This Report
As stated in the Introduction to this report, this investigation is primarily concerned with highlighting inequity and unfairness in the administration of waste waiver schemes with particular attention being focused on the adverse effect on individuals. The design and implementation of a waiver scheme, either at national or at local level, is not addressed in this report. Nevertheless, I would hope that my report will inform further work which is ongoing but which, in the light of my findings, now should be addressed as a matter of some urgency. In passing, I would like to acknowledge the work done by the Combat Poverty Agency which has made a very useful contribution to highlighting the impact of waste collection charges on low income households and has pointed to the real problems that exist in attempting to devise an equitable and fair waiver scheme.
Waiver Schemes - National or Local?
The submissions that I received from the Society of St Vincent de Paul and the Senior Citizens Parliament also highlight, very clearly, the impact of waste charges on the poorer sections of our community and the inadequacies of existing waiver schemes - a concern which I share having regard to the results of my survey. I understand the matter has also been raised by the Community and Voluntary Sector in the context of Social Partnership but, as is clear from the submissions of the Department of the Environment, Heritage and Local Government and the Department of Social and Family Affairs, it has not proved possible to identify a solution via the social welfare system. I also note that a motion in Dáil Éireann in 2005 calling for the introduction of a national waiver scheme, was not carried. It is the view of both Departments that the administration of a waiver scheme needs to be addressed via the local authorities through locally-tailored solutions.
Privatisation - the Social Policy Aspects
The comments made by local authorities themselves show many of them calling for the waiver problem to be addressed through the social welfare system, something which, in the light of the submissions of both Departments, does not appear feasible. Nevertheless, it is clear that national waste management policy and, specifically, the privatisation of waste collection services, inevitably has led to an undesirable change in the mindset of some local authorities. In the past, when waste collection services were exclusively delivered by local authorities, one would have found that local authorities were very mindful of their social obligations to their clients. But now that many local authorities are either in direct competition with private operators for the delivery of waste collection services, or have completely divested themselves of this function, the approach in many local authorities seems to be driven solely by commercial considerations. To my mind, this is a worrying development on two counts.
First, it seems to me that when any public service is privatised or part-privatised, while accepting that there may be a very sound business case for so doing, the social policy factors attaching to such a decision should not be lost sight of. In the case of waste collection, there are important lessons to be learned from the manner in which legislation has facilitated the entry of private operators into the waste collection market. The primary focus appears to have been on commercial considerations with little or no consideration of the needs of the poor and marginalised in our society. Also, there have been attempts to justify this approach solely from the standpoint of environmental considerations. The "polluter pays" principle is all very well as far as it goes. But if as seems likely, waste collection charges continue to rise - often at rates in excess of inflation - ways must be found to protect low income households, while at the same time, encouraging recycling and preventing abuse of any waiver system. It seems to me that there is a responsibility on the Department of the Environment, Heritage and Local Government to revisit the policy approaches taken in this area to see how the balance between commercial, environmental and social policy obligations can best be met.
Second, it seems to me, based on the experience of my colleague ombudsmen in other jurisdictions that the trend towards privatisation of public services will continue in Ireland just as it has in other countries. I have fears that the mindset which is displayed by some local authorities will also become evident as other parts of the public service are privatised. I think this is a timely opportunity to put down a marker that such privatisation should fully consider the needs of the poor and the vulnerable in our society and should not focus solely on the commercial considerations - accepting all the time that privatisation can be of significant benefit in the overall scheme of things.
Other comments by some local authorities, notably on the resources issue, show the same worrying change of attitude. Many now see themselves as direct players in the waste market, in competition with private operators and viewing a waiver scheme simply in terms of adding to their administration costs or affecting their ability to compete with private operators but displaying little concern about the ability of their clients to pay waste charges. To some degree it is understandable how this change in mindset came about, given the way the legislation, which I mentioned earlier, was framed. But, while it may be understandable, I do not find it acceptable. Many other local authorities have found ways - imperfect though they may be - of operating waiver schemes despite the constraints of a privatised service. I say more about this later.
Local Authorities as Regulators and Service Providers - a Conflict?
