The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council issuing the complainant with a Fixed Penalty Notice (FPN) for fly‑tipping. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. The complainant can raise a defence in court against the FPN, and we could not establish what a council officer said to her during an associated telephone conversation.
The complaint
The complainant, whom I refer to as Mrs X, complains about a Fixed Penalty Notice (FPN) she received for fly-tipping. She denies committing the offence, and says a council officer was rude to her during a telephone call when she tried to explain what had happened.
The Ombudsman’s role and powers
The Ombudsman can investigate 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 we could not add to any previous investigation by the organisation, or further investigation would not lead to a different outcome, or we are satisfied with the actions the Council has taken or proposes to take, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6) & (7))
How I considered this complaint
I considered information provided by Mrs X and the Council, which included the Council’s complaint responses.
I also considered our Assessment Code.
My assessment
In the absence of a telephone recording or any independent witnesses, an investigation by the Ombudsman would be unable to establish whether the council officer acted with fault during the telephone conversation with Mrs X about the FPN. The Council has also already apologised if Mrs X felt she was not spoken to properly, and has reminded staff of the need to treat customers politely and courteously. For these reasons, and with reference to paragraph 2 above, the Ombudsman will not investigate this part of Mrs X’s complaint.
With regard to the alleged fly-tipping, 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.
Mrs X did not pay the penalty within the specified time, and I understand the Council is currently contemplating whether to proceed with a prosecution. It has invited her for an interview under caution.
If the Council does pursue legal proceedings against Mrs X, then she may present her defence in court, and it will decide if she has committed an offence. We cannot act as an alternative to the courts, and it seems reasonable to expect Mrs X to follow this prescribed mechanism to defend a prosecution for the FPN.
Final decision
We will not investigate Mrs X’s complaint about her telephone call with a council officer because we would be unable to ascertain what happened, and the Council has already provided a satisfactory response. Mrs X can also raise a defence in court against the FPN.
Investigator's decision on behalf of the Ombudsman