The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about a fixed penalty notice issued to his business for fly tipping waste. This is because Mr X could have used his right to raise a defence against the penalty charge in court.
The complaint
The complainant, whom I shall call Mr X, complains about a fixed penalty charge he was issued for the unauthorised deposit of waste from his business premises.
The Ombudsman’s role and powers
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 may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X was issued a fixed penalty notice for £400 for fly tipping of waste from his business premises.
The notice explained if the fixed penalty was not paid within 14 days, proceedings would be issued and he could be liable for conviction at the Magistrate’s Court.
Mr X paid the fixed penalty but does not consider it was correctly issued.
In complaining to this office, Mr X says the outcome he seeks is for the £400 to be refunded or for him to be able to take the matter to court.
Mr X had the opportunity to raise a defence against the matter in the magistrates court, but instead chose to pay. It was reasonable to expect Mr X to have used his right to defend the matter in court.
Final decision
We will not investigate Mr X’s complaint because it was reasonable to expect Mr X to have used his right to defend the matter in the magistrates court at the time. The court could then have reached a view on whether the offence was committed. The Ombudsman cannot decide whether or not an offence was committed. It is a matter for the courts.
Investigator's decision on behalf of the Ombudsman