Summary: We will not investigate Mr X’s complaint about the Council’s decision to issue a Fixed Penalty Notice to his company. This is because Mr X can, or could have, used his right to raise a defence against the issuing of the Notice in the magistrates court if he believes it was incorrectly or unfairly issued.

The complaint

1. Mr X complains there was fault by the Council in its actions around its decision to issue his company a Fixed Penalty Notice (FPN) for failing to produce evidence demonstrating compliance with his waste duty of care under the Environmental Protection Act 1990.

Back to top

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)

Back to top

How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

6. We will not investigate this complaint. This is because the route to challenge the issuing of the FPN is to raise a defence against its issue in the magistrates court. The Council has clearly explained this in its responses to Mr X on the matter.
7. We are not an appeal body. We cannot decide whether there was fault in the Council’s decision to issue the FPN, whether an offence was committed nor whether Mr X’s company is liable. The issues raised here are matters the court would consider and rule on and it is reasonable to expect Mr X to use, or have used, his right to defend the matter in court. This is the suitable route via which to challenge the issuing of the FPN.
8. Mr X also raises complaint handling issues. However, we do not consider complaint handling in isolation where we are not also considering the substantive matter. This is because it is not a good use of limited public resources to do so.

Back to top

Final decision

9. We will not investigate Mr X’s complaint because the route to challenge the issuing of the FPN is to raise a defence in the magistrates court.

Back to top

Investigator's decision on behalf of the Ombudsman