Summary: We will not investigate this complaint about the Council’s decision to issue Mr X with a fixed penalty notice. This is because an investigation cannot achieve the desired outcome.

The complaint

1. In short, Mr X says the Council’s decision to issue him with a fixed penalty notice (FPN) for littering is unfair as the fine was issued without any investigation or direct evidence of him littering.
2. Mr X says he has been caused stress and anxiety, and he wants the FPN withdrawn.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

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

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My assessment

7. Mr X complains about the Council’s enforcement actions towards him culminating in its decision to issue a FPN against him. Mr X says the Council’s enforcement and investigation process is flawed.
8. Mr X says the Council’s ‘investigation’ letter asking him to respond did not provide him with the 10 days quoted in the letter to respond as he received the letter five days after he should have.
9. Mr X reports he did manage to get his response into the letter in time. Mr X also complains the Council promptly issued the FPN the next morning without answering any of his objections.
10. I note the Council responded to Mr X’s concerns after issuing the FPN. It said Mr X’s parcel label was found in a dumped rubbish bag. Overall, the Council stands by its decision to serve a FPN by stating it is Mr X’s responsibility to dispose of his rubbish securely.
11. We will not investigate. We cannot achieve Mr X’s desired outcome as we have no powers to rescind FPNs or compel the Council to do so. We normally expect complainants to defend themselves in the magistrates’ court against the issuing of a FPN once the Council takes further enforcement action.
12. In this case Mr X has paid the penalty. Payment is effectively seen as agreement that an offence has been committed. There is no procedure for paying and appealing. Mr X could have chosen not to pay and then raise his points in court once the Council took further action against him in the magistrate’s court. The court route is the mechanism for appealing the FPN.

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Final decision

13. We will not investigate this complaint as we cannot achieve the desired outcome.

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Investigator's decision on behalf of the Ombudsman