Summary: The Ombudsman will not investigate this complaint about a Fixed Penalty Notice for fly tipping. This is because there is insufficient evidence of fault by the Council and because the complainant can raise a defence in court.

The complaint

1. The complainant, whom I refer to as Mrs X, says the Council said she could leave rubbish outside her flat until she moved out. But, it then issued a Fixed Penalty Notice (FPN).

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The Ombudsman’s role and powers

2. 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 an investigation if we believe:

• it is unlikely we would find fault, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I read the complaint and the Council’s response. I considered the FPN. I invited Mrs X to comment on a draft of this decision.

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What I found

Fixed Penalty Notice

4. The Council can issue a FPN if it thinks someone has committed a waste disposal offence. If the person does not pay the fine the Council can prosecute. If the person does not think they have committed an offence they can raise a defence in court. The court then decides if they have committed a waste offence.

What happened

5. The Council visited the area where Mrs X was living and found many incidents of fly tipping. In November it sent warning letters to many households, including to Mrs X. Mrs X says she rang the Council and explained she would be moving in December and would remove the items at that time. She says an officer said that would be acceptable.
6. A few days later officers found that Mrs X had not removed the items from outside her home. The Council issued a FPN for £250.
7. Mrs X complained and said an officer had told her she could leave the items on the wall until she moved. In response the Council said the notes from the call showed that the officer said that Mrs X needed to remove the items as soon as possible and there would be another inspection in a couple of days. It said the Council had issued the FPN correctly because the items were still on Mrs X’s wall on the next inspection after the warning letter had been sent.
8. Mrs X has not paid the FPN. The Council says it will consider prosecuting Mrs X if she does not pay the fine.

Assessment

9. I will not start an investigation because there is insufficient evidence of fault by the Council. The Council issued a warning because it found incidents of fly tipping. Mrs X contacted the Council after she received the warning because she wanted to leave the items outside for a couple of weeks until she moved. The Council says the officer’s notes show he told Mrs X that she needed to move the items as soon as possible. This did not happen so it served a FPN. The Council acted appropriately by issuing a warning, considering Mrs X complaint, and by giving her a chance to pay the fine before it prosecutes. These are all the steps I would expect it to take.
10. The Ombudsman does not act as an appeal body and has no power to cancel a FPN. If Mrs X does not think she has committed an offence she can wait for the Council to prosecute and then raise a defence. The court will then decide if she committed a waste offence.

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Final decision

11. I will not start an investigation because there is insufficient evidence of fault by the Council and because Mrs X can raise a defence in court.

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Investigator's decision on behalf of the Ombudsman