Summary: The Ombudsman will not investigate this complaint about a fixed penalty notice issued by the Council in relation to a criminal offence under the Environmental Protection Act 1990. There is no evidence of fault by the Council and the complainant can defend herself in court if the Council prosecutes her.

The complaint

1. The complainant, who I refer to here as Mrs C, has complained the Council issued a fixed penalty notice (FPN) requiring her to pay £300. She says it was not reasonable for the Council to issue the FPN as it gave her too little time to enter into a contract to collect commercial waste from her business premises.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault; or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered what Mrs C said in her complaint and background information provided by the Council. Mrs C commented on a draft before I made this decision.

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What I found

4. A Council officer visited Mrs C’s business premises in July 2019 and asked for documents showing how she disposed of commercial waste. He believed she had failed to comply with her legal duty under the Waste (England and Wales) Regulations 2011 which is a criminal offence. The officer issued a formal notice to Mrs C that required her to produce certain documents within seven days.
5. When the officer returned seven days later, Mrs C could not produce the required documents. The Council issued the FPN which allowed Mrs C to avoid prosecution by paying the fixed penalty of £300 (or £180 if she paid within 10 days).
6. There is no right of appeal against the FPN itself. However, if Mrs C believes she did not commit an offence occurred, she can refuse to pay the fixed penalty and present an argument at court in defence of any prosecution.
7. We cannot decide if Mrs C is guilty of the offence the Council says she has committed. We can consider only whether the Council was at fault for issuing the FPN and I have not seen any evidence of this.

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Final decision

8. I have decided we will not investigate this complaint. This is because there is no evidence of fault by the Council. If Mrs C disputes she committed an offence, it is reasonable for her to put forward her arguments in court in defence of any prosecution by the Council.

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Investigator's decision on behalf of the Ombudsman