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Royal Borough of Kingston upon Thames (17 008 151)

Category : Transport and highways > Parking and other penalties

Decision : Not upheld

Decision date : 29 Mar 2018

The Ombudsman's final decision:

Summary: There is no evidence of fault in the way the Council responded to Mr B about an unpaid Penalty Charge Notice.

The complaint

  1. Mr B complains about the Council’s issuing of Penalty Charge Notice (PCN) and its customer service. He says:
    • The Council should not have pursued the PCN as he did not live at the address.
    • The Council gave him incorrect advice.
    • The staff were rude and bullied him.
    • The Council did not respond to his complaint correctly.
    • The Council should reimburse his court fee and compensate him for a day off work when he attended court.

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What I have investigated

  1. I have investigated the advice the Council gave to Mr B, the allegation of bullying and rudeness and the Council’s complaint response. Paragraph 37 explains why I have not further investigated his liability for the PCN itself.

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The Ombudsman’s role and powers

  1. 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 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)
  2. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), 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)

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How I considered this complaint

  1. I have discussed the complaint with Mr B and I have considered the documents he and the Council have sent and both sides’ comments on the draft decision.

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What I found

  1. Bus lane contraventions are enforced in Greater London under the London Local Authorities and Transport for London Act 2003.
  2. This is a summary of the procedures relevant to Mr B’s complaint:
    • The council issues a Penalty Charge Notice (PCN) and, if the motorist does not pay the PCN within 28 days, the council may send an enforcement notice.
    • The notice gives the motorist a chance to either pay the full amount or make representations within 28 days. If the motorist does not appeal or the appeal is not successful, then the council issues a charge certificate.
    • If the charge remains unpaid 14 days later, the council can register it as a debt at the Traffic Enforcement Centre (TEC) at Northampton County Court.
    • The council then sends an order to the motorist which says that they have 21 days to either pay the amount outstanding or make a witness statement to the TEC.
    • If no witness statement has been sent and the debt remains unpaid, the council may apply for a warrant of execution to allow the bailiffs to recover the amount owing. The bailiffs may also add their own charges.
    • Warrants normally last for one year, but can be re-issued for a further length of time if certain circumstances are met.

DVLA

  1. The Road Vehicles (Registration and Licensing) Regulations 2002 say that it is the duty of the ‘keeper’ of a car to immediately notify the DVLA of any changes of address.
  2. Enforcement authorities will initially send any formal documents to the ‘keeper’ of the car as provided by the DVLA.
  3. The Vehicle Excise and Registration Act 1994 says it is an offence for a person to use a vehicle which is not registered correctly and the driver can be fined for this offence.

What happened

  1. Mr B moved from address C in 2008. He now lives at address D. He did not inform the DVLA of his new address. He drove his car in a bus lane on 15 September 2015.
  2. The Council contacted the DVLA which said Mr B lived at address C. The Council did the following:
    • It sent the Penalty Charge Notice (PCN) to address C on 22 September 2015, the Enforcement Notice on 29 October 2015 and the charge certificate on 3 December 2015.
    • It registered the debt with the Traffic Enforcement Centre on 15 January 2016 and posted the Order for Recovery on 19 January 2016.
    • It obtained a Warrant of Execution on 16 March 2016 and this was handed to the bailiffs for service two days later.
  3. The bailiffs visited the address on 4 April 2016. On 7 April 2016, a woman rang the bailiffs and said Mr B no longer lived at address C. The bailiffs advised her she would need to send in a utility or council tax bill to prove this, but she said she would not do this. The bailiffs attended again on 12 October 2016.
  4. Mr B contacted the bailiffs and the Council in early November 2016. He said he had found out about the PCN and did not live at address C.
  5. On 23 November 2016 Mr B applied for permission to file an out of time statutory declaration with the Traffic Enforcement Centre (TEC). He explained to the TEC that he had not received the documents as he did not live at address C. The Council wrote to the TEC. It explained that Mr B’s car was registered at address C with the DVLA and therefore the Enforcement Notice had been correctly served.
  6. The court refused Mr B’s application to file a statutory declaration on 7 January 2017 and ordered him to pay the PCN. It said he had 14 days to appeal the decision.
  7. Mr B called the Council several times in January and February 2017. The Council said he had to follow the statutory procedure if he wanted to appeal the PCN. Mr B threatened to commit suicide and to emigrate if the debt was not cancelled.
  8. Mr B complained to the Council on 13 February 2017 about the poor service and misinformation. He said:
    • There had been an abuse of power and the Council was intimidating and extorting money from innocent people.
    • The Council wrongly advised him that if he paid the fee for the appeal, he could not claim his costs back from the Council in court.
    • It wrongly advised him the warrant lasted forever.
  9. The Council replied on 21 February 2017. It said:
    • It said Mr B had to follow the statutory process if he wanted to challenge the PCN. This could not be dealt with as part of the complaints procedure.
    • Warrants usually lasted up to one year so it apologised if incorrect information about the warrant had been given.
    • It was Mr B’s duty to inform the DVLA of his new address and he had failed to do this. It said the Council followed the correct process in pursuing Mr B at the address held by the DVLA for his car.
    • It said Mr B still had the right to file a form N244 but the Council would not reimburse his costs for this. It had no legal obligation to reimburse the costs of motorists who pursued an appeal in court.
  10. Mr B replied the following day and said the Council had not answered his complaint. He said:
    • The Council talked about reimbursing his costs but that was not his complaint. He said he had a right to claim costs against the Council in court and the Council had ignored this.
    • He forgot to inform the DVLA in 2008 as he did not have a permanent address at the time and suffered from serious health problems.
  11. The Council informed Mr B on 27 February 2017 that his time to appeal (14 days) and file form N244 had run out, but it agreed to give him an extra week.
  12. Mr B made several requests to the Council for documents and recordings of telephone conversations between him and the Council. He said he needed those to support his claim of costs against the Council. He said the Council had given him wrong advice, had been racist and had bullied him.
  13. Mr B filed a N244 form at the court on 8 March 2017. The warrant expired on 23 March 2017. The hearing listed for 6 June 2017 was adjourned at Mr B’s request as he was waiting for further information from the Council in support of his claim.
  14. On 17 July 2017 Mr B made a further complaint about three telephone calls to the Council. He said that staff had been rude and unhelpful. He said staff had abused their position and had been unprofessional and disrespectful.
  15. The Council provided a stage 1 complaint reply on 20 July 2017. It said:
    • It had followed the correct process and it had no legal obligation to reimburse his legal costs.
    • It had listened to the calls and said Mr B had taken an aggressive tone.
    • It informed Mr B that the warrant expired on 27 April 2017 and that the Council had decided to withdraw the PCN at its own discretion and as part of the process for an expired warrant.
  16. On 13 July 2017, the court gave permission to Mr B to file a statutory declaration out of time.
  17. On 16 August 2017, the court ordered that the order for recovery be revoked and that the charge certificate and the notice to the owner/ enforcement notice be cancelled. The order said that this did not cancel the original PCN. However, as the Council had already withdrawn this at its own discretion, Mr B now had nothing to pay.

Analysis

  1. I have listened to the telephone calls Mr B complains about. I find no fault in the way the Council staff spoke to Mr B. Mr B rang a number of times with questions about the PCN, the enforcement procedure and the legal process.
  2. There was no evidence, from the calls that I listened to, that the council officer was rude, bullying or intimidating to Mr B. The officer remained polite throughout the conversations and tried to answer Mr B’s questions. It is true that some of the conversations were terminated but that is because the officer had explained the same thing several times and nothing further could be gained from continuing the conversation.
  3. The Council has already apologised for the fact that one of its staff said the warrant was forever. I have listened to that call. Mr B had already obtained legal advice when he rang and had been advised that a warrant only lasts for a year. He explained this to the officer. The officer said that the bailiffs could re-issue the warrant and that the warrant would remain with the bailiffs forever. Mr B asked whether she was saying that the warrant would last forever and the officer said he should speak to the bailiffs.
  4. Mr B has not suffered any injustice as a result of the advice regarding the warrant as he clearly knew what the law was and knew the warrant only lasted for a year.
  5. I find no fault in the Council’s advice that it did not have a duty to pay Mr B’s fees if he decided to pursue action in court. This advice was correct. It is also true that Mr B could ask for costs against the Council in court. It is the court’s decision whether to award costs or not.
  6. I find no fault in the Council’s response to the complaint. Mr B’s complaint was partly about the PCN and the enforcement of the debt. The Council explained it could not deal with this as part of the complaints process as there was a statutory process which Mr B had to follow. However, it responded to his other complaints.

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Final decision

  1. I have completed my investigation and have not found fault by the Council.

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Parts of the complaint that I did not investigate

  1. I have not investigated the PCN and subsequent orders. Mr B has used his right of appeal. This is therefore out of the Ombudsman’s jurisdiction. In any event, the TEC revoked the order for recovery and cancelled the charge certificate and notice. The warrant has expired and the Council has decided not to pursue the PCN at its own discretion. Therefore, nothing can be achieved by further investigation of these issues.

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Investigator's decision on behalf of the Ombudsman

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