Summary: Mr X complains about how the Council handled his Penalty Charge Notice. The Ombudsman did not find fault in the way the Council followed the procedure set out in the Notice. However, we did find the Council at fault for having a separate policy which it does not consistently apply. The Council agreed to reopen Mr X’s case and provide him with information about its policy to enable him to make an informed decision.

The complaint

1. Mr X complains about how the Council handled his Penalty Charge Notice (PCN). In correspondence with the Council, Mr X was told:
• He would forfeit his early discount if he chose to submit written representations against the Penalty Charge Notice.
• His representation would be rejected.
2. Mr X wants the Council to annul his Penalty Charge Notice and refund the payment of £30.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant and my conversation with him.
• Documents provided by the Council and its comments in response to my enquiries.
• The Transport Act 2000 and The Bus Lane Contraventions (Penalty Charges Adjudication and Enforcement) (England) Regulations 2005.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant legislation

7. The Bus Lane Contraventions (Penalty Charges Adjudication and Enforcement) (England) Regulations 2005 (the Regulations) sets out the process for issuing and challenging bus lane Penalty Charge Notices. 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.
8. The Regulations 2005 state the Council has a duty to ensure any PCN issued states:
• A person must pay the penalty charge before the end of the 28-day period.
• If a person pays the penalty charge within 14 days from the date of service of the notice, the Council will reduce the penalty charge by one half.
• A person may make representations, on any of the statutory grounds of appeal, to the authority against the penalty charge. The Council may ignore representations made outside the 28-day appeal period
9. The Regulations 2005 state that if a person makes representations within 28 days, the Council has a duty “to consider them and any supporting evidence provided”. If the Council rejects the challenge, it should issue a Notice of Rejection (NOR) and a person can appeal the Council’s decision to the Traffic Penalty Tribunals (TPT).

How the Council handles PCNs for Bus Lane Enforcement

The PCN

10. The Council says information within its PCN corresponds with the Regulations.
11. The PCN states a charge of £60 is payable due to the alleged contravention of a bus lane. Payment must be made within 28 days beginning with the date of service.
12. To claim a discounted rate of 50% to £30 the charge must be paid within 14 days, beginning with the date of service. An individual cannot pay the discounted rate and make representations at the same time. Representations are against the £60 charge.
13. An individual can make representations against the charge within 28 days, beginning on the date of service. The Council can ignore representations made outside the 28 day period.
14. In red, the notice states ‘Payment should only be made if the Penalty Charge Notice is not disputed’ and then provides details on making representations to the Council. The grounds for making a representation are listed.

The Council’s policy on Bus Lane Enforcement

15. In response to my enquiries, the Council sent a copy of its Parking Penalty Processing Policy (this is not available online) and directed me to section 4.14 which sets out how it handles PCN enforcement. The Council also referred me to a flow chart on page 27 of its policy.
16. Section 4.14 sets out the following:
• The Council sends the PCN through the post to the registered keeper.
• The registered keeper can pay a discounted amount within 14 days from the date of service. The penalty charge is £60, discounted to £30.
• The registered keeper may dispute the PCN by completing the reverse of the notice.
• The Council will consider the representation and accept or reject it. If the Council rejects the representation it will give reasons and enclose paperwork for the registered keeper to dispute the matter further with the independent adjudicator.
17. The flowchart on page 27 sets out the following:
• PCN served by post.
• The individual has two choices:
1. make payment, £30 within 14 days or £60 after 14 days. This closes the case; or
2. make representations (within 28 days from the date of service) – Parking Services will review the case and uphold or waive the PCN.
• If the PCN is upheld, there are two possible outcomes. The individual may:
1. make payment, £30 within 14 days or £60 after 14 days. The case is then closed; or
2. appeal to the Bus Lane Adjudicator.
18. The flowchart shows if the PCN is upheld, the individual can still pay the discounted amount within 14 days of the decision. After the 14-day period, the full amount is due.

The Council’s informal policy

19. In response to enquiries, the Council said representations are against the full amount, however it often reoffers the discount payment. This is £30 if payment is made within 14 days, and £60 after 14 days.
20. The Council explains this within acknowledgement correspondence following receipt of written representations against the £60 penalty charge. The Council states this is not a legal requirement but a gesture of goodwill for motorists who contact the Council before paying.

