After the occupant of a flat above a commercial premises in Haringey, London, complained that she had been issued with a £400 penalty notice for putting her rubbish out 35 minutes early the Local Govt and Social Care Ombudsman has issued a report critical of Haringey council for imposing such a fine when it should have written a warning letter instead.

Haringey's waste policy stated that residents of accommodation above commercial premises should present their waste at specified times and if waste was presented outside those times it would be treated as fly-tipping but the Ombudsman said that the fine complained of was not proportionate and was imposed under the wrong section of the Environmental Protection Act 1990.

The council should have used s46A of the act and issued a written warning, as per government guidance, where a person has not complied with the waste collection policy when instead it used s33 which is meant for when someone is believed to have committed a fly-tipping offence.

The council has apologised to the complainant, paid her £100 as a goodwill gesture for the stress involved and cancelled the penalty notice. It is now looking into all similar penalty notices it has imposed over the last year and will cancel those outstanding and refund those already paid - amounting to £42,920.

The Ombudsman pointed out that "the [government] guidance explains councils cannot issue fixed penalties for minor problems" and that "minor problems" would also include putting items in the wrong receptacle, forgetting to close bin lids and putting bins out a few hours before the collection time.

The report can be accessed here.