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London Borough of Lambeth (16 016 691)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 27 Feb 2018

The Ombudsman's final decision:

Summary: there is insufficient evidence of fault by the Council regarding a fixed penalty notice that it issued to the complainant for littering.

The complaint

  1. The complainant, whom I shall refer to as Ms J, complains the Council was at fault in issuing her with a fixed penalty notice for littering. She says the officer’s behaviour was unacceptable and that there was a potential breach of personal data. She also complains the Council did not have authority to issue the notice at the station. She believes the officer discriminated against her due to her gender.

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What I have investigated

  1. I have considered how the Council dealt with Ms J’s complaint. I have not considered the data protection matters Ms J raised for the reasons I explain in paragraphs 22 and 23.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have
    • considered the complaint and the copy correspondence provided by the complainant;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • discussed the complaint with the complainant; and
    • considered the complainant’s comments on my draft decision.

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What I found

  1. In December 2016 the Council’s enforcement officer issued a fixed penalty notice (FPN) to Ms J in Waterloo station because she dropped a cigarette butt on the ground. Ms J said that she had stubbed her cigarette out on the ground in the smoking area. She said when the officer approached her she started issuing and FPN, Ms J apologised and offered to pick it up and put it in the bin. However, she says the officer refused and her attitude and behaviour was unacceptable.
  2. Ms J paid the £50 FPN and complained to the Council the next day. She complained
    • The enforcement officer was confrontational and did not give her any warning before issuing the FPN.
    • The office said she worked for Transport for London (TFL) but the FPN was from Lambeth Council.
    • The officer put Ms J’s personal details into her personal mobile phone, breaching data protection rules. Ms J feared data about her was not held securely.
    • The officer showed her her pocketbook which displayed details of other people she had issued an FPN. This too was a breach of date protection rules. Ms J feared information about her could be shown to others in this way.
    • The officer was selective about who she chose to take enforcement action against, choosing a female rather than males who she walked past and who also dropped litter. Another officer joked with one of these males and warned him not to drop litter or he would receive an FPN.
  3. The Council acknowledged Ms J’s complaint and stated that a named officer would reply. A different officer responded to her complaint in January 2017 at stage one of the Council’s complaints procedure. The Council said it considered the officer had acted in a correct manner and that she had issued a fixed penalty notice correctly. The Council stated its enforcement officers did not introduce themselves as working for TFL because they do not work for TFL but on behalf of the Council. The Council explained that enforcement officers issuing FPN do not issue warnings. This is because littering is a criminal offence and the fixed penalty notice allows the offender the opportunity to pay the fine to avoid being summoned to court which could lead to a much larger fine (up to £2500) as well as a criminal conviction.
  4. The Council explained that officers do not use their personal phones but use company issued mobiles. These are stored securely at all times and locked away at the end of each shift. With regard to Ms J’s complaint that the officer was selective and chose to take enforcement action because she was female, the Council said that officers could only deal with one offender at any given time. Having considered Ms J’s allegations, the officers’ recollection and the fact that there were no other witnesses, the Council concluded there was insufficient evidence the officer had acted appropriately. However, the Council said that it would ensure it gave the officer feedback about Ms J’s comments. The Council said it would give Ms J a further 14 days to pay the FPN at the rate of £80, or at the rate of £50 within 10 days. The Council said that if Ms J did not pay the FPN it may consider prosecuting her.
  5. Ms J complained further about the threatening tone of the Council’s letter. She said that she had paid the FPN and was dissatisfied that the Council had not checked. She felt the Council had not investigated the matters she raised properly, and its failure to recognise her payment was further evidence of this.
  6. The Council replied in January regarding Ms J’s freedom of information request about officers using their own electronic devices for work. The Council confirmed that its enforcement officers do not use personal devices for work.
  7. In February 2017, the Council responded to Ms J’s stage two complaint. The Council noted that Penalty Notices were emotive matters. The Council said that the officers’ team leader had interviewed them both before responding to her stage one complaint. The Council stated that officers were trained in conflict management and it did not consider there was a reason for concern. The Council said its records had not been updated to show her payment so it had asked for details or a copy of her receipt. The Council apologised for the inconvenience and said it would ensure it sent no further payment requests.
  8. Ms J remained dissatisfied and pursued her complaint to the Council’s final stage. The Council responded apologising that Ms J found its initial response threatening. However, the Council said its previous responses had addressed the issues she raised and it did not consider it was threatening.

Analysis

  1. Ms J accepts that she did drop the cigarette butt, however she remains dissatisfied with the way the Council’s officers dealt with the issue of the FPN. Ms J complained the officer did not act fairly and equitably in accordance with guidance as she issued a FPN walking past other (male) offenders. She believes the officer discriminated against her on the basis of gender. The Council told me it is unable to provide a breakdown of perpetrator by gender, as this is not statistical information it records. The Council says it has not identified any predisposition to single out one gender over the other. It also explained that officers can only deal with one perpetrator at a time so there will always be occasions where an individual is issued a ticket but another is not. I do not find there is sufficient evidence that officers acted unfairly.
  2. Ms J complains the Council did not investigate properly. However, I consider the investigation was satisfactory and covered the key points raised. I do not consider further investigation is warranted.
  3. I note Ms J says the Council should provide further evidence and that it could get CCTV evidence which may show the officer’s actions including other potential offenders’ actions and the officer showing Ms J her pocket book. However, I do not consider further investigation is warranted or that it would be likely to provide sufficient detail.
  4. In its response to my enquiries the Council confirmed that enforcement officers do not use personal mobile devices for work purposes. The Council confirms that officers were free to personalise their device. This may have added to Ms J’s concerns that the device was personal. However, the Council states devices are not for personal use and are locked away each night.
  5. I sent the Council a copy of Ms J’s receipt showing payment. The Council has confirmed it received her payment and it has apologised that the stage one response requested payment when Ms J had paid.
  6. The Council has responded to Ms J’s complaint to the Ombudsman that the enforcement officers did not have authority to issue FPNs in the station. The Council has confirmed that it has the authority to do this in accordance with the Environmental Protection Act 1990 section 87. I have considered this Act and the guidance issued by DEFRA, “Litter and Refuse”, regarding the implementation of the EPA. In section 87 The Act says:

(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

  1. I do not consider there is fault by the Council in issuing an FPN as it appears in accordance with the legislation and relevant guidance.

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Final decision

  1. I do not find there is evidence of fault by the Council. I have completed my investigation and closed the complaint.

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Parts of the complaint that I did not investigate

  1. 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).
  2. I note Ms J considers there was a potential data breach by the officer when she allegedly showed her pages of her pocket book. She also believes the officer used a personal device which may mean data held by the Council about her is insecure. I do not consider there are good reasons for the Ombudsman to investigate this matter. I have not seen sufficient evidence to support Ms J’s view throughout the Council’s responses to her complaints. I consider Ms J is capable of taking the matter to the Information Commissioner as this is the body set up to consider such matters.

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Investigator's decision on behalf of the Ombudsman

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