Summary: We will not investigate Miss X’s complaint about being issued a Fixed Penalty Notice for littering. This is because Miss X can raise a defence against the issuing of the notice in court if she considers it was incorrectly issued and wants to challenge it. The data issue Miss X raised is best considered by the Information Commissioner’s Office.

The complaint

1. Miss X complains the Council wrongly issued her a Fixed Penalty Notice (FPN) for alleged littering and did not properly consider the information she provided in her appeal about her disability, benefit entitlement and lack of bins at the location. Miss X also complains the officer shared sensitive personal information about her disability and benefits in public which was heard by third parties.

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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)
4. We do not start an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

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

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My assessment

8. The Council issued Miss X a FPN for littering
9. Miss X appealed the issuing of the FPN and provided the Council with additional information relating to her disability in support of her appeal.
10. The Council considered the information Miss X provided. It said it was satisfied the FPN was issued correctly and that it could not cancel the FPN on the basis of the information she provided. It explained Miss X could defend the matter in court if she considered she did not commit the offence and did not pay the penalty charge by the date due.
11. Miss X says the Council did not consider her appeal in a fair and timely way and ignored the information she provided. She also complains the Council officer committed a data breach in sharing sensitive personal information about her disability and benefits in a public place, which was witnessed by third parties.
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 and wishes to challenge it rather than pay it. That is the appropriate route to use to challenge it. We are not an appeal body. We cannot decide whether the alleged offence was committed nor whether Miss X is liable to pay the penalty charge. These are matters the court will consider and decide and that is the route via which to challenge a FPN. Also, we cannot cancel a FPN, which is the outcome Miss X seeks. The appeal has been considered and refused and so Miss X can either pay the FPN or allow the matter to proceed to the magistrates court where she can defend the matter.
13. Miss X also raised a data issue as part of her complaint. Data matters are best considered and decided by the Information Commissioner’s Office (ICO) rather than this office. It is the body set up to consider complaints about data matters.

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Final decision

14. We will not investigate Miss X’s complaint. This is because the route to challenge the issuing of the FPN is to raise a defence against its issue in court and the data matter is best considered by ICO.

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Investigator's decision on behalf of the Ombudsman