Summary: We will not investigate this complaint about the Council issuing a fixed penalty notice for fly-tipping. This is because the complainant could have raised a defence against the penalty in the Magistrates Court which is better placed to consider the matter.

The complaint

1. Mr X complained about receiving a fixed penalty notice for leaving bottles next to a recycling bin at a local supermarket. He believed the penalty is unreasonably harsh for the nature of the offence.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is another body better placed to consider this complaint,

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

3. 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

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says he received a fixed penalty notice after he drove to a supermarket recycling point where he asked his passenger in the car to put some glass bottles in the recycling bin. The bin was full, so the bottles were left in a box next to the bin. Subsequently Mr X received a fixed penalty notice of £200 for fly-tipping.
7. Mr X says he left the waste because the recycling bin was full, and he had tried another site at a supermarket the previous day. The Council says the penalty was issued using number pate recognition cameras at the site and that hundreds of penalties have been issued for similar offences which cause complaint from other users and a potential hazard. The penalties are issued to deter repeat offences of tipping at the same site.
8. The issue of fly tipping at these sites has featured in the local media for some time before Mr X received the penalty. Whilst Mr X may feel it is unfair punishment for a well-intentioned action the Council has explained previously its reasons for serving the penalties.
9. A council can issue a fixed penalty notice if it thinks somebody has committed an offence such as fly tipping. The person can pay the fine and the matter is closed. Alternatively, if they deny committing an offence, they can wait for the Council to prosecute and then raise a defence in court. The court then decides if they committed an offence.
10. We will not start an investigation because Mr X could have raised a defence in court if the Council prosecuted him and he did not think he had committed an offence. It is reasonable to expect him to have appealed because the court is the appropriate body to weigh up the evidence and decide whether Mr X had committed an offence. This is the role of the courts, not the Ombudsman.

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Final decision

11. We will not investigate this complaint about the Council issuing a fixed penalty notice for fly-tipping. This is because the complainant could have raised a defence against the penalty in the Magistrates Court which is better placed to consider the matter.

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Investigator's decision on behalf of the Ombudsman