Summary: Mr B complained the Council wrongly led him to believe he had a right of appeal in court after rejecting his appeal about an Excess Charge Notice. He also complained the Council’s correspondence did not explain if it took him to court, he would incur additional costs. He argued he may have made a different choice if he had known in advance. Mr B did not make an appeal so there was no injustice form the first part of his complaint. Given Mr B accepted the contravention but at no time attempted to pay it, I find it unlikely the outcome would have been different if the Council’s letter had been clearer. The costs Mr B incurred were because of the contravention he committed and not because of the actions of the Council.

The complaint

1. The complainant, who I will call Mr B, says the Council wrongly told him he had a right of appeal in the Magistrates’ Court to challenge an Excess Charge Notice. The Council did not make clear that it would be a court prosecution and did not explain the associated costs. Mr B says the Council’s errors resulted in a financial loss of £251 and he would like the Council to pay back this cost. Mr B says the court case was heard in a court 100 miles from where he lives.

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What I have investigated

2. I have investigated matters up to the Council’s decision to commence proceedings. The end of this statement explains my reasons for not investigating issues after that time.

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The Ombudsman’s role and powers

3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
4. 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)
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 considered:
• Information provided by Mr B and the Council.
• The Road Traffic Regulation Act 1984.
7. I shared a draft of this statement for comments, but received no reply from the Council or Mr B.

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What I found

8. The Road Traffic Regulation Act 1984 allows Councils to designate paying parking places on highways and to provide off-street parking places. If you fail to pay the right charge, or comply with the parking rules, it is a criminal offence. The Council can issue an Excess Charge Notice (ECN), if the person does not pay the Council can take the matter to court.
9. There is no right of appeal to an ECN in law, however the Council chooses to allow an appeal to ensure it has not made an error or there are no mitigating circumstances before it goes to court.
10. Mr B parked in a car park and failed to display the relevant parking ticket. The Council issued an ECN; Mr B appealed because he had forgotten to display his parking permit. The Council dismissed the appeal as Mr B was responsible to display the proper ticket, and the Council did not feel forgetting to do so was a good reason to waive the charge. Mr B still had time to pay the reduced charge of £40, after which it went up to £60. The letter said, “unless new evidence or information is being provided, there is no further appeal against this excess charge except in the Magistrates Court.” Mr B did not pay.
11. The Council passed the matter to its legal department who took Mr B to Court for failing to pay the ECN. Mr B pleaded guilty and says he paid costs and fines totalling £251.

Was there fault causing injustice?

12. Mr B argues the Council is at fault for saying there was a right of appeal in the Magistrates’ Court, and for not giving information about the potential costs.
13. The Council says the term ‘appeal’ is used to indicate that should Mr B disagree with the parking charge; he could make a request to the Magistrates’ Court to overturn the decision of the Council. This would be done by way of a trial, with Mr B pleading not guilty.
14. The letter says, “unless new evidence or information is being provided, there is no further appeal against this excess charge except in the Magistrates Court.”
15. Technically the Council’s letter is correct to say there is no further right of appeal except giving your appeal in court. But I find the wording of the Council’s letter misleads the reader into thinking they can appeal to the Magistrates’ Court. It is not clear the Council will prosecute you. Mr B is right the letter makes no mention of added costs. It is unlikely at this stage the Council would be able to give specific information on added costs, but it could say that it would likely claim back its costs of pursuing to court. Individuals can then make an informed decision on whether to pay at that stage.
16. After the letter in question the Council’s legal department sent further correspondence to Mr B. The first letter was a ‘letter before action’ which confirmed the Council would commence legal proceedings, but they could be avoided if Mr B paid the £60 fine. I note this letter also did not refer to added costs. Mr B did not pay, nor ask what the legal proceedings would involve. The Council then issued Mr B with a legal pack, which explained it would be applying for costs of £150 as well as the £60 parking fine.
17. Mr B had the right to plead not guilty and put forward any mitigating factors, the court would then decide whether to award the parking fine and the Council’s costs. Mr B chose to plead guilty and was therefore liable for the costs of the prosecution.
18. I note that it is not until the Council started legal proceedings that it made Mr B aware there would be added costs. Mr B did not have all the information to make a fully informed decision at an earlier stage as to whether to pay the fine. However, in this case I find on the balance of probabilities it is unlikely to have altered Mr B’s actions. Mr B accepted the contravention, he admitted he did not display the required parking ticket and he pleaded guilty in court. Mr B therefore accepted the fine was due but made no effort to pay it. Mr B had an opportunity to pay a lower fine of £40 but did not pay it. Following the Council’s first letter Mr B did not pay, nor try to seek any appeal to the Magistrates’ Court, nor ask the Council for clarity on the next actions or options available to him. Mr B could have mitigated any injustice he claims by doing any of these things.
19. The Council acted in accordance with the law in pursuing an ECN. In fact, the Council allows more opportunities than required in law to allow the person an opportunity to pay the fine and avoid going to court.
20. However, as the Council chooses to allow these extra opportunities, they are part of its service and the Ombudsman can consider whether there is fault in its actions. I find the Council is at fault that its letter was misleading about the individual’s right of appeal, and that it does not provide information about the likelihood of added costs until after it has issued court proceedings.
21. I do not find the Council’s actions caused Mr B’s claimed injustice of £251 for the parking fine and court costs. The Council was not at fault for pursuing the case to court in accordance with the law. The costs Mr B incurred are because of his parking contravention and were awarded by the court. I cannot comment on a court’s decision.
22. The Council acknowledges it can learn from this complaint and the wording of the letter can be improved upon. The Council has now amended the wording within the appeal rejection letter. If the Council’s amendment has not included mention of potential added costs, then I suggest it includes this to ensure people can make an informed decision about whether to pay or contest a fine. It is also in the Council’s interests for valid fines to be paid sooner rather than later, instead of having the cost and resource of enforcing them.

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Final decision

23. I have completed my investigation on the basis the Council’s actions did not cause Mr B an injustice.

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Parts of the complaint that I did not investigate

24. I did not investigate any issues relating to the court case as they are outside of the Ombudsman’s jurisdiction, in accordance with paragraph three. I have not considered Mr B’s concern about which court heard the case, as that is not within my jurisdiction and is something that happened after the legal proceedings commenced. The costs were higher than the £210 mentioned by the Council (£60 fine and £150 costs) but that is a decision of the court and is not within my jurisdiction to investigate.

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Investigator's decision on behalf of the Ombudsman