Summary: We will not investigate Mr X’s complaint about a penalty charge notice and actions of civil enforcement officers. This is because it would be reasonable for Mr X to apply to the Traffic Enforcement Centre to reinstate his right of appeal.

The complaint

1. The complainant, who I shall call Mr X, complains he did not receive any information about a penalty charge notice (PCN) issued by the Council.
2. He also complains the enforcement agents (bailiffs) illegally clamped his car while it was parked off the highway.
3. He wants a refund of the £513 he paid to the bailiffs and the PCN cancelled.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I considered information provided by Mr X and the Council.

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What I found

7. The Council issued Mr X a PCN for a parking contravention in early 2020.
8. There is a set procedure a council must follow when pursuing PCNs for parking contraventions and handling appeals against them. 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’.
9. If the motorist submits an informal challenge to a PCN and the Council decides not to accept them, it will write to the motorist and explain why. If the motorist accepts the Council’s position, they may pay the PCN; if not, they may wait for a ‘notice to owner’. This provides a further opportunity for the owner of the vehicle to pay the charge or make ‘formal representations’ against the PCN. If the council rejects the motorist’s formal representations the motorist may appeal to the Traffic Penalty Tribunal.
10. If the motorist does not pay or make formal representations the council will issue a charge certificate, increasing the amount payable by 50%. It may then apply to the Traffic Enforcement Centre (TEC) at Northampton County Court to register the debt, before instructing bailiffs to recover it.
11. Mr X says he did not receive any information from the Council. He says the first he knew of it was when his car was clamped by bailiffs.
12. As Mr X says he did not receive the ‘notice to owner’ he had the right to make a Witness Statement to the TEC. A valid Witness Statement automatically revokes the order for the recovery of the unpaid penalty charge and the charge certificate. If the keeper, in this case Mr X, says they did not receive the notice to owner, the council will reissue it. If the Witness Statement is accepted on any other ground, the council must refer the matter to a parking adjudicator.
13. Although he should have made a Witness Statement within 21 days of the order of recovery, the TEC has discretion to accept an application made outside this time limit. 
14. If Mr X wishes to make a late Witness Statement he must apply to the TEC to do so. He must submit the Witness Statement itself and a form explaining the reasons he did not apply sooner.
15. The TEC will decide whether to accept the late application. If it does, this has the same effect as a valid Witness Statement/Statutory declaration, described in paragraph 12 above. If the TEC refuses the application, Mr X may apply for a review of its decision by a District Judge at his local county court. 
16. I understand Mr X believes the bailiff acted illegally because it was parked on private land when it was clamped.
17. Bailiffs’ powers to seize goods are set out in the Tribunals, Courts and Enforcement Act 2007 (“the Act”). Schedule 12 of the Act provides a clear procedure for how bailiffs may take control of goods
18. A bailiff can only take control of goods belonging to the debtor, which are on the debtor’s premises or on the highway. The bailiff may secure a car on the premises or the highway by fitting an immobilization device.
19. Mr X says the owners of the land when he parked his car has advised the bailiffs that they may not clamp any vehicles on the land.
20. The Act does not define ‘highway’, so it presumably has the usual meaning in law of “a way over which all members of the public have the right to pass and repass without hindrance.” (Diplock LJ, Suffolk County Council v. Mason [1979] AC 705).
21. If Mr X’s application to make a late witness statement is successful, the order for the recovery of the unpaid penalty charge and the charge certificate will be revoked and any charges already paid will be refunded.
22. The Ombudsman is not an appeal body and it is not our role to determine disputed points of law. Should Mr X not succeed in his application for a late witness statement, the question of the legality of the bailiffs clamping his car on private land is a matter for the court to determine.
23. I have seen nothing to suggest it would not be reasonable for Mr X to follow the process set out above and I will not therefore exercise the Ombudsman’s discretion to investigate this complaint.

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Final decision

24. I will not investigate this complaint. I consider it would be reasonable for him to apply to the TEC to make a late witness statement as he says he did not receive the ‘notice to owner’.
25. If his application to the TEC is not successful, he can ask the court to decide whether the bailiff illegally clamped his car.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman