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London Borough of Merton (19 018 665)

Category : Environment and regulation > Other

Decision : Closed after initial enquiries

Decision date : 10 Mar 2020

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Miss X’s complaint about a Fixed Penalty Notice she received for littering. 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 littering. Miss X disputes the offence and has asked the Council for CCTV footage as evidence.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. 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

  1. 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.
  2. The Council has issued Miss X with an FPN for littering. Miss X disputes the offence and has asked the Council for CCTV footage as evidence. Miss X is unhappy the Council will not accept payment for the FPN by instalments.
  3. 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. 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.

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Final decision

  1. 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.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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