Summary: Mr X complained about the Council’s decision not to cancel a penalty charge notice it issued to him, and the associated charges. The Ombudsman found the Council was at fault when it initially refused to refund the added fees Mr X paid. It remedied the injustice when it agreed to refund those fees. The Council was not at fault for refusing to cancel the penalty charge notice.

The complaint

1. Mr X complained the Council did not cancel a penalty charge notice (PCN) it issued to him, and refund all charges associated with it, following an order from the Traffic Enforcement Centre.
2. Mr X said the process cost him time and money, and caused stress to him and his family.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. 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 Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement)(England) Regulations 2005.
6. 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

7. If a car drives in a bus lane during certain times of day, a penalty charge notice (PCN) may follow.
8. 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.
9. 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 an order for recovery of the unpaid charge. This gives the owner 21 days to make a statutory declaration at Court or pay the charge.
10. If no declaration is made and the charge still remains unpaid, the Council may apply to the Court for a Warrant of Execution allowing the debt to be collected by enforcement agents (EAs).
11. Regulation 34 of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement)(England) Regulations 2005 (The Regulations) states that where a person makes a statutory declaration that they did not receive the penalty charge notice, and the court accepts this, the court will:
• Revoke the recovery order.
• Cancel the charge certificate.
• Cancel the penalty charge notice.
12. It is then up to the Council to decide whether to reissue the penalty charge notice.

What happened

13. The Council photographed Mr X driving in a bus lane on 23 June 2019. Mr X then moved house on 30 June. He notified the DVLA about his change of address on 6 July.
14. After carrying out registered keeper checks with the DVLA, the Council issued a PCN to Mr X’s old address on 8 July. The PCN fee was £60, reduced to £30 if Mr X paid within 14 days. The Council said it would issue charge certificate, and the fee would rise from £60 to £90, if Mr X did not pay or appeal within 28 days.
15. The Council issued a charge certificate on 8 August, increasing the fee to £90. Mr X had 14 days to pay, or the Council could register the charge as a debt at Court. That Council warned Mr X it could then get a warrant for an Enforcement Agent (EA) to recover the debt. This would attract added fees.
16. The Council wrote to Mr X on 3 September. It said it was preparing to register the debt at Court. It asked Mr X to make immediate payment to avoid this.
17. The Council got a recovery order on 26 September. This confirms the charge was registered at Court, with an added fee of £8. Mr X had 21 days to pay the £98 fee, or to file a statutory declaration at court.
18. When Mr X did not pay, the Council instructed EAs. The EA sent a notice of enforcement to Mr X’s former address on 8 November 2019. This advised Mr X he had to pay £173. This consisted of £98 for the debt and £75 for the compliance stage fee. Mr X had to pay by 22 November. The EAs letter confirmed there would be an added enforcement fee of £235 if Mr X did not pay by then.
19. Mr X emailed the Council on 29 November. He said an EA visited him on 23 November to collect £408 for a PCN which he did not know about. He said he moved house on 30 June 2019 and asked what address the Council sent the PCN to. He asked the Council to refund the money he paid to the EA, considering he did not know about the PCN.
20. Mr X wrote to the Council again on 11 December 2019. He said he had contacted the Court and found the Council sent PCN documents to his old address. He provided documents, including an email from the DVLA dated 6 July 2019, confirming his application to change his address on his driving licence.
21. Mr X filed an out of time statutory declaration with the Traffic Enforcement Centre (TEC) at the County Court on 20 December 2019. He said he did not receive the PCN and explained he moved house just after driving in the bus lane, but just before the Council sent the PCN to his old address. Mr X confirmed to the Court that he admitted the offence and agreed to pay the fine, but he wanted a refund of the added fees paid to the EAs.
22. The TEC granted Mr X’s application to file an out of time declaration on 20 February 2020. It made an order revoking the recovery order and cancelling the charge certificate and enforcement notice. However, it confirmed the order did not cancel the original PCN.
23. Mr X wrote to the Council on 23 April. He asked for a full refund of the £408 he paid to the EAs. He wanted the opportunity to pay the PCN at the reduced fee of £30.
24. The Council wrote to Mr X on 3 June, after taking advice from its legal department. It said it did not have to refund the fees because the PCN was still valid.
25. Mr X replied on 8 June. He said the view of the Council’s legal services was contrary to the Regulations. He said when the court revoked the recovery order and cancelled the enforcement notice, the EAs charges became illegal. He said the Council must therefore give him a full refund.
26. Mr X complained on 10 August as the Council did not respond. He again asked for a full refund. He said the Court’s decision to revoke the order for recovery withdrew the basis on which bailiffs’ fees were charged. He said this was the confirmed position of the Ombudsman in his ‘fairer fines’ report from February 2017.
27. The Council replied on 10 September. It apologised for the delay. It said its legal department still considered no refund was due. However, the Council said it would refund the EAs fees – including the £75 compliance fee, and the £235 enforcement fee, and the added £38 on top of the original PCN fee. It kept £60 to pay for the original PCN fee.
28. Mr X remained unhappy. On 22 September he said the EAs had not followed the correct legal procedure. He said they did not send the notice of enforcement to his current address, despite being aware he had moved. An EA then made an unannounced visit.
29. Mr X brought his complaint to the Ombudsman on 24 September. He wanted the Council to refund the £60 PCN fee and pay him £150 for the Court fees he incurred.
30. The Council sent a further response on 8 October. It said it checked the EAs records and there was no breach of law. It said the warrant and compliance letter were issued to Mr X’s old address, as per the address on the PCN. When there was no reply to the compliance letter, an EA visited the old address on 23 November. The Council said the EAs did not have to change the address on the warrant after finding out Mr X’s new address. An EA visited Mr X’s new address to find out who was there. As Mr X paid on the same day, no further visits or letters were needed.

Response to my enquiries

31. The Council told me it got Mr X’s address from the DVLA, less than two weeks after the offence, and it issued all notices connected to the PCN to that address.
32. The Council’s solicitor said it did not have to refund the EAs fees to Mr X, because the PCN was valid at the time of issue and the Council incurred costs recovering the unpaid charge from Mr X.
33. The Council said Mr X did not contest the PCN, so it kept the charge and did not cancel it.
34. The Council told me it correctly issued the PCN in line with the Regulations, and sent all notices to the registered keeper’s address as confirmed by the DVLA. It said Mr X should have told the DVLA he had moved house sooner or should have had his mail redirected.

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Analysis

35. Mr X considers the Council acted unlawfully. He said it sent documents to the wrong address, did not follow an order made by the court, and he lost the opportunity to make representations.
36. On the evidence I have seen, the Council followed the correct process by contacting the DVLA and issuing all notices to the address the DVLA gave. It could not know Mr X was moving, and I do not fault the Council for processing the PCN promptly. It was unfortunate Mr X moved home just before the PCN was posted to him, but that was not the Council’s fault.
37. When Mr X did not pay the PCN, the Council could increase the charge from £60 to £90 by issuing a charge certificate. It then got a recovery order, which confirmed the charge was registered with the court. This gave the Council the right to recover the charge of £90 from Mr X and added a fee of £8.
38. The TEC’s order, following Mr X’s statutory declaration, revoked the recovery order and cancelled the charge certificate and enforcement notice.
39. It is the Ombudsman’s view in such cases that when the TEC revoked the recovery order it withdrew the basis for the EAs fees. Also, by cancelling the charge certificate, the TEC decided the added charges should not be paid. For these reasons, in previous similar cases, the Ombudsman has recommended councils should refund everything except the original penalty charge.
40. The Council was at fault when it first refused to refund the added fees to Mr X. It is ultimately the Council’s decision whether to pursue recovery of PCN charges. It has discretion to cancel the charges, or call back the debt from the EAs, at any stage. We expect councils to consider a person’s personal circumstances and judge each case on its merits. The Council was aware Mr X had not received any of the paperwork about the PCN. This was accepted by the TEC, who allowed Mr X’s out of time statutory declaration. Mr X provided the Council with evidence he told the DVLA about his change of address promptly. The Council said Mr X should have told the DVLA sooner, or had his mail redirected. That was unfair. We expect councils to show more understanding in circumstances such as this. However, I consider the Council remedied the injustice when it later agreed to refund the added fees to Mr X.
41. The EAs instructed by the Council were aware of Mr X’s new address, but sent the enforcement notice to his old address, as per the PCN. When Mr X did not respond, it would have been good practice for the EAs to tell the Council of the situation, as it cast doubt over whether Mr X had received any of the earlier paperwork. The Department of Transport’s March 2015 operational guidance on parking policy and enforcement (now discontinued) said EAs should liaise with councils where they have established a new address for the debtor, as the recovery order and charge certificate may need to be re-served on the new address.
42. I understand Mr X’s view the Council should cancel the PCN, and the original fee, and then re-issue it, based on the Regulations. However, the TEC’s order specifically states the PCN was not cancelled. I do not have the power to make a finding contrary to a court order. I also do not consider the Council was at fault in circumstances where it followed an order from the court.
43. The TEC was aware of the specifics of the case, as Mr X confirmed the details in his statutory declaration. And the TEC was no doubt also aware of the Regulations Mr X refers to. It was in the TEC’s power to cancel the PCN, but it chose not to. While Mr X may consider that was a mistake, or simply unfortunate wording in the TEC’s order, I cannot make a finding on that. Mr X should take legal advice if he wishes to pursue that point further.
44. While Mr X could not appeal the PCN or make representations to the Council, he did file a statutory declaration with the TEC. In that declaration he admitted the offence and confirmed he was not contesting the PCN. He agreed to pay the charge. He only contested the added fees, which the Council has now refunded. Court fees are part of the process of making an out of time statutory declaration and are outside of the Council’s control. The Council followed the correct process, and the Court fees did not arise because of any fault by the Council. I therefore do not consider there is any remaining injustice for the Council to remedy.

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Final decision

45. I have completed my investigation. The Council was at fault when it initially refused to refund the added fees Mr X paid. It remedied the injustice when it agreed to refund the fees. The Council was not at fault for refusing to cancel the PCN.

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Investigator's decision on behalf of the Ombudsman