided to uphold the FPN, in the interests of proportionality and fairness. The Council said fly-tipping was a major issue in the district.
• The Council said Mr X had conceded he had placed waste between the bins outside his former property, and not in the bins designated for residents.
• The Council said its pictures showed the extent of the fly-tipping and the obstruction of the highway. It said fly-tipping encouraged others to unlawfully deposit waste.
• The Council offered Mr X the chance to pay a discounted amount within a certain period. The Council said if Mr X did not pay within 28 days, it would consider legal proceedings.
26. Mr X brought his complaint to the Ombudsman.
27. The Ombudsman asked the Council to show it had considered the relevant guidance when deciding which enforcement powers it should use. We also asked the Council to provide evidence showing how it considered Mr X’s representations. Summarising its response:
• The Council said it operated a containerised waste collection service in Mr X’s area, providing wheelie bins for waste. It said households should place all waste within the wheelie bins provided. It said households should take any excess waste to a recycling centre, or arrange an excess waste collection. It said any excess waste dumped next to the wheelie bins, irrespective of the reason, would be classified as an offence of fly-tipping under S33(1) or S34(2A) of the Act.
• The Council said S46A of the Act applied when an individual presented their waste incorrectly. For example, if they put their food waste in the recycling bin, or presented bagged waste at the wrong time for collection.
• The Council said Mr X’s representations were a defence under S46A of the Act. The Council said this was not the offence it was pursuing in this case. The Council said it had considered relevant guidance and decided to cite the offence as a S34(2A) offence, rather than a S33 offence. It issued the FPN on this basis.
• The Council provided no other contemporaneous evidence of its decision-making, beyond the rationale set out in its response to our enquiries.
28. The Council placed a discretionary hold on enforcement action in Mr X’s case while the Ombudsman investigated, which I note positively here.

Analysis

Did the Council act with fault?

29. Mr X and the Council provided comments on the Council’s judgement that Mr X’s actions amounted to fly-tipping, rather than a waste receptacle offence that would attract a lesser penalty under S46A. The Ombudsman was initially concerned the Council had not properly considered which of its powers would be most proportionate, or that it could not show the legislation it relied on to issue the FPN was correct.
30. I have carefully considered the Council’s comments in response to these concerns. The Council set out its view that S46A offences are those in which an individual wrongly presents waste for collection. For example, leaving correctly secured or bagged waste for collection at the wrong time, where timed collections are in place, or presenting an accidentally contaminated waste collection, such as food waste being mixed with recycling. The Council said this was different to intentionally leaving a high volume of incorrectly secured and presented waste in the wrong place at the wrong time, in a way that caused an obstruction. It was the Council's judgement Mr X had committed fly-tipping. The Council said having considered Mr X’s comments, it acted correctly by issuing an FPN under S34(2A) rather than S33(1), as it considered this was the correct use of its powers in the circumstances.
31. In this case, the Council inspected the site and found Mr X’s excess refuse spread across the pavement, having initially been placed in non-standard waste bags placed alongside the Council-issued waste bins. It photographed its findings and sent copies of this evidence to Mr X, with a voluntary postal statement setting out the nature of the alleged offence, inviting comment from Mr X. The Council said it noted within his comments, Mr X accepted he left his waste outside the Council-issued waste bins and said he had done this on other occasions. The Council said, having regard for Mr X's comments and relevant guidance, it then issued an FPN citing S34(2) as the applicable legislation.
32. This is the procedure we would expect the Council to follow. The Council deciding to issue the FPN under different legislation after considering Mr X’s comments would show sufficient consideration of its available enforcement options. I also note the Council publishes a policy on its website, setting out the circumstances in which it will use its S46A powers. This further demonstrates the Council has considered how it will apply all its available powers, depending on the specific circumstances of the case.
33. Given this, I have not found the Council at fault for the procedure it followed. I cannot therefore question its decision.

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Decision

34. I have completed my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman