The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about a Fixed Penalty Notice for fly tipping. This is because Mr X had the option to not pay the original fine and to challenge the matter in court. Mr X instead paid the fine. Mr X subsequently took the Council to the Small Claims Court. We have no powers to consider this part of his complaint. The Information Commissioner’s Office is the appropriate body to deal with Mr X’s concerns about data protection and how the Council dealt with his requests for information.
The complaint
The complainant, whom I shall refer to as Mr X, complained about a Fixed Penalty Notice (FPN) for fly tipping. Mr X paid the fine but subsequently challenged the Council via the Small Claims Court. Mr X discontinued his claim but is unhappy with how the Council dealt with the proceedings – including a failure to provide paper copies of documents. The Court awarded costs against Mr X.
Mr X also complained about how the Council dealt with Freedom of Information (FOI) requests and says it breached data protection legislation.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916) We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which is outside our jurisdiction. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin)) We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended) The ICO also considers complaints about Freedom of Information (FOI). Its decision notices may be appealed to the First Tier Tribunal (Information Rights). When we receive complaints about FOI, we normally consider it reasonable to expect the person to refer the matter to the ICO.
How I considered this complaint
I considered information provided by the complainant and the Ombudsman’s Assessment Code.
My assessment
We will not start an investigation into Mr X’s complaint for the following reasons.
Fixed penalty notice Mr X paid the FPN. If Mr X disagreed with the original fine, he could have refused to pay it and raised a defence in court. The Court would have decided if Mr X had committed the offence. We do not act as an appeal body and cannot decide if an offence has been committed. By paying the fine Mr X discharged his liability and we have no powers to revoke the fine.
Court proceedings The exceptions at paragraphs 4 to 7 apply to Mr X’s complaint. We have no powers to investigate when someone has taken a matter to court. We cannot consider decisions taken by a court. The issue of costs awarded against Mr X is not something we can look at. We also cannot consider any actions by a council linked to court proceedings, such as witness statements or the preparation of court papers. We have no powers to consider any actions by a council linked to something which is outside our jurisdiction. This is not something we have any powers to consider.
Data protection The ICO is best placed to deal with Mr X’s concerns about data protection issues and how the Council dealt with his FO I requests. It is the UK’s independent authority set up to uphold information rights. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation.
There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about data protection or FOI, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. Investigation by the Ombudsman is not therefore appropriate.
Final decision
We will not investigate Mr X’s complaint. This is because: It was reasonable for Mr X to not pay the Fixed Penalty Notice and to defend the matter in court.
We cannot consider anything to do with the subsequent court action initiated by Mr X.
Concerns about data protection and Freedom of Information are best dealt with by the Information Commissioner's Office.
Investigator's decision on behalf of the Ombudsman