Decision : Closed after initial enquiries
Decision date : 02 Mar 2018
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint that the Council unreasonably issued a Fixed Penalty Notice for littering. This is because it is not our role to decide if someone has committed a criminal offence. The complainant can defend her case in the magistrate’s court if she refuses to pay the penalty fine.
- Ms X complains the Council unfairly gave her a Fixed Penalty Notice (FPN) for dropping a cigarette butt. She says she was not aware this was not allowed and there is no information in the area warning that fines may be given.
The Ombudsman’s role and powers
- 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)
How I considered this complaint
- I considered the information Ms X provided with her complaint, including the Council’s response to her. She can comment on this draft decision.
What I found
- The Environmental Protection Act 1990 gives the Council powers to issue a FPN for the offence of littering. The person given the FPN is then liable to pay a fine. If he/she does not pay the fine the Council may continue with a prosecution in the magistrates’ court.
- A Council Litter Enforcement Officer issued Ms X with a FPN on the basis she had dropped a cigarette end. This made her liable to pay a fine of £80. Ms X says she has not seen any information about the law as the Council does not publicise it.
- Ms X complained to the Council about the FPN. The Council told her there is no appeal process but it considers representations. If it then does not accept these, then she can defend her case in the magistrates’ court.
- Ms X is unhappy with the Council’s actions. But the Ombudsman does not intend to investigate her complaint as it is not our role to decide if Ms X committed a criminal offence. That is a matter for the courts to consider. Ms X can now either pay the fine or, if she considers the Council has acted unfairly she can wait for the Council to prosecute her and raise a defence in court. The court will then weigh the evidence and decide if she is guilty of the offence.
- I will not investigate this complaint. This is because we cannot decide whether Ms X has committed a criminal offence. That is a matter for the courts to decide.
Investigator's decision on behalf of the Ombudsman