Summary: We will not investigate this complaint about a Fixed Penalty Notice for alleged fly-tipping. This is because there is insufficient evidence of fault by the Council and the complainant could raise a defence in court.

The complaint

1. The complainant, whom I refer to as Mr X, says the Council has treated him unfairly and ignored his mental health issues. Mr X wants the Council to acknowledge that he could not find the entrance to the dump.

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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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by Mr X and the Council. This includes the Fixed Penalty Notice (FPN) and email exchanges between Mr X and the Council. I also considered our Assessment Code. I gave Mr X the opportunity to comment on my draft decision.

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My assessment

4. If a council thinks someone has committed an environmental offence it can prosecute. As an alternative to prosecution it can issue a FPN. If the person pays the fine the case is closed. If the person does not pay a council can prosecute. The person can then raise a defence in court and the court decides if the person committed an offence.
5. The Council issued a FPN in April for alleged fly-tipping. The Council told Mr X that his car had been identified by cameras and there were images of him dumping wood on the highway. The FPN said he could pay £400 within 14 days or the Council may prosecute.
6. The Council carried out an interview under caution (IUC). Mr X explained he had left the wood on the road because he could not find the entrance to the dump. He has also said he thought the area was part of the dump because other rubbish had been left there. Mr X said he cannot afford to pay and the situation was affecting his mental health. There were email exchanges between Mr X and the Council. The Council said he had admitted an offence during the IUC. It acknowledged his health issues but said that did not justify dumping waste and it said fly tipping can cause distress and present a fire risk.
7. The Council remained of the view that an offence had been committed. In view of Mr X’s health issues it extended the deadline to pay until 23 June. The Council told me on 18 July that Mr X has not paid the fine.
8. I will not start an investigation because there is insufficient evidence of fault by the Council and because Mr X could raise a defence in court if he does not think he committed an offence. The Council followed the correct process by carrying out an IUC, considering Mr X’s points and extending the time to pay. It may start legal proceedings if Mr X chooses not to pay. Mr X could then raise a defence in court the court would decide if he committed an offence.
9. We do not act as an alternative to the courts and it is not my role to decide if Mr X committed an offence. I cannot ask the Council to cancel the FPN.

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Final decision

10. We will not investigate this complaint because there is insufficient evidence of fault by the Council and because Mr X could raise a defence in court.

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Investigator's decision on behalf of the Ombudsman