Summary: We will not investigate this complaint about a penalty charge notice for a bus lane contravention. The complainant had a right of appeal against the penalty charge and could have asked a court to restore that right. Further, the Council has now exercised discretion to cancel the penalty charge notice.

The complaint

1. The complainant, who I refer to here as Mrs Y, has complained the Council took recovery action on a penalty charge notice for a bus lane contravention. She says she told the Council she did not own the car when the contravention occurred but it continued to seek money from hee..

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
4. The law also 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)
5. 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’.
6. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information provided by Mrs Y and the Council. I also considered our Assessment Code.

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My assessment

Background

8. The Council enforces bus lanes and takes recovery action using procedures set out in the London Local Authorities Act 1996. 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.
9. In law, the owner of a vehicle is responsible for any penalty charges regardless of who was driving at the time of the contravention. This is most often the person registered with the Driver and Vehicle Licensing Agency (DVLA) as the keeper of the vehicle. Enforcement authorities will first send any formal documents using keeper details provided by the DVLA.
10. The Road Vehicles (Registration and Licensing) Regulations 2002 require the owner of a vehicle to immediately inform the DVLA of any change of address. It is an offence under the Vehicle Excise and Registration Act 1994 to use a vehicle where the correct address is not held by the DVLA.
11. There is a right of appeal against penalty charge notices issued by the Council. This is to London Tribunals which is a statutory tribunal. An appeal to London Tribunals is free and relatively easy to use. It is also the way in which Parliament expects people to challenge a penalty charge notice. For these reasons, the restriction I describe in paragraph 3 generally applies.

Summary of events

12. The Council issued the penalty charge notice because it believed Mrs Y owned a car driven in a bus lane during the hours of operation.
13. Mrs Y made representations against the penalty charge notice saying she was not the owner at the time of the contravention. She sent the Council a copy of an email from the DVLA dated the day after the contravention occurred. It said she was now the owner of the car but did not state from what date. The Council asked Mrs Y for more evidence relating to the sale. When it did not receive this, the Council continued recovery action.
14. The Council has now recognised it should have issued a formal notice either accepting or rejecting Mrs Y’s representations against the penalty charge notice. If it rejected them, Mrs Y could have appealed to London Tribunals.
15. The Council registered the unpaid penalty charge as a debt with the Traffic Enforcement Centre (TEC) at Northampton County Court. It explained to Mrs Y she could made a statutory declaration to the TEC on certain grounds, including that she had made representations against the penalty charge notice and not received a rejection notice. If the TEC accepts such a statutory declaration, the Council will refer the matter to London Tribunals.
16. In the event, the Council decided to cancel the penalty charge notice without Mrs Y having to appeal or make a statutory declaration.

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Final decision

17. We will not investigate Mrs Y’s complaint because she had a right of appeal against the penalty charge notice and could have asked a court to restore that right. While the Council accepts it did not issue the required notice, it has provided a remedy by cancelling the penalty charge notice. I do not consider fault by the Council has caused Mrs Y other injustice that we should pursue.

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Investigator's decision on behalf of the Ombudsman