Summary: The Ombudsman will not investigate this complaint arising from a fixed penalty notice for a littering offence. Only a court can decide if the complainant committed the offence. The complainant has already raised concerns about the provision of information with the Information Commissioner.

The complaint

1. The complainant, who I refer to here as Ms B, has complained about issues arising from a fixed penalty notice (FPN) issued by the Council under the Environmental Protection Act 1990. In particular, she says the Council and its contractor did not provide information she requested so she could appeal against the FPN.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

5. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
6. We normally expect someone to refer a complaint about data protection to the Information Commissioner.

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How I considered this complaint

7. I have considered what Ms B said in her complaint and background information provided by the Council.

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What I found

The FPN

8. The Environmental Protection Act 1990 gives the Council powers to issue FPNs for the offence of littering. The person given the FPN is then liable to pay a fixed penalty to avoid prosecution. If the fixed penalty is not paid, the Council may pursue a prosecution in a magistrates’ court.
9. An officer authorised by the Council issued the FPN after seeing Ms B drop a cigarette butt in a car park. This made Ms B liable to prosecution for a criminal offence but she could pay a fixed penalty of £100 (or £80 within 14 days) to avoid prosecution.
10. The FPN set out clearly stated:

‘A Fixed Penalty Notice (FPN) is issued as an alternative to prosecution for the offence. Paying the FPN discharges your liability.’

and

‘You have the right not to pay a Fixed Penalty Notice and defend (appeal) against your prosecution in a Magistrate’s Court.’

11. I have decided we will not look at a complaint about the FPN because it is not our role to decide if Ms B committed a criminal offence. This would be for a court to consider if the Council prosecutes her.

Provision of information

12. Ms B has raised her concerns about the Council and its contractor providing information with the Information Commissioner. For this reason, we will not consider a complaint about this.

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Final decision

13. I have decided we will not investigate this complaint for the reasons given in paragraphs 11 and 12.

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Investigator's decision on behalf of the Ombudsman