Summary: Mr X complained the Council delayed in responding to his appeal over a Penalty Charge Notice. This delay meant he lost the opportunity to pay the Penalty Charge Notice within the 14-day discount period. The Ombudsman finds fault with the Council for refusing to accept representations to a Penalty Charge Notice if a person pays the discounted charge. The Council agreed to amend its policy, refund Mr X £30 and provide him with an apology.

The complaint

1. Mr X complained the Council delayed in responding to his appeal over a Penalty Charge Notice (PCN). Because of this delay, Mr X lost the opportunity to pay the reduced PCN within the 14-day discount period and had to pay the PCN in full.
2. Mr X says he complained to the Traffic Penalty Tribunal who advised the Council to consider reducing the PCN to the discounted rate, but the Council rejected this.

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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. The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
5. 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

6. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. The Council commented on my draft decision. I considered the Council’s comments before making my final decision.

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What I found

Regulations

8. The Bus Lane Contraventions (Penalty Charges Adjudication and Enforcement) (England) Regulations 2005 sets out the process for issuing and challenging bus lane PCN’s. 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.
9. The Regulations 2005 state the Council has a duty to ensure any PCN issued states:
• A person must pay the penalty charge before the end of the 28-day period.
• If a person pays the penalty charge within 14 days from the date of service of the notice, the Council will reduce the penalty charge by one half.
• A person may make representations, on any of the statutory grounds of appeal, to the authority against the penalty charge. The Council may disregard representations made outside the 28-day appeal period
10. 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 Council rejects the challenge, it should issue a Notice of Rejection (NOR) and a person can appeal the Council’s decision to the Traffic Penalty Tribunals (TPT).

The Council’s policy

11. The Council outlines it will apply a fixed penalty charge of £60 for a bus lane contravention. The policy says it will discount this charge by 50% if a person pays the penalty charge within 14 days of the “date of service”. The “date of service” refers to the date two postal days after the date of issuing of the penalty charge notice.
12. The policy says a person can appeal, make representations against, the parking charge notice. The Council’s policy says it will not consider a person’s representations if the person also pays the £30 discounted charge. The Council will accept payment of the £30 in settlement of the penalty charge.

What Happened

13. Mr X drove down a bus lane on 10 July 2020.
14. The Council sent Mr X a PCN on 17 July 2020. The PCN detailed Mr X’s bus lane contravention and advised the charge payable was £60. The PCN detailed that Mr X could pay within 14 days from 21 July 2020 and receive a 50% discount or make representations against the PCN within 28 days. The PCN noted “If you make payment at the discounted rate and make representations, the Council will accept payment of £30 in full settlement of the penalty charge and close the case and will not therefore consider your representations”.
15. Mr X received the PCN on 18 July 2020 and made an appeal to the Council against the PCN on the same date.
16. The Council rejected Mr X’s appeal on 5 August 2020. The Council explained its decision and decided no justification to withdraw the PCN. The Council gave Mr X 28 days from 5 August 2020 to pay the £60 PCN or appeal to the tribunal. Mr X paid the Council £60 on 5 August 2020.
17. Mr X appealed to the tribunal on 9 August 2020 about the Council not giving him an opportunity to pay at the reduced rate.
18. The tribunal accepted Mr X’s appeal. The tribunal contacted the Council for comment. The Council advised the tribunal it had exercised discretion but did not find any mitigation for cancellation of the PCN and said it had no statutory duty to extend the discount period.
19. The tribunal issued its findings on 25 September 2020. The tribunal said the Council provided evidence of the bus lane contravention, but Mr X did not dispute the incident occurred. The Tribunal confirmed the contravention warranted the fine. The tribunal said it was not within its powers to direct the Council to accept the discounted rate once the discount period had expired. It said this was a matter for the Council’s discretion.
20. Mr X complained to the Ombudsman on 29 September 2020.

Analysis

21. Mr X says he did not get the opportunity to pay the Council at the discounted rate because the Council only responded to his representations on 5 August 2020. Mr X’s 14-day timescale to pay the discounted rate ended on 4 August 2020.
22. The Council says the discounted rate is designed to encourage fast payment of a PCN. The Council said the circumstances in Mr X’s complaint do not amount to any mitigation, such as circumstances beyond Mr X’s control, which prevented him from paying at the discounted rate.
23. The Council’s policy says a person cannot both make representations against a PCN and benefit from the discounted rate. The Council is clear in both its policy and on the PCN that it will not accept representations if a person’s pays the discounted charge. The Council says a person has accepted liability for the charge upon payment.
24. Payment of a PCN when formal representations are outstanding does not amount to acceptance of liability by a payee. Liability can only arise when a PCN has been issued on a lawful basis. When a statutory appeal is outstanding payment is not acceptance of liability.
25. The 2005 Regulations state the Council is duty bound to consider representations regardless of whether the person has paid the PCN, when a person makes representations within 28 days. The Council’s policy and PCN advise opposite to this. This is fault.
26. The Council should change its policy and the information on its PCNs to remove reference to not accepting representations to a PCN if a person pays the charged owed within the 14-day discounted period.
27. In the circumstances of Mr X’s complaint, he made representations two days before the 14-day appeal window opening. The Council only responded to Mr X’s representations on 5 August 2020, Mr X paid on the same day. Removing the time it took the Council to respond to Mr X’s representations, he effectively paid the PCN two days before the appeal window opening. This would have entitled Mr X to the 50% discounted charge.
28. The Council’s policy prevented Mr X from paying at the discounted rate and making representations. Since Mr X wished to use his statutory rights to have the Council hear his representations, he decided not to pay the discounted rate. The Council’s policy at not accepting representations was outside Mr X’s control. Had the Council not had a flawed policy in place, I cannot see any reasons Mr X would not have paid his PCN within the 14-day appeal window.
29. The Council should provide Mr X with an apology for the inconvenience caused alongside a refund of £30 to reflect the 50% discount he was entitled to.

Agreed action

30. Within one month of the Ombudsman’s final decision the Council should:
• Provide Mr X with an apology for the inconvenience caused alongside a refund of £30 to reflect the 50% discount he was entitled to.
31. Within six months of the Ombudsman’s final decision the Council should:
• Remove reference from its policy and PCNs that it will not accept representations to a PCN if a person pays the charge owed within the 14-day discounted period.

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Final decision

32. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.
     

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Investigator's decision on behalf of the Ombudsman