Summary: Mr X complained the Council did not make reasonable adjustments when he contacted it to challenge a Penalty Charge Notice. He said this caused him distress and anxiety. We found fault by the Council, who agreed to apologise and make a payment to recognise the injustice caused.

The complaint

1. Mr X complained the Council did not make reasonable adjustments as requested when he contacted it to challenge a Penalty Charge Notice. Mr X said the Council’s actions caused him distress and anxiety.
2. Mr X also complained that an officer became irate and ended a telephone call with him and that he did not receive a call back from a manager.

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What I have investigated

3. I have investigated the complaint listed at paragraph one. The final section of this statement explains why I have not investigated the complaints listed at paragraph two.

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The Ombudsman’s role and powers

4. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we could not add to any previous investigation by the organisation. (Local Government Act 1974, section 24A(6))
7. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal or court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or go to court. (Local Government Act 1974, section 26(6)(a)(c), as amended)
8. 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

9. I discussed the complaint with Mr X and considered the information he provided.
10. I made enquiries to the Council and considered the information it provided.
11. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Penalty Charge Notices

12. Councils have powers to issue penalty charge notices (PCNs) to people if they do not follow parking and moving traffic rules. After issuing a PCN, the law sets out further steps councils must take to recover the penalty charge. These steps also give people opportunities to challenge the PCN.
13. The Council’s website says motorists may challenge PCNs by using an online link if they consider the Notice has been issued incorrectly. Alternatively, motorists may present their challenge in writing.
14. The Council’s Parking Enforcement Policy says, “The keeper of a vehicle may make a written challenge against the issue of a PCN”.

The Equality Act 2010

15. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
16. Organisations carrying out public functions cannot discriminate on any of the nine protected characteristics listed in the Equality Act 2010 and to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
17. The protected characteristics referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

18. Public bodies are under a positive and proactive duty to take steps to remove or prevent obstacles to a disabled person accessing its services. If the adjustments are reasonable, it must make them.
19. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

What happened

20. Mr X received a PCN on 16 September 2020 for not displaying a valid parking permit in a resident’s zone.
21. On 23 September 2020, Mr X called the Council to challenge the PCN. He said he had displayed a Blue Badge and considered he should not have been issued with the PCN. Mr X said he wanted to raise a verbal challenge against the Notice as a result.
22. The Council told Mr X he needed to provide his challenge in writing. Mr X said he had a disability and asked the Council to make a reasonable adjustment in line with the Equality Act so that he could provide his challenge verbally. The Council said it required challenges to be provided in writing and suggested that Mr X seek some assistance from friends or family. Mr X asked the Council for a call-back from a manager.
23. The Council says it called Mr X back on the same day, but Mr X did not answer, and the Council was unable to leave a message.
24. Mr X called the Council again on 12 October 2020. He said he was unhappy the Council had not made any reasonable adjustments for him to submit his challenge of the PCN. The Council maintained it required challenges to be made in writing and said it could not accept Mr X’s verbal representations in case his challenge was misinterpreted. The Council suggested Mr X seek some assistance from Citizen’s Advice. Mr X asked for a manager to call him back.
25. On 13 October 2020, Mr X called the Council again and said he was still waiting for a manager to call him. He said he had tried to return the manager’s previous missed call, but this was outside the office’s telephone hours.
26. Mr X called again on 15 October 2020 and requested a call-back from a manager. The Council says it returned Mr X’s call but received no answer.
27. On 16 October 2020, Mr X called the Council again. The Council told Mr X that challenges should be provided in writing and that it could not accept them verbally in case the appellant later disputed the Council’s record of what was said. It said Mr X would need to provide his challenge in writing so that it could retain an audit trail. Mr X said he was unable to provide his challenge in writing because of his disability. The Council suggested Mr X sought assistance from a third party and advised him to seek independent legal advice. The officer terminated the call as they said Mr X was shouting at them.

Mr X’s complaint

28. Mr X complained to the Council on the same day. He said the Council had not called him back and had declined to accept his challenge of the PCN verbally. Mr X said his disability prevented him from providing his challenge in writing. He said the Council should make adjustments for those that require them and said he considered the Council had not acted fairly towards him. Mr X also complained the officer he spoke to was abusive, had talked over him and had terminated the call.
29. The Council responded to Mr X’s complaint on 30 October 2020. It said challenges or representations against PCNs should be made in writing, and that if a person’s disability prevented them from doing this, it would tell them to seek assistance from Citizen’s Advice or an independent third party. The Council said this was to ensure it kept an appropriate audit trail and an irrefutable record of the challenge. The Council apologised for a “dip” in the standard of its service and told Mr X he could request a review of the complaint response.
30. Mr X requested a review of the complaint response on 2 November 2020 as he felt the Council had not answered all the points of his complaint. He said the Council was obliged to make reasonable adjustments in line with the Equality Act 2010 and that it was not the responsibility of Citizen’s Advice to provide him with assistance.
31. The Council says it cancelled the PCN on 13 January 2021.
32. On 8 February 2021, the Council responded to Mr X. It apologised for taking longer than 25 days to respond to the complaint and said the Coronavirus crisis had heavily impacted its services. The Council said it had investigated the issue regarding the telephone call and had expressed its concerns to the officer involved. The Council said the service offered its apologies regarding this matter. It also said it had tried to return Mr X’s calls as requested, but the calls were not answered.
33. The Council acknowledged Mr X’s explanation that he could not submit his appeal in writing. However, it repeated its previous response and said challenges against PCNs should be made in writing. It said if an appellant’s disability prevented them from doing this, it would advise them to contact Citizen’s Advice or an independent third party. The Council said in response to Mr X’s feedback, it was investigating the possibility of implementing a system where-by appellants who could not submit challenges in writing could make verbal representations over the telephone. The Council apologised for the “dip” in the standard of its services and said it had cancelled the PCN.
34. Mr X remained dissatisfied with the Council’s response and brought his complaint to us.

Analysis

35. Mr X has a right to go to court if he believes the Council has discriminated against him. However, we must consider if it is reasonable for Mr X to do this. Mr X has autism and says he found the process of trying to challenge the PCN very stressful. Given Mr X’s explanation, I do not consider it is reasonable to expect him to take action in court.
36. As stated at paragraph 19, we cannot find an organisation has breached the Equality Act. Only the courts can decide whether the Council has discriminated against Mr X. But we can decide if the Council has acted with fault in dealing with Mr X’s requests for reasonable adjustments.
37. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.

The Council’s process

38. The Council says the statutory guidance for local authorities on enforcing parking restrictions states “As with statutory representations, the authority should ensure that, whatever ways are available to lodge an informal representation, there is an adequate audit trail of the case, showing what decision was taken and why.” The Council says it had previously only taken challenges or representations against PCNs in writing, and this is why this information was relayed to Mr X.
39. The Council says when it reviewed Mr X’s complaint, it noted it offered a telephone service as a means of contacting the Parking Regulation and Compliance team. It says it therefore looked at the best way this telephone service could be offered in circumstances where someone was unable to get support from an outside source. The Council says it decided telephone advisors would accept verbal challenges and would record the details on the case. It said an independent officer would then be able to investigate the case from this evidence.
40. The Council has confirmed it has a process for accepting verbal challenges over the telephone. The evidence provided indicates this process was in place prior to Mr X’s complaint, although it appears this was not made known to all staff.
41. The Council says when a customer is unable to read or write and is unable to get assistance from a third party, it will take details of their query over the telephone. It says a transcript of the telephone conversation can be prepared and scanned to the case, and a copy of the call recording obtained. The Council says it would usually encourage a service user to submit their concerns in writing, but if they are unable to seek assistance, the Council should offer the service user the option to provide details over the telephone as above.

Is there evidence of fault by the Council?

42. The evidence shows the Council did not make reasonable adjustments for Mr X when he asked to provide his challenge verbally, despite having a process in place regarding this. Mr X stated on several occasions he was not able to submit a written challenge because of his disability. On each occasion, the Council declined his request and told him he needed to submit a written challenge and/or seek assistance from a third party. I consider this shows the Council failed to take account of its duties towards Mr X under the Equality Act 2010, and I have found this to be fault.
43. Having identified fault, I must consider if this caused a significant injustice to Mr X. He says the Council’s actions caused him a lot of avoidable stress and anxiety, and this led to disrupted sleep for several weeks.

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Agreed action

44. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:

• Provide an apology to Mr X;
• Make a payment of £150 in recognition of the stress and anxiety caused. This amount is in accordance with our published guidance on remedies, and
• Remind staff of the Council’s duties under the Equality Act 2010 to consider providing reasonable adjustments for disabled service users, particularly in respect of accepting verbal challenges.

45. The Council has also agreed to take the following action within six months of the final decision:

• Review information on the Council’s website and any other literature regarding challenging PCNs to ensure information given complies with the Equality Act 2010 and provides details of how to request reasonable adjustments and make contact other than in writing.

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Final decision

46. The Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

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Parts of the complaint that I did not investigate

47. I have not investigated the complaints listed at paragraph two because the Council addressed these complaints in its final response to Mr X. Given the explanation provided by the Council regarding these matters, it is unlikely we could add to its previous investigation.

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Investigator's decision on behalf of the Ombudsman