Summary: We will not investigate Miss X’s complaint that the Council unfairly issued her a Fixed Penalty Notice for alleged fly-tipping. This is because Miss X could use her right to raise a defence against the issuing of the Notice in the magistrates court if she believes it was wrongly issued.

The complaint

1. Miss X complains the Council unfairly issued her a Fixed Penalty Notice (FPN) for alleged fly-tipping without properly considering the information she provided and without following the proper process. Miss X says the Council refused to review its decision and instead directed her to court.

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

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My assessment

6. Miss X complained to the Council about its decision to issue her a FPN for alleged fly-tipping and raised concerns at the process via which the FPN was issued.
7. The Council considered and addressed the points raised by Miss X but said the FPN had been correctly issued. It did not uphold her complaint.
8. We will not investigate Miss X’s complaint. This is because Miss X has, or had, the right to raise a defence against the issuing of the FPN in the magistrates court. This is the appropriate route via which to challenge the FPN if Miss X considers there was fault in its issue.
9. We are not an appeal body. We cannot decide whether the alleged offence was committed, whether there was fault in the issuing of the FPN nor whether Miss X is liable to pay the FPN. We also cannot cancel the FPN. These are issues the magistrates court would consider, decide and rule on. It is reasonable to expect Miss X to use, or have used, her right to defend the matter in court as this is the suitable route via which to challenge the FPN.
10. Miss X also complains the Council wrongly signposted her to another ombudsman in its final response. I can see this is the case, however it did not cause any significant delay to Miss X as she made her complaint to this office only a few weeks after receiving the Council’s final response and the Council did signpost Miss X to the courts which is the relevant route via which Miss X could challenge the matter further. We do not consider complaints about complaint handling issues, such as this, in isolation where we are not also considering the substantive matter. This is because it is not a good use of limited public resources for us to do so.

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Final decision

11. We will not investigate Miss X’s complaint because she can, or could have, used her right to defend the matter in the magistrates court if she considers there was fault in the issuing of the FPN and wants to challenge it.

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Investigator's decision on behalf of the Ombudsman