What happened

21. I have summarised below the key events; this is not intended to be a detailed account.
22. Mr X drove down a bus lane on 5 July 2021.
23. The Council sent Mr X a PCN on 8 July 2021. The deemed date of service was 12 July 2021.
24. The PCN detailed Mr X’s bus lane contravention and advised he could send written representations or pay the charge of £60 within 28 days of the date of service. The notice also says Mr X could receive a 50% discount if he pays within 14 days of the date of service. The notice says representations are against the full amount, payment must not be made if the notice is disputed.
25. Mr X paid the discounted fee of £30 on 13 July 2021. The Council accepted the payment and closed the case.
26. Mr X revisited the area and took photos of the bus lane and signs. He said the bus lane had poor signage. Mr X emailed the Council on 3 August 2021 disputing the signage and asked for a refund of the £30.
27. The Council wrote to Mr X on 11 August 2021 and explained a refund will reopen the case. The Council said it will formally reject the representation and Mr X can appeal to the Traffic Penalty Tribunal Service.
28. Mr X replied on 19 August 2021. He said he will not formally open the appeal by seeking a refund.
29. Mr X complained to the Ombudsman on 28 September 2021.

Analysis

The PCN

30. The Councils process for appealing or paying the PCN is set out in the notice, explained in paragraphs 10 to 14.
31. Mr X chose to pay the early discounted charge within the 14 day period. The Council says by paying, Mr X accepted liability and the case was closed. The Council says to reopen the case, it would need to refund Mr X and his appeal would be against the full charge of £60.
32. The PCN states representations are against the full fee, and not the discounted fee. Payment should only be made if the PCN is not disputed. Mr X knew this when he paid the early discount fee. By paying the £30, he was aware this prevented him from appealing. If Mr X wanted to appeal, he should have submitted representations to the Council within 28 days, as directed in the PCN.
33. The Council have offered to refund Mr X and allow his appeal against the full fee. Mr X did not accept this offer.
34. The Council followed its procedure set out in the PCN. This is not fault.

The Council’s policy on Bus Lane Enforcement and informal policy

35. The Council’s policy says the discounted penalty charge can be paid within 14 days of service of the PCN, as set out in the notice itself.
36. The policy also says where someone submits representations and is unsuccessful, they can pay the discounted fee within 14 days. The Council has confirmed this is common practice. This is not reflected in the information the Council provides on the notice. The Council also does not provide this information in writing to motorists, or on its website. The Council did not give Mr X this information. Someone will only know this if they submit representations or enquire.
37. The Council has a different procedure for dealing with PCNs compared to what it sets out on the notice. As a result, not all motorists are given the same opportunity to appeal and still pay the discounted rate. This is fault.
38. If this information was publicly available, Mr X may have acted differently. Mr X was denied the opportunity to appeal the PCN and pay the discounted fee should his representation have been unsuccessful.
39. Based on the information available, I am of the view the fault identified caused Mr X injustice. The Council may have discouraged other motorists from appealing in the same way it did Mr X. This matter is therefore of wider public significance.

Predetermination

40. Mr X also complains the Council predetermined his case as it said his representation would be rejected. In response to my enquiries, the Council said it considered Mr X’s claim the signage was not clear and responded directly to that point.
41. The Council should have included the reason(s) why it would reject his representations, so Mr X was clear they had been considered.

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Agreed action

42. Within four weeks of the final decision being issued, the Council agreed to:
• Offer to reopen Mr X’s case and start the process again. This time the Council will explain that, as per its policy, if Mr X makes representations and the Council refuses them, he can still pay at the discounted rate within 14 days. If Mr X chooses to make representations, the Council must give written reasons for its decision.
• Explain its live policy regarding any discount reoffer following an unsuccessful representation where permitted within relevant PCN correspondence and online.

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Final decision

43. I have completed my investigation. The Council is at fault for not implementing its policy and procedure openly and transparently to all recipients of PCNs. This fault has caused injustice to Mr X and is of wider public significance. I have made recommendations to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman