The Ombudsman's final decision
Summary: We will not investigate this complaint about a Fixed Penalty Notice for alleged fly-tipping. This is because there is insufficient evidence of fault by the Council and because the complainant could raise a defence in court.
The complaint
The complainant, whom I refer to as Ms X, complains about a Fixed Penalty Notice (FPN) she received for fly-tipping. She says it is disproportionate and reflects racism.
The Ombudsman’s role and powers
The Ombudsman investigates 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 an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Ms X and the Council. I also considered our Assessment Code, other complaints we have considered about FPNs and comments Ms X made in reply to a draft of this decision.
My assessment
It is an offence to deposit waste on land unless in accordance with a licence. The law places a duty of care on householders to dispose of waste correctly. A council can prosecute if it thinks someone has committed an offence. As an alternative to prosecution it can issue a FPN. If the person pays the fine the case is closed. If the person does not pay the fine a council can prosecute. The person can then raise a defence in court. The magistrates decide if the person committed an offence.
An enforcement officer saw furniture on the path outside Ms X’s home. The officer spoke to Ms X who confirmed it was hers and she had placed the items on the path as a temporary measure during building work. Ms X removed the items at the officer’s request. Ms X says the officer was aggressive, hostile and motivated by racism.
The Council issued Ms X with a FPN. Ms X has not paid the fine. The Council may carry out an interview under caution and decide whether to prosecute.
Ms X challenged the FPN and submitted complaints and witness statements. In response the Council said it has a zero tolerance approach to fly-tipping and it had issued the FPN correctly. It explained the law which allowed it to issue a FPN. It apologised for any offence caused by the officer and agreed communication could have been better; but it denied the allegations of racism. It said it had reminded the officer of the expected service standards and said it would issue her with a body camera so there would be independent evidence of future conversations.
Ms X continues to dispute that she committed an offence, says the FPN is disproportionate and based on racism, and she says the Council did not respond properly to her complaints. Ms X has also referred to guidance which she says the Council has not followed.
I will not investigate this complaint because it is for the courts, not us, to decide if Ms X committed an offence. We cannot act as an alternative to the courts and cannot decide if Ms X committed an offence. If, as Ms X asserts, she did not do anything wrong, she can wait to see if the Council prosecutes and then raise a defence in court. The magistrates would decide if Ms X committed an offence. Ms X could include, as part of her defence, her allegations that the FPN was not properly served or that the Council had not followed PACE (Police and Criminal Evidence Act).
I also will not investigate this complaint because there is insufficient evidence of fault by the Council. The Council issued a FPN because it found furniture on the path; and, whether this was an offence, is for the courts. The Council addressed Ms X’s challenge and her complaints and there is nothing in those responses which suggests we need to start an investigation. The guidance Ms X has referred to deals with littering and household bins, not fly-tipping. Furter, in the absence of any independent evidence we could not add to the response about the officer’s alleged conduct; and the Council acted appropriately by recommending she wear a camera so independent evidence will be available.
Ms X alleges racism but, other than disputing the FPN, she has not provided any specific evidence or allegations. The officer’s actions were triggered by the furniture and, when she decided to act, she was unaware of Ms X’s race. And, as I have said, whether Ms X’s actions warranted a FPN, are for the courts to determine. Alternatively, if Ms X continues to believe she has been discriminated against due to her race then, again, that would be a matter for the courts.
Final decision
I will not investigate this complaint because Ms X can go to court and because there is insufficient evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman