Summary: The Ombudsman will not investigate Mrs X’s complaint about a Fixed Penalty Notice for fly-tipping. This is because the courts are better placed to consider the evidence and decide if the offence occurred.

The complaint

1. The complainant, whom I shall call Mrs X, complains about a Fixed Penalty Notice (FPN) for fly-tipping. Mrs X denies the offence.

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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’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6), as amended)
4. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

6. Mrs X received an FPN for fly-tipping after the Council found a cardboard box with her address on the public highway. Mrs X denies the offence and says the rubbish was placed on a flight of communal stairs because the public bin shed was full. Mrs X says it is possible the cardboard box slid down the stairs onto the public highway – or that is was moved there by somebody else. Mrs X also says a council officer disclosed her personal information by discussing the alleged offence outside her house. Mrs X says her neighbours could hear the discussion.
7. The Ombudsman’s role is to look for administrative fault. We are not an appeal body and could not say whether the FPN was correctly issued. If Mrs X contests the FPN and decides not to pay it, the Council may prosecute her. Mrs X will then have a right of defence in the Magistrates’ Court and she can present her evidence to the Court. The Court is better placed to consider the evidence from both parties and decide whether to cancel the FPN. The Ombudsman cannot do this.
8. If Mrs X feels the Council has wrongly disclosed her personal information, then she should complain to the ICO. It is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation. This includes disclosing personal information in error.
9. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. It is the appropriate body to consider this part of Mrs X’s complaint.

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Final decision

10. The Ombudsman will not investigate Mrs X’s complaint. This is because the courts are better placed to decide if the offence occurred and if the Council should cancel the FPN

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Investigator's decision on behalf of the Ombudsman