The Ombudsman's final decision
Summary: We will not investigate this complaint about a fixed penalty the Council issued for the unauthorised deposit of waste. This is because the complainant could have raised a defence against the penalty in court.
The complaint
The complainant, who I will call, Mr X, complains about a Fixed Penalty Notice (FPN) that the Council issued to his business for the unauthorised deposit of waste.
The Ombudsman’s role and powers
We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with 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) The magistrates decide whether someone has committed an offence under the Environmental Protection Act 1990.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council issued Mr X with a FPN for the unauthorised deposit of waste, after an enforcement officer concluded that waste had been illegally left outside of Mr X’s business. A FPN gives someone the chance to pay a fine and avoid prosecution. If the person does not pay the Council may start legal action. The magistrates then decide if the person committed an offence.
Mr X challenged the fine with the Council, stating that the FPN was issued unlawfully. However, the Council rejected the challenge, explaining that Mr X had 14 days to pay the fine or face prosecution.
I will not investigate Mr X’s complaint. If Mr X felt the FPN was issued unlawfully he could have withheld payment and raised a legal defence in court. It is not my role to decide if an offence is committed, this is the role of the courts.
Final decision
We will not investigate Mr X’s complaint because the matter could reasonably have been defended by him in the magistrates court.
Investigator's decision on behalf of the Ombudsman