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City of York Council (20 000 942)

Category : Transport and highways > Parking and other penalties

Decision : Upheld

Decision date : 25 Nov 2020

The Ombudsman's final decision:

Summary: Mr X complains the Council wrongly pursued enforcement action against him regarding a Penalty Charge Notice. Mr X also complains about delays in the Council’s handling of the matter. He says the Council’s actions have caused him unnecessary distress and upset. He also says he has spent a considerable amount of time and trouble in dealing with his complaint. We find fault by the Council in this matter for which the Council has agreed a remedy.

The complaint

  1. Mr X complains the Council wrongly pursued enforcement action against him regarding a Penalty Charge Notice. He says the Council failed to properly investigate his concerns and would not accept he had paid the penalty.
  2. Mr X also complains about delays in the Council’s handling of the matter. He says the Council’s actions have caused him unnecessary distress and upset. Mr X also says he has spent a considerable amount of time and trouble in dealing with his complaint.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
  3. 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. I have discussed the complaint with Mr X and considered the information he provided.
  2. I have made enquiries to the Council and considered the information it provided.
  3. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

The Council’s enforcement process of Penalty Charge Notices

  1. The process for issuing and challenging bus lane Penalty Charge Notices (PCN) 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.
  2. Following a bus lane contravention, the Council issues a PCN. This 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, the recipient gets a 50% reduction.
  3. 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.
  4. The Council may issue a Notice to Owner (NTO) if it receives no contact or payment during the 28 day period after a PCN is issued.
  5. If the PCN remains outstanding 28 days after the NTO is issued, the Council may issue a Charge Certificate. The Charge Certificate increases the penalty charge by 50% and allows 21 days for payment.

The Council’s complaints policy

  1. The Council’s complaints policy says it will send a response to the complainant within five working days at Stage 1.
  2. The policy says the Council will send a response to the complainant within 15 working days at Stage 2, and within 20 working days at Stage 3.

What happened

  1. The Council issued a PCN to Mr X in May 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. The notice provided details of how to pay.
  2. A few days after receiving the PCN, Mr X emailed the Council to say he did not understand why he had received the notice.
  3. On 5 June 2019, the Council wrote to Mr X and told him why it issued the PCN. It said it had decided not to cancel the notice and that Mr X could pay £30 within 14 days of the date of the letter. The letter provided details of how to pay, including an option to send a cheque or postal order. The letter gave an address to send the payment to.
  4. Mr X sent a cheque for £30, dated 10 June 2019, to the Council.
  5. On 9 July 2019, the Council sent Mr X a Charge Certificate because it said it had not received payment for the PCN. The Council said Mr X was required to pay the full charge of £60, plus £30 additional costs for the Charge Certificate.
  6. Mr X contacted the Council twice in July 2019, by telephone and in writing. On both occasions he told the Council he had already paid the penalty.
  7. The Council wrote to Mr X on 18 July 2019 and asked to see a copy of his bank statement showing the payment clearing his account. Mr X provided a copy of his bank statement to the Council which showed the cheque for £30 had been cashed.
  8. The Council use a third-party service provider to manage the administration of its PCNs. The service provider checked its records but could not confirm receipt of Mr X’s cheque.
  9. On 7 August 2019, the Council told Mr X it had not received his cheque. It said Mr X was required to pay the full charge of £90 and that if payment was not received within 14 days, it may recover the charge via a County Court Order.
  10. Mr X obtained a copy of the cheque from his bank and provided this to the Council at its offices on 27 August 2019. The Council asked its service provider to hold any further action until 30 September 2019 while it investigated the matter.
  11. In November 2019, Mr X complained to the Council because he had not heard anything further from the Council, despite visiting the Council’s offices again in October 2019.
  12. In December 2019, the Council investigated Mr X’s complaint. It found it had received the cheque at its cashier’s office. The Council established it had cashed the cheque but failed to record this payment against the PCN.
  13. The Council sent Mr X a cheque for £30 as a refund of the penalty charge. It told Mr X it had been hard to identify that the payment had been received because it had been sent to an incorrect address.
  14. In January 2020, Mr X returned the Council’s cheque for £30. He said he accepted the PCN had been issued correctly. He also said he had sent the cheque to the address shown on the PCN.
  15. The Council drafted a response to Mr X in January but did not send it to him.
  16. Mr X remained dissatisfied with the Council’s response and brought his complaint to the Ombudsman. When we began our investigation, the Council identified the letter drafted in January had not been sent. This was sent to Mr X in July 2020.

Analysis

  1. The PCN explained Mr X could pay over the telephone, via the Council’s website or by using the self-service kiosks in the Council’s office. It also provided an address to which appeals against the notice could be sent.
  2. The Council’s letter dated 5 June 2019 also provided details of how to pay. It included an address to send cheques or postal orders to.
  3. The Council says Mr X sent the cheque to an incorrect address and did not provide a reference number to link the payment to the PCN. It says this is the reason why the payment was not reconciled against the PCN.
  4. Mr X says he sent the cheque to the address provided on the PCN with the PCN reference number and vehicle registration number written on the back. He also says he would not have sent it to a different address because there were no instructions to do so.
  5. The evidence does not confirm to which address the cheque was sent. The Council’s letter of 5 June instructed Mr X to write the PCN number and vehicle registration number on the reverse of the cheque. I have seen a copy of the cheque which shows Mr X followed these instructions. I am therefore satisfied it is more likely than not Mr X sent the cheque to the address provided within the section of the PCN which provided these instructions. This is the address to which Mr X says he sent the cheque.
  6. The Council says it was unaware there was a problem until Mr X raised his complaint on 21 November 2019. But the evidence shows Mr X told the Council he had paid the penalty in a telephone call on 12 July 2019, in writing on 16 July 2019, in another telephone call on 19 July 2019, and by visiting the Council offices on 24 July 2019, 27 August 2019 and 3 October 2019. I am therefore satisfied the Council was aware of the issue as early as July 2019.
  7. On 27 August 2019, the Council asked its third-party service providers to place a hold on enforcement action until 30 September 2019 so that it could investigate the matter. However, there is no record of any action or investigation taken by the Council until December 2019, after Mr X complained.
  8. The Council drafted a letter to Mr X in January 2020 after Mr X returned the refund. The Council says this letter was not sent to Mr X until July 2020 because it was misplaced.
  9. The Council says it has changed its processes because of Mr X’s complaint. It says if payments are received at the Council’s address, the finance department will notify the Parking Services department directly with details of the PCN. Parking Services will then record the payment on its records so that no further correspondence is sent.

Evidence of fault by the Council

  1. There is evidence the Council delayed investigating Mr X’s concerns. He told the Council in July 2019 that he had paid the penalty, but the evidence shows no investigation was undertaken until December 2019. During this time, Mr X made several attempts to prove he had paid.
  2. There is also evidence of delay in responding to Mr X’s complaint. The Council drafted a response in January 2020 but did not send it until July 2020. I acknowledge the Council says it misplaced the response, but the time taken to reply to Mr X is much greater than the response times stated within the Council’s complaints policy.
  3. The delays identified above constitute fault by the Council.
  4. Having identified fault, I must consider whether this has caused Mr X a significant injustice. Mr X says he was frustrated by the Council’s failure to investigate his concerns and because it did not deal with his complaint properly. He says he is upset because he feels the Council did not believe him when he said he had paid. Mr X also says the Councils actions caused him unnecessary worry about potential enforcement action, and meant he spent a considerable amount of time dealing with his complaint.
  5. It is positive the Council has made changes to its processes to avoid similar complaints. However, I do not consider this adequately addresses the injustice to Mr X.

Agreed action

  1. To address the injustice arising from the fault identified, the Council has agreed to take the following action within four weeks of the final decision:
  • provide a further apology to Mr X to acknowledge the Council did not identify the failings identified above via its own procedures;
  • make a payment of £100 to Mr X to recognise the distress, upset and frustration caused;
  • make a further payment of £100 to Mr X to recognise the time and trouble taken by him to pursue the complaint;
  • provide the Ombudsman with its revised policy confirming it reconciles payments received by its finance department with its Parking Services department; and
  • remind staff to adhere to its complaints policy timescales.

The Council is required to provide us with evidence it has carried out the above agreed actions.

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Final decision

  1. I have found fault in the Council’s actions for which the Council has agreed a remedy. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman

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