The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council issuing the complainant with a Fixed Penalty Notice. This is because we are unlikely to achieve anything more to add to the Council’s investigation.
The complaint
In short, Mr X complains about the Council’s decision to issue him with a Fixed Penalty Notice (FPN) for urinating in public. Mr X complains about the legality of the process and wants compensation for the anxiety and distress caused.
The Ombudsman’s role and powers
We have the power to start an investigation into a complaint within our jurisdiction. We may decide not to start an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) 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’ that requires consideration of a remedy. 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 we could not add to any previous investigation by the organization. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Our role is to look at the way councils reach their decisions. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it.
A FPN gives someone the chance to pay a fine and avoid prosecution. If the person does not pay the Council may start legal action. The magistrates court then decides if the person committed an offence.
Government guidance recommends councils have an internal review process prior to prosecution. The Ombudsman can consider this aspect of the Council’s actions.
Mr X was issued with a FPN for urinating. Mr X appealed to the Council. He also disputed urinating could be considered a waste or littering offence.
Overall the Council found the FPN was properly issued. And it quoted case law which found urine could be counted as litter.
However, the Council also admitted it failed to respond properly to Mr X’s earlier complaints about being issued with a FPN. And that it acted with fault in sending Mr X a ‘Notice of Prosecution’ despite Mr X paying £150 (the full cost of the FPN).
Under the FPN process, Mr X had the right to defend his case in court. He chose to pay the FPN instead. Usually if the FPN is paid, the Council closes the case and liability for the offence is discharged.
Mr X continues to dispute the fine and the legality of the Council’s decision and wants compensation for the distress caused.
I note the Council has admitted fault in its internal review process and provided a remedy in the form of a partial refund of £55. This is adequate and further investigation by the Ombudsman is unlikely to achieve anything more to add to the Council’s investigation.
We do not act as an alternative to the courts and cannot decide if someone committed an offence. It was not unreasonable to expect Mr X to have defended his case at court because that is the procedure to defend a prosecution for an unpaid FPN. Instead, he chose to pay the FPN.
Final decision
I will not investigate because we are unlikely to achieve anything more. The Council has provided an adequate remedy to the faults in its internal review process.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman