Summary: We will not investigate this complaint about the Council issuing the complainant with a Fixed Penalty Notice. This is because we are unlikely to achieve anything more.

The complaint

1. In short, Mr X complains about the Council’s decision to issue him with a Fixed Penalty Notice (FPN) of £400 for incorrectly disposing of a cardboard box in a communal recycling bin.
2. Mr X is a business owner and has signed up to the Council’s green sack trade waste service which allows him to dispose of his waste in ‘communal’ bins.
3. Mr X says the Council failed to make clear he could not use the communal recycling bin. He would like the FPN cancelled, an apology and a payment for his time and trouble taken.

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The Ombudsman’s role and powers

4. We have the power to start an investigation into a complaint within our jurisdiction. We may decide not to start 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)
5. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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 we are unlikely to achieve anything more. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

6. I considered information provided by the complainant which includes the Council’s responses.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

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 court then decides if the person committed an offence.
10. Government guidance recommends councils have an internal review process prior to prosecution. The Ombudsman can consider this aspect of the Council’s actions.
11. Mr X appealed to the Council about being issued with a FPN and the misleading information he had received to date.
12. The Council responded by saying its website could be clearer that business waste can be general and recyclable waste. But overall, the Council found the FPN was properly issued. And it advised Mr X that he could raise his continuing concerns in the Magistrates court for its determination.
13. Under the FPN process, Mr X had the right to defend his case in court. He chose to pay the FPN instead. Usually if the FPN is paid, the Council closes the case and liability for the offence is discharged.
14. Mr X continues to dispute the Council’s responses and considers the Ombudsman should consider this aspect of his complaint.
15. However, we cannot consider the complaints process separately to the matter of the offence given payment of the PCN has effectively ended the process. And it is not a good use of public resources to investigate complaints about complaint procedures, if the substantive issue has been discharged.
16. We do not act as an alternative to the courts. It was reasonable to expect Mr X to have defended his case at court because that is the procedure to defend a prosecution for an unpaid FPN. Instead, he chose to pay the FPN.

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Final decision

17. I will not investigate because we are unlikely to achieve anything more.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman