The Ombudsman's final decision
Summary: We will not investigate this complaint about a fixed penalty notice. This is because there is not enough evidence of fault to justify our investigation.
The complaint
Mr Y complains the Council has issued a Fixed Penalty Notice (FPN) of £400 for fly-tipping. Mr Y says he left a bag of rubbish next to a bin after moving home as he was unaware he was committing the offence. He says the amount is disproportionate.
Mr Y says the problem has caused upset and frustration as he says the fines in other parts of the Council’s area are significantly lower. He says the cost of the fine, which he has now paid, left him with very little money for the rest of the month.
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 or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating or we cannot achieve the result the person wants. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y left a binbag of household rubbish next to a bin in the council’s area in March 2022. A Council enforcement officer then issued a FPN for £400 to Mr Y for fly tipping. Mr Y complained about the FPN to the Council, but the Council rejected his arguments about it.
The Council told Mr Y he could defend against prosecution of the offence in the magistrates’ court. Mr Y was concerned at the potential for costs to be awarded against him. Consequently, he chose to pay the fine in full at the start of April.
Mr Y then complained to the Council. The Council responded denying any procedural fault. Mr Y contacted us and has asked for the penalty to be refunded as he considers the amount to be disproportionate.
Analysis The Council’s website describes fly tipping as “the illegal dumping of items. It can be as small as a single bag of waste left next to a street litter bin to an entire truck load of rubbish.” The Council may by law issue a FPN to the amount of £400 to those who fly tip waste. As Mr Y agrees that he left the bag of rubbish on the pavement, even though it was next to a bin, he has met the criteria for the FPN to be issued.
Mr Y had the opportunity not to pay the FPN after the Council rejected his representations about it. Only the magistrates’ court could consider whether Mr Y committed the offence and whether he should pay a penalty, and of what amount, in the particular circumstances. We cannot do so.
Consequently, as the Council has correctly issued a FPN for fly tipping and considered Mr Y’s arguments about it, and Mr Y has accepted the offence by paying the penalty, there is not enough evidence of fault in the Council’s process to justify us investigating.
Final decision
We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify an investigation.
Investigator's decision on behalf of the Ombudsman