The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council issuing him a Fixed Penalty Notice for alleged littering. This is because Mr X has, or had, the right to raise a defence against the issuing of the notice in the magistrates court which is the appropriate route via which to challenge the matter.
The complaint
Mr X complains the Council issued him a Fixed Penalty Notice (FPN) for littering. He also complains the system for appealing the issuing of the FPN is flawed and unfair.
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.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X says the Council wrongly issued him a FPN for alleged littering. He submitted an appeal to the Council but the Council rejected his appeal. Mr X says the Council did not properly consider the points he raised in his appeal.
We will not investigate Mr X’s complaint. This is because Mr X has, or had, the right to raise a defence against the issuing of the FPN in the magistrates court if he considers it was wrongly issued. This is the appropriate route via which to challenge the FPN. We are not an appeal body. We cannot decide whether or not the alleged offence was committed nor whether Mr X is liable to pay the FPN. We also cannot cancel a FPN. These are issues the magistrates court would consider, decide and rule on. It is reasonable to expect Mr X to use, or have used, his right to defend the matter in court.
Final decision
We will not investigate Mr X’s complaint because he can or could have raised a defence on the matter in the magistrates court if he considers the FPN was wrongly issued.
Investigator's decision on behalf of the Ombudsman