Summary: Mr X complained about the alleged failure of the Council to treat his complaint about a parking ticket properly. We consider the Council was at fault. Mr X says this caused him an injustice because he was unable to dispute what he considered to be an unfair fine. We have made recommendations to acknowledge the injustice caused.

The complaint

1. Mr X complained that the Council:

• Unfairly issued a penalty charge notice (PCN);
• Unreasonably viewed his payment on account for the PCN as acceptance that he had been parked unlawfully and declined to allow him to appeal;
• Failed to respond to his correspondence, in particular to his letters to the Leader of the Council.

2. Mr X says that this caused him an injustice because of the efforts he had to undergo to try and get his case heard and the impossibility of challenging what he considered to be an unfair PCN.
3. Mr X considers that the PCN should be cancelled and that he should be repaid. He would like the Council to apologise for the way in which it has handled his complaint.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I spoke with Mr X.
9. I made enquiries with the Council and researched the relevant law and guidance.
10. Ordinarily, the Ombudsman does not consider complaints where the events that happened were over a year ago. However, we do have discretion to do so if we consider there is good reason. I consider there is good reason in this case because of the issues raised by the complaint about challenging PCNs and because Mr X was confused about which local authority his complaint should be addressed by for some time.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law and what happened

12. Local authorities enforcing parking restrictions must have regard to statutory guidance called the Guidance for local authorities on enforcing parking restrictions, (“the Guidance”).
13. Mr X was issued a PCN on 30 April 2019 for ‘parking in a restricted street during the prescribed hours.’ I have viewed a photograph showing where he was parked at the time. He was parked on a area of extended pavement. The road alongside was marked with double yellow lines.
14. The Highway Code states that double yellow lines indicate a prohibition of waiting at any time even if there are no upright signs. It also advises that they indicate that motorists should not park partially or wholly on the pavement.
15. When a council issues a PCN, the motorist has three opportunities to challenge it:
• make an informal challenge before an authority serves a Notice to Owner (NTO).
• pay the outstanding penalty or make formal representations against the PCN within 28 days.
• If the formal representations are rejected, the owner can appeal to an independent adjudicator.
16. Mr X wrote to the Council on 2 May 2019, saying he wanted to challenge the PCN. He explained what had happened on the day he received the PCN. He said he had been caught in a traffic gridlock and had recently had surgery which meant he could not walk far. He said there were no indications at the place he parked that parking was prohibited and that it was a place commonly used for parking.
17. The Guidance says, among other things, that:

• enforcement authorities should give proper consideration to informal challenges against PCNs before they issue NTOs and respond to them promptly. The Council responded in just over a week.
• Councils’ considerations should take into account the grounds for making representations and their own guidelines for dealing with extenuating or mitigating circumstances.

18. When the Council responded to Mr X, it said he could:

• Pay £35, within 14 days, or
• Pay £70, if paid after that period, or
• Make formal representations.

19. This was in line with the Guidance.
20. The Council added that, if Mr X wanted to challenge the PCN, he should not write to the Council again until the NTO form arrived.
21. It also said:

• Double yellow lines indicate restrictions for 24 hours a day, 7 days a week and do not require signs to show restrictions.
• Although the Council had noted Mr X had surgery on his toe, this did not exempt him from parking restrictions. It said it was the responsibility of a driver to be aware of and comply with the restrictions in the Highway Code.

22. Mr X says he sent a letter to the Council on 16 May 2019 with a payment on account. I have seen a copy of that letter which I accept was sent. Within, Mr X said he “…would be grateful if [the Council would] take this letter as a formal appeal against an unjust summons.” He said, he explained that he would be “…likely to be away for much of the next few weeks…so may be unable to respond to further correspondence in a timely manner.” He says that this was why he provided payment as he might not have been able to respond to a NTO when it arrived. Mr X says he did not fully understand the process or that by paying the fine he would be, in the Council’s view, accepting liability. The information he had been given from the Council did not say that payment would amount to admitting liability.
23. The Council said it did not receive the above letter but as the letter refers to the enclosed cheque and it did receive the cheque, I have decided it was sent and received. It may well have been inadvertently separated from the cheque upon opening. I do not know, but I do accept it was sent.
24. The Council did not respond to the letter.
25. The Council received another letter from Mr X on 1 July 2019, dated 26 June 2019. In this letter, he said he had asked for his previous letter to act as an appeal against the PCN. He raised the issues he had with the PCN again.
26. On 4 July 2019 the Council responded to Mr X. It said:

“The options available are that you either pay the charge or challenge it. If at any stage you opt to pay the charge, that is deemed to be an acceptance of liability and the matter is presumed closed.”

27. The Council said Mr X had lost the right to make formal representations and appeal the charge. It considered the matter closed. It did not say it had not received the letter Mr X had referred to in his June correspondence.
28. Mr X says he then wrote three times to the leader of the Council, complaining about what he saw as the Council’s unfair decision not to allow him to make representations and appeal. He said he sent these letters on 23 August, 8 October and 10 December 2019.
29. He said all three letters were unacknowledged. The Council says it has no record of receiving these letters. I do not propose to dwell on that aspect of the complaint. It would be a disproportionate use of resources.
30. Mr X spent the next year writing to Tandridge District Council and to Surrey County Council in an effort to get these councils to intervene. He considered that Surrey County Council should have the ability to do so as it had delegated the responsibility for enforcement to the Council. He wrote to Tandridge District Council because he understood that that council also had some responsibility for parking enforcement in the area.
31. A representative from Surrey County Council, Officer P, told Mr X to complain to the Council. He advised him to do so again on a number of occasions.
32. It appears that Mr X continued to correspond with Surrey County Council because he considered that it must have a duty of care to ensure that the process it had discharged to the Council was properly administered. Officer P said it was the Council that had that duty.
33. Mr X complained to the Council formally in December 2020. The Council responded on 14 December 2020.
34. It reiterated its position that Mr X had had the option to pay or to challenge the PCN. He had chosen to pay and it therefore considered the matter closed. It relied on a case heard in 2006 by the London Tribunals, Strauss v Royal Borough of Kensington & Chelsea to support this position.

Formal complaint to the Council

35. Mr X continued to complain. On 29 June 2021 he issued a formal complaint. He said that as he had been in lengthy correspondence with the Council, without managing to resolve the issue, he expected his complaint to be addressed at stage two of the Council’s complaint’s process. His complaint document cited 49 points of complaint.
36. On the same day, the Council responded saying Mr X had to submit a stage one complaint first. Mr X submitted his stage one complaint on that day.
37. I have seen a copy of a response. The response said, among other things, that:

• A number of Mr X’s points had already been responded to in December 2020.
• Some of the points he made could have been considered at appeal, (including the alleged element of confusion around parking restrictions in the area), but that process had been correctly stopped when Mr X made payment.

38. On 5 July 2021 Mr X asked to progress his case to stage two of the procedure.
39. The Council responded, asking for some additional information before it could progress his complaint. Mr X said he considered that the complaint should be put through to stage two without saying specifically why.
40. On 14 July 2021, the Council said that as Mr X had not provided any extra information, it would not proceed to stage two. It advised Mr X to take his case to the Ombudsman.

