Decision : Closed after initial enquiries
Decision date : 27 Mar 2019
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate Ms D’s complaint about a Fixed Penalty Notice (FPN) she received for dropping a cigarette butt. It is reasonable to expect Ms D to have refused to pay the fine and argue her case in court if she wanted to challenge it. The courts were better placed to decide if the FPN was properly issued.
- The complainant, whom I shall call Ms D, complains she received a FPN for dropping a cigarette butt without being given an opportunity to pick it up. Ms D says she was coerced into paying the FPN because English isn’t her first language.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
- there is, or was, another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered the information Ms D provided and the Council’s response to my enquiries. I sent a draft decision to Ms D and considered the comments she made in response before I made my final decision.
What I found
- Under section 87 of the Environmental Protection Act 1990, it is an offence to drop litter on land which is ‘open to the air’ except if the public does not have access to the land, with or without payments. Councils can issue FPNs to people who drop litter. If the fine is not paid, the Council can start court proceedings for non-payment. The person who received the FPN can then defend those proceedings.
- In March 2018, Ms D received a FPN for littering after she stubbed out a cigarette butt on the ground. Ms D complains the action was disproportionate as she picked up the butt when the officer spoke with her and she put it in a bin. Ms D complained the enforcement officer should have issued a warning and did not make allowances for the fact English is not her first language.
- Ms D visited an advice organisation that advised her to pay the FPN to avoid increased costs and the potential for a criminal conviction for littering if the Council successfully prosecuted her.
- In response to Ms D’s complaints, the Council has reviewed the body camera footage from the officer concerned and is satisfied he issued the FPN correctly. The Council has said it is only guidance for officers to issue a warning before a FPN. Ms D disputes this and wants the Ombudsman to consider if the Council must issue a warning before a FPN.
- The Ombudsman will not investigate this complaint. It is not the Ombudsman’s role to say whether the FPN was properly issued. The court would have been able to decide whether the law had been properly applied and whether there was an offence. This is a legal rather than an administrative matter and not something the Ombudsman could make a finding on.
- Ms D says it is not reasonable to expect her to have defended court proceedings because English is not her first language. I note Ms D sought advice before deciding to pay the FPN and has been assisted by her English-speaking partner in pursuing her complaint with the Council and the Ombudsman. She could have used the same support to defend proceedings if she believed the FPN was not properly issued and she should not have to pay it.
- The Ombudsman will not investigate this complaint. This is because it reasonable to expect Ms D to have refused to pay the fine and argue her case in court if she wanted to challenge it. The courts were better placed to consider whether the FPN was correctly issued.
Investigator's decision on behalf of the Ombudsman