Summary: We will not investigate Mr X’s complaint about the Council issuing him a Fixed Penalty Notice for alleged fly tipping. This is because Mr X could have used his right to raise a defence against the issuing of the notice in court if he considers there was fault in its issue.

The complaint

1. Mr X complains the Council issued him a Fixed Penalty Notice (FPN) for fly tipping. Mr X says the FPN was issued under the wrong part of the Environmental Protection Act and the alleged offence was not committed.

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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 and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council issued Mr X a FPN for an alleged fly tipping offence.
7. Mr X appealed the FPN to the Council, complaining it had been incorrectly issued.
8. The Council said the FPN was correctly issued and would not be cancelled and that Mr X could challenge the issuing of the FPN in court.
9. Mr X paid the FPN in order to prevent the fine from increasing or the matter escalating to court. He maintains that it was incorrectly issued and seeks a refund.
10. We will not investigate Mr X’s complaint. This is because Mr X could have used his right to raise a defence against the issuing of the FPN in the magistrates court if he believed it was incorrectly issued and wanted to challenge it. That is the appropriate route via which to challenge a FPN. We are not an appeal body. We cannot decide whether or not the alleged offence was committed nor whether Mr X was liable. The issues Mr X raises in this complaint would have been considered and ruled on by the court had he used his right to defend the matter in court instead of paying the FPN.

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Final decision

11. We will not investigate Mr X’s complaint. This is because he could have used his right to raise a defence against the issuing of the FPN in court instead of paying it. The court would then have decided the issues raised.

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Investigator's decision on behalf of the Ombudsman