Summary: We will not investigate this complaint about a Fixed Penalty Notice for fly-tipping. This is because the complainant could have raised a defence in court and because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I refer to as Mr X, complains about a Fixed Penalty Notice (FPN) he received for fly-tipping. Mr X denies committing an offence and says the Council misinterpreted the law. Mr X wants an apology and a refund.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

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

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How I considered this complaint

3. I considered information provided by Mr X and the Council. This includes the correspondence about the FPN. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.

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My assessment

4. It is an offence to deposit waste on land unless in accordance with a licence. The law places a duty of care on householders to dispose of waste correctly. A council can prosecute if it thinks someone has committed an offence. As an alternative to prosecution it can issue a FPN. If the person pays the fine the case is closed. If the person does not pay the fine a council can prosecute. The person can then raise a defence in court. The magistrates decide if the person committed an offence.
5. Mr X arranged for a waste contractor to collect some bulky items. Mr X placed the items on the path where he normally leaves his bins. The contractor did not collect the waste. Mr X then arranged for a friend to collect the items. The friend became ill and could not help.
6. The Council saw the items on the path and issued a FPN for fly-tipping. An officer interviewed Mr X under caution. Mr X explained why he had left the items on the path. Mr X immediately returned the waste to his property once he discovered it could not stay on the path.
7. Mr X challenged the FPN. He explained what had happened and that he had not known he could not leave the waste outside. He denied it was fly-tipping and said he had planned to dispose of the waste responsibly and it was only on the path prior to collection. The Council considered Mr X’s challenge to the fine but did not cancel it. The Council said Mr X admitted leaving the items on the path and that leaving waste on open land without a licence is an offence. The Council said Mr X would have had a licence to leave the waste if he had booked a Council collection and had left the items on the path on the day of the booked collection. The Council explained he could pay the fine or have the case heard in court.
8. Mr X paid the £400 fine but continues to challenge it. He says the Council has misinterpreted the law. Mr X says he could not risk being found guilty in court because he is well-respected and a conviction could damage his career.
9. I will not investigate this complaint because it is for the courts, not us, to decide if Mr X committed an offence. The key issue is Mr X’s assertion that he did not commit an offence as he had no intention of leaving the items on the path. However, whether his actions amounted to an offence was a matter for the courts. We cannot act as an alternative to the courts and cannot decide if Mr X committed an offence. As Mr X continues to assert that he did not do anything wrong, and that the Council has misinterpreted the law, then he could have raised a defence in court rather than paying the fine. The magistrates would have decided if he had committed an offence. I appreciate Mr X has concerns about being found guilty but that is how the system works and we cannot act as a risk-free alternative to using the prescribed system.
10. I also will not investigate this complaint because there is insufficient evidence of fault by the Council. The Council issued a FPN because it found items on the path; and, whether this was an offence, is for the courts. The Council addressed Mr X’s challenge and correctly explained that he could pay or go to court.

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Final decision

11. We will not investigate this complaint because Mr X could have raised a defence in court and because there is insufficient evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman