Summary: The Ombudsman will not investigate Miss X’s complaint about a Fixed Penalty Notice she received for dropping a cigarette butt. This is because the courts are better placed to consider the evidence and decide if the offence occurred.

The complaint

1. The complainant, whom I shall call Miss X, complains about a Fixed Penalty Notice (FPN) for dropping a cigarette butt. Miss X says she dropped the cigarette butt by accident and picked it up straight away.

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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’. 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 there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended)
3. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) 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)

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How I considered this complaint

4. I considered Miss X’s complaint to the Ombudsman and the information she provided. I also gave Miss X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

5. Under Section 87 of the Environmental Protection Act 1990, it is an offence to drop litter on land which is ‘open to the air’. 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.
6. Miss X received an FPN for dropping a cigarette butt. She says this was an accident and picked up the cigarette butt straight away. Miss X says she cannot afford the fine and wants it cancelled. Miss X says the incident was captured on the enforcement officers’ body-worn camera, but the Council will not let her access the footage.
7. The Ombudsman’s role is to look for administrative fault. We are not an appeal body and could not say whether the FPN was correctly issued and if the offence occurred. If Miss X contests the FPN and decides not to pay it, the Council may prosecute her. Miss X will then have a right of defence in the Magistrates’ Court and she can present her evidence to the Court. The Court is better placed to consider the evidence from both parties and decide whether to cancel the FPN. The Ombudsman cannot do this.
8. If Miss X feels the Council is withholding camera footage she is entitled to, she should contact the ICO for advice. It is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes failing to disclose information a person is entitled to. The ICO is the correct body to advise Miss X, and to deal with a complaint about the Council’s refusal to disclose the camera footage.

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Final decision

9. The Ombudsman will not investigate Miss X’s complaint. This is because the courts are better placed to consider the evidence and decide if the offence occurred.

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Investigator's decision on behalf of the Ombudsman