The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council’s actions in issuing a Fixed Penalty Notice (FPN) for littering. This is because he can defend the matter in court if he considers the FPN was incorrectly issued and the Information Commissioner’s Office is the body better placed to consider complaints about data matters.
The complaint
Mr X says a Council Enforcement Officer did not follow the correct process when issuing him an FPN for littering. He wants the Council to cancel the FPN, improve communication and signage, and make its complaints handling process better.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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)) 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) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), 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
Mr X said an Enforcement Officer issued him an FPN for discarding a cigarette butt, even though he immediately tried to pick it up. He submitted representations to the Council, disputing the recorded time, denying he left any litter, and questioning the Officer’s conduct and authority to enforce on private land. He also asked for the Officer’s camera footage and requested the case be put on hold.
The Council rejected Mr X’s representations. It accepted the incident time was wrong but said the error did not invalidate the FPN because the offence still occurred. The Council maintained that the enforcement action was lawful and declined to release the Officer’s camera footage on the basis that it formed part of the evidence. It placed a seven‑day hold on the case to allow Mr X to obtain written confirmation of the landowner’s “permission to litter,” and said the next step was to dispute the notice in the Magistrates’ Court.
We will not investigate Mr X’s complaint. This is because he can raise a defence against the issuing of the FPN in court, if he believes it was incorrectly issued and wishes to challenge it rather than pay it. That is the appropriate route to use to challenge an FPN.
We are not an appeal body, and we cannot decide whether the offence occurred or whether Mr X is liable for the penalty. We also cannot cancel an FPN, which is the outcome Mr X seeks. The Council has already considered and refused his representations, so Mr X must either pay the penalty or allow the case to proceed to the Magistrates’ Court, where he can present his defence.
Mr X’s complaint about the Council not providing the video evidence he requested is a data matter which the Information Commissioner’s Office (ICO) is best placed to consider and decide. It is the body set up to consider complaints about data matters such as this.
Final decision
We will not investigate Mr X’s complaint. This is because he can defend the matter in court if he considers the FPN was incorrectly issued and the ICO is the body better placed to consider complaints about data matters.
Investigator's decision on behalf of the Ombudsman