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This publication is available at https://www.gov.uk/government/publications/household-waste-duty-of-care-fixed-penalty-notice-guidance/guidance-for-local-authorities-on-household-waste-duty-of-care-fixed-penalty-notices
The fixed penalty notice (FPN) for breaches of the household waste duty of care provides an alternative to prosecution. It allows an individual to discharge liability for the duty of care offence by payment of a financial penalty. There is no obligation for you to offer an alleged offender the option to discharge liability through an FPN. However, it can be more proportionate than prosecution through the courts.
The duty of care requires occupiers of domestic property to take all reasonable measures available to them in the circumstances to ensure that they only transfer household waste produced on that property to an authorised person. This reduces the chance of waste ending up in the hands of those who would fly-tip it. More detail on this duty of care is set out in section 5 of the Waste Duty of Care Code of Practice.
You should follow this guidance when giving fixed penalties for breaches of the household waste duty of care as an alternative to prosecution. You should also follow the general guidance on the use of fixed penalty notices.
2. When you can give fixed penalties
You may give the FPN when an individual appears to have failed to comply with their duty of care under section 34(2A) of the Environmental Protection Act 1990 in England. For example:
- where fly-tipped waste can be traced back to an individual who is found to have failed to take reasonable steps to ensure that they transferred the waste to an authorised person
- where an unauthorised carrier is found to be carrying household waste that was directly transferred to them by the occupier of a domestic property
- where an individual is found to have transferred their household waste to an unauthorised person at a site that does not have a permit or exemption
An authorised person may still fly-tip waste so tracing fly-tipped waste to a household does not necessarily demonstrate a breach of the duty of care. An individual should be given an opportunity to demonstrate that they took reasonable steps to determine the person that took their waste was authorised to do so. If fly-tipped waste is traced to an individual and they are unable to identify who took their waste, or the carrier they identify is unauthorised, then it is reasonable to believe their duty of care was not met.
3. When you should not or cannot issue fixed penalties
Enforcement should focus on those who, as a result of not meeting their duty of care, enable their waste to be fly-tipped or otherwise inappropriately disposed of. Individuals should not be penalised for minor breaches which do not lead to waste being inappropriately disposed of. This includes where an individual uses an authorised carrier that disposes of their waste appropriately but doesn’t check that they are authorised.
3.1 Proportionate use
The government wishes to encourage a balanced approach to enforcement. The principles of the Regulators Code apply to the enforcement of the household waste duty of care. An effective environmental offences enforcement regime is one that is proportionate, consistent, targeted, transparent and accountable. Under the Legislative and Regulatory Reform Act 2006, you have a duty to carry out regulatory activities in a way which is transparent, accountable, proportionate and consistent, and for them to be targeted only at cases in which action is needed. In no circumstances should enforcement be used as a means to generate income.
If an individual is considered to be a vulnerable person (for example due to age related ill-health or a mental or physical disability or divergence), you should give close consideration as to whether it is proportionate and in the public interest to proceed with enforcement, on a case-by-case basis.
An individual giving their waste to a friend or family member to dispose of would breach the duty of care. However, it would only be appropriate and in the public interest to enforce in this and similar circumstances where there is evidence the friend or family member has disposed of the waste inappropriately. For example enforcement would not be appropriate if a neighbour takes their waste to the local household waste recycling centre.
To help reduce the potential for breaches of the Duty of Care, Local Authorities should have regard to the WRAP Household Waste Recycling Centre (HWRC) Guide in relation to promoting responsible behaviour by local residents through not charging residents for waste from small scale DIY activities.
3.2 Local authority waste collections
This FPN is not applicable where an individual intends for waste to be collected by the local authority collection service, for instance where this is put out in household waste or recycling bins. It is reasonable to believe the local authority or any contracted provider working on their behalf is an authorised person and so in putting the waste out for collection by a local authority, the individual has taken all reasonable steps to ensure the person they transfer it to is authorised. Other penalties are already available for individuals not complying with waste receptacle requirements and this FPN does not provide a substitute or supplementary penalty for it.
As per section 5.2 of the Waste Duty of Care Code of Practice, where a tradesperson is working on a property, they are responsible for the waste they produce. As the occupier is not producing the waste, they are not transferring it to the tradesperson and so the duty of care does not apply.
3.4 Household waste cleared by landlords
Where a landlord is arranging the clearance of premises after a tenancy has ended, the resulting waste is not considered to be household waste, nor are they the occupier. This means the duty of care under Section 34(1) of the Environmental Protection Act applies instead and this FPN cannot be used.
3.5 Investigating the fly-tipper
You should give consideration to whether the evidence provided by an individual investigated for breach of the household waste duty of care enables investigation or prosecution of the fly-tipper, and whether enforcement against that individual would have a positive or negative impact on that investigation or prosecution.
3.6 Opting for prosecution
FPNs should not be given where prosecution through the courts is more appropriate, for example the deliberate transfer of waste to an unauthorised person in the knowledge that it would be fly-tipped, or when someone is a persistent offender with a record of not paying fixed penalties for environmental offences.
4. How to issue fixed penalties
The fixed penalty notice can be given as an offer for an individual to discharge any liability to conviction for failing to meet their household waste duty of care. Instead of proceeding to prosecute, you may first offer the opportunity to pay the fixed penalty.
4.1 Opportunity to demonstrate duty of care
An individual’s household waste can still end up fly-tipped or in the possession of an unauthorised carrier, even if they meet their duty of care. As such before you decide to enforce, either directly through prosecution or by first giving a fixed penalty notice, the case should be investigated. This should include giving the individual an opportunity to demonstrate whether or not they met their duty of care. This could include, but is not limited to:
- details of the business and of any vehicle used which can be linked to an authorised operator
- a record of the checks made including the operators registration, permit or exemption number
- a receipt for the transaction which includes the business details of a registered operator
- a copy or photograph of the carrier’s waste license or site’s permit
However, it should be emphasised that there is no duty on an individual to keep a waste transfer note or any other written records when transferring their household waste. The absence of written records does not prevent an individual from making the case that they met their duty of care.
When giving the individual the opportunity to demonstrate they met their duty of care, you should inform them:
- of the evidence gathered, e.g. if their waste has been found fly-tipped
- that they may face prosecution, and why
- whether a fixed penalty notice would be given to discharge liability for the offence
If an individual makes a convincing case that they complied with their duty of care you cannot give an FPN (or prosecute).
4.2 Issuing the fixed penalty notice
When issuing an FPN, the notice must name the individual and tell them:
- why they have been given a fixed penalty, i.e. the circumstances alleged to constitute the offence
- that the FPN offers an option to discharge liability for a criminal offence without prosecution, but they may choose not to pay it
- how long they have to pay to discharge liability (14 days beginning with the date of the notice)
- that proceedings will not be taken for the offence during the payment period
- that they can make representations to the local authority to challenge the allegations contained in the fixed penalty notice (and how to do so)
- the level of the penalty and how they can pay it, including to whom it should be paid and the address to do so
- if there’s a discount for paying early (10 days beginning with the date of the notice)
Penalties should be set within the limits set out in legislation:
|Default penalty||Minimum full penalty||Maximum full penalty||Minimum discounted penalty|
4.3 Where waste comes from multiple individuals in the household
The duty of care applies to the individual occupier of the property who is arranging the transfer of household waste produced in that property. You will need to consider who in the household is responsible for the breach of the duty of care before issuing the FPN against them.
4.4 Cross-boundary approach
Given the potential for fly-tipping to cross local authority borders, it is recommended that you consider the benefits of consistent, and possibly collaborative, approaches to enforcement with neighbouring authorities. In particular FPN regimes in two-tier areas should be aligned to promote consistent application.
The FPN can be used when an individual appears to have failed to comply with their duty of care in England only. This relates to the point where the transfer of waste took place, not the final disposal point of the waste. This would typically be if they take their waste to an unauthorised site in England, or if they transfer their waste to an unauthorised carrier in England, even if the waste is ultimately taken out of England.
For cases that cross authority boundaries within England, any enforcement authority in England can issue an FPN where it appears to them that a person has failed to comply with the duty of care. This will typically be as a result of investigating fly-tipped waste in their area and tracing it back to an individual, even if that individual originally transferred the waste outside that area.
Once an FPN has been issued, no authority may begin proceedings until after the 14 day payment period for that FPN has ended. Additionally, an FPN cannot be given to someone if one has already been given to them by the same or another authority.
To avoid the duplication of FPNs, if you issue an FPN for a breach of the duty of care that took place in the area of another authority, you must give that other authority a copy of the FPN at the time of issuing. This includes providing the Environment Agency with a copy of each FPN regardless of area via the e-mail address email@example.com.
5. Non-payment of fixed penalties
As the FPN offers an option to discharge liability for the offence, an alleged offender may choose not to accept or pay a fixed penalty. They may also provide evidence at any time that they did not commit the offence.
Where an individual does not pay an FPN you are expected to take the case to prosecution unless they have given a convincing reason for you not to do so. As such, detailed evidence gathering should be carried out at the start of the investigation before an FPN is given to ensure prosecution can take place if needed. Failure to follow up an unpaid FPN with prosecution for the original offence will discredit the use of fixed penalties and the duty of care itself.
The need to pursue unpaid fixed penalty notices must be considered in the development of an enforcement strategy and the necessary resources made available. It is not acceptable for an authority to decide after a fixed penalty notice has been issued that it does not have the resources to prosecute if the notice is unpaid.
5.1 Challenge process
There is no right of appeal against an FPN as they simply offer an optional means of discharging liability for an offence. However, liability for that alleged offence can be disputed or the appropriateness of enforcement challenged. In issuing the FPN you must make clear to the recipient that they are entitled to make such representations. If after the FPN is issued you receive a convincing case that a person should not be prosecuted, the FPN should be withdrawn and the recipient promptly informed that you do not intend to prosecute.
The grounds of such a case might include, but are not limited to if:
- the person issued with the penalty was not the person that committed the offence, for instance where someone else arranged for the disposal of the waste
- the person issued with the FPN brings forward evidence that could undermine any later prosecution
- evidence is provided that the person issued with an FPN is in some way vulnerable and enforcement would not be in the public interest
- evidence is provided that enforcement would, for any other reason, not be considered to be in the public interest
You must consider any information provided when deciding whether or not to start criminal proceedings against the person if the FPN goes unpaid.
6. Awareness raising
You should not view your enforcement regime in isolation. In addition to taking enforcement action, you should aim to reduce breaches of the household waste duty of care through clear, well-designed communications. Raising awareness of successful enforcement action can help deter others from committing offences. Where enforcement is deemed not appropriate, there may still be an opportunity to educate people on the household waste duty of care to prevent future breaches.
You should communicate to the community your reasons for the use of the FPN and make it clear that enforcement is about preventing waste crime and protecting the environment.
A Defra funded research project testing behavioral insights informed communication materials for the Waste Duty of Care will provide a framework to support awareness raising activity.
7. Using money from FPNs
You may use money from FPNs only for carrying out your functions under Part II of the Environmental Protection Act 1990 “Waste on Land”.
You should report regularly and consistently on your use of the FPN to help the public understand the approach to enforcement.
WasteDataFlow includes a category for reporting the number of Duty of Care FPNs issued, starting from the January 2019 reporting round.