Summary: We will not investigate this complaint about the Council’s decision to issue a fixed penalty notice. There is no worthwhile outcome achievable by us investigating, because liability can only be decided by a court. Nor will we investigate the Council’s decision not to withdraw the notice, because there is not enough evidence of fault in the way the Council considered Mr X’s representations.

The complaint

1. Mr X complained on behalf of his wife (Mrs X), after the Council refused to withdraw a fixed penalty notice (FPN) it issued to Mrs X for a fly-tipping offence. Mr X said the Council’s actions in issuing the FPN were unreasonable, and it did not properly consider his subsequent representations through its complaint procedures.
2. Mr X said the Council’s actions has caused both he and his wife significant stress and has had a financial impact. Mr X now wants the Council to revoke the penalty, apologise and provide compensation.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

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

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How I considered this complaint

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

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My assessment

7. The Council issued a FPN to Mrs X, because it said she had committed a fly-tipping offence. Mr X wrote to the Council and asked them to withdraw the FPN and set out his reasons why he believed the Council should do this.
8. The Council responded to Mr X, including a response to a formal complaint he made, about the Council’s actions in issuing the FPN, and its consideration of his representations. The Council said it would not withdraw the FPN and explained why it believed the FPN was justified. This included consideration of evidence the enforcement officer gathered, and evidence provided by Mrs X.
9. We will not investigate Mr X’s complaint about the Council’s consideration of his representations. While there is no requirement for the Council to have an appeals process, we say it is good practice for Councils to allow someone to make informal representations against an FPN. The evidence shows the Council did this and its responses do not appear wholly unreasonable. Because there is no enough evidence of fault in the Council’s decision making here, I cannot question its decision not to revoke the FPN following its exchange with Mr X.
10. Mr X now wants the Council to revoke the FPN, however we cannot direct the Council to do this. This is because the liability for the offence can only be discharged by a court and Mrs X paid the FPN accepting liability. If Mr X had disagreed with liability, then this is a matter either he, or Mrs X, could have challenged this at a court hearing, and this would have included examination of the circumstances of the offence.
11. There is therefore no worthwhile outcome an investigation by us can achieve in respect of liability for the offence. Consequently, we will not investigate the Council’s decision to issue an FPN.

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Final decision

12. We will not investigate Mr X’s complaint because there is no worthwhile outcome we can achieve on the substantive issue and there is no evidence of fault in the Council’s decision-making relating to Mr X’s subsequent representations.

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Investigator's decision on behalf of the Ombudsman