Summary: Mr X complained the Council did not allow him to challenge a penalty charge notice for a bus lane contravention because he had already paid the charge. The Ombudsman finds the Council was at fault. The Council has agreed to consider Mr X’s representations.

The complaint

1. Mr X complained the Council did not allow him to challenge a penalty charge notice (PCN) for a bus lane contravention because he had already paid the charge. He said he paid the charge at the earliest opportunity but that did not mean he did not want to challenge the Council. He said the Council’s approach removed his right of appeal and that right should not be subject to payment.

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The Ombudsman’s role and powers

2. 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)
3. The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
4. 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

5. I have considered:
• Mr B’s complaint to the Ombudsman and his response to our first draft decision.
• The PCN issued to Mr X including the Council’s information on how to make representations and payment.
• Information provided by the Joint Committee of England and Wales for the Civil Enforcement of Parking and Traffic Regulations outside London (PATROL).
• Mr X and the Council both had the opportunity to comment on my draft decision.

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What I found

The Council’s enforcement process of PCN’s

6. The process for issuing and challenging bus lane PCN’s is set out in the Bus Lane Contraventions (Penalty Charges Adjudication and Enforcement) (England) Regulations 2005. Councils and motorists must follow these procedures although councils have discretion to stop enforcement or recovery action if they believe there are good reasons to do so.
7. Following a bus lane contravention, the Council issues a PCN. That tells the recipient what the contravention is and that they have 28 days to either challenge or pay the PCN. If they choose to pay the charge within 14 days, they get a 50% reduction.
8. The Regulations 2005 state that if a person makes representations within 28 days, the Council has a duty “to consider them and any supporting evidence provided”. If the PCN is challenged, the Council has 28 days to consider the challenge. If the Council rejects the challenge, it issues a Notice of Rejection (NOR). The Council offers the recipient of the PCN a further 14 days to pay the charge at the reduced rate following the NOR. Or, they can appeal the Council’s decision to the Traffic Penalty Tribunals (TPT).

What happened

9. The Council issued a PCN to Mr X in February 2019 following a bus lane contravention. The PCN stated he was required to pay £60 within 28 days, but that amount would be reduced to £30 if he paid within 14 days. It also said he had 28 days to make representations against the charge.
10. Mr X paid the discounted rate of £30. He also attempted to make representations but, the Council told him he could not because he had paid the charge. Mr X complained to the Council however it told him it could not consider his complaint as he chose not to follow the appeals process. The Council directed Mr X to the Ombudsman.
11. In response to my draft decision the Council said that if a motorist wants to make representations after they have paid a PCN, the Council will refund the payment whilst it considers representations. It said in this case it failed to do that.

My findings

12. Mr X said he did not realise he could not appeal the PCN if he paid the charge. He said he wanted to challenge the PCN but was concerned about the increase in the charge if he did not pay it promptly.
13. The 2005 Regulations state the Council is duty bound to consider representations regardless of whether the person has paid the PCN, when they are made within 28 days. The Council failed to do that. That was fault.

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Agreed Actions

14. Within one month of my final decision the Council has agreed to:
• Reopen Mr X’s case and consider his representations about the PCN.
• Remind appeals officers that it will refund the penalty charge if a motorist wants to make representations after the Council has received payment.

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Investigator's decision on behalf of the Ombudsman