Summary: Mr X complained how the Council handled matters when it issued him with a Fixed Penalty Notice. He says the Council failed to follow government guidance and it did not give him an opportunity to resolve matters informally. We find the Council was at fault for its failure to follow government guidance without good reason. This caused Mr X frustration and inconvenience. The Council has agreed to apologise to Mr X, make a payment to him and implement service improvements.

The complaint

1. Mr X complained how the Council handled matters when it issued him with a Fixed Penalty Notice (FPN). He says the Council failed to follow government guidance and it did not give him an opportunity to resolve matters informally.
2. Mr X says the Council’s faults have caused distress, upset and it has affected his health. He says he spent time gathering evidence, contacting his MP and attending an interview.

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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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Fixed Penalty Notices

7. An FPN notifies the recipient they have committed a criminal offence, but that they may discharge liability – and therefore avoid prosecution for the offence – by paying a fine within a specified period. If they do not pay, they may be prosecuted, which can lead to a greatly increased fine, a criminal record, and for some offences potential imprisonment.
8. There is no formal right of appeal against an FPN, although it is good practice for councils to consider any representations a person makes, before deciding to prosecute them. If a person wishes to dispute the offence in court, they may wait to be prosecuted for it.

Guidance for local authorities on household waste duty of care Fixed Penalty Notices

9. The government issued this guidance for local authorities when giving FPNs for breaches of the household waste duty of care.
10. Section 3.2 of the guidance says a FPN is not applicable where an individual intends for waste to be collected by the local authority collection service, for instance where this is put in household waste or recycling bins.
11. Section 4.1 of the guidance says before deciding to enforce, either directly through prosecution or by first giving a FPN, local authorities should investigate the case. This should include giving the individual an opportunity to demonstrate whether they met their duty of care. When giving the individual the opportunity to demonstrate they met their duty of care, local authorities should inform them of the evidence gathered, that they may face prosecution and whether a FPN would be given to discharge liability for the offence.

What happened

12. Mr X is a landlord. The Council issued Mr X with a FPN for £600 to his rental property at the end of January 2024. It said he had failed in his legal duty to transfer waste to an authorised person. It had found waste (dated 2018) from the property in an alleyway. It said if he wanted to discuss the FPN he could contact its environmental crime unit team.
13. Mr X contacted the Council to discuss the FPN. When he did not receive a satisfactory response, he contacted his MP. The MP contacted a senior officer at the Council. He explained Mr X has never lived at the property, and he rented it out until December 2023. He said Mr X did not know how the waste ended up in an alleyway and his former tenant took reasonable measures to dispose of the waste. The senior officer responded to the MP and said Mr X needed to provide evidence from the tenant. She said she had asked a manager from the team to contact Mr X to discuss the matter.
14. The Council wrote to Mr X and invited him to attend a Police and Criminal Evidence Act 1984 (PACE) interview in March. It said he was entitled to legal representation in the interview.
15. Mr X contacted his MP and said the manager from the Council had failed to have a discussion with him. He also emailed the Council and said he was cancelling the interview. The manager responded and invited Mr X to attend another interview in April. He said if Mr X did not attend the Council would continue with legal proceedings.
16. Mr X sent a further email to his MP and said he was unhappy the Council had offered him a police interview and not a discussion. His MP responded and said the Council had emailed him and said it had reminded the manager to contact Mr X directly.
17. Mr X contacted a local councillor and explained the issues with the Council. He provided a message from his former tenant which stated they disposed of their waste correctly in the appropriate bin. Mr X said a police interview was not an appropriate forum to provide the information. The councillor sent the information to the Council. There is no evidence the Council responded further.
18. Mr X attended the PACE interview in April. The Council wrote to him after the interview and said it had decided not to proceed with the case. Therefore, it would withdraw the FPN.
19. Mr X complained to the Council in May about its handling of the matter. He said it failed to communicate with him properly. He also said it did not arrange a meeting and instead it forced him to attend a PACE interview. He said its actions had caused him unnecessary stress. The Council responded and said it must conduct all investigations of a criminal nature in a structured and fair manner.
20. Mr X referred his complaint to stage two of the Council’s complaints process. He said it had failed to follow the government guidance. He said it did not give him an opportunity to demonstrate duty of care before it issued the FPN.
21. The Council issued its final response to Mr X’s complaint in November. It said it provided him an opportunity to demonstrate his duty of care and provide additional information in the PACE interview.

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Analysis

22. Section 4.1 of the government guidance (paragraph 11 of this statement) says local authorities should give the individual an opportunity to demonstrate whether they met their duty of care before they issue the FPN. The Council failed to follow this guidance. It issued the FPN before it provided Mr X the opportunity to demonstrate his duty of care. We would expect councils to follow government guidance unless they have good reasons not to. I have seen not any good reasons why the Council departed from the guidance. This is fault.
23. Mr X repeatedly tried to resolve the matter informally. He contacted his MP and his councillor to help him communicate with the Council. The Council said the manager from the team would contact Mr X to have a discussion. This did not happen. The manager told Mr X he would need to attend a PACE interview to give his evidence. This is a formal interview under caution. As the Council had failed to allow Mr X to demonstrate his duty of care before issuing the FPN, it should have allowed him to have an informal discussion without the need for a formal interview. Its failure to do so is fault.
24. Mr X was not living in the property when the alleged offence took place. He also had a message from the tenant which stated they disposed of the waste in a bin (section 3.2 of the government guidance). It is more likely than not if the Council had allowed Mr X to demonstrate his duty of care, it would have closed the case and decided not to proceed with the FPN and a formal PACE interview. Therefore, the Council’s faults have caused Mr X frustration, and he was put to some inconvenience by repeatedly raising the issue and then having to attend a formal interview. I have made suitable personal recommendations to address this injustice. I have also recommended a service improvement to prevent a recurrence of the fault.

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Agreed action

25. By 11 September 2025 the Council has agreed to:

• Apologise to Mr X for the injustice caused by fault in this statement.
• Pay Mr X £200 for his frustration and inconvenience.
• Issue written reminders to relevant staff to ensure they are aware of the government guidance on allowing an individual to demonstrate their duty of care before the Council issues the FPN.

26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. There was fault by the Council, which caused Mr X an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman