Ombudsman tells council to refund improperly imposed fines for fly-tipping

Haringey Council should refund nearly £43,000 of improperly imposed fines for fly-tipping, the Local Government and Social Care Ombudsman has said.

The Ombudsman said the council’s action had been “not proportionate” and that it had used the wrong part of the Environmental Protection Act 1990 to deal with cases.

His report arose from the council’s policy of requiring residents who live above commercial promises to put out household waste for collection only at specified times, with any placed at outside these treated as fly-tipping.

Local resident Ms X complained to the Ombudsman that she had been given a £400 fixed penalty notice for putting waste out 35 minutes early.

The Ombudsman condemned this and said in his report that Haringey had agreed to apologise, cancel the notice, and pay Ms X £100 for distress caused.

Haringey also agreed to identify all fixed penalty notices issued in the past year in similar circumstanecs and to cancel those still outstanding and refund those already paid.

Figures obtained by the council’s Liberal Democrat opposition showed the council must refund £42,920.

The Ombudsman said Haringey had issued the notices based on Section 33 of the Environmental Protection Act 1990 rather by applying the government guidance referred to in the Act’s Section 46A.

This meant it had used a power supposed to apply only when a council believes a person has committed an offence, such as fly-tipping.

He said Haringey should instead have used Section 46A, which says councils may issue written warnings where a person has failed to comply with its waste collection requirements.

The Ombudsman said: “The guidance explains councils cannot issue fixed penalties for minor problems.

“These include accidentally putting items in the wrong receptacle, forgetting to close bin lids, and leaving bins out for a few hours before a collection.”

He said Haringey’s previous policy was not unlawful but the Ombudsman’s Principles of Good Administrative Practice stated councils should act proportionately, appropriately, and fairly.

“It is not proportionate or in the spirit of the government guidance to treat rubbish left out 35 minutes early as fly-tipping, which is a criminal offence,” the Ombudsman said.

A Haringey spokesperson said: “Following the Ombudsman’s decision, we immediately amended our policy and have stopped issuing £400 fines for waste presented outside of the timed collection period.

“Those that had already been issued have now all been cancelled and refunded, including the resident in question who we contacted to offer our apologies and £100 compensation. 

“The enforcement policy and practices, that were put in place as an important step in keeping our streets clean and free of rubbish to prevent issues for the wider community, have now been amended as per the ombudsman’s guidance, and we are issuing warnings before any enforcement action is taken for waste that is put out before the timed collection period.”

Opposition leader Luke Cawley-Harrison said: “It is good to see that this wrong-headed policy is being changed, and those fined under it having their money returned, but this should never have been necessary. It is clear that Haringey Council needs to change.”

Mark Smulian