The Ombudsman's final decision
Summary: We will not investigate this complaint about a Fixed Penalty Notice for fly-tipping. This is because the complainant could have raised a defence in court.
The complaint
The complainant, whom I refer to as Mr X, says the Council fined him for putting out too much rubbish but has not defined what amounts to “too much”. Mr X wants the Council to refund the £400 fine.
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 another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6)) The magistrates’ court considers appeals (defence) about prosecutions relating to unpaid Fixed Penalty Notices (FPN) for environmental offences.
How I considered this complaint
I considered information provided by Mr X and the Council. This includes the Mr X’s challenge to the FPN and the complaint correspondence. I also considered our Assessment Code and comments Mr X made in reply to a draft of this decision.
My assessment
Councils can issue FPNs for waste offences. If the person pays the fine the Council closes the case and liability for the offence is discharged. If the person does not pay the Council can prosecute. The person can raise a defence in court and the magistrates decide if they committed an offence. Government guidance recommends councils have an internal review process prior to prosecution.
The Council issued Mr X with a FPN for fly-tipping. The fine was £400. Mr X appealed. He explained a neighbour had moved the bins to another location and Mr X had placed excess card next to the bins in the new location. The Council rejected his appeal. It said he had left waste on land which does not have a licence to accept waste. The Council accepted the bins had been moved but said he had still committed an offence. The Council said Mr X could pay or defend the case in court.
Mr X paid the fine. He continued to dispute the fine and complain. This included a dispute about whether the waste was commercial waste which should not have been placed for collection with the domestic waste.
I will not investigate this complaint because Mr X could have raised a defence in court if he did not think he had committed an offence. The magistrates would have decided if Mr X was guilty of fly-tipping. The court would have considered the Council’s assertion that Mr X left the waste at an unauthorised location and Mr X’s submission that the bins were moved by someone else and he left excess waste at the side of the bin.
We do not act as an alternative to the courts and cannot decide if someone committed an offence. It is reasonable to expect Mr X to have gone to court because that is the prescribed mechanism to defend a prosecution for an unpaid FPN. The Council responded appropriately by considering Mr X’s internal appeal and explaining his options. Mr X chose to pay the fine and there was no requirement for the Council to consider the matter further.
Final decision
We will not investigate this complaint because Mr X could have raised a defence in court.
Investigator's decision on behalf of the Ombudsman