Summary: Mrs X complained the Council unfairly charged her for driving in a Clean Air Zone and did not consider her representations against the charge. We find the Council at fault for how it responded to Mrs X’s representations. We recommend the Council apologise to Mrs X, cancel and refund her penalty charge notice (PCN), and provide evidence of action taken to prevent recurrence.

The complaint

1. Mrs X complains about the Council’s decision to charge her for entering a Clean Air Zone. Mrs X says there were no signs to let her know she was entering a restricted area and believes that her car would be exempt anyway. Mrs X also complains the Council refused to consider her representations against the charge. Mrs X has paid the £60 penalty charge notice (PCN) but feels that the Council should refund this.

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What I have investigated

2. I have investigated whether the Council was at fault for refusing to consider Mrs X’s representations against the PCN after she paid the charge.
3. I have not considered whether the Council was right to charge Mrs X for entering the Clean Air Zone. I have explained why at the end of this decision.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
7. 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

8. I discussed this complaint with Mrs X and considered the information she provided.
9. I also considered the information the Council provided together with:
• The Government’s Clean Air Zones Guidance
• The Government’s Air quality: Clean Air Zone Framework for England
• The Transport Act 2000
• The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regs 2013
• The Council’s Clean Air Zone policy
10. I sent Mrs X and the Council a draft decision and considered their comments.

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What I found

Clean Air Zone

11. Part three of the Transport Act 2000 allows councils to enforce local charging schemes for the use of motor vehicles on public roads.
12. This includes defining the roads and vehicles that will be charged, the level of charges and how they will be made, the duration of the scheme, any exemptions and reductions, and penalties for non-payment.
13. The Government issued a Clean Air Zone Framework in February 2020 which set out the approach it expects councils to take when operating a Clean Air Zone.
14. The framework says councils can impose penalty charges on drivers who fail to pay the relevant Clear Air Zone charges. It also says councils can offer discounts on penalties to encourage prompt payment and there should be a fair procedure for making an appeal.

The Road User Charging Schemes Regulations

15. Regulation 8, paragraph 9, of The Road User Charging Schemes Regulations 2013 explains the charging authority has a duty to consider representations made to them within 28 days. This places a duty on councils to consider and respond to representations. It does not make an exception for cases where a driver has paid their PCN.
16. Regulation 8, paragraph 10, goes onto say where the charging authority fails to comply with paragraph 9 within 56 days it must, as soon as reasonably practicable, refund any sum paid for the PCN. This allows for circumstances where a PCN has been paid and representations made but a council has failed to consider them within 56 days.
17. Regulation 11, paragraph 7(b) explains that, where an appeal is allowed, the adjudicator may instruct the charging authority to refund any money already paid for a PCN. This means that appeals can be considered, regardless of whether a PCN has been paid.

The Council’s policy

18. From 14 June 2021, the Council introduced a Class D Clean Air Zone. The Council’s policy explains that charges will apply to buses, coaches, lorries, vans, taxis, and cars. It also sets out which vehicles will be exempt and how to check this.
19. The Council’s Clean Air Zone operates every day and charges drivers of cars £8 per day they enter it. Drivers can pay the charge up to six days before their visit, on the day, or up to six days after their visit.
20. The Council will issue a £120 PCN for anyone who fails to pay the charge inside the payment window. This is reduced to £60 if the PCN is paid within 14 days of issue.
21. If a driver believes the Council has fined them incorrectly, they can make a challenge which the Council will consider. If the challenge is unsuccessful, they will not be entitled to pay at the reduced rate but can submit an appeal to the Traffic Penalty Tribunal.
22. At the time of the events Mrs X complained about, the Council would not consider representations made after it received payment at the reduced rate. It changed this practice in December 2021, following the Ombudsman’s recommendation on another case.