Analysis

Refusal to make representations

41. The Guidance says that parking authorities should always give challenges and representations a fresh and impartial consideration.
42. The Council says it sent its closure letter, prohibiting Mr X from further challenging the PCN because it had already answered the points raised by Mr X in his initial challenge.
43. Firstly, while the Council now says it closed the case because it had already responded to Mr X’s challenge, at the time it told Mr X it closed the case because he had made payment. Its view was that payment meant Mr X had accepted liability and that meant there was nothing to address.
44. Secondly, the Council had not addressed all the points Mr X made. It had not addressed the point that Mr X made about the parking spot where he received the PCN being used commonly for parking. The Guidance says that if several motorists have parked their vehicles at the same site in the mistaken belief that this is permitted, the authority should consider what can be done to make the restrictions clearer to the public.
45. I am concerned about the Council’s response to the information that Mr X had just had major surgery on his toe and so was concerned about walking a long distance. Rather than address why it did not consider this a mitigating circumstance, it simply said that he still had to abide by the Highway Code. Mr X knew that was the case, but he had asked for understanding given his circumstances. I do not consider the Council demonstrated that it properly gave consideration to how Mr X’s surgery might have made it more difficult for him to abide by the Highway Code. The Guidance says that parking authorities’ considerations should show how they deal with the extenuating or mitigating circumstances that a challenger presents.
46. However, the Council was clear when it responded to Mr X’s informal challenge, that if he wanted to make further representations, he should not write again until he had received the NTO. And Mr X did write again. And he made payment. I have to consider whether the Council should have considered these challenges, even though he did not follow the instructions set out for him in the Council’s 10 May 2019 letter. I consider that it should, for the following reasons:
1. Mr X explained, when he wrote to the Council, that he had to go away and did not want to miss any post and an opportunity to appeal. He was unfamiliar with the process and asked for the Council’s understanding. It was within the Council’s gift to use its discretion. The Guidance makes it clear that the Council even has a discretionary power to cancel a PCN (which I do not say it should have done) at any point throughout the process. It can do this even when an undoubted contravention has occurred, if deemed appropriate in the circumstances of the case.

Following the issue of my draft decision, the Council say that if it had received a further challenge from Mr X alongside payment it would have written to him to return payment and advise him to challenge the PCN using the proper process. As I accept that the letter of 16 May 2022 was sent, I consider the Council should have done this. It did not, which is fault.

2. The Council relied on the case of Strauss v Royal Borough of Kensington & Chelsea to support its position that payment stops the process. In my view, this case does not support the Council’s case. London Tribunal cases do not set precedent and the law referenced in that case related to parking penalties in London. This PCN was outside London.
2. The Guidance says that, under general principles of public law enforcement authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably with due regard to the public interest.
3. While the Guidance says that a PCN is deemed ‘paid’ as soon as the payment arrives at any payment office, it does not say that this payment amounts to an admission of liability. The Ombudsman considers that, if a council does not consider a challenge, whether or not the motorist has paid a PCN, this goes against the spirit of the Statutory Guidance and amounts to fault.
4. Where a motorist makes an informal challenge it is clear they wish to dispute the PCN. A council’s failure to consider their challenge is neither fair not good administrative practice. Mr X’s challenge, accompanied with payment, was quite transparently alerting the Council that he wished to continue challenging the PCN. The Ombudsman’s view is that the council understands the process while the motorist may not. It is unfair of the council not to exercise discretion to the disadvantage of the motorist.
5. For Mr X, it must have been particularly distressing to hear from the Council, in its complaint response, that some of the points he made could have been dealt with at appeal but that door was closed to him simply because he had misunderstood the process.

A note on complaint handling

51. I do not find fault with the Council’s complaint handling. While we would usually expect councils to take complaints through the whole complaints process, in this case, I think it is fair to say that when the Council asked Mr X to expand on why he did not consider its first response to be sufficient, he did not. That would have made it difficult for the Council to respond further and he was signposted to the Ombudsman.

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Recommended action

52. Within a month of our final decision the Council should:

1. Apologise to Mr X for the fault identified in this decision.
2. As the Council says it is too late to issue an NTO to Mr X, the Council should cancel Mr X’s PCN and refund him the payment of £35.
3. Going forward, the Council should set up a process where no monies received from its finance team will be processed until the parking team has completed an assessment on a case, to help ensure that PCNs will not be deemed paid if a challenge has accompanied a payment made. Any monies paid from a payment card will similarly be refunded if accompanied by a challenge and will be further requested, if necessary, when a challenge has been responded to.
4. The Council will also place a notice on its website advising residents that if they have historically challenged and paid a PCN at the informal stage and have not had the opportunity to go to the Traffic Penalty Tribunal, they can take their case to the Ombudsman.

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Final decision

53. I have found the Council at fault and made recommendations, which have been agreed to by the Council, to address the injustice caused. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman