Summary: We have completed our investigation into Mr X’s complaint. The Council was not at fault for refusing to let him pay a fixed penalty notice in instalments. The Council’s actions were in line with its policies and procedures.

The complaint

1. Mr X complained the Council would not allow him to pay a fixed penalty notice in instalments. He said this could result in an increased penalty and court action. He said the Council should have taken account of his physical and mental health as well as his financial circumstances.

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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 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)
3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. 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

5. I have considered Mr X’s complaint and have spoken to his representative about it. I have also considered the Council’s response to Mr X’s complaint and my enquiries.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

The Law

The Unauthorised Deposit of Waste (Fixed Penalties) Regulations 2016

7. In 2016, the Government introduced regulations to allow councils to issue fixed penalty notices (FPNs) for small fly tipping offences. It said the level of penalty is set by the council but should be between £150 and £400. It said council can adopt an early payment discount, but it is at the council’s discretion whether to adopt it or not.

Council’s Waste and Recycling Policy including Enforcement

8. This sets out the Council’s enforcement options. It lists how different types of offences are dealt with via a fixed penalty notice (FPN). The penalty for fly-tipping is £400. The Council did not adopt an early payment discount. The policy does not mention an option to pay the FPN in instalments.

What happened

9. In September 2019 the Council issued Mr X a fixed penalty notice (FPN) of £400 for fly tipping. Mr X does not dispute the offence. The FPN stated if Mr X paid the fee by 10 October 2019, the Council would take no further action. It went on to say, if he did not pay by the date, the case would be passed on to court where he may be prosecuted for the offence and, if convicted, could receive a much higher fine of up to £5000.
10. On 1 October, the Mr X’s representative, the Citizen’s Advice Bureau (CAB) contacted the Council. The CAB explained Mr X was in a poor mental and physical health with limited financial means. It said his poor mental health contributed to his offence. The CAB asked the Council to cancel the FPN in light of Mr X’s exceptional circumstances.
11. The Council responded and acknowledged Mr X’s circumstances. It explained that whilst it would not cancel the FPN, it would extend the payment deadline by two weeks to give Mr X more time to find the money.
12. The CAB asked the Council to set up a payment plan for Mr X as he had no means of paying the amount in full. The CAB said Mr X could afford to pay £5 per month.
13. The Council said its policy would not allow for a payment plan, but it continued to offer the extension to the payment deadline.
14. CAB complained to the Council on Mr X’s behalf. It provided evidence of Mr X’s financial circumstances and offered monthly repayments of £5. It said the Council was being unfair by not considering Mr X’s mental health needs.
15. In response to CAB’s complaint, the Council reiterated that it takes fly tipping very seriously. It therefore did not consider a payment plan to be appropriate in terms of the FPN acting as a deterrent.
16. In July 2020, the Council sent Mr X a court date as he had not paid the £400 FPN.

My Findings

17. From the evidence I have seen, the Council acted in line with its policy. This does not allow for instalment payments for FPNs. The Council took account of Mr X’s circumstances and offered him a time extension.
18. I note the CAB’s argument the Council should amend its blanket policy to take account of individuals’ circumstances. It is at the Council’s discretion if it chooses to amend its policy but I can only consider policies currently in place.
19. If the court makes a decision about Mr X’s FPN, it will be binding. The court may take account of Mr X’s medical and financial circumstances and set up a payment plan. If this happens, both the Council and Mr X will need act in line with the court’s decision. This is not my decision to make.

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Final decision

20. I have completed my investigation. There is no fault in the actions of the Council in relation to Mr X’s fixed penalty notice. The Council’s actions were in line with national and local regulations and policies.

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Investigator's decision on behalf of the Ombudsman