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London Borough of Barking & Dagenham (21 002 820)

Category : Transport and highways > Parking and other penalties

Decision : Upheld

Decision date : 12 Nov 2021

The Ombudsman's final decision:

Summary: Miss X complained the Council failed to consider her appeal against a charge certificate issued to her for failing to pay a Penalty Charge Notice (PCN) which she told it she never received. The Council was at fault. It failed to use its discretion to consider the circumstances of Miss X’s appeal and failed to explain to Miss X how to make a witness statement at the next stage of the process. The Council agreed to refund the £195.00 Miss X paid and reissue her the original PCN giving her the opportunity to pay it at the discounted rate or make formal representations.

The complaint

  1. Miss X complained the Council failed to properly consider her appeal against a charge certificate issued to her for failing to pay a Penalty Charge Notice (PCN). Miss X said she did not receive the initial PCN and therefore she lost the opportunity to pay the charge at a discounted rate or make a formal challenge.

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The Ombudsman’s role and powers

  1. 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)
  2. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. 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

  1. I spoke to Miss X about her complaint and considered information she provided.
  2. I considered information from the Council including the PCN, charge certificate and correspondence between it and Miss X.
  3. I considered relevant law and guidance including the:
    • London Local Authorities and Transport for London Act 2003
    • London Councils Code of Practice on Civil Parking Enforcement
    • Guidance for local authorities on enforcing parking restrictions
  4. Miss X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

  1. The Council enforces moving traffic restrictions and takes recovery action using procedures set out in the London Local Authorities and Transport for London Act 2003. 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.
  2. Following a moving traffic contravention, the council issues a PCN, which is served by post. The 2003 Act allows a 14-day discount period.
  3. The PCN if served by post also acts as the Notice to Owner (NtO). The NtO provides the opportunity for the recipient to either pay the full penalty charge within 28 days or make formal representations. There is no informal challenge stage where PCNs are served by post.
  4. The formal representations stage provides the opportunity for the keeper to state a case for not paying the penalty charge either on one of the statutory grounds of appeal or for any other reason. A council must consider representations received within 28 days of the NtO and has discretion to consider any received outside this period.
  5. If the keeper does not appeal, or appeals unsuccessfully, and still does not pay the penalty charge, a council can issue a charge certificate. At this time, the penalty payable is increased by a further 50% (from, say, £130 to £195), if it is not paid within 14 days.
  6. If the PCN is not paid after 14 days of a charge certificate being served the council may register the debt at the Traffic Enforcement Centre (TEC). The council can then recover the debt through the County Court. The Country Court will authorise the council to make an Order for Recovery which the council can serve on the debtor with a witness statement form.
  7. Where an Order for Recovery has been made, liability for the penalty can then only be challenged in the following circumstances:
    • You did not receive the postal Penalty Charge Notice or Notice to Owner in question; or
    • You made representations to the enforcement authority concerned but did not receive a Notice of Rejection from that authority; or
    • You appealed to the adjudicator against the rejection by the enforcement authority of your representations but had no response to the appeal; or
    • The appeal had not been determined by the time the charge certificate was served, or it was determined in your favour; or
    • You had paid the penalty charge.
  8. Where the keeper successfully challenges on the grounds that the Notice to Owner was not received, the Order for Recovery, Charge Certificate and Notice to Owner are cancelled. The enforcement authority may then issue a new Notice to Owner. The original Penalty Charge Notice is not cancelled.
  9. The ‘London Councils Code of Practice on Civil Parking Enforcement’ (the Code) sets out guidance on how councils should process PCNs. While the Code is about parking offences, our view is that we expect councils to have regard to it given the PCN process is broadly the same.
  10. The Code says if an owner contacts the council and informs it that the charge certificate is the first notice received then it should consider allowing the owner to make payment of the full PCN charge (without the charge certificate increase) or make a challenge. If the council chooses not to allow either of these options then it should explain the procedure for making a witness statement at the next stage of the process.

Fettering discretion

  1. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
  2. Government guidance titled ‘Guidance for local authorities on enforcing parking restrictions’ sets out how authorities should consider discretion. Where a PCN is served for a moving traffic contravention this guidance does not apply but there is a reasonable expectation that councils have regard to it.
  3. The guidance says an authority has a discretionary power to cancel a PCN at any point throughout a process, even when an undoubted contravention has occurred. It says enforcement authorities should judge each case on its merits and should apply policy in a flexible way. It says an enforcement authority should be ready to depart from its policies if the particular circumstances of the case warrant it.

What happened

  1. In July 2020 the Council issued Miss X with a PCN for a moving traffic contravention which it issued to her by post to her home address. The penalty charge on the PCN was £130.00 reduced to £65.00 if paid within 14 days. The PCN also acted as the NtO and included information about how to make representations on legal grounds.
  2. The Council did not receive any payment from Miss X or any representations, so, in August 2020, it issued her with a charge certificate which it sent to her home address. This increased the amount due to £195.00.
  3. Upon receiving the charge certificate Miss X contacted the Council. She said the charge certificate was the first correspondence she had received about the PCN. She said she did not receive the original PCN. Miss X said the Council told her to complete an online enquiry about the matter but then told her to write to it after the enquiry failed. Miss X said her brother was driving her car at the time and took a wrong turn.
  4. The Council responded to Miss X by letter. It said it issued the charge certificate as the PCN was not paid and the period for making a challenge had passed. The Council said it had no statutory obligation to consider any correspondence and saw no good reason to make an exception in Miss X’s case. The Council said the penalty charge was £195.00 and provided Miss X with details of how to pay. The letter told Miss X if she did not pay within the 14-day period set out in the charge certificate it may register the debt, incurring a further £8.00 charge, and then issue a warrant for an enforcement agent to recover the amount.
  5. The Council wrote to Miss X again in December 2020 as it had still not received payment. It told Miss X it was her final opportunity to make payment or contact it so it could assist with a payment plan. It said it would pass the matter to enforcement agents if she failed to pay and would no longer be able to assist at that point.
  6. Miss X paid the £195.00 penalty charge. Miss X said she did so to avoid the case being sent to enforcement agents.
  7. Miss X wrote to the Council again March 2021. She reiterated that she did not receive the initial PCN letter. She said despite writing to and calling the Council she was not given any assistance. Miss X said she felt pressurised into paying the charge. Miss X asked the Council for the opportunity to appeal its decision to send her the charge certificate despite her telling it she did not receive the original PCN.
  8. The Council wrote back to Miss X and said as Miss X had paid the PCN the case was now closed.
  9. Miss X remained unhappy with the Council’s handling of the matter and complained to us.

My findings

  1. The Ombudsman may find fault with councils for ‘fettering their discretion’, that is to say, for operating inflexible policies which do not allow for the application of discretion. This is because a blanket refusal to depart from a policy is arbitrary and likely to lead, at one time or another, to manifest injustice.
  2. There is no fault in the Council’s decision to issue the PCN. Miss X’s complaint is that she did not get the opportunity to either pay at the discounted rate or to make a formal challenge.
  3. Councils have discretion over whether to cancel PCN’s in any circumstances. The decision about whether to do this is one for the Council to make, however we expect to see evidence showing how the Council reached its decision.
  4. The Council said it had no statutory obligation to consider correspondence after it has issued the charge certificate, however, this does not negate its duty to use its discretion on a case-by-case basis. The Council did not properly consider using its discretion to cancel the charge certificate when Miss X told the Council she did not receive the PCN and NtO letter. Instead, it took a rigid view of matters without explaining why it would not make an exception in Miss X’s case. The Council fettered its discretion to consider Miss X’s circumstances which is not in line with the relevant guidance. That was fault. It meant Miss X was denied the opportunity to pay the PCN at the discounted rate or make formal representations.
  5. If, in circumstances such as Miss X’s, councils decide not to cancel the charge certificate or allow owners to make a challenge then they should explain the procedure for making a witness statement at the next stage of the process. We consider failing to do so is fault. There is no evidence in any of the correspondence following the charge certificate which shows the Council explained this process to Miss X. Instead, it told her to pay the full charge to avoid the case being sent to enforcement agents. This was fault and not in line with relevant guidance. Had the Council explained the process to Miss X it is likely, on balance, that she would have waited and used her right to make a witness statement stating she did not receive the NtO, rather than pay the full amount.

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Agreed action

  1. Within one month of the final decision, the Council agreed to:
    • refund Miss X the £195.00 fee paid and reissues her with the initial PCN letter giving her the opportunity to either pay it at the discounted rate of £65.00 or make a formal challenge.
    • remind officers from its parking and enforcement team of the importance of considering using their discretion to cancel PCNs on appeal, based on individual circumstances.
    • remind officers to include information about owners’ rights at each stage of the PCN process in correspondence.
  2. The Council will provide us with evidence it has completed these actions.

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Final decision

  1. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman

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