Summary: We will not investigate Miss X’s complaint about the Council issuing her a Fixed Penalty Notice for littering. This is because Miss X can raise a defence in court if she believes it was wrongly issued.

The complaint

1. Miss X complains about receiving a Fixed Penalty Notice (FPN) for leaving bin bags near communal bins.
2. Miss X says the Council has ignored her OCD which prevents her from using communal bins. Miss X says the Council has breached the public sector equality duty to support a disabled person. She would like the FPN cancelled.

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The Ombudsman’s role and powers

3. 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)
4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start an investigation if we think 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)
5. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
6. 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)

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How I considered this complaint

7. I considered the information provided by the complainant.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X complained to the Council after she was issued a FPN for placing her rubbish bags near the communal bins instead of inside them.
10. The Council considered Miss X’s representations via its complaint’s procedure. It noted Miss X admitted to not using the communal bins and said she had a duty under s87 of the Environmental Protection Act 1990 to dispose of her refuse correctly. The Council told Miss X it considered the FPN had been correctly issued and that if she wanted to contest it, she could raise a defence in the magistrate’s court.
11. The Council also said staff had regard for the Equality Act and that Miss X could take up her concerns about disposal with her housing provider.
12. We will not investigate Miss X’s complaint. This is because she can raise a defence against the issuing of the FPN in court if she believes it was incorrectly issued.
13. Further, the Council has considered Miss X’s concerns about the Equality Act and responded adequately.
14. We are not an appeal body. We cannot decide whether the alleged offence was committed nor if the Equality Act was breached; if the FPN was correctly issued nor whether Miss X is liable. We also cannot cancel a FPN. These are matters the courts can consider and decide.
15. Miss X can raise a discrimination claim in the county count if she considers the Council has breached the Equality Act. It is reasonable to expect her to do this as only the court can determine this.

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Final decision

16. We will not investigate Miss X’s complaint as she can defend the matter in court if she considers the FPN was incorrectly issued.

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Investigator's decision on behalf of the Ombudsman