Summary: Mr X complained about the actions the Council took to recover an unpaid fixed penalty notice and the lack of response to a complaint he made in 2017. The Council was not at fault for not sending a court summons to Mr X via email.

The complaint

1. Mr X complains that the Council:
• never replied to the complaint he submitted in November 2017 about a Fixed Penalty Notice; and
• did not send him any correspondence relating to the Fixed Penalty Notice electronically, despite having his email address since he submitted his complaint.
2. Mr X said that he did not know about the legal action the Council took against him and the Council could have emailed him in the last four years instead of pursuing the recovery now.
3. Mr X would like the Council to drop all the legal action it is taking against him and apologise for not responding to his complaint.

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What I have investigated

4. I have investigated the actions of the Council in relation to the fixed penalty notice and its recovery. I have not investigated Mr X’s complaint about the lack of the Council’s response to Mr X’s complaint, and I explain why at the end of this decision statement.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
7. 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 not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
8. We make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

10. As part of the investigation, I have considered:
• the complaint and Mr X's comments; and
• the documents the Council provided.
11. Mr X and the Council have had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

12. A Fixed Penalty Notice (FPN) is offered as an alternative to prosecution for some offences. Councils can issue FPNs as an alternative to prosecution for littering offences. If someone pays a FPN within the time allowed, the Council cannot prosecute them for the related conduct.
13. There is no formal appeal process for FPNs – if a person disagrees that they have committed an offence, they can decide not to pay the FPN, and the matter will then be decided by a Court.

The Council’s enforcement

14. The Council outsources its enforcement of environmental offences to a private company.

The Criminal Procedure Rules 2015 (CPR)

15. Part four of the CPR explains how councils and other bodies must serve legal documents. It says that in order to be able to serve a court summons by an email, the person being served must provide the email and agree to be served by that method.
16. Otherwise, the Council can still serve the documents on the defendant by:
• delivering the documents personally;
• leaving the documents with the authorised person; or
• sending the documents, by prepaid first class post or equivalent to an address where it is reasonably believed that he or she will receive it.

What happened

17. Mr X lived in Devon. He told us that in October 2017 he moved to Bristol, but he was staying with his friends.
18. On 27 November 2017 a civil enforcement officer acting on behalf of the Council saw Mr X throwing a cigarette on the pavement. The civil enforcement officer approached Mr X and told him that he had committed an offence. The officer issued Mr X an FPN. In order to do this, the officer asked Mr X for his address, and Mr X provided his Devon address. The FPN was for £75, reduced to £50 if Mr X had paid it within the 10 days from issuing.
19. The following day Mr X complained to the Council and said:
• the civil enforcement officer was acting aggressively and startled him;
• the civil enforcement officer said that it was a caution and not an FPN; and
• the FPN he got was disproportionate to the crime of dropping a cigarette on the pavement.
20. The Council acknowledged Mr X’s complaint but never replied to him. The Council told us that it passed the complaint to be dealt with by the civil enforcement company, but it did not have any further record of Mr X’s complaint.
21. At the beginning and end of December the Council sent two reminders to Mr X’s Devon address, asking for the FPN payment. In May 2018 the Council sent a court summons by post to Mr X to his Devon address.
22. Mr X told us that he did not receive them as he was already staying in Bristol.
23. In June 2018 the magistrate’s court heard Mr X’s case and found him guilty of the offence. Mr X was not present at the hearing. The court also awarded the Council costs of the prosecution, which increased the amount of money that Mr X was liable for.
24. In 2021 the Council approached Mr X for the recovery of the FPN and the additional costs. In December 2021 Mr X complained to the Ombudsman about the Council’s actions. He said the Council never responded to his complaint, and it should stop all recovery action.

Analysis

25. By law, I cannot investigate any complaint that has been determined by court.
26. That said, I can assess the Council’s actions with regards to the recovery of the FPN up to May 2018 when it started legal action against Mr X.
27. Mr X said that the Council could have contacted him about the FPN via an email, as it had his email address after he had complained about the civil enforcement officer’s behaviour.
28. In his complaint Mr X referred to the FPN and the civil enforcement officer’s testimony submitted to court said that he had given a copy of the FPN to Mr X on the day the offence took place. We consider that Mr X knew that he could pay the FPN in order not to be prosecuted for the littering offence, however he did not.
29. In May 2018 the Council served a court summons on Mr X. It posted the summons to the address where it could reasonably expect Mr X to get it, as this was the address Mr X had given to the civil enforcement officer in November 2017. He had done so even though, as he told us, he was already staying in Bristol at the time.
30. The CPR 2015 says that a Council can serve documents electronically on a person who provides an email address and confirms they agree to be served in such a way, which Mr X did not. For this reason, we have found no fault in the Council serving the summons on Mr X via post to the address he had provided to the civil enforcement officer.

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Final decision

31. The Council was not at fault for not serving a court summons on Mr X via email. Our investigation is now complete.

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Parts of the complaint that I did not investigate

32. I did not investigate Mr X’s complaint about the Council’s lack of response to the complaint he submitted in November 2017. We expect people to come to us within 12 months of being aware of the problem. Mr X had complained to the Council previously but did not approach the Ombudsman. We do not consider he provided us with a good reason for not doing so, and on that basis, we consider this part of his complaint to be late.

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Investigator's decision on behalf of the Ombudsman