Summary: Ms B complained that the Council issued her with a penalty charge notice for parking in a residents’ parking bay without displaying a valid permit and failed to cancel it when she explained she had been issued with a virtual permit rather than a physical one. The Ombudsman found the Council was at fault in failing to cancel the penalty charge notice when Ms B made informal representations. In recognition of the injustice caused, the Council has agreed to apologise to Ms B and make a payment to her. It has also agreed to review its procedures.

The complaint

1. Ms B complains that the Council issued her with a penalty charge notice (PCN) for parking in a residents’ parking bay without displaying a valid permit and failed to cancel it when she explained she had been issued with a virtual permit rather than a physical one.

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The Ombudsman’s role and powers

2. 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)
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

4. I have considered all the information provided by Ms B and the Council.
5. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

6. If a civil enforcement officer (CEO) believes a parking contravention has occurred, they may fix a penalty charge notice (PCN) to the vehicle or give it to the person appearing to be in charge of the vehicle. A motorist can pay a reduced penalty charge within 14 days.
7. A council must consider an informal challenge received prior to a notice to owner (NtO) being issued. If a council rejects an informal challenge, it should tell the motorist about the right of appeal.
8. If the penalty charge is not paid, the council may send a NtO to the keeper of the vehicle at the address where the vehicle is registered. This provides an opportunity for the keeper to either pay the charge at the full amount or make representations against the penalty charge within 28 days of the date of the notice.
9. The formal representations stage provides the opportunity for the keeper to state a case for not paying the penalty charge 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. If a council accepts the formal representations the penalty charge is no longer payable. If the council does not accept the formal representations, it must inform the keeper with details of the right of appeal to an independent adjudicator. The keeper may either pay the full penalty charge or appeal to a parking adjudicator within 28 days.
10. If the keeper does not appeal, or appeals unsuccessfully, and still does not pay the penalty charge, the council can issue a charge certificate. At this time the penalty payable is increased if it is not paid within 14 days.
11. If a penalty charge remains unpaid after 14 days from the charge certificate, the council can register it as a debt at the Traffic Enforcement Centre at Northampton County Court adding court costs. Within seven days the council must then send an order informing the keeper that, within a further 21 days, they must either pay the amount outstanding or make a witness statement to the TEC.
12. If the debt remains unpaid and no witness statement is made, the Council may apply to the TEC for a warrant of execution which it may pass to bailiffs to recover the amount owing.

Key facts

13. Ms B was issued with a PCN by the Council when parking her car in a residents’ parking bay near her home. The bay is designated for the use of both Camden and Haringey permit holders. Ms B had a valid parking permit issued by the London Borough of Camden. Its policy is to issue virtual parking permits rather than physical ones so there is no requirement to display the permit in the resident’s vehicle.
14. Ms B wrote to the Council explaining that her car was legally parked in the bay and provided the reference number of the permit.
15. The Council considered Ms B’s informal representations and wrote to her saying it had decided not to cancel the PCN. It said that, even if she had a permit, she had to display it so that a civil enforcement officer (CEO) could see the details
16. As 28 days had passed and Ms B had not paid the penalty charge, the Council issued a NtO. Ms B wrote to the Council again explaining her car was legally parked as a parking permit had been issued by Camden Council. She again provided the reference number of the permit. She said she was due to give birth imminently and the Council’s harassment was causing her severe stress.
17. The Council replied saying Ms B was raising a point that it had answered in its previous letter and it had nothing more to add.
18. Ms B responded reiterating that Camden Council do not provide physical permits to display in the vehicle. They only issue virtual permits. She said the Council had ignored this point.
19. The Council responded stating that Ms B should follow the appeal process set out on the NtO form if she wished to challenge the PCN further.
20. Ms B responded stating that she was no longer able to do this as the deadline had passed. She said she had explained to the Council at the time that she would not be able to appeal because her baby was due when she received the NtO.
21. The Council replied saying it was now too late for Ms B to challenge the PCN further. It explained that Ms B could pay a reduced charge of £65 within 14 days. Alternatively, she would have to pay £195. If she did not do so it would apply to the TEC to recover this amount together with court costs.
22. The Council applied to the TEC and issued an order for recovery of unpaid penalty charge requiring Ms B to pay £203.

Analysis

23. In response to our enquiries, the Council acknowledged that the London Borough of Camden issues virtual permits rather than physical ones but says the CEO would not have been able to check this as they do not have access to the London Borough of Camden’s database. The Council accepted an error was made in processing the PCN which should have been cancelled when Ms B first challenged it because she provided proof that she had a valid virtual permit for the use of the bay. It apologised and confirmed the PCN had been cancelled and it had requested that the warrant be returned from the enforcement officers.
24. Failure to cancel the PCN when Ms B explained she had a valid permit meant she was put to a great deal of time and trouble in having to repeatedly put her case to the Council and, ultimately, to the Ombudsman to resolve the situation. This should not have been necessary. The situation caused her a great deal of stress at a time when she was heavily pregnant and due to give birth and the Council was aware of this. This was a significant injustice.
25. I find the Council was also at fault in failing to refer to the right of appeal in its letter to Ms B rejecting her informal representation.
26. The Council says this information was not included in the informal rejection letter because it was already included on the PCN and NtO and it was conscious of ‘information overload’. It also says there is no legal requirement for this information to be included in the letter.
27. Motorists should be aware of their options when deciding whether or not to pay. So, the Council should state the right to make an appeal to an independent adjudicator when rejecting an informal challenge. This is supported by paragraph 49 of part 2 of the London Councils’ Code of Practice on Civil Parking Enforcement (February 2018). This states,

“If the authority considers that there are no grounds for cancellation of the PCN, they should inform the correspondent of their decision and make clear that:

• If the PCN is not paid, an NtO will be served which enables the vehicle owner to make formal representations
• The authority must consider any representations even where it has previously concluded that the evidence does not merit cancellation of the PCN
• If the formal representation is rejected by the authority, the vehicle owner will be able to appeal the decision to an independent parking adjudicator who will consider the statutory grounds for appeal
• It is not possible to appeal to a parking adjudicator without making a formal representation to the authority first”.
1. Where a council fails to state the right of appeal, the motorist appears to be faced with two choices: they can pay the discounted amount or wait for the NtO and then make a formal challenge to the same body that has just rejected their informal challenge. Failure to state the right of appeal in the rejection letter is likely to influence many motorists to decide to pay at the discounted rate rather than risk paying what can be a considerable amount. It is also likely many motorists would decide differently if it was made clear they could appeal to someone independent if the council rejected a formal challenge.

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Recommended action

29. The Council has agreed that, within one month, it will:
• apologise to Ms B;
• pay Ms B £200 in recognition of the distress she suffered and the time and trouble she was put to;
• alter the standard wording on its letters rejecting informal representations to comply with the Code of Practice by including information on the right to appeal; and
• issue a reminder to CEOs that the London Borough of Camden issues virtual permits rather than physical ones.
30. The Council has also agreed that, within three months, it will review its procedures to consider whether a process could be put in place whereby CEOs are able to check whether a motorist has a residents’ permit issued by the London Borough of Camden.

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Final decision

31. I uphold Ms B’s complaint.
32. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman