Summary: We will not investigate this complaint about a Fixed Penalty Notice for fly-tipping. The Council has now cancelled the fine and offered a £100 payment for the time and trouble caused. An investigation would be unlikely to add anything to the Council’s response. Mr X’s claim the Council has defamed him is not something we can decide and his concerns about data protection are best considered by the Information Commissioner’s Office. We will not investigate complaint handling as a standalone issue.

The complaint

1. The complainant, Mr X, complained the Council had wrongly issued him with a Fixed Penalty Notice (FPN) for fly-tipping. Mr X said the Council confused his case with another leading to a potential data breach. He said the Council defamed him in correspondence with his MP. Mr X complained the Council treated him differently to a neighbour. Mr X is also unhappy with the way the Council dealt with his complaint and wants an apology and compensation.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In its responses to Mr X’s complaints the Council said:
• It issued an FPN because of a large amount of soil found on an area close to Mr X’s home.
• Mr X contacted the Council and it cancelled the FPN when the waste was removed.
• It had investigated Mr X’s concerns about a neighbour who also had waste on the same land.
• There was no evidence it had discriminated against Mr X.
• An officer had been given information from another file leading to incorrect information being presented. It apologised for this.
• The Council had identified a training need to make sure the same mistake did not happen again.
• It offered Mr X £100 for the time and trouble caused.
8. I understand Mr X is frustrated by the issues he complains about. But we will not start an investigation. The reasons for this are below.
• The Council has now cancelled the FPN. This addresses the issue which led to the original complaint.
• The Council has provided what I consider proportionate and reasonable responses to his complaint. It has explained why it issued the FPN. How the Council dealt with Mr X’s neighbour has not caused Mr X any injustice.
• The Council has apologised for providing wrong information due to his case being confused with another. It has said it will arrange training to make sure it doesn’t happen again. These are suitable remedies.
• We cannot say if the Council has defamed Mr X and the consequences of that. Defamation is a matter for the courts – not the Ombudsman. It is open to Mr X to pursue the matter in court, and it could give him the outcome he wants. The Ombudsman cannot.
• Mr X’s concerns about data protection are best considered by the ICO. It is the expert, impartial body, set up by Parliament to consider such matters. It has much wider powers than the Ombudsman if it finds a council has failed in its duties as a data controller.
• The Council has offered Mr X a payment of £100. We do not award compensation but can recommend small token payments if we find fault causing injustice. It is unlikely that if we investigated, we could add anything to the Council’s response, or would recommend a higher payment.
9. We will not therefore investigate Mr X’s complaint.

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Final decision

10. We will not investigate Mr X’s complaint because it is unlikely we could add anything to the Council’s response. Defamation is for the courts and the ICO is best placed to consider complaints about data protection.

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Investigator's decision on behalf of the Ombudsman