I note from the submission of the Department of the Environment, Heritage and Local Government, that a public consultation process has taken place on issues surrounding the overall regulation of the waste management sector. According to the Department, the submissions it has received are to be considered further in the context of the review of waste management generally provided for in the Government's policy programme and which, I understand, will be initiated shortly. Under current legislation, many local authorities act as de facto regulators and also as suppliers of waste services, often in direct competition with those private operators whom they regulate. This model of regulation is far from ideal and the deficiencies in waiver provision uncovered in my investigation are attributable in part to this defective model. I was pleased to see the Department mention that it will be considering what might be the most appropriate model of regulation for the sector, including the need for a regulator, and what powers any such regulator might be given. In particular, the Department noted that in some other sectors, regulators have the power to impose a public service obligation which effectively requires contractors to operate cross-subsidisation so that services can be provided where they would not otherwise be economically feasible. These issues are of direct relevance to, and make an impact on, waiver schemes and require urgent and active consideration in order to resolve some of the difficulties which have arisen concerning private operators and waiver schemes.
Inconsistencies in Waiver Schemes
I now turn to the specific inconsistencies and inequities in the operation of waiver schemes as uncovered in the results of my survey of local authorities. The legal position governing the collection of waste and the power to grant waivers is set out in Chapter 2 of this report. As already outlined, there are three categories of collection:
- collection by the local authority;
- collection is contracted out by the local authority to private waste operator(s) who collect(s) the waste on its behalf;
- collection by a private waste operator (fully privatised).
Of course, some local authorities operate a combination of these collection methods.
Traditionally, local authorities carried out waste collection services throughout the country and administered waiver schemes for the benefit of those who could not afford to pay their charges. This still remains the situation in a few areas of the country, but in most areas, the local authority and private operators provide the service and, in a growing number of areas, the service is provided exclusively by private operators. In this context and from my perspective, two issues arise:
- where the service is provided by or on behalf of local authorities, whether the waiver schemes in operation are administered fairly, and
- whether local authorities are acting properly in relation to those households that cannot afford to pay the waste collection charges of private operators.
From the submissions I received, it is clear that views on how the issue of waivers of waste collection charges ought be administered, differ widely. Also, the results of the survey give me cause for concern about the extent to which sections of the population are effectively excluded from access to waiver systems that are designed to provide relief for low-income households and that, depending on where one lives, there may or may not be access to a waiver system.
While the survey was not exhaustive, I have a concern about a trend detected in the results. Where the service is provided exclusively by a private operator, rural areas appear to be at a disadvantage as compared with urban areas, in relation to access to waivers. Of the eight local authorities concerned, all but one are in rural areas. Where the service is provided by both (local authority and private), the majority are in rural areas - see Appendix 2.
The results of the survey indicate an unacceptable level of inconsistency as between waiver schemes administered by local authorities; in one county alone three different waiver schemes are in operation, each with different qualifying criteria. This level of inconsistency is not in keeping with the highest standards of public administration.
Some waiver schemes operate in a discriminatory fashion e.g., as demonstrated at section 3.1 of this report in relation to Complaints A and B. This means that in the case of two households on the same income from the same source, one would qualify for a waiver because it is a means-tested payment, while the other would not. One local authority has explained that it would require an excessive level of resources to conduct a means test for all waiver applicants. I have difficulty in accepting this argument, particularly when the survey results indicate that 11 (48%) of the local authorities surveyed have found a way to carry out some form of means-testing - see Appendix 5.
Resources
Other local authorities have argued that they lack the resources required to provide a waiver scheme which would be equitable to all low-income households and that the provision of a waiver scheme is a very heavy cost on the local authority and that there are administrative difficulties involved. (See section 10.6).
I do not accept the validity of these arguments on the basis that:
- some local authorities have found a way to provide a reasonable service;
- while others may not be providing the level or standard of service they would aspire to, nonetheless, they are providing a service for the most needy hardship cases and the cost does not seem to be prohibitive - e.g. Monaghan County Council - where the domestic refuse collection service has been privatised for a number of years. (See section 7.3).
Means-testing
On the question of means-testing and the inability or unwillingness of local authorities to carry out means-testing in the context of a waste waiver scheme, I have little sympathy for this argument. First, I am aware that all local authorities carry out means-testing for the purposes of the Higher Education Grants Scheme. Second, since November 2007, all local authorities are obliged, in law, to introduce means-testing for the Housing Adaptation Grant Scheme for People with a Disability, Housing Aid for Older People Scheme and the Mobility Aids Grant Scheme. Therefore, since all local authorities have, or should have in place, systems for carrying out means-testing for other schemes, it is difficult to understand why, with some streamlining of resources, an effective system could not be put in place for waste waivers. I have difficulty in accepting that this is an issue incapable of resolution without incurring significant cost.
Private Operators and Waivers - the Legal Position
Where the waste collection service is fully privatised, it would seem that, with the exception of a few, the local authorities surveyed take the view that their obligations towards low-income households are somehow diminished or non-existent by virtue of the involvement of a private operator. And yet, many of these households would be tenants of the local authority - a proportion of whom, as a result of means-testing, would be availing of low rents under the differential rent scheme, in recognition of low household income. I find it difficult to reconcile the existence of a strong and long-standing social obligation in relation to one public service (the charge for social housing) with its almost complete absence in another area of public service provision (the charge for waste collection services).
It is clear that the intention of Section 75 (3) of the Waste Management Act 1996 (the Act), (as amended), was that local authorities would have discretion to exercise a social obligation by providing relief in cases of individual personal hardship by way of a waiver scheme. It is also clear that they have the authority to do so where the waste collection service is provided directly by the local authority itself or where the service is provided under contract by a private operator on behalf of the local authority concerned. However, the Act is silent on the subject of the provision of a waiver to customers of private operators where the service has been fully privatised - as opposed to being operated by a private operator under contract to the local authority. Local authorities probably have some scope to provide a waiver to clients of fully privatised services by entering into a local arrangement with the private service provider for the collection of waste, although whether all local authorities agree that they have such a power is open to question.
For example, some local authorities (e.g. Limerick City and County Councils) have addressed this situation by entering into local arrangements with the private waste companies operating in the area. These arrangements authorise the private operator to collect waste on behalf of the Council from certain low-income households identified by the Council. This then allows the Council to waive/subsidise all or part of the waste collection charges to those households.
In its submission to me, the Department addressed the legal position in relation to waiver schemes in the following terms:
"....in regard to waiver schemes in respect of these (waste collection) charges, it is a matter for the local authority concerned to determine the nature and extent of any such scheme in relation to services provided by itself. Generally speaking waiver schemes do not operate in respect of privately supplied collection services. There is legal advice to the effect that such a scheme is not legally provided for in circumstances where the private sector are providing the service. However, where a local authority enters into an arrangement with a private operator to provide a service to certain households a waiver scheme can apply. Local authorities have been asked by the Department to engage with commercial waste collectors to agree on arrangements to assist lower-income households by offering alternative payment methods to an annual lump sum."
Essentially, the Department's view is that there is no legal obligation on either a local authority or a private operator to provide a waiver scheme where that operator is delivering a fully privatised waste collection service. On the assumption that the number of operators providing a fully privatised waste collection service will increase, the absence of a legal provision for a waiver scheme will become more acute. While the Department adds that it has asked local authorities to agree arrangements with private operators for alternative payment methods, in every respect this falls far short of what is commonly understood by a waste waiver scheme.
Elsewhere in its submission, the Department refers to the public consultation it undertook on issues relating to the overall regulation of the waste management sector and commented as follows:
"Stakeholders and the general public were invited to make submissions on whether there is a need for a regulator for the sector, on what model of regulator might be the most appropriate and on what powers any such regulator might be given. Among the powers identified is the power to impose a public service obligation. This is a feature of regulation in some other sectors, and effectively requires contractors to operate cross-subsidisation so that services can be provided where they would not otherwise be economically feasible. The various submissions received and the issues raised will be considered further in the context of the review of waste management generally provided for in the Government's policy programme and which will shortly be initiated."
