Decision : Upheld
Decision date : 31 Mar 2021
The Ombudsman's final decision:
Summary: Mr Y complains about the process followed by Transport for London when it pursued him for an unpaid Penalty Charge Notice (PCN). The Authority has already acknowledged some fault and refunded the full cost of the PCN and fees paid by Mr Y. In our view this is a suitable remedy for the fault identified. However, the Authority will also apologise to Mr Y for the significant delay in responding to his complaint and inform us of the steps it is taking to improve the timeliness of its complaint handling.
- Mr Y complains about the procedure followed by Transport for London (TfL) when pursuing an unpaid Penalty Charge Notice. In particular he says TfL:
- Failed to issue correspondence to him and he was therefore prevented from challenging the PCN;
- Prematurely instructed enforcement agents, despite there being an ongoing appeal against the PCN; and
- Failed to respond to his formal complaint.
What I have investigated
- Due to restrictions in the Ombudsman’s jurisdiction, I am only able to investigate matters which are not already covered by the alternative remedy which Mr Y pursued. I can investigate TfL’s (‘the Authority’) decision to pass the debt to enforcement agents, and I can also investigate failures in complaint handling. However, other alleged faults in the process are covered by an alternative remedy and I have not investigated these for the reasons explained at the end of this statement.
The Ombudsman’s role and powers
- We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
- We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Traffic Enforcement Centre. (Local Government Act 1974, sections 25 and 34A, as amended)
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- 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)
- If we are satisfied with the Authority’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
- During our investigation we discussed the complaint with Mr Y and obtained information from Transport for London.
- I considered the relevant law and guidance around Penalty Charge Notices.
- I issued a draft decision statement and invited comments from Mr Y and Transport for London. I considered any comments received before making a final decision.
What I found
Recovery of unpaid congestion charges
- Transport for London (TfL) is the enforcing authority for any contraventions of the London congestion charge. It may serve a Penalty Charge Notice (PCN) by post to the registered keeper of any vehicles which it believes have not paid the relevant charge for entering a congestion charge zone.
- Anybody in receipt of a PCN must either pay or challenge the penalty within 28 days. Challenges can be made to TfL in writing or online. If TfL receive payment within 14 days of the date of the PCN’s service, it will apply a 50% discount.
- Unless it can be proved to the contrary, the service of a PCN is deemed to have been completed upon delivery “in the ordinary course of post”.
- If the PCN remains unpaid, or the challenge is unsuccessful, TfL may issue a charge certificate. The person must pay the full amount within 14 days or submit a Statutory Declaration to the Traffic Enforcement Centre (TEC). A Statutory Declaration is a sworn oath and can only be made if the person failed:
- to receive the PCN
- to receive a notice of objection to any representations made to TfL within 28 days of the service of the PCN; or
- to receive a response to an appeal submitted to the London Tribunals against TfL’s notice of objection.
- Mr Y received a PCN on 2 January 2019 for non-payment of a congestion charge. He made representations against the PCN on 4 February 2019. TfL rejected the representation on 15 February and issued a Charge Certificate on 8 April 2019. Mr Y says he did not receive notice of TfL’s rejection.
- As Mr Y had not paid nor successfully challenged the PCN, TfL obtained an order for recovery on 17 May 2019. It then received notification in June from the TEC that Mr Y had requested an extension to file a late statutory declaration. TEC granted the extension, and the new deadline for Mr Y’s submission was 12 July 2019.
- When it received no further correspondence from TEC, TfL obtained a Warrant of Control on 6 August 2019 and then passed the debt to its enforcement agents.
- On 19 August 2019 Mr Y contacted TfL to query the contact he had received from agents. He had assumed that enforcement action was suspended upon his submission of a late statutory declaration.
- TfL then received notice from TEC on 27 August 2019 that Mr Y had submitted a late statutory declaration. TfL suspended enforcement action. It received a copy of the statutory declaration on 3 September 2019.
- On 27 September 2019, TfL received confirmation that Mr Y’s application to file a statutory declaration had been refused by TEC. Mr Y tells me he did not receive the court’s decision.
- TfL proceeded with its Warrant of Control and passed the file back to its enforcement agents, who visited Mr Y’s property on 10 October 2019. Mr Y paid the outstanding fees in full.
- Shortly after, Mr Y complained to TfL. He said TfL had acted prematurely in instructing agents whilst his appeal with TEC remained ongoing.
- TfL did not respond to Mr Y’s complaint, and so he approached the Ombudsman. After we made enquiries, TfL issued a response to Mr Y on 28 August 2020. It concluded:
- TEC advised TfL that the deadline for submission of a late statutory declaration was 12 July 2019. It heard nothing further until 27 August 2019 when it received confirmation of the late application. TfL then suspended enforcement action.
- TfL received notification of TEC’s decision to refuse the application on 27 September 2019. At this point TfL was entitled to resume enforcement action.
- TfL usually allows a discretionary period of 14 days, starting from the date of the decision, for customers to challenge via the N244 process.
- Agents visited on 10 October 2019 which was 13 days after TEC’s decision. This was due to a failure in communication.
- Although TfL acted in accordance with the regulations, in this case it has decided to cancel the PCN and refund the full amount paid. This is because TfL accepts Mr Y did not have sufficient opportunity to challenge TEC’s decision.
Was there fault causing injustice to Mr Y?
Instructing enforcement agents
- Mr Y says TfL were not entitled to instruct enforcement agents when it did. He therefore experienced distress and incurred additional costs, which TfL were not entitled to pursue. This is a matter within our jurisdiction and one we can investigate.
- I am satisfied that TfL were entitled, in law, to pursue Mr Y’s unpaid PCN because his challenge against it was unsuccessful and the Courts had granted a Warrant of Control. The debt was to be paid within seven days of the warrant. However, I am mindful that TfL allows a discretionary 14-day period for the submission of an N244. Agents visited one day before that period ended.
- TfL has accepted this is fault and provided a remedy for Mr Y’s injustice. It refunded the PCN, and all fees, in full. This is despite the PCN being valid, according to TEC. If Mr Y had intended to challenge the TEC’s decision, he would have needed to apply via an N244 and pay the associated costs (£100 or £255).
- Mr Y says he did not apply to set aside the judgement because he had not received a copy of the decision. He did not realise his appeal was unsuccessful until enforcement agents visited him. For the reasons explained above, I cannot consider why Mr Y did not receive the judgement and this is a matter he should discuss with TEC. I can only consider the actions of TfL.
- I am satisfied that the remedy already offered by TfL is suitable and I do not recommend anything further. I appreciate that Mr Y experienced distress because of the agent’s visit, but the PCN in question was deemed to be valid and one that Mr Y was required to pay. He did not pay the PCN or submit an N244 and so TfL were entitled to pursue the debt.
- Had he continued to challenge the PCN, it is likely Mr Y would have suffered additional time and expense. As it stands, Mr Y has incurred no expense because the PCN was cancelled and all charges refunded. I consider this is a suitable remedy for any distress Mr Y experienced from the agent’s premature visit.
- Furthermore, I am mindful that the main injustice which Mr Y claims flows from alleged fault by the TEC, rather than TfL. This is because Mr Y’s ability to submit an on-time N244 was hindered by TEC’s alleged failure to issue a copy of their judgement.
- TfL failed to respond to Mr Y’s complaint. As a result, he experienced avoidable and unnecessary time and trouble in pursuing a response. TfL only responded to the complaint once the Ombudsman intervened and made enquiries.
- TfL should apologise to Mr Y for its delay in responding to his complaint, and for the time and trouble this caused.
- Within four weeks of my final decision, TfL will:
- apologise to Mr Y for its delay in responding to his complaint, and for the time and trouble this caused; and
- provide information to the Ombudsman about the steps it is taking to improve the timeliness of its complaint handling process.
- I have completed my investigation with a finding of fault and injustice for the reasons explained in this statement.
Parts of the complaint that I did not investigate
Failure to receive a response to the first PCN appeal
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The Act says the Ombudsman cannot investigate when there is an alternative remedy. The ability to file a Statutory Declaration with the TEC is not in itself an alternative remedy about the issue of a PCN, however if does provide a remedy for complaints about certain faults in the process. This includes a failure by TfL to issue a notice of rejection to any representations made.
- For this reason, I am unable to investigate why Mr Y did not receive TfL’s rejection of his representation as this is a matter covered by the Statutory Declaration, which Mr Y had the opportunity to submit within an agreed deadline. Mr Y therefore had the opportunity to use an alternative remedy.
Failure to receive TEC’s decision to refuse the Statutory Declaration
- The Ombudsman does not have jurisdiction to investigation the actions of the TEC. Any complaints about the TEC should be directed to Her Majesty’s Courts and Tribunals Service (HMCTS). For this reason, I am unable to consider why Mr Y did not receive TEC’s decision to refuse his application to file a late statutory declaration on 27 September 2019.
- Mr Y complains that he received letters relating to a third party. He speculates that errors in the database meant that letters intended for him were sent elsewhere, and he instead received letters intended for others. I have checked the TEC judgement and the name and address shown for Mr Y is correct.
- The Ombudsman will not consider this part of Mr Y’s complaint. Mr Y is entitled to approach the Information Commissioner’s Office (ICO) for a review of any concerns he has about data protection breaches, and there is no good reason for the Ombudsman to exercise discretion to consider this part of the complaint.
Investigator's decision on behalf of the Ombudsman