Summary: Mr X complains about receiving a fixed penalty notice from the Council for the offence of littering. We have found fault in the Council’s communication with Mr X regarding challenging the notice. The Council has agreed to apologise to Mr X, refund the amount he paid to discharge the notice, make a symbolic payment and service improvements.

The complaint

1. Mr X complains about receiving a fixed penalty notice (FPN) from the Council for the offence of littering. Specifically, he alleges the following:

1. he was not responsible for the alleged offence of littering;
2. The FPN did not arrive in time for him to make an early payment at a reduced amount; and
3. once he paid the FPN the Council explained that if he wished to challenge the matter then he should not have made payment.

2. Mr X says dealing with the Council to address this has been stressful and time consuming. He wants the Council to reimburse him for the amount he paid and to review its practices to only issue fines once all the evidence has been established.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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

5. I considered the information provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response.
6. Mr X and the Council had the opportunity to respond to my draft decision. I considered all comments before reaching a final decision.

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What I found

Background and legislative framework

Littering offence

7. Littering is an offence under section 88 of the Environmental Protection Act 1990 (the Act). Councils can issue FPNs as an alternative to prosecution for certain environmental and other anti-social behaviour offences. They are designed to allow the opportunity to discharge any liability to conviction for an offence. This means that by admitting the offence and paying the fine, a person issued with a fixed penalty can avoid being prosecuted for that offence.

Statutory guidance

8. The government issued statutory guidance called ‘Litter and refuse: Code of Practice (April 2013)’. Some key points from the guidance include:

• The principles of the Code apply to any enforcement action taken by councils and an effective enforcement regime should be proportionate, targeted, consistent, transparent and accountable. In particular, enforcement action should not be taken if it would be disproportionate to the offence, for example against accidental littering or if the offender is vulnerable.
• because they are offered in lieu of prosecution, there is no formal right of appeal against fixed penalties. It is good practice though for enforcing authorities to operate a process through which an alleged offender may offer evidence in mitigation, lines of defence or other relevant information that may not have been available at the time the fixed penalty was issued.
• enforcing authorities have a duty not to fetter their discretion. An authority may cancel a fixed penalty at any point even when an undoubted contravention has taken place if the authority deems it to be inappropriate in the circumstances of the case.
• If the enforcing authority operates a process for disputing liability, it is important that anyone wanting to take advantage of this, should not be disadvantaged by doing so. If a discount is offered for early payment, it should still be offered in the event of an unsuccessful dispute, providing it is lodged before the close of any early payment window.
• authorities should make it clear that if a dispute is rejected, the alleged offender may still choose not to pay the fixed penalty and to defend their case in court.
• should a fixed penalty go unpaid, the normal course of action will be to prosecute in the magistrates’ court and legal proceedings must begin within six months of the offence.

The Council’s enforcement policy

9. The Council has issued its own policy called ‘Waste Management Operational Enforcement Procedures Policy (April 2016)’. This outlines that where the alleged offender believes that a FPN has been wrongly issued and that there are grounds similar to those listed below for contesting its issue, they may appeal in writing to the Council’s Waste Enforcement Manager. The grounds are as follows:

1. when the person accused was not the person that committed the offence.
2. where the person issued with the fixed penalty notice brings forward evidence that could undermine any later prosecution.
3. where a fixed penalty notice has been wrongly issued.
4. Where the person issued the fixed penalty notice is a child under the age of ten.
5. if further evidence is provided that shows the person is in some way vulnerable, and the enforcement is not in the public interest.
6. it is for some other reason not considered to be in the public interest.

10. Following the Council’s consideration of an appeal of this nature a response will be given in writing.

What happened

11. On 13 December 2022, the Council found an uncontained package addressed to Mr X in the street close to his address. The next day, it issued an FPN for £150 to Mr X which offered a reduced amount of £100 to discharge the offence if paid within ten days.
12. Mr X received the FPN on 31 December, by which time the ten days to pay at the reduced rate had already passed.
13. Mr X told the Council he had placed the cardboard box in a recycling bag next to his front door in his front garden in the morning, the day prior to waste collection. Mr X said he was not returning to his home until after the Christmas holidays. Mr X said he had not placed the box in a public place.
14. On 11 January, the Council told Mr X that all residents are responsible for their own waste and should ensure that it stays within their property boundary until the point of collection, which for the street when Mr X lived was Wednesday. It said the box was found with Mr X’s name and address. The Council said it had correctly issued the FPN for littering. The Council reduced the amount to £100 for a further ten days.
15. On 16 January, the Council told Mr X that the FPN was issued as an alternative to prosecution and while there was no legal right of appeal the Council had a review process in place. It said it had reviewed the FPN and found that it had been issued correctly. The Council said Mr X should either pay the FPN or seek legal representation.
16. On the same day, Mr X responded to the Council and said it was unacceptable that he was being fined for litter found on an island several meters from his home. Mr X said the situation was causing him anxiety and stress and he could not afford to pay the fine. The Council did not respond.
17. On 18 January, Mr X contacted the Council again and asked whether it genuinely believed he had placed the box in a public area or had failed to control waste on his property. The Council did not respond.
18. The next day, Mr X contacted the Council again. Mr X said he had been seeking advice and wanted to know the grounds under which he was being fined.
19. On 20 January, Mr X paid £100 to discharge the offence at the reduced amount.
20. On 24 January, the Council told Mr X that if he wished to challenge the FPN he should not pay it. The Council said Mr X would be invited to attend an interview under Police and Criminal Evidence Act (PACE) conditions and allow the legal process to take place. The Council also asked Mr X to provide further details about his complaint about a member of staff who he said had been rude and unprofessional.
21. In March, Mr X made a formal complaint to challenge the issuing of an FPN by the Council. He said the item in question was a small cardboard box placed inside a Council provided recycling bag which was left outside in the boundaries of his property. He said this was for the designated waste collection the next day. Mr X said the box was found and photographed on a road island several meters away from his property.
22. On 25 May 2023, the Council responded to Mr X’s complaint. It said it had seen no evidence the Council had acted unreasonably in issuing the FPN. The Council did not address any of the points made by Mr X as to why he felt he was not liable. It also concluded that the issuing of an FPN was outside the remit of the Council’s complaints process. Mr X asked for his complaint to be escalated to stage two of the Council’s complaints procedure.
23. On 19 July 2023, the Council responded to Mr X’s complaint at stage two. The Council dismissed his point the package was left within the boundaries of his property. It said if this was the case, the package would not have been found in the street. The Council reiterated that Mr X could contest the FPN in the magistrates’ court.

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Analysis

24. We are not an appeal body and therefore cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Our role is to review the process by which decisions are made, and, where we find fault, to determine the injustice caused.
25. The Council’s internal policy for enforcement is available on its website and allows for an internal appeal to be considered on the grounds that Mr X articulated in his communication with the Council. The statutory guidance also says where there is an internal disputing process, this should be followed. The Council told Mr X it had completed a review of the FPN, however there is no evidence to show it told Mr X about the process or how the review would be carried out. This is fault.
26. As part of the appeal process, the Council should also have told Mr X that if his review was rejected, he may still choose not to pay the fixed penalty and could defend his case in court. This did not happen and was fault. The Council told Mr X that if he wanted to challenge the FPN he should not pay. The Council said Mr X should either pay the FPN or seek legal representation. This email was not clear. It was only once the FPN had been paid that the Council drew Mr X’s attention to the magistrate’s court and attending an interview under (PACE) conditions.
27. Mr X asked the Council to explain the grounds under which the FPN had been issued as he was seeking advice about challenging the notice. Mr X raised these questions before he paid the fine, however the Council failed to respond to Mr X. The Council’s failure to consider and respond to Mr X’s questions meant he was unable to make an informed decision about whether to pay the fine or not. Mr X had told the Council that the issuing of the FPN had caused him stress and that he could not afford to pay the fine. On this basis, it is understandable that Mr X decided to pay the fine before the reduced amount expired.
28. In my view, Mr X has not been properly informed by the Council and he has been denied a right of appeal. If Mr X had been told about the appeals process, it is likely he would not have paid the FPN. I cannot say with certainty the FPN would have been waived following an appeal but the faults I have identified have caused Mr X a significant injustice in the form of a loss of appeal, uncertainty and distress.
29. There was also a delay by the Council in responding to Mr X’s complaint. This added to his uncertainty and distress.

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Agreed action

30. Within one month of my final decision the Council will:
1. apologise to Mr X for the faults identified in this statement;
2. refund the amount Mr X paid to discharge the FPN; and
3. pay Mr X £100 to acknowledge the uncertainty and distress caused.
31. Within two months of my final decision the Council will explore the cause of the errors so these can be addressed through training and increased awareness of its internal enforcement policy.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have found fault by the Council causing an injustice to Mr X. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman