Bournemouth, Christchurch and Poole Council (20 013 567)

Category : Transport and highways > COVID-19

Decision : Upheld

Decision date : 14 Jan 2022

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision to impound his car after he thought he left it parked on private land with the owner’s permission. He said the Council should have informed the owner of the land and should have given more notice before it removed his car, due to the COVID-19 national lockdown. The Ombudsman did not find fault in the Council’s decision to remove Mr X’s car. However, we did find fault about the way the Council continued to hold Mr X’s car and charge storage fees.

The complaint

  1. Mr X complained about the Council’s decision to impound his car after he thought he left it parked on private land with the owner’s permission. He said the Council should have informed the owner of the land and should have given more notice before it removed his car, due to the COVID-19 national lockdown.
  2. Mr X said the Council’s actions caused him distress, inconvenience, and financial hardship.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  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 the Council.
    • The Refuse Disposal (Amenity) Act 1978.
    • The Removal and Disposal of Vehicle (England) Regulations 1986 (as amended).
    • Government guidance on Abandoned vehicles: local authority responsibilities.
    • The Council’s abandoned vehicles procedure.
  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

Legislation and Government guidance

  1. The Refuse Disposal (Amenity) Act 1978 and the Removal and Disposal of Vehicle (England) Regulations 1986 (as amended) set out the legal framework for the removal and disposal of abandoned vehicles.
  2. The legislation says councils have a duty to remove abandoned vehicles from land or roads in their area.
  3. Government guidance lists the following factors to consider when a council is deciding whether a vehicle is abandoned:
    • There is no registered keeper on the DVLA’s database, and it is not taxed.
    • It is stationary for a significant amount of time.
    • It is significantly damaged, run down, or unroadworthy.
    • It is burnt out.
    • It has number plates missing.
  4. If a council decides a vehicle is abandoned, it can dispose of it immediately if:
    • It is only fit to be destroyed.
    • It has no number plates or tax disc.
  5. In all other cases, the council must try to find the owner.
  6. A council must return a vehicle to its owner if the owner claims it and pays the council’s costs of removal and storage.
  7. If a council proposes to remove a vehicle, it must fix a notice to the vehicle saying it intends to remove it after a stated time period ends. Where the vehicle is on private land, councils must give the owner or occupier 15 days’ notice. However, if the vehicle is on a road or highway this does not apply.
  8. If a council cannot find the owner, or the owner fails to comply with the notice to collect the vehicle, the council can remove it.
  9. After a council has removed a vehicle, it may dispose of it as it sees fit. If the vehicle is taxed, the council must wait for the tax to expire before destroying it. If the vehicle does not have road tax or a registration mark, a council can destroy it at any time after its removal.

The Council’s abandoned vehicles procedure

  1. When the Council receives a report of an abandoned vehicle it will send an officer to inspect it.
  2. When deciding whether a vehicle is abandoned, an officer will check for flat tyres, rust, and cobwebs.
  3. If the Council officer considers the vehicle is abandoned, they will place a notice on the car giving the owner seven days to move it.
  4. If the owner does not move the vehicle, and the Council considers it is causing a risk or a hazard, it will remove it.
  5. The Council will also remove the vehicle if it is untaxed. It will then keep the vehicle for 21 days before destroying it.

What happened

  1. During the COVID-19 pandemic, Mr X lost his job. He no longer needed to use his car so decided to declare it off road and not renew its tax or MOT. As Mr X was not the registered keeper of the car, he had to write to the DVLA to declare it off road.
  2. The relevant DVLA form states a car declared off road cannot be used or parked on a public highway. If in doubt, you must contact the Council to establish whether the land is private or part of a public highway. Mr X told me he got permission from his local supermarket’s manager to park his car outside their store.
  3. The supermarket has some private land outside the store running next to the highway and a footpath. Mr X told me customers visiting the supermarket often park their cars on this land. That is where Mr X parked his car.
  4. The Council received a report that Mr X’s car was abandoned in October 2020.
  5. A highways officer inspected Mr X’s car on 3 November and issued an abandonment notice. They fixed the notice to Mr X’s windscreen. Mr X had seven days to contact the Council, or it would remove his car and could dispose of it.
  6. Mr X told me he saw the notice on his car the day before the Council removed it. However, he did not get around to contacting the Council before it took his car away.
  7. The Council wrote to the registered keeper of Mr X’s car on 12 November. It said it recovered the car as it appeared abandoned, and it could dispose of it.
  8. After the Council removed his car and put it in storage, Mr X said he contacted the DVLA to cancel his request to declare his car off road.
  9. Mr X complained to the Council on 18 December. He said:
    • The Council removed his car from private land, and he parked there with permission from the supermarket manager. As it is private land, he said the Council should have given the landowner 15 days’ notice before removing his car.
    • The Council did not give him enough time after placing a notice on his car. Given the national lockdown, he said the Council should not have followed the normal process.
    • He was self-isolating and did not see the notice.
    • The reason his car was off road is that he lost his job and cannot pay its upkeep.
  10. The Council sent its stage one complaint response on 5 January 2021. It said:
    • It checked Mr X’s car on 3 November after receiving a report from a member of the public. It found his car had no tax or MOT and was obstructing a footpath.
    • The footpath is about 0.7 metres wide. The supermarket only owns the land up to 2.7 metres from the wall. The store manager should have told Mr X this before letting him park there.
    • Mr X’s car was obstructing the highway as well being in the area owned by the supermarket. The seven day notice it issued was therefore correct and lawful.
    • It did not hear from Mr X after seven days, so it removed his car on 11 November.
    • It could destroy the car after 21 days, but Mr X phoned the Council on 2 December.
    • Storage costs stood at £1,110. £150 for the removal fee and 48 days storage at £20 per day.
  11. Mr X asked to escalate his complaint on 11 January. He asked the Council not to dispose of his car.
  12. The Council sent its final complaint response on 1 February. It said its stage one response set out the Council’s investigation and actions and Mr X did not give reasons to reconsider the decision.
  13. The Council said it had not disposed of Mr X’s car, but it would do so after 5 February 2021 if Mr X did not collect it. As a gesture of goodwill, due to COVID-19, the Council offered to reduce its storage fees to £650. The offer was open until 4pm on 5 February.
  14. Mr X then contacted the Council again. He said he had asked the Council to delay the result until he provided more information. He felt the Council missed the main points of his complaint, namely:
    • The Council did not give enough notice before removing his car on 11 November, given the country went into national lockdown on 5 November. He said the Government suspended debt collection during this time.
    • It defies logic to say his car was covering the adopted highway. He said the position he parked his car was to prevent obstruction, and that if he parked closer to the supermarket then his car would cause an obstruction.
    • The ownership of his car is unclear as it was due to go back to the finance company.
  15. If his complaint was not upheld, Mr X asked the Council not to dispose of his car and allow him to pay the £650 storage fee by instalments.
  16. The Council said it emailed Mr X on 14 January asking for more information, but he did not provide any. It said it cannot accept payment by instalments. It offered to extend the deadline until 12 February to give Mr X more time to pay.
  17. Mr X said he was ready to complain to the Ombudsman. He asked the Council why it was dismissing the further information he gave.
  18. The Council noted the points Mr X raised. However, it said an officer reviewed Mr X’s complaint on 1 February and his comments did not change the result.
  19. Mr X brought his complaint to the Ombudsman on 11 March 2021.
  20. At the same time, Mr X sent a further email to the Council. He said the Council emailed him on 9 March to tell him it had not destroyed his car. He said this contradicts the emails it sent asking him to pay storage fees by 12 February. He asked why the Council did not confirm it had not disposed of his car. He said he had complained to the Ombudsman and asked the Council not to dispose of his car. He asked the Council how much the storage fees were.
  21. Internal Council emails state the Council did not dispose of Mr X’s car after 12 February because officers thought he intended to complain to the Ombudsman. In one email, a Council officer said:
  22. “As he has now escalated it to the ombudsman we will not take any payments or release the vehicle until after this has been resolved.
  23. Total costs for recovery to date is £1370. As Mr X has gone to the ombudsman we could freeze these costs pending the result so he does not incur further charges.”
  24. A further email from the same Council officer states:
  25. “Mr X has just been in contact and I have informed him on the process going forward. He was informed that until the investigation from the ombudsman has been resolved the vehicle will be held within the pound.
  26. The finance company have informed him that as he is now the owner of the vehicle so this will no longer be an issue for the Authority if we choose to dispose of it, which I suspect will not be the case as Mr X wants the (sic) it back.”
  27. While I have been investigating, Mr X further complained the Council continued to charge a fee for storing his car, despite earlier agreeing to freeze the charges until the result of the Ombudsman’s investigation.

Response to my enquiries

  1. The Council told me it received a report from a member of the public saying Mr X’s car had been left for a considerable amount of time.
  2. A highways officer investigated. They found the car did not hold up-to-date tax or MOT. A rubber seal was hanging from one door and the wheel discs had rust. The officer considered this suggested the car had not moved for some time. The officer also considered the car was obstructing a pedestrian walkway owned by the Council and was infringing a Traffic Regulation Order as there are double yellow lines on the highway. The officer decided to issue a seven-day notice because the car was on the highway causing an obstruction.
  3. The Council said it has its own software which establishes the highway. It gave me a copy of a map showing the location of Mr X’s car, partly on highway land.
  4. The Council told me it does not have a duty to contact private landowners before removing cars left on the public highway. It said it only became aware afterwards that the landowner may have given Mr X permission to park his car where he did, but they had no authority to do so.
  5. The Council said it could have been criticised for not fulfilling its duty to keep the highway free from obstruction if it left Mr X’s car. Particularly if any incident arose.
  6. The Council said after learning more about the background to Mr X’s circumstances, and possible financial hardship caused by COVID-19, it agreed to significantly reduce its normal storage fees. It said it did not agree to freeze its storage fees while the Ombudsman investigated Mr X’s complaint.

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  1. The Council was told Mr X’s car had been stationary for a significant amount of time. It acted on that report and a highways officer considered the car was abandoned. The officer considered Mr X’s car had not moved for some time.
  2. I have checked the MOT history of Mr X’s car, and found it expired on 2 October 2020. That meant Mr X could not legally drive his car for about a month before the Council inspected it.
  3. The Government guidance says it is up to councils to decide whether a car is abandoned. Based on the highways officer’s observations, I consider they were entitled to decide Mr X’s car was stationary for a significant amount of time and therefore abandoned.
  4. Mr X said he got permission from the supermarket manager to park his car outside the store, on what he thought was private land. However, it turns out the land is not wholly private and forms part of the public highway. The Council therefore acted properly by placing a seven-day notice on Mr X’s car.
  5. The Council issued the abandonment notice on 3 November 2020, before the Government introduced new national lockdown measures. While Mr X may have wanted more time to contact the Council before it removed his car, he was aware of the notice the day before the Council removed his car. The onus was on Mr X to act promptly. He failed to do so. That was not the fault of the Council.
  6. Mr X referred to the Government suspending debt enforcement during COVID-19. While this may have been the case, there was no specific Government guidance about removal of abandoned vehicles. Additionally, the Council has so far not pursued the storage fees Mr X incurred as a debt. The Council was mindful of the impact COVID-19 had on Mr X, and it agreed to reduce its storage fees.
  7. Mr X now complains the Council continued to charge storage fees while the Ombudsman investigated. He said it had agreed not to. The Council told me it did not agree to freeze the storage charges.
  8. I consider the internal emails referred to at paragraphs 43 and 48 above show the Council was considering freezing Mr X’s storage fees. An officer discussed this possibility and also stated that the Council would hold Mr X’s car while the Ombudsman investigated and would not accept any payment or release the car to him until our investigation is complete. The officer then confirmed they told Mr X the Council would hold his car until his complaint was resolved. That was fault.
  9. If an owner asks for their car back, and is willing to pay the Council’s storage fees, the Council cannot refuse. It must return the car.
  10. The Ombudsman would not fault a council for continuing to hold a car, with the owner’s agreement, if no further fees were incurred. However, I do not consider it is acceptable for a council to insist on holding a car for an unknown length of time while continuing to charge the owner a storage fee.
  11. As a result of the Council’s fault, Mr X suffered raised expectations because he thought the Council was not going to charge any further fees. He suffered distress when he learned the storage fees had significantly increased.

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Agreed Action

  1. The Council had already agreed to charge Mr X £650 up to 12 February. It then stored the car for an extra 27 days (until 11 March).
  2. The Council also agreed not to charge Mr X any further storage fees after 11 March 2021.
  3. The Council is to confirm this to Mr X within four weeks of my final decision.

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Final decision

  1. Subject to further comments by Mr X and the Council, I intend to complete my investigation. At this stage, the Ombudsman has not found evidence of fault in the Council’s decision to remove Mr X’s car. However, there was subsequent fault in the way the Council continued to hold Mr X’s car and charge storage fees.

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Investigator's decision on behalf of the Ombudsman

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