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Stevenage Borough Council (19 018 562)

Category : Environment and regulation > Other

Decision : Closed after initial enquiries

Decision date : 18 Mar 2020

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mrs X’s complaint about a fixed penalty notice issued by the Council. This is because Mrs X may refuse to pay the notice and argue the case at court.

The complaint

  1. The complainant, Mrs X, complains about a fixed penalty notice (FPN) issued by the Council for fly-tipping. She says this has affected her mental health.

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The Ombudsman’s role and powers

  1. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I reviewed Mrs X’s complaint and the Council’s responses. I shared my draft decision with Mrs X’s representative, Mr X, and invited his comments.

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What I found

  1. A council may issue an FPN where it appears to them a person has failed to comply with their duty under Section 34(2A) of the Environmental Protection Act 1990. The FPN provides the person an opportunity to discharge liability for the offence by paying a fine rather than facing prosecution and possible conviction.
  2. The Council issued Mrs X an FPN for fly-tipping in 2019. Mrs X does not accept she committed an offence and believes the Council did not look at the case closely enough. She complained about the FPN and then appealed against it under the Council’s internal appeals process; but the Council declined to cancel or waive it. Mrs X asks the Ombudsman to look at whether the Council investigated the case sufficiently and why there is no formal right of appeal against the PCN.
  3. The Ombudsman will not investigate this complaint. The FPN process is set out in the Environmental Protection Act 1990 and the Council is entitled to issue FPNs where it believes a person has committed an offence. There is no formal appeals process as the law does not provide one. However, as the FPN is simply a way for a person to discharge liability for an offence any person issued an FPN may decline to pay it and argue their position in defence of prosecution at the magistrates’ court.
  4. The courts are better placed to determine whether a person has committed an offence and their decision is binding on both parties.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because the substantive issue concerns Mrs X’s liability for an offence and this is an matter the courts are better placed to deal with.

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Investigator's decision on behalf of the Ombudsman

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