Summary: We will not investigate Mr X’s complaint about a Fixed Penalty Notice he received for an alleged fly-tipping offence. This is because there is not enough evidence of fault to justify investigating and Mr X has the choice of raising his defence in court.

The complaint

1. Mr X complained about the Council’s handling of his case after it issued him with a Fixed Penalty Notice (FPN) for fly-tipping. He said the Council:
• failed to provide clear reasons for rejecting his appeal against the FPN;
• unjustly delegated the enforcement process to a private contractor;
• scheduled a meeting without giving him sufficient notice;
• improperly applied the law when issuing the FPN; and
• failed to communicate with him effectively throughout the process.
2. Mr X believes the Council’s actions were financially motivated and said the situation caused him avoidable distress. He wants the Council to withdraw the FPN and review its policies to ensure a fairer enforcement and appeals process for him and other residents in the future.

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The Ombudsman’s role and powers

3. We investigate 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 or continue 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), as amended, section 34(B))

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Councils can serve a FPN for waste offences. If the person pays the fine the Council closes the case. If they do not pay the Council may prosecute. The person can then raise a defence and the court will decide if they committed an offence.
7. Mr X said he had temporarily stored four bags of plaster from an ongoing home renovation project next to his property. The Council subsequently issued him a Fixed Penalty Notice (FPN) for knowingly depositing controlled waste on unauthorised land. The FPN letter explained how Mr X could make formal representations against the notice and directed him to contact a third party contracted by the Council to handle enforcement and appeals.
8. Mr X submitted formal representations, stating, among other points, that the FPN had been issued incorrectly because the waste in question could not be classified as 'controlled waste’ and was only stored there temporarily. The Council responded by maintaining that the FPN had been correctly issued and remained valid. It informed Mr X that following his appeal, he now had two options: either pay the FPN or present his evidence and arguments in court.
9. We will not investigate this complaint as there is not enough evidence of fault to justify investigating. The Council acted appropriately by considering Mr X’s appeal, explaining what would happen if he did not pay, and giving him the chance to pay at a reduced rate.
10. In addition, Mr X has the choice of paying the fee or raising a defence in court if the Council decides to prosecute. The courts have the power to decide if someone committed an offence; we do not have that power and it is not our role to decide if the Council was right to issue the FPN.

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Final decision

11. We will not investigate Mr X’s complaint because there is not enough evidence of fault to justify investigating and Mr X has the choice to raise his defence in court.

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Investigator's decision on behalf of the Ombudsman