Summary: Mr X complained that he was unable to challenge a Fixed Penalty Notice because of fault on the part of an Enforcement Agency contracted by the Council. We found no fault by the Enforcement Agency or the Council. Another agency is better placed to deal with Mr X’s complaints about data retention and deletion.

The complaint

1. Mr X was issued with a Fixed Penalty Notice (FPN) for not having “a device or other suitable means” to collect his dog’s faeces (were it to be needed).
2. He complained that he had not done anything wrong, and would have wanted to appeal, but the Enforcement Agency’s failure to provide him with the body-worn CCTV footage prevented him from challenging the matter in court. He also complained it was not appropriate for the Council to determine whether the FPN was issued correctly. He wants the fine to be refunded.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A), and 25 (7) as amended)
4. 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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. (Local Government Act 1974, section 24A(6), as amended)
7. 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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What I have and have not investigated

8. I have investigated Mr X’s complaints about how the Enforcement Agency (the Agency) handled his representations against the FPN and how the Council considered his later complaint.
9. I have not investigated Mr X’s complaints about how the Agency handled his Subject Access Request (SAR), including his complaints that the Agency:
• should have accepted his SAR on 12 January 2024 without requiring further confirmation of his identity;
• should have sent him the SAR form and identification (ID) request sooner than 6 February (although I note the Agency says it sent these documents on 16 January); and
• should not have deleted the relevant body-worn CCTV footage when he paid the FPN. He does not believe this happened via an automated process.
10. The Information Commissioner’s Office (ICO) is better placed to consider complaints about how public bodies deal with SARs and matters of personal data retention and deletion, and therefore it is reasonable for Mr X to raise these complaints with the ICO.

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How I considered this complaint

11. I spoke to Mr X and considered evidence provided by him and the Council as well as relevant law, policy and guidance.
12. Mr X and the Council had an opportunity to comment on my draft decision before I made a final decision.

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What I found

Law, policy and guidance

Fixed Penalty Notices

13. FPNs are a decriminalised way of councils enforcing against low level offences as an alternative to prosecution through the courts. A person has the choice to pay the penalty and that discharges the notice and ends the matter.
14. Unlike Penalty Charge Notices for parking and traffic offences, however, there is no procedure leading to a right of appeal if a person disputes the offence. To challenge the FPN a person may take no action and wait for the council to prosecute the original offence in court.
15. There is no legal requirement for councils to run an internal review or appeal procedure, but some do, and there is guidance from the Department for Environment, Food and Rural Affairs (Effective Enforcement Code of Practice for Litter and Refuse, September 2019, updated October 2023) which includes:

“11N.15 Enforcing authorities should be motivated to work to keep cases out of the court where possible, as court processes are time consuming for all parties and can be expensive. To prevent unnecessary cases reaching the courts, it is therefore good practice 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 to the enforcing authority at the time the fixed penalty notice was issued, and which may influence the authority’s decision whether to issue a fixed penalty or take other enforcement action in that case. As this is an informal process, there are no fixed grounds on which such a challenge may be made.”

16. Other councils may deal with any challenge using their complaints procedure. We consider it is good practice for a council to allow people to make representations before it starts legal proceedings.

Public Spaces Protection Order (PSPO)

17. A council can make a PSPO to control or limit specific activity in a named area if:

• it is satisfied that activities carried out in a public area are detrimental to local quality of life, or
• it is likely the activities will have such an effect.

18. The Council enforces a PSPO to reduce problems caused by dogs in public shared places. The version in force at the time of the matters complained about included:

“A person in charge of a dog on any land detailed in Part 1(a) of this Order, must comply with a direction given to them by an Authorised Person, to produce, when requested, a device or other suitable means of removing dog faeces and transporting it to a bin (whether or not the dog has defecated). Failure to produce a suitable means for removal of faeces on demand is an offence.”

19. The Council employs the Agency to carry out street patrols and investigate offences under this order. The Council website says that where a patrolling officer from the Agency (an Enforcement Agent, or EA) sees an offence being committed under this order they will approach the person, activate body worn CCTV and issue a FPN. 

What happened

The Agency’s handling of Mr X’s representation against the FPN

20. I have summarised below the key relevant events, based on the accounts of both parties and the evidence provided to me. This is not intended to be a detailed account of every communication or everything that happened.
21. On 14 December 2023, Mr X was issued with a FPN of £100 by an EA, for having “failed to provide means to pick up” dog faeces, at a location where the PSPO was in place.
22. The FPN explained that Mr X could “discharge any liability to conviction […] for the above offence by payment of a fixed penalty notice of £100 in 14 days of this notice”.
23. The FPN included “if you wish to make a representation for this Fixed Penalty you can do so online, within 14 days of this notice, by going to www.lasupport.co.uk/eastlindsey”.
24. Mr X used this route of representation, saying that he objected to the fine on the grounds that he was carrying “a large amount of cleaning up paper tissues”, and that the EA’s bodycam would show this.
25. The Agency responded, explaining the provisions of the PSPO as set out at paragraph 18 above. It declined Mr X’s appeal and explained that there are no formal grounds of appeal against a FPN, so if Mr X wished to dispute the notice, he could do so in court. The Agency extended the deadline for payment of the fine to 8 February.
26. Mr X replied on 12 January, saying that he did provide “suitable means” in the form of tissues, and that the Agency should consider his email as a SAR for the video showing him producing these. He also said he wanted to see, if his defence was rejected, the guidance on what constituted “suitable means”. If the Agency had accepted his request of 12 January as a SAR, the deadline for fulfilment of that request would have been 12 February (that is, after the extended deadline for payment).
27. The Council told us that the Agency sent the relevant SAR documents (request form and ID request) to Mr X on 16 January for his completion.
28. Mr X asked again what “suitable means” meant. The Agency responded with a link to the Council’s guidance on the PSPO, which included “A suitable means may be a poo bag, or poop scoop or other device which enables you to remove dog faeces and put it into a bin”. The Agency reiterated the payment deadline of 8 February.
29. Mr X replied that the packet of tissues in his pocket was “suitable means”.
30. The Agency responded on 2 February that it was satisfied the FPN had been issued correctly and would not investigate further. It explained “Once a decision has been made, there is no mechanism for you to dispute this further with the Council. If you still do not agree that you committed the offence, then the matter will be dealt with through formal prosecution via the Courts. […] Therefore, you have the right not to pay and exercise your right to appeal via the Magistrates Court.” Mr X confirmed that he would take the matter to court and asked again for the body-worn CCTV footage.
31. On 6 February, the Agency asked Mr X for two forms of ID and for the SAR form (that it attached) to be completed. It explained this was separate from his representation, and it did not keep his FPN on hold.
32. Mr X replied the same day, saying he was going to make a complaint because asking for ID at this stage did not give him time to consider the footage before 8 February. He said he had paid the FPN but had done so under duress as he did not accept that he was in breach of the PSPO.
33. The Council told us the Agency’s computer system automatically deleted the body-worn CCTV footage at midnight on 6 February.
34. Mr X returned the completed SAR form and copies of his ID. The Agency responded that by making payment Mr X had discharged his liability to conviction. The body-worn CCTV footage was unavailable.
35. Mr X responded that there were four EAs in attendance and asked whether any footage was available from the others. He asked for a copy of the EA’s notes.

The Council’s handling of Mr X’s formal complaint

36. Mr X made a formal complaint to Council, setting out his perspective on the sequence of events above. He complained that the deletion of the body-worn CCTV footage meant that he was unable to challenge the FPN in court.
37. The Council responded at Stage 1 of its complaints procedure. It said:
• The Agency had provided details on how to challenge the FPN, which Mr X had used, and had responded to his representations;
• Because the FPN had been paid, and the offence discharged, any relevant video footage had been auto-deleted from the Agency’s systems;
• The appropriate way to challenge whether or not tissues can be deemed suitable means to pick up after a dog would have been to not pay the FPN and attend court and/or submit a statement though the single justice process.
• Paying the FPN had removed any redress that may have been possible in the court system.
38. Mr X asked for his complaint to be escalated to Stage 2, saying that he didn’t understand how the footage could have been automatically deleted when he paid the FPN.
39. The Council’s Stage 2 response included:
• Tissues are not considered to be “suitable means”. It apologised that previous responses had not clarified that, but it meant that the FPN was issued correctly.
• It offered a further apology that Mr X “wasn’t given the information he requested in a timely manner” – that is, there was a delay in processing his SAR request.

Analysis

The Agency’s handling of Mr X’s representation against the FPN

40. I find that the FPN issued to Mr X adequately explained the process by which he could discharge his liability to prosecution, by paying the fine, and gave him the opportunity to make informal representations against the fine. As set out at paragraph 14, there is no formal right of appeal against a FPN, but it was good practice for the Agency, working on behalf of the Council, to offer a process to make representations outside of the court process.
41. Mr X took up the offer to make such representations, which the Agency considered and rejected.
42. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether we disagree with the decision the organisation made.
43. In this case, that means it is not for me to make a finding as to whether or not tissues constitute “suitable means” to collect dog faeces. But I find no fault in the way the Agency considered and responded to Mr X’s representations against the fine, which it did in line with the terms of the PSPO as set out at paragraph 18, and the Council’s guidance on that PSPO quoted at paragraph 28.
44. When the Agency rejected Mr X’s representations, it explained that, if he did not agree that he committed the offence, he could refuse to pay the fine and have the case heard at magistrates’ court. Mr X said he considered this explanation was “duress”. From the information provided to me, I cannot see that the Agency exerted any undue pressure on Mr X to pay the fine. The Agency gave an explanation of the legal process in place, but I do not find any fault in this. Indeed, I would have found it to be at fault if it had not provided such an explanation.
45. Whilst I will not consider Mr X’s complaint that the Agency wrongly deleted his personal data, because the ICO is better placed to deal with such complaints, I note that the deletion itself was not what prevented him from challenging the FPN in court, but rather the fact that he had paid the fine. The making of that payment removed the option for the Council to take court action against him, and for him to make his case to the magistrate.

The Council’s handling of Mr X’s formal complaint

46. Mr X complained that it was not appropriate for the Council to determine whether the FPN was issued correctly; he said only a magistrate could do that. I find no fault in the Council’s actions in this regard. Both the PSPO and the guidance supporting it are made and enforced by the Council and it is entitled to make its own judgments in line with them.

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Decision

47. I have concluded my investigation with a finding of no fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman