Summary: We will not investigate Mr and Mrs X’s complaint about the Councils actions relating to a Fixed Penalty Notice. There is not enough evidence of fault causing injustice and Mr and Mrs X could have raised a defence in court.

The complaint

1. Mr and Mrs X complained about how the Council acted after issuing them with a Fixed Penalty Notice for fly tipping.
2. They said there was poor communication, and the matter has them caused distress.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We investigate 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 continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement, or
• there is another body better placed to consider this complaint

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

6. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

7. I considered information provided by Mr and Mrs. X, their representative and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr and Mrs X received a Fixed Penalty Notice (FPN) for the incorrect disposal of waste near their property.
10. If a council thinks a person has committed an offence, it can issue the person with a FPN. If they pay the fine, they accept liability for the offence and the matter is closed. If the person does not pay the fine, a council can take the person to court. The person can then raise a defence in court and the court will decide whether the person has committed the offence.
11. The Council issued Mr and Mrs X with a fixed penalty notice under the Environmental Protection Act 1990. Mr and Mrs X have since agreed a payment plan for the fine, which indicates they accepted liability for the offence.
12. I will not start an investigation because Mr and Mrs X could have decided not to pay and raised a defence in court if the Council prosecuted. The courts have the power to decide if someone committed an offence; we do not have that power, and it is not my role to decide if the Council was right to issue the FPN.
13. We will not investigate the Council’s failure to respond to communications in February and March 2024 because this has not caused sufficient injustice to justify our involvement.
14. We will also not investigate any concerns about the way the Council handled the family’s information requests. It would be reasonable for Mr and Mrs. X to raise concerns about their information requests with the Information Commissioners’ Office, which is better placed to deal with such matters.

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Final decision

15. We will not investigate this complaint because there is insufficient evidence of fault by the Council causing injustice and because the complainant could have raised a defence in court.

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Investigator's decision on behalf of the Ombudsman