Summary: We will not investigate Mr X’s complaint about the Council issuing him a Fixed Penalty Notice for spitting. This is because Mr X can raise a defence against the issuing of the notice in the magistrates’ court should he wish to challenge it.

The complaint

1. Mr X complains the Council incorrectly issued him a Fixed Penalty Notice (FPN) for spitting. Mr X says he did not commit the offence as he was trying to spit out a fly, not saliva. He also complains the level of the FPN is higher than that published on the Council’s website.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. We have the power to start or discontinue an investigation into a complaint in our jurisdiction. We may decide not to start an investigation if we decide the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended.)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X contacted the Council after he was issued a FPN for spitting. Mr X explained he had been spitting out a fly rather than saliva. He said he was not able to clearly explain this to the officer who issued the FPN as it happened so quickly. He asked the Council to consider cancelling the fine.
7. The Council considered Mr X’s representations but said it would not correspond further on the matter. It explained there is no legal right of appeal against the issuing of a FPN and that unless Mr X paid the fine the matter would proceed to the magistrates’ court where he would have a right to defend the matter.
8. We will not investigate Mr X’s complaint. This is because Mr X has the right to raise a defence against the issuing of the FPN in court if he believes it was incorrectly issued. We are not an appeal body. We cannot decide whether or not the alleged offence was committed; whether there is any fault in relation to the issuing of the FPN or level of penalty nor whether Mr X is liable. These are all matters for the courts to decide and this is the suitable route for Mr X to use should he wish to challenge the FPN.

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Final decision

9. We will not investigate Mr X’s complaint because he can raise a defence in court if he considers the FPN was incorrectly issued.

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Investigator's decision on behalf of the Ombudsman