Summary: We will not investigate this complaint about a Fixed Penalty Notice issued to the complainant’s business. This is because the complainant could have raised a defence against the penalty in court.

The complaint

1. The complainant, Mr X complains about a Fixed Penalty Notice (FPN) that the Council issued to his business for the unauthorised deposit of waste.

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The Ombudsman’s role and powers

2. 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)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.
6. Mr X has had an opportunity to comment on my draft decision.

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My assessment

7. The Council issued Mr X’s business a FPN for the unauthorised deposit of waste, after the enforcement officer concluded waste had been illegally emptied inside a communal waste bin.
8. Our role is to look at the way councils reach their decisions. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it.
9. A FPN gives someone the chance to pay a fine and avoid prosecution. If the person does not pay the Council may start legal action. The magistrates then decide if the person committed an offence. Mr X’s business has the right to defend the case in court.
10. Mr X challenged the FPN with the Council. He said the Council had issued the FPN unlawfully and the enforcement officer’s manner was harassing. However, the Council rejected the challenge having reviewed the evidence submitted. The Council advised Mr X of his rights to raise a legal defence in court. It is not unreasonable to expect Mr X’s business to do so if it wishes to continue its challenge to the FPN.

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Final decision

11. We will not investigate Mr X’s complaint because it is not unreasonable to expect the complainant’s business to raise a defence against the penalty in court.

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Investigator's decision on behalf of the Ombudsman