Summary: We will not investigate Mrs X’s complaint about the Council issuing her a Fixed Penalty Notice for alleged fly tipping. This is because Mrs X had the opportunity to raise a defence against the issuing of the notice in court rather than paying it.

The complaint

1. Mrs X complains the Council incorrectly issued her a Fixed Penalty Notice for fly tipping despite her not knowingly or deliberately doing so. Mrs X paid the penalty in order to prevent the matter from progressing to court.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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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. Mrs X was issued a Fixed Penalty Notice (FPN) for fly tipping. She paid the FPN rather than raising a defence against its issue in court as she was fearful of the matter being progressed to court. Mrs X then complained to the Council about its issue and provided additional information for it to consider.
7. The Council reviewed the case and said it was considered sufficient to pursue an offence of fly tipping and it followed its processes correctly.
8. We will not investigate Mrs X’s complaint. This is because she could have raised a defence against the issuing of the FPN in court rather than paying the fine in order to discharge her liability to prosecution. We are not an appeal body and we cannot decide whether the alleged offence was committed; whether the FPN was correctly issued nor whether Mrs X was liable. These are matters the court would have considered had the FPN not been paid and the matter progressed to court. That is the appropriate route to use to challenge the matter.

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Final decision

9. We will not investigate Mrs X’s complaint. This is because the route to challenge this matter was to raise a defence against the issuing of the FPN in court. The court would have reached a view on whether the alleged offence was committed. It is not a matter we can decide.

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Investigator's decision on behalf of the Ombudsman