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London Borough of Bromley (17 019 028)

Category : Transport and highways > Parking and other penalties

Decision : Closed after initial enquiries

Decision date : 29 Mar 2018

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate this complaint about a penalty charge notice issued by the Council for a parking contravention. The Council has refunded money paid by the complainant without him needing to appeal to a tribunal. The Ombudsman cannot provide the outcome the complainant seeks which is action against the officer who issued the penalty charge notice.

The complaint

  1. The complainant, Mr C, has complained about a penalty charge notice issued by a Civil Enforcement Officer (CEO) for a parking contravention. The Council has accepted it issued the penalty charge notice in error and has refunded the payment Mr C made. However, Mr C says the Council should take action against the CEO to prevent a recurrence affecting other people.
  2. Mr C also believes the Council is acting unlawfully in respect of its fiduciary duties.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)
  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’.
  4. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe:
    • it is unlikely we would find fault;
    • the fault has not caused injustice to the person who complained;
    • the injustice is not significant enough to justify our involvement; or
    • we cannot achieve the outcome someone wants. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

  1. I have considered what Mr C said in his complaint and background information provided by the Council. Mr C also commented on a draft before I made this decision.

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What I found

  1. The Council was enforcing the parking restriction and taking recovery action using procedures set out in the Traffic Management Act 2004 and associated Regulations. Councils and motorists must follow these procedures.
  2. Mr C had a right of appeal against the penalty charge notice to London Tribunals which is a statutory tribunal. An appeal to London Tribunals is free and relatively easy to use. It is also the way in which Parliament expects people to challenge a penalty charge notice. For these reasons, the restriction I describe in paragraph 4 generally applies.

Summary of events

  1. The CEO issued a penalty charge notice to Mr C in the belief he had parked where this was not allowed. Mr C made an informal challenge which the Council rejected.
  2. The Council then sent a notice to owner to Mr C. He made formal representations to the Council but also paid the penalty charge.
  3. The Council considered Mr C’s representations and decided to cancel the penalty charge notice and refund the money he had paid.
  4. Mr C has pursued the matter with the Council seeking some action against the CEO.

Analysis

The penalty charge notice

  1. Had the Council not cancelled the penalty charge notice, Mr C could have appealed to London Tribunals. For this reason, we will not investigate any complaint about the penalty charge notice itself.
  2. Any other person receiving a penalty charge notice would have the same right of appeal.
  3. The Council has accepted the CEO made an error in Mr C’s case. It was for the Council to decide what action, if any, to take as a result. Whatever its decision, I do not consider this impacts on Mr C personally.
  4. We consider complaints against the Council as a body. Even where we find fault, we cannot recommend the Council takes action against an individual member of its staff.

Fiduciary duty

  1. Mr C has sought to argue the Council is in breach of its fiduciary duty. He has cited case law which refers to a council’s fiduciary duty to its rate payers. I do not consider this is relevant to the Council’s actions when enforcing parking restrictions under the Traffic Management Act 2004. In any case, such a breach would affect ‘all or most’ of the people in the Council’s area and so would not be within our jurisdiction.

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Final decision

  1. We will not investigate this complaint. This is because we are unlikely to find fault within our jurisdiction that has caused Mr C significant injustice. Further, we cannot provide the outcome he seeks.

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Investigator's decision on behalf of the Ombudsman

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