Summary: Mr X complained the Council fined him for littering when it could have issued him with a warning instead. We find no fault in the Council’s actions. We do not uphold Mr X’s complaint.

The complaint

1. Mr X complains the Council should have issued him with a warning instead of a fixed penalty notice (FPN) when he left cardboard boxes out for his recycling collection.
2. Mr X says this has caused him distress and frustration and caused him financial hardship.

Back to top

The Ombudsman’s role and powers

3. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

Back to top

How I considered this complaint

5. I have considered all the information Mr X provided and discussed this complaint with him. I have also considered information the Council sent in response to our enquiries.
6. Mr X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

Back to top

What I found

Law

7. Councils have a duty under the Environmental Protection Act 1990 (the EPA) to collect household waste and recycling from properties in their area. Councils can decide the type of bins, boxes or bags people must use.
8. Section 46A (S46A) of the EPA is about written warnings and penalties for failure to comply with requirements relating to household waste receptacles.
9. It says that where an authorised officer (in this case the Council’s officer) is satisfied that a person has failed to comply with a requirement imposed by the authority, the officer may give a written warning. This is where the person’s failure to comply has caused or was likely to cause a nuisance or was likely to be detrimental to the amenities of the local area.
10. Section 87 (S87) of the EPA says that it is an offence to drop, throw or leave anything which contributes to the defacement of any place where the section applies. A person convicted of the offence is liable for a fine of up to £2500.
11. S87 applies to any public open place and to any relevant highway.
12. Section 88 (S88) of the EPA says that where an authorised officer believes someone has committed an offence under S87, the officer can issue that person with an FPN. If the FPN is paid, this ends the person’s liability and means there will be no prosecution.

The Council’s recycling procedure

13. The Council’s website sets out how recycling is collected.
14. Recycling should be put out after 9pm the day before collection or before 6am on the day of collection.
15. Single use ‘smart sacks’ are used for recycling where a wheeled bin is not appropriate.
16. Clean, dry and flattened cardboard boxes should be placed in the sacks and then put out for collection.

What happened

17. This is a summary of key events. It is not meant to show everything that happened.
18. Early in November 2024, Mr X left cardboard boxes on the pavement outside his home ready for his recycling collection the following day. Boxes were leaning against railings for the property. The cardboard boxes were stacked on top of each other with other boxes inside them.
19. Two days after the scheduled recycling collection, an officer from the Council, Officer J, passed the boxes. He noticed that some of them were addressed to Mr X’s partner, Ms Y, who lives at the same address. Officer J left a card at the address which gave his contact details.
20. Ms Y called the officer and explained the boxes had not been collected on the scheduled day. Officer J advised Ms Y the boxes had not been put out for collection in the correct way.
21. Officer J then issued an FPN for littering to Ms Y and included a picture of the boxes left on the pavement. The notice explained this was under S87 and S88 of the EPA. It said residents had a responsibility to ensure domestic waste was disposed of properly. The Council considered the boxes were classed as littering on the public highway. It explained how Ms Y could pay the FPN and that if she chose not to, the matter may go to court. The notice advised how to contact the Council to appeal.
22. Two days later, Mr X emailed the Council to advise the FPN should be in his name as he was responsible for placing the boxes outside. He said that other boxes left outside of other properties along the street had been collected but not his. He asked the Council to show some flexibility because this was the first time he had been approached about waste he had left out.
23. The Council replied to say it was satisfied the FPN should remain.
24. Mr X then queried why the Council had not chosen to use S46A of the EPA. He said this allowed councils to issue a warning when someone had failed to place household waste outside in the correct way.
25. Later that day, Officer J responded. He said councils had discretion to issue warnings but that in this case he considered the FPN should remain. He explained some of the relevant parts of S87 and S88. He also commented there were ‘no dumping’ and ‘FPN warning’ signs on Mr X’s street and that households had a duty to follow Council guidelines for waste collection. He said the correct way to put rubbish out for collection was available on the Council’s website.
26. Mr X then paid the FPN which had been re-issued in his name. He then brought his complaint to the Ombudsman.

Analysis

27. The Council’s website clearly explains how all recycling should be placed out for collection. In Mr X’s case, this is in sacks to be placed outside of the property. This did not happen with Mr X’s waste.
28. The Council considered that the waste had not been correctly presented and so when it remained on the street, this amounted to littering. The Council chose to deal with this using S87 and S88 powers by issuing the FPN with a fine to be paid or risk prosecution if not.
29. Whilst the Council does have the ability to issue a warning under S46A, it is for the Council to decide which section of the EPA to use for the individual circumstances presented.
30. I am satisfied it considered relevant factors before deciding to issue the FPN for littering. I am satisfied this was within the scope of the relevant legislation. I find no fault in the Council’s actions.

Back to top

Final decision

31. I have now completed my investigation. I do not uphold this complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman