Transport for London (20 009 844)

Category : Transport and highways > COVID-19

Decision : Not upheld

Decision date : 12 Aug 2021

The Ombudsman's final decision:

Summary: Mr X complained Transport for London (TfL) refused to renew his residents’ congestion charge discount, meaning he had to pay the full congestion charge. Mr X sought a refund of the money he considers he should not have had to pay. The Ombudsman found TfL acted without fault and was entitled to refuse Mr X’s discount request.

The complaint

  1. Mr X complained Transport for London (TfL) refused to renew his residents’ congestion charge discount. He said TfL did not apply the new congestion charge policy correctly in his case and has created new criteria in order to exclude him.
  2. Since September 2020, Mr X has paid the congestion charge at the full rate. He seeks a refund of the money he considers he should not have had to pay.

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The Ombudsman’s role and powers

  1. We investigate complaints about councils and certain other bodies. (Local Government Act 1974, sections 25 and 34A, as amended)
  2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a body’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)
  3. If we are satisfied with a body’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)
  4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.

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How I considered this complaint

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by TfL and its comments in response to my enquiries.
    • Mayoral Decision MD2648 Temporary changes to the Congestion Charge (signed 15 June 2020).
    • TfL’s Residents' Discount Registration Terms and Conditions.
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Motorists who drive in London’s congestion charge zone must pay a daily fee. Residents who live within the congestion charge zone may be entitled to a 90% discount.
  2. TfL’s terms state residents must register for the congestion charge discount online and renew it annually. Residents must pay an annual renewal charge before their discount expires to continue to benefit.
  3. Mayoral decision MD2648 temporarily closed the residents’ congestion charge discount to new applicants on 1 August 2020. Residents who were already registered for the discount would continue to be eligible and could renew their discount. The decision was intended to deter residents who had not previously driven in the congestion zone from making car journeys. The aim was to avoid promoting a car-led recovery to the COVID-19 pandemic.

What happened

  1. Mr X registered for the residents’ congestion charge discount in March 2018.
  2. TfL wrote to Mr X on 12 February 2019 to tell him his discount was due to expire in March, and he would be charged the full amount if he did not renew it. Mr X no longer owned a car so did not renew his discount.
  3. TfL wrote to Mr X again on 9 March to tell him his discount had expired. It said he could re-register online if he wished to.
  4. Mr X bought a new car in September 2020. He tried to add it to his online account to receive the congestion charge discount but could not do so. Mr X telephoned TfL to explain the problem. TfL staff told Mr X it considered he was now a new applicant because he did not renew his discount.
  5. Mr X complained to TfL on 6 October. He said it extended the scope of the Mayoral decision to include residents who do not currently have an active discount on a car. He said that is not what the Mayoral decision states or intended. If that was the aim, Mr X said the decision is confusing and misleading, so TfL should give him the benefit of the doubt. He said he bought a new car in good faith because he had checked the Mayoral decision and thought he was still eligible for the discount.
  6. TfL responded on 13 October. It said Mr X’s discount expired on 9 March 2019 and when he applied again it viewed him as a new applicant. The residents’ discount was closed to new applicants from 1 August 2020 as part of changes aimed at reducing traffic and improving air quality.
  7. Mr X asked TfL to reconsider his complaint on 16 October. He said he was aware TfL considers him to be a new applicant, but simply restating that point did not address his complaint, which is that TfL’s policy has misapplied the Mayoral decision by going further than the decision intended.
  8. Mr X argued he met the requirements for a discount when he previously received it, and he continued to be entitled to it. He said there was nothing in the Mayoral decision which required a previous application to still be current. He said TfL had set an extra requirement outside of the Mayoral decision.
  9. TfL sent its second complaint response on 28 October. It apologised Mr X was unhappy with its first response. It said because of the time it took Mr X to renew his discount it had to consider his request as a new application.
  10. Mr X wrote to TfL again on 29 October. He said TfL’s previous responses did not engage with his complaint, and despite his discount ending in March 2019, his online account remained active.
  11. Mr X argued TfL gave the term ‘new applicant’ a far wider meaning than the Mayoral decision gave or intended. He said TfL denied him a discount he felt entitled to. He said TfL failed to address that point.
  12. Mr X said the Mayoral decision makes clear that someone who has previously received the discount and is currently eligible is not considered a new applicant and is not excluded from the scheme. He also said if it had been made clear new applicants included people who had previously applied he would have asked for the discount before the deadline.
  13. TfL sent its final complaint response on 9 November. It said it aims to avoid a car-based recovery to the pandemic and, at the government’s request, it was trying to discourage unnecessary car journeys by supporting walking, cycling, and bus use. Its decision not to accept new applications for the residents’ discount is intended to deter residents who have not previously driven in the charging zone from switching to car journeys. Because Mr X did not renew his discount in 2019, his account was closed, and any future application would be considered as new.
  14. Mr X brought his complaint to the Ombudsman on 24 December 2020. He told us he is not a new applicant because he has had the discount before. He should therefore be entitled to the discount again for his new car. He said TfL is misapplying the new policy to exclude people.

Response to my enquiries

  1. TfL told me Mr X created an online congestion charge payment account in March 2018. He then successfully registered for the congestion charge discount. Creating a payment account does not automatically mean customers get a congestion charge discount, they must make an application for TfL to approve. Some customers have an online account just to make payments and are not eligible for a discount.
  2. Mr X’s discount expired on 8 March 2019 after he did not respond to TfL’s renewal invitation. He did not contact TfL again until October 2020, two months after TfL closed the residents’ congestion charge discount on 31 July. TfL said once a discount expires and is not renewed an account holder is treated as a new applicant.
  3. TfL said the residents’ congestion charge discount was stopped to discourage new residents from using cars, or existing residents from buying a new car and asking for the discount. It said it would be unfair to make an exception for Mr X and would go against the reasons for stopping the discount.
  4. TfL told me it considered some late renewal applications in the three months after it stopped the discount, but it would not normally reinstate a discount which expired in 2019. It said it must draw the line somewhere and did not consider there was enough mitigation to re-instate Mr X’s discount. Its general policy has been to refuse similar applications.

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Analysis

  1. The Mayoral decision is silent about customers who have previously benefitted from the congestion charge discount re-applying after a period where they did not have the discount. I can therefore understand why Mr X questioned it.
  2. Mr X does not consider the Mayoral decision intended to exclude residents who had previously received the discount from re-applying later. That is not something the Ombudsman can decide, and it is not for me to interpret the aims of the Mayoral decision.
  3. TfL’s letter to Mr X on 9 March 219 said his discount had expired. It said he could re-register if he wanted the discount in future. That shows TfL considered Mr X was no longer registered for the discount.
  4. Mr X considers that, because he previously had the discount, and holds an active online payment account, he is not a new customer.
  5. It is not for the Ombudsman to tell TfL in what circumstances to treat an application as new or existing.
  6. I have seen examples of other decisions made by TfL in the same, or similar, circumstances to Mr X and TfL has been consistent in its approach. It applied the same criteria to Mr X’s case as it did to other customers and I have not seen evidence Mr X was treated differently.
  7. While TfL’s terms do not explicitly state what the position is, its established practice is to treat people in Mr X’s position as new applicants. I have not seen evidence of fault or that TfL was not entitled to make that decision.
  8. I can appreciate why Mr X was unhappy with TfL’s complaint responses. It did not engage with the subject of his complaint, provide an explanation of its decision, or respond to the relevant issues Mr X raised. TfL simply restated that it considered Mr X was a new applicant. That was not good practice. TfL could have negated the need for Mr X to escalate his complaint to the Ombudsman if it had properly engaged with him.

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Final decision

  1. I have completed my investigation. I found TfL acted without fault and was entitled to refuse Mr X’s discount request.

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Investigator's decision on behalf of the Ombudsman

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