Summary: We will not investigate Miss X’s complaint about the Council’s actions in issuing her a Fixed Penalty Notice. This is because Miss X has the right to raise a defence against the issuing of the notice in the magistrates court. That is the appropriate route via which to challenge the notice. We will not investigate Miss X’s complaint about the enforcement officer making a discriminatory remark because there is nothing further we would add to the response the Council has already provided on that matter.

The complaint

1. Miss X complains about the Council’s actions in issuing her a Fixed Penalty Notice (FPN) for the alleged offence of littering. Miss X says the Council did not properly investigate her concerns and relied solely on the enforcement officers’ written statements despite there being clear and conflicting evidence including body worn camera footage and witness evidence. She also complains an enforcement officer made a discriminatory comment in questioning her surname when she provided her details.

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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 do not start an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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

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

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My assessment

7. Miss X complained to the Council about the conduct of enforcement officers in issuing her a FPN for the alleged offence of littering. Miss X said she did not commit the alleged offence and complained about the way in which the FPN was issued. She also complained an officer made a discriminatory remark in questioning the validity of her surname when she provided her details.
8. The Council investigated. It found the officers were justified in approaching Miss X to issue the FPN. It advised Miss X that the route to challenge the issuing of the FPN is via the magistrates court.
9. In response to Miss X’s complaint about the officer’s comment questioning her surname, it apologised to Miss X for this and for any offence or embarrassment it caused her. It reviewed the officer’s body worn footage which recorded the exchange. It showed the officer had also apologised for it at the time. It addressed the issue with the officer who acknowledged the comment should not have been made. As a result of Miss X’s complaint it said it would provide additional training to enforcement officers on cultural sensitivity and the importance of accurately confirming personal details.
10. We will not investigate this complaint. This is because Miss X has the right to raise a defence against the issuing of the notice in the magistrates court if she considers there was fault in how it was issued. This is the appropriate route to use to challenge the issuing of the FPN. We are not an appeal body; we cannot decide whether Miss X committed the alleged offence; whether it was wrongly issued nor whether she is liable to pay the FPN. We also cannot cancel a FPN. These are matters the magistrates court would consider and rule on. It is reasonable to expect Miss X to use, or have used, her right to defend the matter in court.
11. We will not investigate Miss X’s complaint about the comment made by the officer. This is because the Council has already suitably addressed and responded to Miss X’s complaint about this via its own investigation of the matter and there is nothing further we would add or recommend. As such, this point does not warrant a further investigation by this office and the use of limited public funds to do so.

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Final decision

12. We will not investigate Miss X’s complaint because she can, or could have, used her right to raise a defence against the issuing of the FPN in the magistrates court if she considers it was wrongly issued.

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Investigator's decision on behalf of the Ombudsman