Summary: We will not investigate this complaint about the Council’s decision to issue Ms X a fixed penalty notice. This is because Ms X could have raised a defence against the issuing of the notice in court if she considered there was fault in the way it was issued.

The complaint

1. Ms X complains about the Council’s decision to issue her with a fixed penalty notice (FPN). She says the Council did not properly consider her legal representations and circumstances. Ms X says this has caused her significant stress. She wants an investigation into whether the Council properly considered her representations and queries raised about how the FPN was issued.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
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 and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Ms X complained to the Council about its decision to issue her with an FPN for littering. She said she had placed the rubbish near her vehicle intending to collect it and had remained at the location.
8. Ms X’s solicitor wrote to the Council about section 87 of the Environmental Protection Act 1990. They said the provision required litter to have been left, whereas Ms X disputed that she had abandoned the rubbish.
9. The Council considered the information Ms X provided but remained satisfied the FPN had been issued correctly. It said the rubbish had been placed on the pavement, and the officer therefore considered a littering offence had occurred. The Council told Ms X she could choose not to pay the FPN and raise her arguments as a defence if the Council prosecuted the matter in court.
10. Ms X paid the FPN.
11. We will not investigate this complaint. If Ms X considered the FPN had been wrongly issued, she could have declined to pay it and raised her arguments as a defence in court. The court was the appropriate body to decide whether the offence had been committed and whether Ms X was liable. The Ombudsman is not an appeal body and cannot determine these matters or direct the Council to refund an FPN. It was reasonable to expect Ms X to use the court remedy available to her.

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Final decision

12. We will not investigate Ms X’s complaint because it was reasonable to expect Ms X to have used her right to defend the matter in court if she believes there was fault in the issuing of the FPN.

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Investigator's decision on behalf of the Ombudsman