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London Borough of Barking & Dagenham (21 010 546)

Category : Transport and highways > Parking and other penalties

Decision : Not upheld

Decision date : 17 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to respond to his challenge to a Penalty Charge Notice for a sign contravention. Mr X also complained he was threatened with court action. The Council was not at fault. It did respond to the challenge, but Mr X did not receive it.

The complaint

  1. Mr X complained the Council failed to respond to his challenge to a Penalty Charge Notice (PCN) for a sign contravention and said he did not receive the Notice of Rejection. Mr X also complained about the Council threatening him with Court action. Mr X said the Council’s handling of the matter has caused him stress and resulted in him paying more for the PCN.

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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. 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 Mr X about his complaint;
  2. I considered the Council's comments about the complaint and the supporting documents it provided; and
  3. I considered the Council's policies and relevant law and guidance.
  4. Mr X and the Council had the opportunity to comment on a draft decision. We considered their comments before making the final decision.

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What I found

  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 County Court will authorise the council to make an Order for Recovery which the council can serve on the debtor with a witness statement form.

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 2021 the Council issued a Penalty Charge Notice (PCN) for a moving traffic contravention. It sent this to Mr X by post to his home address. The charge was £130.00 reduced to £65.00 if paid within 14 days. The PCN also acted as the Notice to Owner (NtO) and included information about how to challenge the decision.
  2. At the end of July 2021 Mr X challenged the PCN online via the Council’s website. The Council issued a Notice of Rejection (NOR) letter at the beginning of August 2021. In response to our enquiries, the Council provided evidence to confirm it was sent. The NOR letter said Mr X needed to pay £130.00 or appeal to the Environment and Traffic Adjudicators (ETA). It also offered Mr X a discount rate of £65.00 if he paid within 14 days. Mr X said he did not receive the NOR letter through the post. Mr X said due to the nature of his job he received many NOR letters and would have paid within 14 days at the discount rate.
  3. Because he had not received the NOR, Mr X made a second online challenge to the PCN in August 2021 and a third online challenge in early September 2021. In response to my enquiries, the Council say Mr X’s challenge from August 2021 fell outside the statutory, legal appeals process. This meant it was not obliged to consider the August 2021 challenge by Mr X.
  4. The Council responded to Mr X’s later challenge, by letter in late September 2021. It confirmed the most appropriate way for Mr X to appeal the PCN decision. The Council recommended Mr X completed a Your Right to Appeal Form and submit it to the ETA at London Tribunals with a copy of the Council’s letter. The Council said if Mr X did not appeal or make a PCN payment a Charge Certificate may be issued. The Your Right to Appeal Form was enclosed within the NOR letter, which Mr X did not receive.
  5. On the same day, the Council issued Mr X a Charge Certificate, which it said it sent by post to his home address. This did not give Mr X time to lodge an appeal. The Charge Certificate increased the amount Mr X had to pay to £195.00.
  6. In response to my enquiries, the Council accepted it could have sent a copy of the NOR to Mr X in early September. But it would have been too late to appeal to an adjudicator and the Council had no power to extend the time available for an appeal to London Tribunals. It accepts it could have made this clear in its response to Mr X at the end of September 2021. However, the Council said there was still scope within the statutory appeals procedure for Mr X to challenge the fine by filing a declaration with the Court and it considers it would have been reasonable for Mr X to have done this.
  7. The Council sent two further notices to Mr X. The Outstanding Payment Reminder the Council sent Mr X in mid-October 2021 confirmed the PCN would be registered as a debt in the Northampton County Court. This would be avoided if the Council received a full payment of £195.00 within 7 days.
  8. At the end of October 2021 Mr X paid the £195.00 penalty charge. Mr X said he did so to avoid a County Court judgement. The Council said Mr X did this without further challenge, and it closed the PCN at that point.
  9. Mr X remained unhappy with the Council’s handling of the matter and asked the Ombudsman to consider his complaint.
  10. The Council has offered to refund Mr X £130 of the £195 Mr X paid, which put him back in the position he would have been in if he had received the NOR.

My findings

  1. There was no fault in the Council’s decision to issue the PCN. Mr X’s complaint is he had not received the Notice of Rejection Letter, which meant he did not get the opportunity to pay at the discounted rate.
  2. Councils have discretion over whether to cancel PCN’s in any circumstances, regardless of whether they have a statutory obligation to do so. 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. We have seen no evidence the Council considered exercising discretion in this case.
  3. The Council accepted it could have sent a further copy of the NOR decision to Mr X in response to his further challenge to the PCN. It also accepts it could have been clearer about his options when it wrote to him in September 2021. For example, it could have told him that he could file a declaration with the Court on the grounds he had not received the NOR decision. Although this would have been good practice, we do not consider it is sufficient to amount to fault in the circumstances.
  4. The Council was not at fault for sending a reminder notice in October 2021, which included a threat of court action, because it was following the correct process.
  5. We have not found fault with the Council and therefore we cannot make any formal recommendations. The Council has offered to refund £130 to put Mr X back into the position he would have been in if he had received its NOR, which we consider is appropriate action for it to take to resolve the complaint.

Final decision

  1. We have completed the investigation finding no fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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