Summary: Mr F says the Council wrongly refused to consider his informal challenge to a penalty charge notice (PCN) for a parking violation and did not tell him that it had done so. He says this caused him injustice in that he lost the chance to appeal the penalty through the courts. The Council was at fault. In the interests of fairness, it should have used its discretion to consider the informal challenge. It has agreed to refund Mr F’s money and apologise. It has also agreed to consider informal challenges to PCNs in future.

The complaint

1. The complainant, who I have called Mr F, says the Council:
1. did not consider his informal challenge to a penalty charge notice (PCN) for a parking violation; and
2. Did not tell him it had decided not to do so.
2. Mr F says this caused him injustice because he paid the PCN and lost his right to challenge it.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
4. 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)
5. The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
6. 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

7. I spoke to Mr F about his complaint, considered the Council’s response to my enquiries and referred to:
• The Traffic Management Act 2004
• The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (SI 2007/3483)
• The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (SI 2007/3482)
• Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions.
8. I sent my draft decision to Mr F and to the Council and invited their comments.

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What I found

What should happen

9. There is a set procedure which councils must follow when pursuing Penalty Charge Notices (PCNs) for parking contraventions and handling appeals against them. When a council issues a PCN, the motorist has 28 days to pay the penalty charge or appeal; appeals at this stage are known as ‘informal challenges’.
10. If the motorist does not pay or make an informal challenge, the council will issue a charge certificate, increasing the amount payable by 50%. It may then apply to the Traffic Enforcement Centre (TEC) at Northampton County Court to register the debt, before instructing enforcement agents (bailiffs) to recover it.
11. What happens when a motorist makes an informal challenge and pays at the same time, is not specifically covered in the legislation or in the Secretary of State’s ‘Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions’.

The Council’s approach

12. The Council’s website says ‘We offer a discounted rate for prompt payment of PCNs. If you intend to appeal, please don’t make or send payment. A payment will close the case down and you will not longer be able to appeal’.

The Ombudsman’s approach

13. The Ombudsman’s view is that there is no legal foundation for an assertion that the Council must close the case on payment of the reduced penalty. The Council will, therefore, always retain a discretion to consider an informal challenge even when the reduced penalty is paid. Where a motorist makes it clear he or she wishes to make an informal challenge to the PCN, the Council should, therefore, consider that challenge.
14. A failure to do so, the Ombudsman says, goes against the spirit of the Statutory Guidance and is neither fair nor good administrative practice. This is because councils understand the process while motorists may well not. It is therefore unfair for the council not to exercise discretion to the disadvantage of the motorist.

What happened

15. Mr F lives in the Council’s area. He is a blue badge holder. This entitles him to park free of charge in council parking spaces.
16. On a day in summer 2019, Mr F parked his car in a parking space near his work. He says he displayed his blue badge. When he returned, he saw he had been issued a PCN. The ticket stated his blue badge was not properly displayed.
17. Mr F believed that the PCN had been wrongly issued. However, he wished to ensure that he would not have to pay the full PCN rate. He says he therefore wrote to the Council enclosing a cheque and a letter which explained that, while he had paid, he wished to make an informal challenge to the PCN.
18. Mr F received no response from APCOA. His cheque was cashed. He complained to the Council. The Council said that, as he had paid the and later to the Ombudsman.
19. In response to my enquiries, the Council says it has reviewed the case and found Mr F was not parked in a time limited bay and that therefore, he should not have received a PCN. It therefore says it will refund Mr F’s £35 and apologise to him for the stress and inconvenience caused.
20. The Council adds that, since the incident, the Council’s contract with APCOA has ended and it has changed its procedures so similar incidents should not occur.
21. However, it adds that it does not accept it had to consider Mr F’s informal challenge because he paid the penalty. It says that, therefore, it deemed the case closed, in accordance with its interpretation of the Guidance for Local Authorities on Parking Restrictions and did not consider the informal challenge. It says this approach is in accord with the guidance.
22. The Council does accept, however, that it should have told Mr F that it had decided not to consider his challenge.

Was there fault causing injustice?

23. The Ombudsman has considered this issue in depth. Our position is that councils have discretion to consider informal challenges even when a payment is made at the same time and, in the interests of fairness, should use that discretion to consider the informal challenge.
24. The Council has accepted that it was also at fault for its failure to tell Mr F that it had closed his case and would not consider his informal challenge.
25. I am concerned that there may have been others who were treated similarly by the Council. I asked the Council to tell me how many people had had their informal challenges rejected in similar circumstances. It says it does not know and cannot find out because its system does not create such records.
26. I do not intend to insist that the Council discovers this information because it has recently altered its parking enforcement arrangements bringing some of the functions back inhouse. Therefore, I have taken the view that this complaint can draw a line under the previous system.
27. The Council has agreed to monitor closed cases daily. Where it identifies a closed case as one where the motorist made an informal challenge at the same time as payment, it will consider the challenge and write to the motorist to confirm its decision. Where it accepts the challenge, it will refund the money. If the motorist pays by cheque, the Council says it will not cash it unless it rejects the informal challenge. It says it will share this information with its outsourced payments processing company at their next meeting.

Agreed action

28. The Council has already agreed to apologise and refund Mr F’s £35 within two weeks of the date of this decision.
29. It has also agreed to change its systems so that it considers informal challenges even where they are made alongside payment. It must notify the Ombudsman that it has done so within one month of the date of the decision.

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Final decision

30. I have reached a decision that the Council was at fault. The Council has agreed to my suggested remedy and has made suggestions of its own to prevent future occurrences. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman