Summary: Ms X complained the Council wrongly issued her with a Fixed Penalty Notice regarding commercial waste when she does not run a business. Ms X says this has cost her financially, through payment of the penalty and loss of income. She said this also caused her distress. There was fault in the way the Council did not explain its position, did not allow Ms X to explain her position and the complaint handling was poor. This frustrated Ms X and she was put to time and trouble to complain. The Council agreed to refund the penalty notice as it offered, make a financial payment, provide guidance to its staff and review its policy.

The complaint

1. Ms X complained the Council wrongly issued her with a Fixed Penalty Notice (FPN) regarding commercial waste when she does not run a business. Ms X says this has cost her financially, through payment of the FPN and loss of income. She said this also caused her distress.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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

4. I read Ms X’s complaint and spoke to her about it on the phone.
5. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

7. Councils have a duty under the Environmental Protection Act 1990 to collect household waste and recycling from properties in their area. The collections do not have to be weekly and councils can decide the type of bins or boxes people must use.
8. A commercial waste duty of care certificate is a legal document a business must possess to demonstrate responsible waste management.
9. A fixed penalty notice (FPN) is a fine issued for certain minor offenses, offering a way to resolve the issue without going to court. It's an alternative to prosecution, and if paid within the specified timeframe, the matter is usually concluded. 
10. There is no right of appeal in law against an FPN. If the individual wants to dispute the offence, the only formal way to do this is to wait to be summoned to court, then defend themselves during the proceedings.
11. The Council complaint policy states the Council would:
• respond to a stage one complaint in 10 working days; and
• respond to a stage two complaint in 20 working days; and
• explain the escalation right to the Ombudsman.

What happened

12. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
13. Ms X said she occasionally rented out a spare bedroom in her property. The Council visited Ms X’s home in February 2024 and issued a producer notice, asking her to provide a duty of care certificate for her business waste. Ms X said she was not running a business and assumed the notice was an error. She said she occasionally rented out a bedroom and asked why the Council thought she was a business.
14. Ms X complained to the Council two weeks after the producer notice. Ms X repeated she lived in her home and occasionally rented out a bedroom. She said she was not a business.
15. The Council told Ms X it believed she was renting a bedroom and classed it as a business. It repeated she needed a duty of care certificate. The Council said it was forced to issue a £300 FPN. The Council told Ms X she could not complain about an FPN. If she wanted to contest it, she could challenge the FPN in a magistrates’ court.
16. The Council issued the FPN for £300 at the end of February 2024.
17. Ms X paid the £300 in March 2024. Ms X said she paid as she did not want court proceedings to impact her career.
18. Ms X complained to the Council again in July 2024. She complained about her engagement with the Council. Ms X said the Council did not respond to her February complaint and issued her the FPN. The Council recorded it would not consider the complaint as it was about an FPN. I have not seen evidence the Council told Ms X it would not consider her complaint.
19. Ms X chased the Council for a response at the start of August 2024. The Council told Ms X to appeal by its online link. Ms X confirmed she had done that but had no response.
20. Ms X chased the Council at the end of August 2024. The Council did not respond.
21. Ms X chased the Council again in September 2024. The Council response said it issued the producer and the FPN in line with legislation and had no evidence of staff misconduct. Ms X asked what stage of the complaint process she was at.
22. Ms X chased the Council in October 2024. The Council response a week later confirmed the email in September 2024 was its stage one response. The Council repeated its response saying it issued the FPN correctly.
23. Ms X continued to challenge the Council position and chase responses in October and November 2024.
24. The Council responded in December 2024. It said it was satisfied it answered Ms X’s questions. The Council said as Ms X paid the FPN, it showed she accepted the FPN and discharged her liability. The Council directed Ms X to the Housing Ombudsman.
25. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to refund the FPN and explain why it considered her a business.
26. In response to my enquiries the Council said it considered Ms X was running a business with a sign in her window advertising she rented a bedroom. However, the Council accepted it had not communicated adequately with Ms X about why it considered she was running a business or given her the opportunity to evidence she was not. The Council offered to refund the FPN, make a payment for Ms X’s distress and time and trouble and review its policy. The Council said it did not consider its actions caused Ms X to lose any income.

