Summary: We will not investigate Mr X’s complaint about the Council issuing him a Fixed Penalty Notice for littering. This is because Mr X could have raised a defence against the issuing of the notice in court if he considered there was fault in the way it was issued.

The complaint

1. Mr X complains the Council issued him a Fixed Penalty Notice (FPN) for littering when he dropped his cigarette butt on the floor. Mr X admits the offence occurred but says he had no idea that this was an offence until he was approached by the Council officer. He is unhappy a FPN was issued rather than a warning as he says it was his first offence. Mr X says the Council should install warning signs so that smokers know it is an offence to drop cigarette butts.

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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 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)

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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 complained to the Council about it issuing him a FPN for littering when he dropped his cigarette butt on the floor. He explained he had not known that doing so was an offence. He said the Council could have issued him a warning rather than a FPN and put warning signs in place.
7. The Council considered the information Mr X provided. It said it was satisfied the FPN was issued correctly and that there is no requirement for it to erect signs. It said officers are instructed to issue a FPN where an offence is witnessed. It explained there are no formal grounds of appeal against a FPN and that if he disputes the notice then he could defend the matter in the magistrates court. Alternatively he could pay the FPN to discharge liability for prosecution.
8. Mr X has paid the FPN.
9. We will not investigate Mr X’s complaint. This is because Mr X could have raised a defence against the issuing of the FPN in court if he believed there was fault in the way it was issued. We are not an appeal body and we cannot decide whether there was fault in the way the FPN was issued nor whether Mr X was liable. We also cannot issue a refund for a FPN. The court would have considered and decided the issues Mr X raised had he used his right to raise a defence in court rather than paying the FPN at an earlier stage.

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Final decision

10. We will not investigate Mr X’s complaint because it was reasonable to expect Mr X to have used his right to defend the matter in court if he believes there was fault in the issuing of the FPN.

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Investigator's decision on behalf of the Ombudsman