What happened

23. Mrs X drove into the Council’s Clear Air Zone. The Council issued Mrs X with a PCN on 25 October 2021 for failing to pay the daily charge.
24. The PCN explained Mrs X would need to pay £120, or £60 if she paid within 14 days. The PCN included information about how to make representations if Mrs X disagreed, and her right to appeal to the Traffic Penalty Tribunal if the Council rejected her representations.
25. On 26 October, Mrs X paid the PCN at the discounted rate of £60. She made a complaint to the Council the same day. She explained she was not from the area, was unaware of the Clean Air Zone and saw no signage advising of it. She said her car was a Class C car and she believed the Council had made a mistake.
26. The Council wrote to Mrs X on 1 November. It explained drivers had a 13-day window in which to pay when driving in its Clean Air Zone. It also explained how it had publicised the Clean Air Zone and that the signage complied with the regulations. It said motorists could make formal representations against PCNs and, if the Council rejected the representations, they could appeal to the Traffic Penalty Tribunal. However, where motorists chose to pay at the reduced rate – as Mrs X had – it considered the PCN settled, and the case closed.
27. Mrs X’s husband called the Council that day to ask it to escalate the complaint. He said the Council had not answered their points about why the charge should not apply to their car.
28. The Council responded to Mrs X’s complaint escalation on 8 November. It reiterated the information it had previously given about its Clean Air Zone scheme. It explained that it runs a Class D clean air zone and explained this means the charge applied to all vehicles. The Council said if it receives payment at the reduced rate of £60 the PCN is considered settled and it will not consider representations against it.
29. As she remained dissatisfied with the Council’s response, Mrs X contacted the Ombudsman on 9 November.
30. The Council told the Ombudsman:
• It had already agreed to revise its policy to consider representations to a PCN even after payment, under a previous Ombudsman case (20 005 579). It had agreed to do so by 31 December 2021, which was after Mrs X had paid her PCN.
• Once Mrs X had paid the PCN, she complained to the Council about the charge rather than submitting representations through the PCN website or by post, in line with the statutory process. This being the case, the Council did not consider that Mrs X made representations against the PCN.
• Although Mrs X had already paid the PCN, the Council did check the DVLA website after receiving her complaint. It says that Mrs X's car was not compliant so it explained that there were no grounds to withdraw the PCN in any case. It pointed out that “Class D” refers to the type of Clean Air Zone, not the class of vehicle.
• Its software automatically closes a PCN case once it receives payment. It is working with the software supplier to change this process.
• It says it is unaware of any legislation or guidance that requires or suggests it should re-offer the discounted amount for Bus Lane and Clean Air Zone PCNs. Nor is there any guidance on what the procedure should look like if a driver pays the PCN and disputes it afterwards.
• Although the Council can cancel the PCN at any time in the process, it is not aware of any legislation that allows it to issue an informal rejection notice once it has issued a Notice to Owner/Postal PCN. 
31. In response to a draft decision, the Council agreed it had given Mrs X incorrect advice in response to her complaint and said it would cancel and refund the PCN. It also explained, until its computer systems could be updated, it had a workaround in place to ensure cases were re-opened upon receipt of representations when a payment of a PCN had already been made.

Analysis

32. We expect councils to consider representations even if a PCN is paid. That the Council had not yet changed its practice does not mean we will not find fault. Mrs X had no opportunity to make formal representations after paying the PCN. This is fault causing injustice. I note the Council has since changed its practice and has implemented a workaround until it can update its computer systems. Subject to evidence of this process, I am satisfied these actions will prevent injustice to others in future. This does not remedy Mrs X’s injustice.
33. I note the Council did not consider Mrs X made representations. However, it is clear she wanted to challenge the PCN. When the Council received Mrs X’s challenge, albeit in the form of a complaint, it should have either:
• Provided a formal written Notice of Rejection allowing Mrs X to go to the Traffic Penalty Tribunal, if it considered the complaint amounted to representations against the PCN; or
• Directed Mrs X back to the formal appeals process, if it did not consider that her complaint amounted to formal representations under the statutory process. This is because it is clear Mrs X wanted to challenge the PCN, and the Council had received her complaint within 28 days. Therefore, Mrs X had time to make representations according to the statutory process, if so directed.
34. Because of the Council’s fault, Mrs X lost her opportunity to appeal. This is injustice. To remedy this, I had recommended the Council treat Mrs X’s complaint as formal representations and issue a response, either accepting the representations and refunding the payment or issuing a notice of rejection and allowing Mrs X to appeal to Tribunal. However, in response to my draft decision the Council has proposed to cancel the PCN and refund Mrs X. I am satisfied this is a suitable remedy and so I have amended my recommendation to this effect.

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Recommended action

35. To remedy the injustice set out above, I recommend the Council:
36. Within one month:
• Apologise to Mrs X for the fault identified above and confirm it will cancel and refund the PCN.
• Provide the Ombudsman with evidence it has cancelled and refunded Mrs X’s PCN.
• Provide the Ombudsman with evidence of its process to ensure cases are re-opened upon submissions of representations within 28 days following payment of a PCN.
37. The Council has agreed to these recommendations.

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Final decision

38. I find fault with the Council for failing to consider Mrs X’s representations and make the recommendations set out above.

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Parts of the complaint that I did not investigate

39. I have not considered whether the Council was right to charge Mrs X for entering the Clean Air Zone. This is because Mrs X could have appealed to the Traffic Penalty Tribunal.

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Investigator's decision on behalf of the Ombudsman