Decision : Upheld
Decision date : 26 Nov 2021
The Ombudsman's final decision:
Summary: Mr X complains that the Council failed to refund him the full amount from two penalty charge notices. He says this has left him unfairly out of pocket, and he has spent time and trouble trying to resolve it. The Ombudsman finds the Council at fault. This caused Mr X injustice because it deprived him of his right to appeal the penalty charge notices. The Council has agreed to refund Mr X the cost of one penalty charge notice.
- The complainant, who I refer to as Mr X, complains that the Council failed to refund him the full amount from two penalty charge notices.
- Mr X says this has left him unfairly out of pocket, and he has spent time and trouble trying to resolve it.
What I have investigated
- As I say below (paragraph nine), the Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so.
- Mr X found out about the Penalty Charge Notices in March 2019. Mr X brought his complaint to the Ombudsman in April 2021. During this time, Mr X took legal action against the bailiffs involved with this case. Furthermore, COVID-19 meant there were delays to this process. After the delays, Mr X resumed his complaint to the Council without further delay.
- In this case, the injustice to Mr X was ongoing. For this reason, I have decided there are good reasons to exercise our discretion and investigate this complaint.
The Ombudsman’s role and powers
- 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 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)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
How I considered this complaint
- I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
What I found
What should have happened
- Councils are responsible for enforcing moving traffic offences. They do this by issuing Penalty Charge Notices (PCNs). A PCN can be sent by post. It is sent to the registered keeper (as per DVLA records).
- Government guidance allows a council to issue a Notice to Owner if it does not receive a first payment for a PCN. A council can then issue a charge certificate if no payment is received. A council can then apply to the Traffic Enforcement Centre (TEC) at Northampton County Court to recover the increased charge if no payment is received.
- The TEC is the court which deals with enforcing all traffic penalties issued by enforcing authorities in England. Motorists can file a statutory declaration/witness statement if they consider something has gone wrong in the enforcement procedure. If the court accepts a statutory declaration from a motorist, it cancels the penalty back to the point where it went wrong. The motorist then has a fresh opportunity either to pay the penalty or challenge it.
- In early 2019, Mr X’s van was clamped by bailiffs. He was told that he had outstanding Penalty Charge Notices (PCNs) which he had not paid. Mr X said he had not received any PCNs and did not know anything about them. Mr X paid the bailiffs a sum of money to release his vehicle.
- Mr X told the Traffic Enforcement Centre (TEC) that he had not received the original PCNs. The TEC ordered the Council to revoke the recovery action. It also ordered the Council to cancel the charge certificate and Notices to Owner/Enforcement Notices. The TEC said its decision did not cancel the original PCNs.
- Shortly after this, the Council wrote to Mr X. It said it would start the process over. It explained that it would send out fresh Notices to Owner/Enforcement Notices shortly. It said the outstanding amount for each PCN was £65 and that Mr X could pay by a certain date. It also told him that he could challenge the PCNs and how to do it.
- Mr X complained to the Council. He said the Council told him it had cancelled one of the PCNs, and that it would refund him in full for the other PCN.
- The Council said it would issue partial refunds for both PCNs. It told Mr X it would refund all the money he paid bailiffs, but that it would keep £130 (£65 for each PCN).
- In late 2020, a court heard Mr X’s complaint against the bailiffs.
- Mr X then continued his complaint with the Council. He said he wanted the Council to refund £75 he paid in court fees, taking the bailiffs to court. He said he could not understand why he was being charged for a PCN the Council told him it had cancelled.
- The Council apologised for any inconvenience for the issues Mr X raised in his complaint, and for any upset and distress caused. It said it had not ignored Mr X’s requests to refund the PCNs. It said it considered his requests but refused them and had already set out its reasons for those decisions.
- Mr X says the Council did not send him fresh Notices to Owner/Enforcement notices after the court decision at the Traffic Enforcement Centre (TEC).
- The Council says it did not issue fresh Notices to Owner/Enforcement Notices because it had received payment for both PCNs, so it considered both cases closed.
- The Ombudsman would usually expect a council to ensure all additional charges are refunded, including bailiffs’ fees, once there is a successful witness statement (meaning once the TEC has made a decision in favour of the motorist). The motorist would then be given an option of paying or challenging the PCN. This did not happen.
- In this case, the Council kept £130 as payment for both PCNs without issuing a fresh PCN or a fresh Notice to Owner/Enforcement Notice, as it said it would. This is fault. The Council cannot decide to keep part of Mr X’s money as payment for a PCN. The Council should have refunded Mr X all the money he paid and reissued the PCNs which would have allowed Mr X to pay the discounted rate or make informal representations.
- This fault caused Mr X injustice because it deprived him of his right to appeal. It deprived him of the opportunity either to pay the original PCN or to challenge it.
- Mr X accepts that one of the PCNs is correct and therefore the Council should retain £65 to pay that PCN. However, he says the Council told him it would cancel the other PCN.
- Mr X wants the Council to refund £75 he spent in court fees taking the bailiffs to court. I consider this was the cost of Mr X choosing to exercise his right to take the bailiffs to court. Therefore, I see no good reason to ask the Council to refund this money.
- Within four weeks of this decision, the Council will refund Mr X the £65 it kept for the PCN he did not accept.
- The Council says in this instance it is willing to close the case and not issue a further notice for this PCN. The Ombudsman is pleased that the Council has taken a common sense approach to resolving this complaint.
- I have completed my investigation. I find fault causing Mr X injustice. The Council has agreed to take action to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman