Summary: Ms Y complained about the way the Council dealt with the enforcement of a Penalty Charge Notice. We have not found fault by the Council in its enforcement process.

The complaint

1. The complainant, who I am calling Ms Y complains about the way the Council has dealt with a Penalty Charge Notice (PCN) it issued to her in 2021. She says:

• The Council demanded payment of the balance of the PCN together with additional charges and instructed agents to enforce payment without considering her mitigating circumstances;
• The PCN was sent to an address at which she no longer lives. She paid the discounted amount as soon as the PCN came to her notice;
• She did not know about the Council’s claim for further payment, or the further action taken and court order until she was contacted by the Council’s recovery agents in 2022; and
• It is not right for the Council to require payment of a debt when she understood payment had been made as required in May 2021 and heard nothing further about until 2022.

2. Ms Y says the enforcement threats have caused her a lot of worry. She does not have the means to pay the debt. She wants the Council to allow her appeal, stop enforcement action and remove the debt.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
5. 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)
6. 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

7. I spoke to Ms Y, made enquiries of the Council and read the information Mrs Y and the Council provided about the complaint.
8. I invited Ms Y and the Council to comment on a draft version of this decision. I considered their responses before making this final decision.

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What I found

What should have happened

Penalty charge notices

9. Where a council believes a moving traffic contravention has occurred, it may serve a PCN on the registered keeper of the vehicle (the vehicle owner).
10. The procedure for issuing and enforcing a PCN as at April 2021 is set out in The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 (the Regulations) and the Traffic Management Act 2004.
11. The council can send the PCN by post to the vehicle owner (as registered with the DVLA) if a camera witnessed the contravention. The PCN also acts as the notice to owner (NTO).
12. As at April 2021, the Regulations allowed the vehicle owner to pay a reduced penalty charge within 14 days of service of the PCN by post, at a discount of 50%.
13. The vehicle owner can appeal to the council and if unsuccessful, to the Traffic Enforcement Centre (TEC).

Enforcement of a PCN

14. If the vehicle owner does not appeal or appeals unsuccessfully, and does not pay the penalty charge, a council can issue a charge certificate. A charge certificate increases the penalty payable by a further 50%.
15. Where the owner fails to respond to the charge certificate, the debt is registered with the Traffic Enforcement Centre (TEC) at Northampton County Court and a notice of registration is served. The owner can either pay, send a witness statement to the court asking to revoke the registration, or not respond. The grounds on which the owner can make a witness statement to the TEC are:
• They did not receive the Notice to Owner/PCN;
• They made representations about the penalty charge to the enforcing authority within 28 days, but did not receive a response;
• They appealed against the council’s decision to reject their representation within 28 days but did not receive a response to their appeal; or
• They have paid the penalty charge in full.
16. The county court will authorise the council to draw up an order for recovery. If the owner fails to respond to the order within 21 days, a council can ask the court for a warrant of control instructing an enforcement agent to recover the debt.

Taking control of goods and enforcement fees

17. Enforcement agents can charge fees for each stage of the enforcement process, as set out in the 2014 Fees Regulations.
18. To charge the compliance stage fee of £75 an enforcement agent must send a notice of enforcement seven days before trying to take control of goods. An enforcement agent may charge £235 at the enforcement stage, this stage starts once an agent has made a first visit to recover a debt. (Taking Control of Goods (Fees) Regulations 2014)

Vulnerable debtors

19. The law does not define what a vulnerable person is. The ‘Taking Control of Goods: National Standards’ issued by the Ministry of Justice say it includes those who, for reason of age, health or disability, are unable to safeguard their personal welfare or the personal welfare of other members of the household.
20. Where the debtor is a vulnerable person, the fee due for the enforcement stage is not recoverable unless the agent has given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.

Civil Enforcement Association (CIVEA) Code of Practice

21. The Code requires all CIVEA members to signpost debtors to third party advice sector throughout the entire collection lifecycle.
22. It also provides guidance on good practice for enforcement agents to follow to help debtors make instalment payments. This includes the following:

• A recommendation to members to work with their clients to support use of income and expenditure assessment;
• A requirement for all members to provide guidance to its enforcement agents and staff about negotiating sustainable payment plans; and
• A recommendation to members to agree to longer payment plans following an affordability assessment and evidence of circumstances where client policy allows.

The Council’s procedures

23. In response to my enquiries, the Council said it follows the process set out in the Traffic Management Act.
24. It has the discretion to cancel the PCN at any point in the process even if it established that a contravention did occur. Each case will be considered in a fair, objective, consistent and professional manner. Where a decision has been made not to waive a penalty; a written explanation will be provided and information advising how to dispute the penalty further will be included.
25. Its enforcement agents have a policy in place to protect and safeguard vulnerable adults throughout the debt collection process. This includes having a welfare team to manage vulnerable cases.

What happened

The PCN issued by the Council

26. Ms Y was the registered owner of a vehicle recorded by a camera in a bus lane in the Council’s area on 13 April 2021. The Council checked the vehicle’s ownership and registered address with the DVLA on 15 April 2021. On 22 April 2021 it issued a PCN, sent by post to Ms Y at the address registered with the DVLA, for the alleged contravention of being in a bus lane.
27. The PCN included the following information:

• The date of service of the PCN was 26 April 2021;
• The penalty charge amount was £60;
• The penalty charge must be paid no later than 28 days beginning with the date of service;
• To claim a discounted rate of 50%, payment must be made within 14 days beginning with the date of service; and
• If the penalty charge had not been paid, or representations made by the end of the 28-day period, the Council may serve a Charge Certificate increasing the penalty charge by 50% to £90 and take steps to enforce payment.

28. Ms Y had moved in March 2021 and was no longer living at the address registered with DVLA. She only became aware of the PCN on a visit to her old address (address A) on 17 May 2021.
29. Ms Y paid the discounted amount of £30 to the Council on 17 May 2021.
30. The Council wrote to Ms Y at address A telling her the discounted charge of £30 was only applicable if payment was received by 10 May 2021. As she had made her payment after this date, the full amount of £60 had been due. It asked her to pay the remaining balance of £30 within 14 days. It confirmed if this further payment was not made, a Charge Certificate would be sent.

Enforcement of the PCN

31. No further payment was received, and the Council took the following action:

• On 11 June 2021 it sent a Charge Certificate to Ms Y at address A stating, as the full penalty charge had not been paid, the charge had increased by 50% to £90, leaving a balance due of £60. If payment was not made within 14 days the Council may, if a county court ordered, recover the increased charge as if it were payable under a county court order;
• On 6 July 2021 it sent a pre-debt letter to Ms Y at address A; and
• On 22 September 2021, following its application to the TEC, the county court sent an order for the recovery of the unpaid penalty charge (now £68 including the £8 court registration fee) to Ms Y at address A. This required Ms Y to either pay the total amount due or make a submission (on the specified grounds) as to why the order should not have been made, within 21 days.

32. The Council says it placed enforcement action on hold generally after September 2021, because of the ongoing COVID 19 pandemic.
33. In May 2022, the Council obtained a warrant from TEC and instructed its enforcement agents to recover the debt of £68 from Ms Y.

May to November 2022 -action by the Council’s enforcement agents

34. The agents issued Notices of Enforcement to Ms Y at address A on 16 and 26 May 2022 (the compliance stage). They sent Ms Y an SMS on 31 May 2022 asking her to contact them about the debt. Ms Y says she did not receive this message. As the agents did not receive a response and progressed the case to the enforcement stage.
35. An agent attended address A on 13 July 2022. They were unable to speak with Ms Y but left a letter asking Ms Y to contact them.
36. The amount owed was now £378, made up as: £
1. Unpaid penalty charge and court fee due to Council 68
2. Agents’ compliance fee incurred 16 May 2022 75
3. Agents’ enforcement fee incurred 13 July 2022 235
4. Total 378
37. Ms Y says she received a phone call from the agents on 20 July. She told them she had already paid the charge directly to the Council.
38. She also contacted the Council to explain what had happened. She said she had moved from address A before the PCN was sent. She thought she was within the window to pay the discounted amount of £30 when she made the payment. She had not received any further correspondence from the Council about an unpaid balance. She told the Council about her financial and other personal difficulties and asked it to stop the recovery action.
39. The Council replied to Ms Y in August 2022. It set out the action it had taken, and that Ms Y could not appeal now as the matter was with the enforcement agents. It advised her to contact the agents who had a team to deal with people with financial difficulties or vulnerabilities.
40. Ms Y told the agents she disputed the additional charges and fees. She also told them about her personal and financial difficulties.
41. The agents told Ms Y on 8 September, her case would be overseen by its welfare team because of her circumstances. It was prepared to set up an arrangement for payment by instalments. The required monthly payment would be £75.
42. Ms Y told the agents on 17 September, she could not afford the payment. She said it was unjust to demand this amount from her. The debt wouldn’t have escalated had she known about the situation at the time.
43. Ms Y had the following further contact with the agents and the Council in September:

• The Council again told Ms Y, in response to her further contact, she should speak to the agents about her financial difficulties;
• The agents said if Ms Y could not adhere to the required instalments further action would continue; and
• Ms Y asked the Council again to tell the agents to halt their action. The Council told her, as it no longer held the debt, she would have to contact the agents.

44. In November the agents contacted Ms Y again about proposed enforcement action. She said she could not afford to make any payments at all and was not willing to pay any amount. The agents advised her to seek independent financial advice.
45. The agents then contacted Ms Y again, giving her a final chance to make an arrangement before the enforcement stage was progressed.

Ms Y’s complaint

46. Ms Y brought her complaint to us on 17 November. The Council and its agents have put a hold on recovery action while we investigate her complaint.
47. In its response to us, the Council said:

• A debtor can provide evidence of their financial circumstances, such as a bank statement and proof of financial hardship, directly to its agents so that a payment plan can be considered;
• It is not required to send a debtor a financial circumstances form. But it has provided a budget planner form used by a debt advice charity for Ms Y to complete with details of her financial circumstances should she wish to do so;
• It put recovery action on hold to allow time for an assessment of Ms Y’s financial circumstances, ability to pay and consideration of a repayment arrangement; and
• It had no reasonable grounds to believe Ms Y had not received the correspondence sent to her at address A. All its correspondence is sent with its full address on the reverse of the envelope. To date, no letters or notices sent to Ms Y at address A have been returned undelivered.

My findings – was there fault by the Council causing injustice?

48. Our role to consider the process the Council and its enforcement agents followed when issuing and taking enforcement action regarding the PCN and whether it has acted correctly. We do not have the power to tell councils they cannot require payment of a legally owed debt.

The issue of the PCN and enforcement action prior to May 2022

49. I have considered the process the Council followed from when it issued the PCN to May 2022, when it obtained the warrant from TEC and instructed its enforcement agents.
50. My view is it properly followed the procedure in accordance with the Regulations and the Traffic Management Act.
51. It correctly sent the PCN to Ms Y’s address (address A) as registered with the DVLA. The PCN stated the date of service as 26 April 2021 and that the 50% discount only applied if payment was made within 14 days of this date, that is by 10 May 2021. I consider it was clear from this that a payment of £30 made on 17 May 2021 was not within the required timescale and the full charge of £60 was due.
52. When the Council received no response to its letter to Ms Y at address A asking her to pay the remaining balance, my view is the Council then followed the correct procedure to enforce the PCN.
53. The Council had no reason to believe Ms Y no longer lived at address A. She had received the PCN sent to that address and made payment of part of the penalty charge due. She did not tell the Council at that point she had moved. The further correspondence and notices the Council sent to Ms Y at the same address were not returned undelivered.
54. I appreciate Ms Y says she did not receive any of the further correspondence or notices, but I do not consider I can say this was because the Council did not follow the proper process.
55. I have not found fault by the Council in the process it followed to issue and enforce the PCN in the period to May 2022.

The action by the Council and its enforcement agents from May 2022

56. On the basis of the evidence I have seen, my view is the enforcement agents properly charged the compliance and enforcement stage fees in accordance with the Fees Regulations.
57. Ms Y did not contact the enforcement agents or the Council to explain about her circumstances until after the agents had started the enforcement stage.
58. My view is the Council then properly considered and responded to Ms Y’s explanation and what she told it about her financial and other difficulties. Its decision not to transfer the debt back to its control or cancel it, was one it was entitled to make. The Council said Ms Y should contact the enforcement agent’s dedicated Welfare Team for assistance if she was struggling to pay the outstanding debt. I have not found any grounds to criticise the Council’s professional judgement or decisions in this respect as I do not consider there was fault in the way they were made.
59. The agents told Ms Y it was prepared to agree an arrangement for instalment payments, advised Ms Y to obtain independent advice on her situation and halted any further action to allow her time to do so. And the Council has put recovery action on hold while we consider her complaint.
60. I do not consider there was fault in the process the Council and its enforcement agents followed, from May 2022, to recover the debt from Ms Y.
61. I understand Ms Y’s upset and concern about the amount of the debt, but for the reasons set out above, I have not found fault with the Council in the action it has taken regarding the issue and enforcement of the PCN.

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Final decision

62. I have completed my investigation of this complaint. I have not found fault by the Council in the way it has dealt with the PCN and its enforcement,

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Investigator's decision on behalf of the Ombudsman