The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s decision not to take enforcement action against some of his neighbours for leaving their wheeled bins on the pavement, and delay in its complaint responses. There is not enough evidence of fault in the Council’s decision-making process to warrant us investigating. We do not investigate councils’ complaint‑handling where we are not investigating the core issue giving rise to the complaint.
The complaint
Mr X lives in a street where the houses have no front gardens or land. He complains the Council: has refused to act to prevent his neighbours leaving their wheeled bins on the pavement at all times; delayed in responding to his complaint and provided no compensation for this.
Mr X says the situation has been ongoing for several years. He says the bins are an eyesore, an obstruction and encourage fly-tipping. Mr X says the situation causes him frustration and embarrassment. He says he finds it unpleasant to walk past overflowing bins with rubbish left next to them.
Mr X wants the Council to take enforcement action against neighbours who leave their bins on the pavement, issuing fixed penalty notices. He wants the Council to make it clearer to those residents that their behaviour is unacceptable.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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)
How I considered this complaint
I considered information from Mr X, viewed relevant online maps and images, and the Ombudsman’s Assessment Code.
My assessment
We are not appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
The Council’s officers consulted the national government guidance on when and how councils can enforce against people who do not follow their household waste collection requirements. The guidance shows when councils have powers to issue fixed penalty notices on non-compliant residents. It also advises councils to take a ‘measured and balanced approach’ and use penalties where residents’ actions ‘cause genuine harm’. The guidance states officers could first ‘use a letter or information notice’ before moving to the process for issuing penalty notices.
The Council’s enforcement powers here are discretionary. It is for officers to decide whether to use them based on the information in each different case. Officers considered Mr X’s concerns about the bins and viewed photographs he submitted of the street. They decided to write to residents to explain their bins should be moved back on to their property after each collection. That letter and its contents were professional judgements officers were entitled to make after their assessment of Mr X’s reports and evidence, the harm caused by the matters reported, and their consideration of relevant government guidance. There is not enough evidence of fault in the Council’s decision-making process to warrant investigation. We recognise Mr X disagrees with the Council’s decision and its actions to date. But it is not fault for a council to properly make a decision with which someone disagrees.
The Council delayed in its responses to Mr X’s complaint, for which officers apologised. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issue which gave rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process to warrant an investigation; and we do not investigate councils’ complaint-handling where we are not investigating the core issue which gave rise to the complaint.
Investigator's decision on behalf of the Ombudsman