Summary: We will not investigate this complaint about the issue of a Fixed Penalty Notice for littering. The complainant could have challenged any prosecution in the Magistrates Court. Instead, she chose to pay the penalty and thereby discharge her liability. Also, there is not enough evidence of fault in the procedures followed by the Council to justify an investigation.

The complaint

1. The complainant, I shall call Ms X, complains that when issuing a Fixed Penalty Notice (FPN) the Council:
• did not provide proof of the offence before the FPN was to be paid
• obtained evidence from an unknown third party who did not display notices stating CCTV was being used

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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 not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by Ms X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Ms X says she paid the FPN to prevent the matter from escalating and this payment was not an admission of guilt.
7. However, while payment of an FPN is not an admission of guilt, it is an admission that an offence has been committed and that after paying the specific sum of money, no further action will be taken by or on behalf of the Council.
8. Ms X is concerned the evidence was supplied by a CCTV camera belonging to a member of the public. However, the guidance on using such evidence issued by the Department for Environment, food and Rural Affairs says:

“Enforcement action may be taken on the basis of evidence supplied by members of the public provided that in the opinion of the enforcing authority, the evidence sufficient to meet the relevant standards of proof.”

The Council is satisfied the evidence was enough to prove the offence.

9. The Ombudsman’s role is to look for administrative fault. We are not an appeal body and cannot say whether the FPN was correctly issued. If Ms X wanted to contest the FPN, she could have decided not to pay it. The Council may have then prosecuted her. She would then have had a right of defence in the Magistrates’ Court, and she could have challenged the evidence.
10. Also, we have not seen evidence of fault in the process the Council followed when issuing the FPN to justify an investigation.

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Final decision

11. We will not investigate Ms X’s complaint because it is reasonable to expect her to have used her right to defend herself in the Magistrates Court. And we have not seen evidence of fault in the Council’s actions which justifies an investigation.

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Investigator's decision on behalf of the Ombudsman