Summary: We will not investigate Mrs B’s complaint about a fixed penalty notice she received from the Council for an alleged littering offence. This is because it is for the courts to decide if an offence has taken place. Also, an investigation solely into Mrs B’s complaint about the conduct of an officer involved is not justified.

The complaint

1. The complainant, who I will refer to as Mrs B, complains that the Council wrongly issued her with a fixed penalty notice for dropping a cigarette. Mrs B says the notice should not have been issued and the Council did not provide a right of appeal. Mrs B also complains about the conduct of the officer who issued the notice. Mrs B says the officer: did not look official and did not show identification; was unpleasant and aggressive; did not maintain social distancing; did not wear a mask; and, followed her around the town centre.

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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:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

3. I have considered Mrs B’s complaint and the supporting documents she sent. I have considered bodycam footage and witness statements provided by the Council. I have also shared a draft version of this statement with Mrs B and invited her comments.

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What I found

What happened

4. Mrs B was in a local town centre when she was approached by a Council officer, who I will refer to as Officer A. Officer A said Mrs B had dropped a cigarette and did not pick it up. Officer A is a Council Anti-Social Behaviour and Nuisance Officer. Mrs B says she dropped the cigarette accidentally. Mrs B says she did not want to pick it up because it fell into lots of other rubbish and she did not want to pick up a different cigarette butt which may have been contaminated by COVID-19.
5. Officer A asked Mrs B for her personal details. Mrs B says Officer A was unpleasant and aggressive, did not provide identification or wear a uniform, and did not maintain social distancing or wear a mask.
6. Mrs B says she did not want to give her personal details to a stranger in the street. Mrs B says Officer A then followed her and her husband and threatened to call the Police. Mrs B says Officer A got more people to follow them through the town centre. Mrs B says eventually someone who looked official and showed identification approached her outside a supermarket and she gave her details.
7. Officer A then sent Mrs B a fixed penalty notice which said she had committed a littering offence. The notice said if payment was not made within the required timeframe the Council would start court proceedings.
8. Mrs B complained to the Council about both the fixed penalty notice and the conduct of Officer A. Mrs B said she had reluctantly paid the fine because the Council did not provide details on how to put in an appeal against it.
9. The Council responded to Mrs B’s complaint under both stages of the Council’s complaints procedure. The Council said:
• The fixed penalty notice was correctly issued.
• It had interviewed the officers involved and had reviewed body worn footage, and there was no evidence of malpractice relating to officer behaviour.
• Officer A was wearing an authorised Council coat and presented her identification.
• Officer A moved back when asked to do so by Mrs B.
• Officer A followed Mrs B because Mrs B refused to provide her details.
• Officer A wore a face mask in the shopping centre and supermarket. This is in line with the Council’s risk assessments and government requirements. But, Officer A has been asked to wear a face mask if coming into close contact with residents in open spaces.
10. The Council did not uphold Mrs B’s complaint. Mrs B then complained to us.
11. As part of my assessment of this complaint, I asked the Council to provide the bodycam footage referred to in the Council’s response to the complaint. The Council provided the recording made by the officer who approached Mrs B outside the supermarket. The Council also provided witness statements from the officers involved. But, the Council said the first recording was not saved by the officer and unfortunately it is automatically deleted after 28 days.

Assessment

12. We will not investigate Mrs B’s complaint that the Council was wrong to issue the fixed penalty notice.
13. Mrs B had the choice of either paying the fixed penalty notice or defending herself at court if the Council decided to start prosecution proceedings. It is for the courts to decide such matters and not the Ombudsman.
14. Also, we are unlikely to find the Council to be at fault for not providing Mrs B with a right of appeal against the fixed penalty notice. This is because there is no statutory right of appeal against such a notice. Also, the fixed penalty notice invited Mrs B to contact the Council if she had any queries about the matter.
15. We can investigate complaints about the conduct of Council officers who issue a fixed penalty notice if the complaint is separate to any dispute about whether a littering offence has taken place.
16. Mrs B makes several complaints about the conduct of Officer A, who issued the fixed penalty notice. I have considered whether we should start an investigation into Mrs B’s complaints about Officer A’s conduct.
17. I have read Mrs B’s comments about Officer A’s conduct. I have also read the witness statements written by Officer A and other Council officers who were present. I have been provided with conflicting accounts of what happened. From the information available, I cannot say on balance that Officer A was at fault. Also, it is highly unlikely further investigation would help me form a view on what happened. This is because the Council says the bodycam footage is no longer available.
18. It is possible the Council was at fault for not keeping this footage. I have considered whether to investigate this matter further. But, I find an investigation is not warranted.
19. The Ombudsman has limited resources and we must focus our investigations on complaints of fault causing significant injustice. Any injustice suffered by Mrs B would be limited to an element of uncertainty about whether her complaint may have been decided differently if the footage had been kept. I find this uncertainty combined with the nature of the allegations about Officer A’s conduct are not serious enough to justify the Ombudsman starting an investigation.

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Final decision

20. We will not investigate this complaint. This is because an investigation is unlikely to find that fault by the Council has caused Mrs B a significant injustice.

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Investigator's decision on behalf of the Ombudsman