While the Department's approach to developing policy in relation to the regulation of the waste management sector is outside the scope of this report, I am encouraged to see it mention the possibility of factoring in a public service obligation. As I said earlier, this goes to the heart of the current problems with the administration of waste waiver schemes.
The absence of a public service obligation is also evident from the results of my survey. Six of the eight local authorities surveyed (who use private operators only) have made no provision for hardship cases; only two local authorities have taken steps to provide relief for qualifying waiver applicants (Limerick City Council and Limerick County Council, but also Monaghan County Council which was not one of the local authorities surveyed). Despite the Act's silence on the matter of private operators and waivers, nevertheless, it is significant that these local authorities have introduced waiver arrangements. I am of the view that all such authorities should emulate this practice by introducing a scheme or reviewing their existing scheme, as appropriate, to provide relief for qualifying waiver applicants. However, I also recognise that the longer-term solution to this issue lies in the hands of the Department. There are unresolved issues relating to the regulation of the waste management sector and the question of a public service obligation which will need to be addressed through legislation. And in the shorter term, there is scope for the Department to provide guidance to local authorities in relation to the administration of waiver schemes. I deal with this matter in more detail in section 11.10 below.
The Powers of Local Authorities
In summary, and returning to the categories of waste collection services that I referred to earlier, viz.,
- collection by the local authority;
- collection is contracted out by the local authority to private operator(s);
- collection by a private waste operator,
it is clear to me that local authorities, that are involved directly in the collection of waste or which have contracted out the service to private operators, have sufficient powers under existing legislation to design and implement fair and equitable waiver schemes. However, some work needs to be done to ensure that these schemes are reasonably consistent with each other. For example, and as previously mentioned, some form of means-testing may need to be introduced where it does not already exist.
In relation to local authorities where the service has been fully privatised, based on the results of this survey, while there is no legal provision to provide a waiver of waste charges, local authorities do have some scope to operate waiver schemes, as demonstrated by the Limerick Councils. In my view others should follow suit, but the parameters for such schemes need to be made more explicit. This is an area where the Department of the Environment, Heritage and Local Government needs to play a more proactive role.
The Role of the Department of the Environment, Heritage and Local Government
In 2003 the Combat Poverty Agency recommended that:
"Guidelines for a national waiver scheme should be drawn up by the Department of the Environment, Heritage and Local Government"
And in 2005 the Combat Poverty Agency proposed a set of guidelines for use by local authorities nationally as a means of achieving consistency in waste charging and waiver systems.
In their responses to the questionnaire, a number of local authorities also referred to the need for general guidelines to be provided. While the Department of the Environment, Heritage and Local Government did not specifically address the question of guidelines in its submission, its general approach appears to be that waste management, which would include any waiver of charges provided, is a matter for the individual local authority. It has stated that:
".. it has never been the practice for central Government to determine operational matters in regard to waste management. Waste management is a service that is one of the oldest provided by local authorities. It is the Government’s view that, working to national and EU environmental standards, local authorities should be free to tailor services to local needs and that a local approach to the determination of charges, and any waiver of such charges, is consistent with this."
While I do not disagree with the Government’s view on the matter of tailoring services to local needs etc., this must be seen to be done in a manner that is fair, open and transparent, and with a level of consistency that is in conformity with good administrative practice. This report has demonstrated that waste waiver schemes are not administered fairly in individual local authorities, or with any degree of consistency across local authorities in general, based on the survey results. It has also exposed difficulties in administering a waiver scheme where private operators deliver the waste collection service.
The Department has, in the past, and continues to issue guidelines on other matters that are administered locally e.g. schemes of letting priorities for housing and, in my view, it should now address the question of issuing guidelines relating to waste waiver schemes.
I am of the view that it is feasible to devise general guidelines that do not compromise the capacity of local authorities to draw up and operate their own waste waiver schemes. The Department is best placed to draw up such guidelines with a view to addressing some of the inequities identified in this report, and, in particular, the position in relation to private operators.
Finally, it is evident from my investigation that the current arrangements for the administration of waste management services do not make adequate provision to mitigate the cost burden on low-income households. The current model for privatisation of those services acts as a barrier to local authorities in exercising their social policy obligations. These matters can be addressed only through new legislation.