Summary: We will not investigate Mr X’s complaint about being issued a Fixed Penalty Notice for fly tipping. This is because Mr X could have used his right to defend the matter in court. That is the route to use to challenge it.

The complaint

1. Mr X complains the Council issued him a Fixed Penalty Notice (FPN) for fly tipping.

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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 fly tipping waste which was left on the pavement to the side of his property.
7. Mr X said there was no intention to fly tip and he had ordered a skip for the items but it was delayed.
8. The Council said the FPN was correctly issued and Mr X could either pay the FPN to discharge liability to prosecution or allow the matter to proceed to the magistrates court where he could defend the matter. Mr X paid the FPN.
9. We will not investigate Mr X’s complaint. This is because the route to challenge the issuing of the FPN is to allow the matter to escalate to the magistrates court and to raise a defence in court, rather than paying the FPN. We are not an appeal body and we cannot decide whether the alleged offence was committed nor whether Mr X was liable. These are points the court would have considered and ruled on had Mr X used his right to defend the matter in court instead of paying the FPN.

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Final decision

10. We will not investigate Mr X’s complaint because he could have used his right to raise a defence against the FPN in court rather than paying it. The court would then have ruled on the issues Mr X raised.

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Investigator's decision on behalf of the Ombudsman