My findings

27. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or failed to properly explain a decision it has made. We call this ‘fault’, and where we find it, we can consider the consequences of the fault and ask the council to address these.
28. However, we do not provide a right of appeal against council decisions, and we cannot make operational or policy decisions on councils’ behalf. If we do not find fault in how a council has made a decision, then we cannot criticise it, no matter how strongly a complainant feels it is the wrong decision. We do not uphold complaints simply because someone disagrees with what a council has done.
29. The Council issued an FPN because it considered Ms X was running a business by renting out a spare bedroom. I have not considered if Ms X is running a business, this is for the Council to consider. I have reviewed the Council decision making and actions in this matter.
30. The Council has accepted it did not tell Ms X why it considered she was running a business. It accepted it did not give her any information or guidance before issuing the FPN. The Council accepted it did not allow Ms X to make representations on this matter.
31. The Council issued the £300 FPN with no information, no detail of why it considered Ms X was running a business or allowing her to explain her position. This is fault. This frustrated Ms X, and she paid £300.
32. The Council accepted this fault. It offered to refund her the £300 she paid. This is a suitable remedy for the injustice caused by the fault.
33. Ms X says she lost income because of the Council fault, as she stopped renting a bedroom due to concerns about other penalties. The Council explained in an email in February 2024, the cheapest option for disposing of commercial waste for Ms X. This option was available, but Ms X chose to stop renting a bedroom. The Council fault did not cause the loss of income.

Complaint handling

34. The Council complaint policy, detailed in paragraph 11, sets out the timescales to respond, and rights of escalation at each stage of the process.
35. The Council said it would not consider the original complaint, in February 2024, because it was about an appeal of an FPN. The complaint asked about the Council considering her a business, and was not only about the FPN. The Council did not consider this complaint. This is fault, frustrating Ms X.
36. Ms X complained again in July 2024. The Council recorded it would not raise this complaint as it was about receiving an FPN. The Council has not evidenced it told Ms X it would not consider this complaint. This is fault, frustrating Ms X.
37. The policy says the Council would acknowledge a stage one complaint within five working days. It would then respond within 10 working days. The Council acknowledged the complaint the day after Ms X complained. It did not respond for two months. The email the Council later classed as the stage one response does not explain it is a complaint response or offer a right of escalation to stage two. This is fault, frustrating Ms X.
38. The policy says a manager would consider the stage two complaint and respond within 20 working days. Ms X continued to chase the Council after the stage one email and had already asked to escalate the complaint to stage two. The same officer who sent the email in September 2024, issued the final response in December 2024.
39. The response stated Ms X had paid so she accepted the FPN. This did not answer Ms X’s complaint. The response also signposted Ms X to the wrong Ombudsman. The Council’s final response was two months late, did not answer all points raised and offered the wrong Ombudsman as a final escalation. This is fault, frustrating Ms X.
40. The Council’s complaint handling was poor. It offered, in its response to my enquiries, to pay Ms X £300 for the frustration and time and trouble its fault caused. This is a suitable remedy for the injustice the Council fault caused.

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Action

41. To remedy the outstanding injustice caused to Ms X by the fault I have identified, the Council agreed to take the following action within 4 weeks of my final decision:
• Apologise to Ms X for the injustice the Council fault caused. 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.
• Refund the FPN as it offered.
• Pay Ms X the £300 it offered as an acknowledgement of the frustration the fault caused, and time and trouble she has spent pursuing this complaint.
• Remind relevant staff of the importance of effective complaint handling, following the process and adhering to timescales.
42. Within three months of my final decision the Council should:
• Review and amend its environmental policy as it offered. This should include setting up a clear criteria, clearer templates and letters, allowing challenge and considering the wording in the policy regarding the impact of actions.
43. The Council should provide us with evidence it has complied with the above actions.

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Decision

44. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman