Summary: The Ombudsman will not investigate this complaint about a Fixed Penalty Notice for an offence related to waste. This is because there is insufficient evidence of fault by the Council and because the complainant could raise a defence in court.

The complaint

1. The complainant, whom I refer to as Ms X, complains about the way the Council handled a Fixed Penalty Notice for a waste offence. She says it did not investigate the man who dumped the waste. Ms X says the Council racially discriminated against her.

Back to top

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 an investigation if we believe:

• it is unlikely we would find fault, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

3. I read the complaint and the Council’s responses. I considered email exchanges between Ms X and the Council and found out the steps the Council took to try to find the other person. I invited Ms X to comment on a draft of this decision.

Back to top

What I found

Duty of care

4. The law says householders have a duty to take reasonable measures to ensure that any waste is disposed of correctly and by an authorised person. A Council can issue a FPN for failing to meet this requirement. If the person pays the fine the Council closes the case. If the person does not pay the Council can prosecute. If the person does not think they have committed an offence they can raise a defence in court. The court then decides if they committed the offence.

What happened

5. Ms X paid someone to remove some rubbish. She thought he would take it to the tip.
6. The Council found rubbish which had been fly-tipped. The Council identified that some of the rubbish came from Ms X’s address. The Council spoke to Ms X. She explained she had paid someone to take the rubbish. She gave some information about the man including information from social media. She also said her neighbours had CCTV although they did not want to get involved.
7. The Council issued a FPN for failing to meet the duty of care requirement. The fine was £400.
8. The Council tried to locate the man who took the rubbish. Due to data protection rules I cannot provide details, but I have seen that the Council took various steps to try to find him. But, it was unable to locate him.
9. The Council denies it discriminated against Ms X. It says Ms X has not paid the fine. The Council may prosecute Ms X.

Assessment

10. I will not start an investigation because there is insufficient evidence of fault by the Council. The Council issued a FPN because it found waste, linked to Ms X, which had been fly-tipped. Ms X did not fly-tip the waste, and did not think she had done anything wrong, but the law says it is an offence to pass waste to someone for removal without checking they are authorised to remove waste. There is no suggestion of fault in the Council’s decision to issue Ms X with a FPN. If Ms X does not think she committed an offence she can raise a defence in court if the Council decides to prosecute.
11. Ms X says the Council has discriminated against her because she is of mixed race and the man who took the rubbish is white. However, the only reason the Council has not served a FPN on the man is because it has not been able to find him. I have not seen anything suggest racial discrimination against Ms X.

Back to top

Final decision

12. I will not start an investigation because there is insufficient evidence of fault by the Council and because Ms X could raise a defence in court.

Back to top

Investigator's decision on behalf of the Ombudsman