Summary: Mr X complained the Council failed to respond to his representations against four Penalty Charge Notices (PCNs) for entering a Clean Air Zone. The Council failed to both consider and respond to Mr X’s representations which was not in line with relevant regulations. To remedy the frustration and uncertainty this caused Mr X, the Council agreed to cancel the PCNs and refund Mr X the £240.00 fees he paid.

The complaint

1. Mr X complains the Council failed to respond to or consider his representations against four Penalty Charge Notices (PCNs) for entering a Clean Air Zone (CAZ). Mr X said the lack of response meant he felt pressured into paying the PCNs before the fee increased.

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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 an organisation’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 considered Mr X’s complaint and the information he provided.
5. I considered the Council’s response to my enquiry letter.
6. I considered relevant law including The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) Regulations 2013 (the Regulations).
7. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Clean Air Zones

8. To improve air quality, some councils have introduced Clean Air Zones (CAZ). A CAZ is an area where targeted action is taken to improve the air quality by discouraging the most polluting vehicles from entering the zone. No vehicle is banned but certain vehicles which do not meet emission standards will need to pay a daily charge If they travel within it.
9. The Council charges £8.00 per day for small vehicles and £50.00 per day for coaches, buses and lorries. Drivers can pay the fee up to six days before the day of the visit, on the day of the visit or up to six days after the visit. The Council classes ‘a day’ as midnight to midnight and not 24 hours from when the vehicle enters the CAZ.

The Council’s enforcement of Clean Air Zones

10. The Council enforces CAZs using Automatic Number Plate Recognition (ANPR). Drivers are made aware they are about to enter the CAZ as every entry to the zone is signed.
11. If the ANPR camera records a vehicle in the CAZ which does not meet emission standards and has not made a payment by the sixth day after using the CAZ, then the Council will issue the registered keeper of the vehicle with a Penalty Charge Notice (PCN).
12. The penalty charge is £120.00 reduced to £60.00 if paid within 14 days. The PCN gives drivers 28 days to make representations to the Council if they disagree with the charge. The regulations require the Council to respond in writing to representations and to consider whether there are any compelling reasons to cancel the PCN within 56 days.
13. If the Council accepts a driver’s representations or considers there are other compelling reasons to cancel the PCN then it should do so and refund any sum which has already been paid.
14. If the Council rejects a driver’s representations, then it must issue a ‘notice of rejection’.

What happened

15. In August 2021 Mr X drove into the Council’s CAZ on four different occasions. Mr X did not pay the daily charge, so in early September 2021 the Council issued Mr X with four separate PCNs.
16. Mr X wrote to the Council making representations for each PCN raising mitigating circumstances. Mr X said he had travelled from outside the Council’s area and was unaware of the requirement to pay a fee and had not seen signage warning him. Mr X made the representations within 14 days of receiving the PCNs.
17. The Council did not respond to Mr X’s representations. Mr X wrote a further email to the Council stating he had decided to pay the PCNs at the discounted rate of £60.00 each but said he was still appealing.
18. Mr X wrote a further email to the Council, complaining that it had failed to respond to his representations which he said left him no option but to pay the charges before they increased. Mr X reiterated his argument that the signage was not clear.
19. Mr X did not receive a response, so he complained to us.

The Council’s response to our enquiries

20. The Council told us it did not respond to Mr X’s emails and representations because he paid the PCNs before it had the opportunity to respond. The Council said once PCNs are paid, the system software automatically closes the case and officers are not made aware of the emails.
21. The Council said it had now considered Mr X’s representations and had decided, in the circumstances, to cancel the PCNs and refund Mr X the £240.00 he has paid.
22. The Council said it was carrying out a change to the system software to ensure officers are able to see and respond to representations even if the driver pays at the discounted rate. It said it had an interim process in place pending the completion of the software change.

My findings

23. There was no fault in how the Council issued Mr X with the PCNs for entering a CAZ without paying the relevant fees. Mr X has accepted that contravention occurred but asked the Council to consider his mitigating circumstances.
24. The regulations set out the grounds on which formal representations against a PCN can be made. Councils also have discretion over whether to cancel PCNs based on the particular circumstances of the case. 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. In line with the regulations, the Council’s must do so within 56 days of receiving the representations, regardless of whether the driver has made any payment.
25. The Council has accepted its software closes the case upon payment and prevents officers from receiving emails and representations. This happened in Mr X’s case and meant the Council did not consider his representations in line with the regulations. That was fault. It caused Mr X frustration and uncertainty around whether the outcome would have been different had the Council properly considered his representations and mitigating circumstances.
26. The Council’s decision to use its discretion to cancel Mr X’s PCNs and to refund the fees he paid is sufficient to remedy the injustice caused to him in his case. We have recommended the Council provide us with the evidence it has done so.

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Agreed action

27. Within one month of the final decision the Council agreed to:
• Provide us with evidence it has cancelled Mr X’s PCNs and refunded him the £240.00 fees he has paid. This will remedy the frustration and uncertainty caused by its failure to properly consider his representations to the PCNs.
• Provide us with an explanation of the interim measures it has taken to ensure it considers representations against PCNs in line with the regulations while it fixes the system software issue. In response to this recommendation the Council said it now has report in place which highlights to officers’ cases where someone has paid the PCN but also made representations. This is an appropriate interim measure until it can resolve the software issue and will prevent recurrence of the faults identified in this statement.

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Final decision

28. I have completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman