Summary: Miss X complained the Council wrongly issued her a fixed penalty notice for fly-tipping. Miss X says this caused her avoidable and unnecessary stress. We find no fault with the Council’s decision-making to issue the notice. We do find fault with the Council’s decision not to consider Miss X’s representations after receiving the notice, which caused injustice. The Council has agreed to consider Miss X’s representations and take service improvement action.

The complaint

1. Miss X complains the Council wrongly issued her a fixed penalty notice for fly-tipping.
2. Miss X says this has caused her avoidable and unnecessary stress which has impacted her emotional wellbeing and caused financial strain.

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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 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)
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(1), as amended)

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How I considered this complaint

6. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
7. Miss 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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What I found

What should have happened

8. 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.
9. Our published guidance ‘Household waste offences: guide for practitioners’ explains household waste offences occur when an individual fails to comply with the local arrangements for the collection of household waste, and in doing so causes a nuisance or negative effect on the local area. This might happen when someone leaves their bins or bags out in the wrong place or on the wrong day.
10. Section 46a of the Environment Protection Act 1990 gives councils the power to enforce against such offences, including issuing penalties against the offender. The process under section 46a includes council first issuing a warning to the offender, and if the offender does not comply, the council can move to issuing a penalty. The offender can contest the penalty. If the council decides to continue and issue the penalty, there is a formal appeal right to the Tribunal. If the offender does not successfully appeal and fails to pay, the council can take civil action. The offender cannot be prosecuted and cannot receive a criminal record.
11. Section 33 of the Act gives councils the power to issue a fixed penalty notice (FPN) where it has reason to believe a person has committed a waste deposit offence, such as fly-tipping. This is when an offender has knowingly caused or permitted waste to be disposed of in a public space without a licence. Councils can issue FPNs of up to £1000 and there is no formal appeal process. If the offender does not pay and the council prosecutes it can result in a much larger fine and a criminal record.
12. The law requires councils to act proportionately in how they discharge their regulatory duties. Our guidance says for this reason, when faced with an apparent household waste offence, we expect councils to properly consider the details of the offence when deciding which power to use. In particular, councils should consider whether the significant sanctions which come with a section 33 fixed penalty notice are proportionate under the circumstances.
13. Our published guidance ‘Principles of good administrative practice’ says councils should ensure decisions and actions are proportionate, appropriate and fair. It says councils should clearly explain the rationale for its decisions and record them. It says councils should ensure any contractors mirror this behaviour.

What happened

14. In April 2025, Miss X contacted the Council’s waste management contractor requesting information about how she should dispose of her household waste. The contractor explained she lived in a flat above a shop so she should use bin bags, and it sent her a copy of the collection timetable. The timetable detailed several locations for Miss X’s postcode and did not name her street. Miss X again asked the contractor where to place her household waste. The contractor sent Miss X the same collection timetable with no further information.
15. A few days later, Miss X told the contractor her household waste had not been collected. She again asked the contractor where she should leave the bin bags for collection. The contractor asked her to send a photo of where she left the waste. She sent a photo which showed she had left it in the wrong place. The contractor told Miss X the name of the street where she should leave her waste.
16. In May, the contractor found some bin bags on a road near to the street it had told Miss X to leave her waste. One bin bag contained waste with Miss X’s details.
17. In June, the contractor issued Miss X with a £1000 fixed penalty notice for fly tipping under Section 33 of the Environmental Protection Act. It told Miss X she could make a representation to the Council if she wished to challenge the fine.
18. Miss X contacted the Council and asked them to reconsider the fine. She told the Council one bin bag was hers. She said she believed she had followed the advice given by the contractor.
19. The Council told Miss X it could not consider her representations because fixed penalty notices issued under Section 33 do not have a formal right to appeal. It said she could appeal the fine in magistrates’ court.
20. Some weeks later, Miss X contacted the Council again to dispute the notice. The Council told Miss X she had 14 days from receiving the notice to challenge it. It told her she had made her representations at the time, and the Council had made its decision. It told her the only mechanism to appeal was to refuse to pay the fine, and to appeal in magistrates’ court.

Analysis

21. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision.
22. Councils must decide what, if any, power is appropriate to tackle an apparent offence. We expect councils to properly consider the details of an offence when deciding which power to use. Councils should consider whether the significant sanctions which come with a Section 33 fixed penalty notice are proportionate under the circumstances. We expect councils to make these decisions on a case-by-case basis, considering the individual circumstances of each case.
23. Section 33 of the Environmental Protection Act can be used in instances where offenders have knowingly left waste in an incorrect area. Section 46a can be used for other less serious littering offences. The Council tells the Ombudsman it decided to use its power under Section 33 instead of Section 46a because it considered the quantity and nature of the waste exceeded a low‑level household receptacle breach under section 46a, and it had previously told Miss X where to leave her bin bags. I am satisfied the Council has shown consideration to the circumstances in Miss X’s case in its decision-making. I find no fault in the Council’s decision-making and therefore I cannot criticise the outcome.
24. I find fault with the Council’s administration following its decision to issue the fixed penalty notice. We expect councils to consider representations. After inviting Miss X to provide representations, the Council told her it could not consider them. It later told her it had considered her representations. This response contradicts the information it had provided to her previously. There is no evidence it considered Miss X’s representations, which is fault. This fault caused Miss X some avoidable frustration, which is injustice.
25. The Council incorrectly told Miss X she could appeal to the magistrates’ court. There is no right of appeal to a magistrates’ court. The Council is referring to the criminal prosecution process. The Council invited Miss X to be summonsed and make her defence in court which is not the same as an appeal right and can result in a criminal record. The Council providing this incorrect information is fault.

Action

26. Within four weeks of our final decision statement, the Council agreed to:
1. consider Miss X’s representations and provide its decision in writing.
2. tell us what action it will take to ensure there is a mechanism to consider people’s representations to Fixed Penalty Notices and ensure all relevant staff understand there is no appeal right to magistrates court and the process of challenging an Fixed Penalty Notice it is to wait to be summonsed and make their defence to the court.
27. The Council should provide us with evidence it has complied with the above actions.

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Decision

28. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman