The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council issuing Ms X a Fixed Penalty Notice for fly tipping. This is because Ms X could have used her right to raise a defence against the issuing of the Notice in court if she believed it had been incorrectly issued.
The complaint
Mr X complains on behalf of his granddaughter Ms X about the Council issuing her a Fixed Penalty Notice (FPN) for fly tipping.
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 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) 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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council issued Ms X a FPN for fly tipping.
Ms X discharged her liability to prosecution for the offence by paying the FPN rather than using her right to raise a defence against its issue in the magistrates court.
We will not investigate this complaint. This is because Ms X could have raised a defence against the matter in court if she believed there was fault in the issuing of the FPN. That is the appropriate route to use to challenge the matter rather than complaining to this office, having already paid the FPN. We are not an appeal body and we cannot decide whether there was fault in the way in which the FPN was issued; whether the alleged offence was committed nor whether Ms X was liable. These are points the court would have considered and ruled on had Ms X used her right to defend the matter in court instead of paying the FPN.
Final decision
We will not investigate this complaint because Ms X could have used her right to raise a defence against the FPN in court instead of paying it. The court would then have decided the matter.
Investigator's decision on behalf of the Ombudsman