Brighton & Hove City Council (20 001 006)

Category : Transport and highways > Parking and other penalties

Decision : Not upheld

Decision date : 05 Feb 2021

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to accommodate her reasonable adjustments when it contacted her about a penalty charge notice she incurred. She also complained the Council failed to tell her when it referred the matter to an external enforcement agency and would not return her personal belongings after her vehicle was seized. The Council was not at fault in how it handled taking enforcement action against Mrs X.

The complaint

  1. Mrs X complained the Council did not accommodate her reasonable adjustments and sent her letters instead of emails when it told her about a penalty charge notice (PCN) she had incurred.
  2. Mrs X also complained the Council failed to notify her when it referred the matter to an external enforcement agency and would not return her belongings after it seized her vehicle.
  3. Mrs X said this situation has caused her stress and financial loss.

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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. The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court but cannot investigate if the person has already been to court. (Local Government Act 1974, section 26(6)(c), 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 called Mrs X and discussed her view of the complaint.
  2. I made enquiries of the Council and reviewed the information it provided, this included the correspondence shared between Mrs X and the Council, the notice to charge and the charge certificate issued to Mrs X.
  3. I wrote to the Council and Mrs X with the draft decision. Neither the Council or Mrs X made any comments before I made the final decision.

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What I found

The Blue Badge Scheme

  1. The Blue Badge scheme entitles drivers or passengers with mobility problems to park nearer to their destination.

Penalty Charge Notice

  1. If the Council believes a parking contravention has occurred, it can issue a Penalty Charge Notice (PCN) and instruct and enforcement agency to seize the vehicle if the charge is not paid. 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’.
  2. If the motorist submits an informal challenge to a PCN and the Council decides not to accept it, it will write to the motorist and explain why. If the motorist does not accept the Council’s decision, they may wait for a notice to owner (NTO).
  3. A NTO provides a further opportunity for the owner of the vehicle to pay the charge or make ‘formal representations’ against the PCN.
  4. If the keeper does not appeal, or the appeal is unsuccessful and the charge remains unpaid, the Council can issue a charge certificate. If the charge remains unpaid after 14 days, the Council can register the debt at the Traffic Enforcement Centre (TEC) by sending an order of recovery. The TEC is a registration point for unpaid penalty charge notices which enables the local authority to enforce the penalty as if a County Court Order.
  5. The keeper can make a witness statement to the TEC if their appeal meets certain criteria, including not receiving the NTO or a response to their appeal. If the TEC declines the appeal, the Council can refer the matter to an enforcement agency to recoup the debt.

What happened

  1. Mrs X is disabled and has a blue badge. She requires all correspondence to be sent to her via email because she finds it difficult to physically access her post.
  2. In May 2019, Mrs X parked in a disabled parking space whilst visiting a friend.
    A PCN was placed on the car as Mrs X’s blue badge was not on display.
  3. In July 2019, the Council sent Mrs X an NTO, explaining she needed to pay or appeal the £70 PCN charge within 28 days or the charge would increase, and the Council may take enforcement action. The Council sent Mrs X a charge certificate in early August 2020 when it did not receive a response. The charge had increased to £105. The Council then sent Mrs X an order for recovery in September 2019.
  4. In November 2019, an enforcement agency clamped than later removed Mrs X’s car. Mrs X called the Council to discuss the matter and advised that she had sent an appeal letter to the Council in June but did not receive a response. Mrs X also emailed the Council and said the Council had discriminated against her by failing to make reasonable adjustments for her mental health and disability.
  5. The Council responded to Mrs X the following week. The Council asked Mrs X to clarify which reasonable adjustments she needed. The Council said it wrote to her on several occasions after issuing the PCN, notifying her of her right to appeal and informing her about the debt recovery process. The Council said it did not receive a response and passed the case to an external enforcement agent, in line with its process. The Council said it made enquiries and found a second car registered in Mrs X’s name and so it was satisfied that she had access to another vehicle. Mrs X has advised this is her nephew’s car and she does not drive it.
  6. Mrs X was unhappy with the Council’s response and made a complaint. She said the Council should have known she was registered as disabled and vulnerable. She said the Council should stop all enforcement action and return her car as she had valuable possessions and her blue badge still inside the vehicle.
  7. The Council replied at Stage 1 of its complaints process in late November 2019. The Council told Mrs X it had issued the PCN correctly and would not cancel the charge. The Council spoke with the enforcement agency responsible for removing the car and confirmed it wrote to her two weeks prior to seizing the vehicle. The Council offered to liaise with the enforcement agency to check whether her blue badge and belongings were still in the vehicle. The Council confirmed Mrs X could retrieve her car by paying the PCN, or through contacting the courts. The Council also invited Mrs X to provide further information and requested access to her GP records to evidence her statements that she should not have to pay the PCN because of her mental health issues and disability. The Council has confirmed Mrs X did not grant this permission.
  8. Mrs X wrote to the Council shortly afterwards and asked the Council again to consider her health issues and change its position. She provided evidence showing she was exempt from paying Council tax because of her disability and a letter from her GP stating that she was mentally impaired. Mrs X said the Council was discriminating against her by continuing to hold her liable for the debt.
  9. The Council asked Mrs X again for permission to access her medical records and told her the vehicle would be held for a certain amount of time before it would be sold to address the debt. The Council again confirmed to Mrs X that she could pay charge to claim her car or provide information supporting her statements that she should not have to pay the charge.
  10. Mrs X continued to assert that she was a vulnerable person and should not have to pay the PCN.
  11. Mrs X made a witness statement to the TEC citing her mental and physical health issues as the reason for why the PCN should be cancelled. The TEC refused Mrs X’s application. Mrs X spoke with her local Councillor and asked him to contact the Council on her behalf.
  12. The Council replied in January 2020 and told Mrs X it had not changed its position. The Council told Mrs X the debt now stood at £480 and it offered to return her belongings if she provided her car key. The Council also told Mrs X it would send her a replacement blue badge.
  13. In February 2020, the enforcement agency sold Mrs X’s car at auction as the debt remained unpaid.
  14. In July 2020, Mrs X complained to the Ombudsman. She accepts she was responsible for paying the PCN but maintains the Council should have given her longer to pay the debt because she is disabled and vulnerable. Mrs X also remains upset that the enforcement agency sold her vehicle without returning her personal belongings.

Findings

  1. Mrs X has complained the Council failed to consider her reasonable adjustments. Neither the Council or Mrs X could clarify when or if Mrs X told the Council about her reasonable adjustments before November 2019 and so I cannot comment on Mrs X’s statement. The evidence I have seen shows the Council has communicated with Mrs X via email since the complaint she made in November 2019. As this is the Council’s first record of contact from Mrs X regarding this matter, the Council has not failed to accommodate Mrs X’s reasonable adjustments and I find no fault with the Council’s actions.
  2. Mrs X does not question the validity of the PCN but states the Council should have allowed her more time to pay it because she is vulnerable. The Ombudsman would expect the Council to make reasonable efforts to accommodate a person who has special requirements for reasons of poor mental or physical health.
    The Council invited Mrs X to explain what reasonable adjustments she needed and to provide further information about her health and disability. I cannot see that Mrs X asked the Council to make specific adjustments, such as allowing her more time to pay the debt. The Council reviewed the information Mrs X provided and acknowledged Mrs X’s mental health issues and disability but maintained that she was still liable to pay the PCN. The Council asked Mrs X for permission to access her medical records, but Mrs X did not allow this. The Council was entitled by law to pursue the debt on this basis. The Council did not act with fault in making this decision.
  3. Mrs X complained the Council did not tell her when it referred the matter to an enforcement agency or give her the opportunity to recoup her belongings. The Council has provided evidence showing it sent Mrs X several letters informing her that the enforcement agents had seized her vehicle. Mrs X states she wrote to the Council to contest the PCN in June. I cannot comment on Mrs X’s statement that she did not receive the letters, but this indicates she was aware of the PCN and the action the Council intended to take if she did not pay the charge. The Council also emailed Mrs X several times to inform her of the growing debt and the options available to her to collect her vehicle. The Council contacted Mrs X with the options to clear the debt and to collect her vehicle before it was taken away.
    I do not find fault in the Council’s actions.

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Final decision

  1. There was no fault in the Council’s actions. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman

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