Cornwall Council (19 018 304)

Category : Transport and highways > Parking and other penalties

Decision : Not upheld

Decision date : 01 Feb 2021

The Ombudsman's final decision:

Summary: Mr X complained about the way the Council dealt with his appeal against a parking fine it issued. The Ombudsman found the Council was not at fault.

The complaint

  1. Mr X complained about the way the Council dealt with his appeal against a parking fine it issued. He said the Council refused to accept his version of events, ignored his request for the appeal to be heard in court, and did not tell him it instructed enforcement agents.
  2. Mr X felt the Council’s decision was unfair and he could not state his case or provide further evidence.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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

  1. As part of the investigation, I have considered the following:
    • The complaint and the documents provided by the complainant.
    • Documents provided by the Council.
    • The Council’s Civil Parking Enforcement Procedures.
    • Traffic Management Act 2004 Operational Guidance to Local Authorities: Parking Policy and Enforcement (March 2015).
  2. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. If a car parks in breach of parking rules, a penalty charge notice (PCN) may follow.
  2. An informal challenge against the PCN can be made within 28 days of its issue. If the challenge is successful there is nothing to pay. The Council will issue a notice to owner (NTO) form if it rejects the appeal and the vehicle owner does not pay the fine.
  3. A formal appeal (also called representations) must be made within 28 days of receiving the NTO form. If the Council accepts the formal appeal it will cancel the PCN.
  4. If the Council rejects the appeal, the fine remains due, or the owner must appeal to an independent adjudicator (The Traffic Penalty Tribunal).
  5. The Council can issue a charge certificate, and the cost of the fine will increase, if the owner does not pay the fine or make an appeal.
  6. Once the Council issues a charge certificate, there is no further statutory right of appeal. The owner must pay the fine within 21 days or the Council may register the charge at Court. After the Council registers the charge it will send out a copy of the charging order with a Witness Statement or Statutory Declaration form, which the owner can complete to object to the PCN.
  7. If a Witness Statement or Statutory Declaration is made, the Council will consider whether to resend missing documentation or to refer the case to an independent adjudicator.
  8. If a Witness Statement or Statutory Declaration is not made, and the charge remains unpaid, the Council may apply to the Court for a Warrant of Execution allowing the debt to be collected by enforcement agents (EAs).

What happened

  1. A civil enforcement officer saw Mr X’s car parked in a restricted street on 27 February 2018. The Council issued Mr X a PCN the same day.
  2. Mr X made an informal challenge against the PCN to the Council on 1 March 2018. He said his car broke down and he left it in a safe place while getting jump leads to restart the battery.
  3. The Council rejected Mr X’s appeal on 22 March 2018. It said he had not raised grounds to cancel the PCN. The Council’s letter told Mr X he could make another challenge once it had sent him a NTO form, and he then had a right of appeal to an independent adjudicator.
  4. Mr X sent a further email to the Council. He said a judge should consider the case because he had broken down.
  5. The Council issued a NTO to Mr X on 11 April 2018. It gave him 28 days to make representations. The Council then issued Mr X with a Charge Certificate on 17 May 2018, giving Mr X 14 days to pay the PCN.
  6. Mr X wrote to the Council on 18 May 2018 making representations against the PCN.
  7. The Council emailed Mr X on 24 May 2018. It told him to ignore the Charge Certificate because it crossed in the post with his representations. It asked Mr X for evidence his car had broken down.
  8. The Council wrote to Mr X on 18 June 2018, rejecting his representations. It said there were not enough grounds to cancel the PCN. It told Mr X he had 28 days to appeal to the independent adjudicator and gave him details on how to do this. It also told Mr X it may serve a Charge Certificate and apply to Court to recover the debt if he did not appeal or pay.
  9. The Council issued a new Charge Certificate on 24 July 2018 after Mr X did not pay or appeal to the independent adjudicator. The Council told Mr X the fee increased by 50% to £105 and he had 14 days to pay or a warrant may be issued to EAs to recover the debt.
  10. Mr X sent an email to the Council on 25 July 2018. He repeated his previous appeal about his car breaking down. He refused to pay the charge as it was not his fault. He suggested the Council take the matter to Court.
  11. The Council replied on 26 July 2018. It said it gave Mr X details on how to appeal but, as he did not do so, he had lost the chance to contest the charge.
  12. The Traffic Enforcement Centre (TEC) at the County Court made an order for recovery of the unpaid PCN. A copy was sent to Mr X giving him until 24 September 2018 to pay the charge or file a Witness Statement at Court with grounds for why he should not have to pay.
  13. Mr X wrote a letter explaining he should not have to pay the charge because his car broke down. He asked for the case to be decided by a judge at a local Court. He sent this letter to the Council and it was received on 5 September 2018.
  14. The Council instructed EAs on 22 November 2018 to recover the debt from Mr X. The EAs issued a notice of enforcement to Mr X on 27 November 2018. This was sent to Mr X’s current address and is the same address we have for Mr X.
  15. The EAs had no contact with Mr X and carried out a retrace, finding another address for Mr X. This is the address we have recorded as Mr X’s previous address. The EAs then asked for permission from the TEC to change Mr X’s address on the enforcement notices.
  16. The TEC gave permission for the enforcement notice to be re-issued with the updated address on 8 June 2019.
  17. EAs left a letter for Mr X at the updated address on 27 August 2019. Mr X’s ex-wife telephoned the EAs to say Mr X no longer lived there but his name was still on the tenancy agreement. The EAs confirmed in that case they could still remove goods.
  18. Mr X paid the EAs on 29 August 2019 and telephoned the Council to confirm. He said he expected contact from the Court in September 2018 but never heard anything.
  19. Mr X emailed the Council on 16 October 2019 asking for an appointment to discuss the PCN. The Council told Mr X the case was closed, and he could complain if he was unhappy.
  20. Mr X telephoned the Council on 7 November 2019 to complain. He said he could not state his case in Court and could not send the requested evidence.
  21. The Council responded to Mr X’s complaint on 8 November 2019. It said the PCN is a civil matter and Mr X was not required to attend a Court hearing. It said it made Mr X aware of each step of the proceedings. It said the TEC gave Mr X full advice on how to make a Witness Statement. The Council concluded it dealt with the case correctly at all stages.
  22. Mr X telephoned the Council on 26 November 2019 because he was unhappy with the complaint response. He said:
    • He did not hear from the Council between September 2018 and August 2019, so he thought the matter was quashed.
    • He returned all paperwork as requested.
    • He made a genuine mistake. His car broke down and he pushed it to the nearest place of safety. He thought the Council was being unfair.
  23. The Council sent its final complaint response on 20 January 2020. It said it responded to all Mr X’s correspondence. The paperwork it sent to him outlined his options on appealing, including the independent adjudication service. It said once the case is passed to EAs they are carrying out a Court warrant. The Council confirmed it followed the correct procedure.
  24. Mr X remained unhappy and brought his complaint to the Ombudsman on 31 January 2020.

Response to my enquiries

  1. The Council told me the TEC did not say Mr X filed a Witness Statement. Mr X sent the Court forms to the Council, uncompleted.
  2. The Council said it followed the correct process. It told Mr X about his right of appeal and provided all necessary information. Mr X did not appeal or pay, so the Council followed the usual debt recovery process.
  3. The Council instructed EAs in November 2018. It did not tell Mr X, but it does not have to do so. The paperwork it sent to Mr X confirms there is a possibility EAs will be used if he did not pay.
  4. EAs were at first unable to contact Mr X. After finding another address for him, EAs then waited for authority from the TEC to reissue the warrant.

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Analysis

  1. Mr X told me he was unaware of his right to appeal to the independent adjudicator. When he received the Council’s letter rejecting his representations he threw it away without reading it all. Mr X should have read the letter properly. The Council told him about his right of appeal and how to contact the independent adjudicator. The Council was not at fault.
  2. It is clear from the correspondence that Mr X wanted the matter to go to Court so he could state his case. Unfortunately, it appears he misunderstood the process. None of the Council’s correspondence states there would be a Court hearing. The Council made it clear what would happen at each stage and what Mr X’s choices were.
  3. The TEC at the County Court was involved when the Council registered the unpaid charge as a debt. The TEC wrote to Mr X and gave him the opportunity to file a Witness Statement. On the evidence seen, Mr X did not complete and return the correct Court form. Instead, he sent a handwritten letter to the Council stating why he should not be liable to pay the charge. I have seen no evidence Mr X made any representations to the Court.
  4. Because Mr X did not pay the charge, or appeal, or make any representations to the Court, the Council was entitled to instruct EAs. I have seen copies of the enforcement notices the EAs sent to Mr X’s current and former address. I have not seen evidence of fault in the actions of the Council or EAs in recovering the debt.
  5. I appreciate Mr X feels the Council’s decision to reject his representations was unfair, as his car broke down and he simply moved it to a place of safety. However, it is not my role to assess the fairness of the Council’s decision or to tell the Council what grounds of appeal it should accept. My role is to investigate whether the Council followed the correct procedures. I have seen no evidence of fault in the Council’s actions.

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Final decision

  1. I have completed my investigation. The Ombudsman found the Council was not at fault in the way it handled Mr X’s parking fine appeal.

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Investigator's decision on behalf of the Ombudsman

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