Summary: We will not investigate Mr X’s complaint about the Council issuing his business a Fixed Penalty Notice. This is because Mr X 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 issued.

The complaint

1. Mr X complains the Council wrongly issued his business a Fixed Penalty Notice (FPN) for unlawfully depositing waste. He says he provided the Council with evidence showing the waste was either deposited by Council operatives or by another party and could not be reasonably attributed to his business, but it did not cancel the FPN or address his concerns.

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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. Mr X complains the Council wrongly issued his business a FPN, as set out in paragraph one, above.
7. Mr X paid the FPN, discharging his liability to prosecution, rather than using his right to raise a defence against its issue in the magistrates court.
8. We will not investigate Mr X’s complaint. This is because he could have used his right to raise a defence against the FPN in court. That is the appropriate route via which to challenge the matter rather than by making a complaint to this office having already paid the FPN. We are not an appeal body. We cannot decide whether there was fault in the issuing of the FPN; whether the alleged offence was committed, nor whether Mr X’s business was liable. These are matters the court would have considered and ruled on had Mr X allowed the matter to progress to the magistrates court and used his right to defend the matter there, rather than paying the FPN, which closes the matter.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman