The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council issuing Mr Y with a fixed penalty notice for alleged fly tipping. This is because he could have raised his concerns as part of his defence in court.
The complaint
Mr X complains about the Council’s decision to issue him with a Fixed Penalty Notice (FPN) for alleged fly tipping.
Mr X denies the offence and says the Council has failed to consider he was visiting. He also says it has failed to investigate via its complaints procedure.
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 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
If a council thinks a person has committed an offence, it can issue the person with a Fixed Penalty Notice (FPN). If a person pays the fine, they accept liability for the offence and the matter is closed.
If the person does not pay the fine, a council can take the person to court. The person can then raise a defence in court, and the court will then decide if the person has committed the offence.
Mr X denies the offence occurred. The Council has responded to his appeal and says it is satisfied the FPN was issued properly. It also said that it would extend the deadline allowing him to pay the FPN or legal proceedings would follow. Mr X opted to complain to our service.
We will not investigate. This is because disputes about the validity of a Fixed Penalty Notice – including whether an offence occurred or whether evidence supports the allegation – can only be resolved by the Magistrates’ Court. The Ombudsman cannot investigate or overturn an FPN, nor can we assess the evidence behind it.
Only the court could decide if the FPN should have been issued, and as Mr X disputes liability for the FPN, it was reasonable to expect him to complain in court.
There is no obligation on the Council to investigate his concerns via its complaints procedure. This is because FPNs are subject to the legal process. The validity of the FPN and evidential matters are for the court and not for complaints procedures or the Ombudsman.
Final decision
We will not investigate Mr X’s complaint because he could have raised his complaint in court.
Investigator's decision on behalf of the Ombudsman