Summary: We will not investigate Mrs X’s complaint about the conduct of civil enforcement officers who issued her daughter, Ms Y, with a Fixed Penalty Notice for fly tipping. This is because it is unlikely we could add anything to the Council’s investigation, and the alleged injustice to Ms Y is not enough to warrant our involvement. Ms Y has now paid the Fixed Penalty Notice and has therefore lost the right to put forward a defence in court.

The complaint

1. The complainant who I shall call Mrs X, complains on behalf of her daughter, who I shall call Ms Y.
2. Mrs X says the Council used oppressive tactics when interviewing Ms Y for a suspected fly tipping offence. She complains about:
• the conduct of the interview
• the decision to issue a Fixed Penalty Notice (FPN)
• making the information that Ms Y had received an FPN public knowledge

Mrs X wants the Council reconsider issuing the FPN.

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The Ombudsman’s role and powers

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:

• the injustice is not significant enough to justify our involvement
• it is unlikely we could add to any previous investigation by the Council
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants

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

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How I considered this complaint

4. I considered Mrs X’s complaint to the Ombudsman and the information she provided which includes the Council’s responses to her complaint.

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What I found

5. 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.
6. The Council received a report from the public that Ms Y had fly tipped. It wrote to Ms Y asking her to attend an interview about the allegation.
7. Mrs X accompanied her daughter to the interview. Following the interview, the Council decided to issue an FPN. It gave Ms Y
8. The Council has considered complaints from Mrs X about the conduct of officers who conducted the interview. It says:
• Ms Y was given all required pre interview information
• she was told how to request a copy of the interview tape
• the interview was conducted following Home Office guidelines for the Police and Criminal Evidence Act 1984
• It was made clear to Mrs X and Ms Y they could leave the interview at any time and seek legal advice - they chose not to do so
• the interview was held in the local Council depot offices which is where most similar interviews take place
9. The Council confirmed it has reviewed the transcript of the meeting and is satisfied the officers present followed relevant guidance and tried to be always polite.
10. It also states the person who reported Ms Y to the Council was advised an FPN was issued but no personal or confidential information was disclosed.
11. Mrs X says the Council issued the FPN within hours of the interview and should have given the matter further consideration. She says Ms Y did not know she was committing an offence and found the matter very distressing.
12. Neither the Council nor the Ombudsman can consider a complaint about whether the FPN should have been issued because Ms Y has already paid this fine. If Ms Y felt shew should not have received the FPN she could have chosen not to pay it. The Council may then have prosecuted her for non-payment. She would then have had a right of defence in the magistrates’ court and she could have presented her evidence as to why she should not have been given the FPN to the Court. The Court was in the best position to consider the evidence from both parties and to decide whether to cancel the FPN. But by paying the fine Ms X has lost that right.
13. The Ombudsman does not investigate all the complaints we receive. In deciding whether to investigate we need to consider various tests. These include what an investigation could achieve, and the injustice caused to the person complaining.
14. The Council has reviewed the transcript of the meeting and decided the officers acted appropriately. It is unlikely the Ombudsman could add anything to the Council’s investigation.
15. Mrs X is unhappy with the way the officer spoke to Ms Y and that she found the matter distressing. But I consider the alleged injustice to is not significant enough to warrant an investigation by the Ombudsman.

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Final decision

16. I have decided we will not investigate this complaint. This is because:
• we cannot consider whether the Council was correct in issuing the FPN, only the courts can do this, and Ms Y lost the right to defend herself in court when she paid the fine
• we are unlikely to add to the Council’s investigation; and
• the injustice does not warrant an investigation by the Ombudsman

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Investigator's decision on behalf of the Ombudsman