Summary: Mr C complains the Council is failing to properly enforce the law around on-street car sales, nuisance parking and abandoned vehicles. Mr C says he suffers from nuisance parking and is frustrated by the Council’s approach and has spent unnecessary time and trouble. The Ombudsman has found fault by the Council in its record keeping and communication but considers the agreed action of an apology, improved record keeping and a period of further monitoring are enough to provide a suitable remedy for Mr C.

The complaint

1. The complainant, whom I shall refer to as Mr C, complains the Council is failing to properly enforce the law around on-street car sales, nuisance parking and abandoned vehicles. Mr C says the Council’s enforcement is inadequate and it has misinterpreted the legislation. Mr C also says the Council has failed to provide information or provided inconsistent information or information intended to mislead him and other residents including local councillors and his MP. Mr C further says the Council failed to follow its own published complaints procedure when dealing with his complaint.
2. Mr C says he suffers from nuisance parking and is frustrated by the Council’s approach and what he sees as its culture of deniability and has spent unnecessary time and trouble in trying to resolve the matter.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C after removing third party details. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

7. The Clean Neighbourhoods and Environment Act 2005 provides that that a person is guilty of an offence if at any time:
1. He leaves two or more motor vehicles parked within 500 metres of each other on a road or roads where they are exposed or advertised for sale. Or
2. He causes two or more motor vehicles to be so left.
8. Section 7 of the Local Government (Miscellaneous Provisions) Act 1976 provides Local Highway Authorities with the power to make a Control Order to control the sales of items on the highway which can include vehicles.
9. Vehicles for sale on the highway can be considered unlicensed street trading under the London Local Authorities Act 1990 and with that comes a power to seize as evidence those goods being offered for sale. The Council has confirmed it does not currently use these powers as it does not have a storage facility for seized goods (vehicles for the purposes of this complaint).
10. The Refuse Disposal (Amenity) Act 1978 says someone abandoning a vehicle on any land in the open air without authority is guilty of an offence and can be fined. The Act places a duty on councils to remove abandoned vehicles from land or roads in their area. If a vehicle has been abandoned on private land the Act says a council must serve 15 days notice on the landowner of its intention to remove it. The council cannot remove a vehicle if the landowner objects. The 15-day notice period does not apply if the vehicle is abandoned on a road or highway. An authority must decide if the vehicle is abandoned. There is no legal definition of what constitutes an abandoned car, but the authority will consider whether it:

• has a keeper on DVLA’s database
• is taxed/MOTd
• has been stationary for a significant amount of time
• is obviously unroadworthy
• is burned out
• has number plates

11. The decision on whether to classify a vehicle as being abandoned rests with the authority.

Key events

12. Mr C contacted the Council in June 2018 about illegal parking in his area and enclosed guidance on trade plate usage and a link on action against nuisance parking. The case officer telephoned Mr C and explained the area was being monitored and outlined the areas of Council responsibility. The case officer also explained that Mr C could pursue a change of local parking restrictions via his local Councillor. Mr C says he first contacted the Council by telephone in May and the above contact was in response to his follow up calls. I do not consider further investigation on this point is warranted in the context of my findings below.
13. Mr C provided a list of vehicles he had found for sale parked in the area at the end of July and further regular information including photographs and trade advertisements during the period August 2018 to March 2019. Mr C reported in the region of 500 potential offences during this period.
14. The Council says it has carried out a graduated enforcement approach in line with its Enforcement Policy and the Regulators Code. The Council says officers initially engaged with the businesses concerned and explained the breaches in legislation and undertook weekly visits from 16 July 2018 to check for multiple vehicle sales. The Council says from the end of September it made visits every three to four weeks until November due to general compliance from the businesses. The Council further says when it identified any breaches of legislation officers would engage with the business to establish the facts of the offence and serve a fixed penalty notice (FPN) if an offence was identified. These were served on the following dates:

• 17 July 2018 – 6 FPNs
• 14 August 2018 – 5 FPNs
• 9 November 2019 – 8 FPNs
• 23 January 2019 - 6 FPNs

15. The Council says it continued to visit the area monthly. The Council has not identified any breach of the legislation that on investigation required further formal enforcement action through a FPN or prosecution.
16. The Council has confirmed it has issued 26 FPNs for car sales offences in the area during the period. The Council says it printed blank template FPNs to take to the area and manually entered the necessary details and served these directly to the garage on issue. The FPNs were then entered onto the Council’s system.
17. The Council says it securely disposed of the inspection notes and photographs once the FPNs had been paid. In its response to the Ombudsman, the Council has accepted this was incorrect practice and provided training to the relevant officers about the retention of notes and photographic evidence.
18. The Council has not been able to provide evidence of its site inspections outlined above. The Council says there were some entries in an officer’s diary but these were used as reminders and the visits did not always take place.
19. The Council says the case officer patrolled the area each Monday between June 2018 and March 2019 as part of what the Council has described as a ‘Monday hotspot patrol’. This contradicts the information above which says the visits were only every three to four weeks from the end of September. The Council has provided the mileage for the case officer which does not provide enough detail to relate the mileage to individual visit locations. The Council also says it has been working with the motor vehicle traders to secure changes to their working practices. The Council has not provided evidence of the regular visits or its contact with the relevant businesses. The failure to maintain proper records of visits, contact with the businesses involved and an audit trail for the FPNs issued is fault.
20. I have to consider the impact of this fault on Mr C. I note Mr C has spent a considerable amount of time researching the sales advertisements for the businesses and visiting the area to note and photograph contraventions of the relevant legislation he had found and providing this information to the Council. Although the Council says it has used Mr C’s information as part of its investigations it cannot rely on it as evidence to issue FPNs as the Council has to witness the contravention directly. I consider the Council should have made clear to Mr C how it would use his information at the outset and that it needed to witness any contraventions directly. This would have allowed Mr C to reach his own decision on whether to continue to provide the level and frequency of detail to the Council. I do consider Mr C has been put to unnecessary time and trouble and a degree of frustration as a result.
21. Mr C met with a representative of his MP, his local Councillor, Council officers and officers from both the DVLA and Police about these issues at the end of March 2019. The notes from this meeting set out the differing responsibilities of the Council, Police and DVLA. There was a discussion about the possible delegation of some areas to either the Police or Council from the DVLA and the notes record this would be considered further by both the Council and Police with the DVLA. Mr C complains the Council wrongly told him it had been agreed the Police only would follow this up. The notes would support that the Council was to consider this possible DVLA delegation along with the Police. The Council subsequently advised Mr C in its complaint correspondence that it had considered this option but would not be pursuing it due to insufficient resources. There is no record of the Council’s subsequent contact with the Police and DVLA about this possibility or its further consideration before reaching a decision not to pursue this option. In the absence of any evidence of follow up contact or consideration it is difficult to fully understand the Council’s reasons for its decision.
22. Mr C complained to the Council on 27 July 2019 about what he considered to be inadequate statutory enforcement, misrepresentation and a laissez-faire attitude. Mr C also raised issues about how the Council had dealt with his requests for information which he was pursuing with the Information Commissioner. The Council responded on 19 August. Mr C remained unhappy with the Council’s response and escalated his complaint to Stage 2 of the Council’s complaint procedure on 29 August. The Council responded on 18 September. The Information Commissioner advised the Council the information could be released. The Council released the information and apologised to Mr C.
23. Mr C complained the Council did not properly deal with his complaint under its published complaint procedure as internal emails he had obtained under Freedom of Information requests suggested the Stage 2 response was prepared by officers involved at Stage 1 and this did meet with the Council’s commitment for a reconsideration of the complaint by a senior officer not previously involved. The Council has confirmed that as part of its investigation into Mr C’s escalated complaint the senior officer asked the officer who had investigated the complaint under the first stage of its complaints procedure to provide information for them to review on their return from leave. The Council says the senior officer fully reviewed the information provided and wrote the final response. Mr C has provided internal emails which show the senior officer was aware of his complaint. This may be the case but does not mean the officer had been previously involved on a day to day basis which is my reading of the policy. I see no obvious fault here causing Mr C an injustice.
24. Mr C has raised concerns about the information provided to him by the Council. This included information provided to his MP about the power of seizure. I note the Council’s subsequent complaint correspondence with Mr C says it could have been clearer that the power to seize items offered for sale was available under other legislation but the Council was not using those powers. I do not consider further action is required on this point.
25. This led to an issue about the storage of seized vehicles as the Council stated it was not using the relevant powers as it had no storage for such vehicles which must be kept until the court case. Mr C disputed the legislation required this. I note the legislation does say any seized items may be needed for evidence in proceedings. Mr C says other authorities simply move the vehicles to a residential street and so a storage facility is not needed. However, it is not unreasonable for the Council to consider it needs some method of secure storage. The Council considers the existing powers are enough and make offences easier to prove. This is a decision the Council is entitled to reach.
26. There was also an issue about the possible use of control orders and whether these must apply to the whole Council Borough. The Council has confirmed it would consider a control order in the event of a widespread issue in the Borough rather than a localised issue which it considered was being addressed through its existing powers.
27. Mr C has raised concerns about the Council’s motivation in suggesting the possibility of a controlled parking zone (CPZ) to address residents’ concerns about parking issues. Mr C suggests the Council would rather pursue this option than ensure adequate enforcement. I do not propose to investigate this issue further as the Council says no such CPZ is proposed for the area and, in any event, any such proposal would need to follow a formal consultation process involving Mr C and other residents.
28. Mr C has also raised concerns about the Council’s motivation in allowing him a dropped kerb after initially refusing his request. I do not propose to investigate this issue as I do not consider Mr C has been caused an injustice.
29. The Council says it has applied what it considers to be a proportionate response to the offences it investigated taking into account the views of Mr C and the needs of the businesses to operate while being compliant with their legal requirements. However, in the absence of evidence of the Council’s monitoring and engagement with the relevant businesses I am not able to reach a view on whether the Council has reached this decision without fault.

Agreed action

30. I consider there has been fault by the Council in its record keeping and communication with Mr C as set out above and this has caused him an injustice. The Council has agreed the following action to provide a suitable remedy:
1. write to Mr C to apologise for the failures in its record keeping and his frustration, time and trouble as it did not make clear how it would use his regular information within one month of my final decision;
2. complete a six week period of weekly monitoring of the area for multiple car sales, nuisance parking and abandoned vehicles within three months of my final decision and maintain an adequate record which should include the date and results of a review of the websites for the relevant businesses and trade press for vehicles for sale immediately ahead of each visit and the date and time for each visit with photographs of the area and details of any action taken or the reasons why no action was taken;
3. provide a copy of the above monitoring record to the Ombudsman within one month of completing the monitoring;
4. write to Mr C with the outcome of the above monitoring within one month of its completion; and
5. give further consideration to whether it should take up delegated powers from the DVLA involving the Police and DVLA as necessary and provide evidence of this further consideration and the outcome to the Ombudsman within three months of my final decision.

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Final decision

31. I have completed my investigation as I have found evidence of fault by the Council but I consider the agreed actions above are enough to provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman