Decision : Upheld
Decision date : 19 Mar 2020
The Ombudsman's final decision:
Summary: Mrs X says the Council wrongly refused to refund a parking ticket. The proper place for considering this was the Traffic Penalty Tribunal. However, the Council did not give Mrs X the opportunity to have her case heard, which is an injustice. The Council has agreed to our recommendations and has cancelled the parking ticket.
- Mrs X says the Council has wrongly refused to refund a parking fine. Mrs X considers her injustice is that she has been treated unfairly.
The Ombudsman’s role and powers
- 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)
- The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
- 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)
- 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)
How I considered this complaint
- I considered the complaint file from Mrs X and made enquiries with the Council.
- I researched the relevant law and guidance.
- Both the Council and the complainant have been given the opportunity to comment on this decision. I have amended its contents to reflect the observations made.
- A penalty charge notice (PCN) is a contravention of parking regulations. It can be paid, contested by appeal or contested by defending a claim for payment under the small claims track of the county court.
- If a person pays the fine within 14 days, the payment is halved. A person can make an informal appeal to a council, for instance, if they do not think the PCN is justified.
- When the council considers a person’s informal appeal, we would expect to see an explanation if the Council decides to reject that appeal, addressing any reasons for rejection.
- A council should always make it clear that an owner who has an informal challenge rejected can still make a formal challenge if an NTO is served.
- If the council rejects the informal appeal request, it will send the person a ‘Notice to Owner’ (NTO), which officially orders the person to pay the original charge, providing 28 days more to pay. Government Guidance says that it the PCN is paid during this period, the case is considered to be settled.
- The NTO should tell the person how to make a formal appeal.
- If a person decides to make representations against the PCN, the Council must consider these. If the council rejects the representation, it must serve a Notice of Rejection (NoR) stating that it will issue a charge certificate unless the penalty is paid or an appeal made to an adjudicator. The council should give the owner clear and full reasons for its decision on a representation. The statutory guidance for local authorities on enforcement of parking contraventions advises that a failure to do so may be seen as maladministration. ( para 10.22, The Secretary of State's Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions)
- There are a number of grounds upon which an independent adjudicator can instruct a council to cancel a PCN. If none of the grounds apply, the adjudicator can also recommend that the PCN is cancelled because of a ‘compelling reason’. The Council must then consider the recommendation and make a formal response.
- An appeal to an adjudicator should be made within 28 days of the date of service of the NoR. However, an adjudicator has the discretion in appropriate circumstances to consider an appeal made after 28 days.
- In May 2018, Mrs X thought she had paid for parking using a parking app on her phone. However, she says she did not realise that her parking app was not registered to her car, but to her husband’s car. Therefore, her payment was registered against the wrong licence plate.
- A PCN was placed on her car. She texted the Council immediately and said she had already paid.
- The Council responded. It explained that she was using a different vehicle to the one that was set up for parking. So, her payment was not recognised.
- The letter said she had a choice how to respond:
- She could pay the fine at a discounted rate within 14 days.
- If not, she could pay the full fine of £70.
- If she did not pay the fine within 28 days, she would be issued with an NTO.
- She was informed that the NTO would give her the chance to formally challenge the PCN. The Council said that even if the Council had already rejected her informal appeal, it would consider any representations at the formal stage. She was told that if the Council rejected her formal representations, she would be able to appeal to an independent adjudicator.
- Nine days after the Council offered Mrs X the opportunity to pay at a discounted rate, Mrs X emailed the Council. She repeated that she had paid for parking using the pay by phone app. She accepted that she had not changed the car registration that was connected to the pay app from her husband’s car to her own. She said that as she was a new user of the app she felt it was an understandable mistake. She said the Council must be able to see the payment registered to her husband’s car, which obviously was not parked in the spot she had been given the PCN in.
- The Council responded 36 days after the letter offering Mrs X the opportunity to pay at a discounted rate.
- In August 2018 the Council sent her an NTO. It offered her the chance to make representations about the PCN within 28 days. She was told if she did not make representations or make payment, a 50% charge would be added to the fine.
- On the last day representations were due, the Council received representations from Mrs X.
- On 13 September 2018, the Council sent Mrs X a bill for an increased fine of £105. She was warned if she did not pay she could incur enforcement fees.
- On 17 September 2018, Mrs X complained to the Council. She said she had made representations in time and should not have been given an additional charge.
- On 4 October 2018 the Council said payment had been made and the case had been closed.
- On 22 October 2018 Mrs X complained again to the Council, again arguing that she had appealed in time. She chased a response.
- On 7 February 2019 the Council responded. It said it had decided not to cancel her PCN. It noted that Mrs X had mistakenly selected/typed the wrong vehicle details when making payment. However, it said that this was not a ground for cancelling a PCN. It said it is up to drivers to check the details they use carefully when making payment.
- However, it noted that she had sent her representations to the Council within time. It therefore refunded her £35 to reduce the amount paid to what it had been before the 50% charge had been applied.
- In August 2019 Mrs X says she wanted the case referred to an adjudicator. The Council responded that as she has paid her PCN, she had lost her right to challenge it.
What should have happened - analysis
- When Mrs X responded to the Council’s notice to occupier, within time, the Council should have given her the opportunity for her case to be heard by a tribunal. However, this did not happen. She lost the opportunity for her appeal to be heard.
- The Council was, on the evidence seen so far, at fault for failing to send Mrs X a NoR. It was also at fault for failing to do so immediately, when she pointed out that she had made representations in good time, only four days after the Council mistakenly sent her a charge certificate.
- It was further at fault for informing Mrs X she could no longer challenge the PCN because she had made payment. It is correct that in usual circumstances, if a person wishes to challenge a PCN, councils will ordinarily close the case. Government Guidance for local authorities says that if the fine is paid within 28 days, the parking dispute is considered settled.
- But in this case, Mrs X understandably felt forced to make payment when she received a charge certificate and told she could incur further enforcement charges if she did not pay. She attempted to make representations rather than pay the fine, but the system did not work as it should have done and her representations were not progressed to enable her to appeal.
- The Council accepted she had made representations challenging the PCN in time and it must have been very frustrating for Mrs X to find that in paying a charge that should not have been applied to her fine, she was then blocked from continuing her challenge.
- I am unable to say what view the tribunal would have taken of Mrs X’s appeal. The Council is right that her grounds of appeal did not form any of the grounds that can be used to appeal PCNs. But the tribunal may have considered she had a compelling reason.
- After receiving my draft decision, the Council accepted its shortfalls in the handling of this case. It has agreed to the below recommendations. It has also taken the welcome step of reconsidering the case. It has decided it is appropriate to cancel the PCN and has arranged to refund the PCN amount paid and write to Mrs X to confirm this.
- Within one month of the final decision, the Council should:
- Apologise to Mrs X for the faults identified in this statement.
- Pay Mrs X the sum of £100 to acknowledge the time and trouble caused by the Council’s approach in this case.
- Within two months of the final decision, the Council should:
- Take steps, including training for relevant staff, to ensure officers progress representations that have been made on time, in the proper way.
- I found fault with the Council and it has agreed to implement the suggested recommendations. It has also gone one step further and remedied Mrs X further by cancelling the PCN. I have now d completed my investigation.
Investigator's decision on behalf of the Ombudsman