Summary: We will not investigate this complaint about the Council issuing Mr Y with a fixed penalty notice for alleged littering by spitting. This is because he could have raised his concerns as part of his defence in court.

The complaint

1. Mr X complains about the Council’s decision to issue him with a Fixed Penalty Notice (FPN) for alleged littering by spitting.
2. Mr X denies the offence and says the Council has not provided any evidence to support the allegation.
3. Mr X wants the Council to provide the evidence it holds or to withdraw the FPN.
    

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue 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))

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How I considered this complaint

5. I considered information provided by Mr X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Anti-social Behaviour, Crime and Policing Act 2014 permits councils to implement Public Space Protection Orders. These allow FPNs to be issued for behaviours such as littering which includes spitting.
8. If a council thinks a person has committed an offence, it can issue the person with a Fixed Penalty Notice (FPN). If a person pays the fine, they accept liability for the offence and the matter is closed.
9. If the person does not pay the fine, a council can take the person to court. The person can then raise a defence in court, and the court will then decide if the person has committed the offence.
10. Mr X denies the offence occurred. The Council has responded to his complaint and says it is satisfied the FPN was issued properly. It advised him of his right to dispute the FPN in court. It also said that as a gesture of goodwill it would extend the deadline allowing him to pay the FPN at the reduced rate or legal proceedings would follow. Mr X opted to complain to our service.
11. We will not investigate. This is because disputes about the validity of a Fixed Penalty Notice – including whether an offence occurred or whether evidence supports the allegation – can only be resolved by the Magistrates’ Court. The Ombudsman cannot investigate or overturn an FPN, nor can we assess the evidence behind it.
12. Only the court could decide if the FPN should have been issued, and as Mr X disputes liability for the FPN, it was reasonable to expect him to complain in court.
13. There is no obligation on the Council to provide Mr X with its evidence before the court hearing. The validity of the FPN and evidential matters are for the court and not for the Ombudsman.

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Final decision

14. We will not investigate Mr X’s complaint because he could have raised his complaint in court.

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Investigator's decision on behalf of the Ombudsman