Summary: We will not investigate this complaint about a Penalty Charge Notice. This is because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mr Y to approach the Information Commissioner about his freedom of information complaint.

The complaint

1. Mr Y complained the Council offered him a refund of a Penalty Charge Notice (PCN), before withdrawing the offer, saying that the refund would result in the PCN being reopened. He also complained the about delays in the Council responding to his correspondence about the complaint and in responding to a Freedom of Information (FOI) request.
2. Mr Y says this caused him stress, frustration and he is financially £65 worse off for paying the PCN.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

6. I considered information Mr Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. Mr Y initially complained to the Council in July 2022. He explained he had paid £65 for a PCN at the discounted rate to prevent the amount from doubling. However, having made the payment, Mr Y had unintentionally waived his right to appeal the issuing of the PCN, on the basis that signage was not clear.
8. The Council responded late in July, offering to refund the money to Mr Y to enable Mr Y to then appeal the PCN through the London Tribunals, as the Council had by this point issued a Notice of Rejection of his representations against the PCN. The Council then sent a further email, clarifying its position, that a refund would result in the PCN remaining open to allow Mr Y to appeal, rather than as paid the matter being closed.
9. Mr Y complained, saying that the offer initially given was for a refund, as he believe this meant the PCN had been cancelled. He said the Council had gone back on its offer and this was unfair. The Council reiterated its offer, providing details of how Mr Y could receive a refund and appeal the PCN.
10. Mr Y then requested information about how the decision had been made in September. He later complained in October and November that he had not been provided with the information.
11. The Council responded to the complaint in November, issuing its final response, which denied fault in December 2022. It said it had not been able to trace a FOI request. It also denied fault in its offer to refund the £65 to Mr Y but not cancelling the PCN, which it said had been issued correctly in its view. Mr y then approached us in March 2023.

Analysis

12. Mr Y paid the penalty, despite his disagreement with it, instead of using his right to appeal it to the Council initially and the London Tribunals. This is despite this choice being explained on the PCN the Council issued. In doing this, the Council could argue that Mr Y had accepted his liability for the PCN, but has instead used its discretion and offered to refund the payment and allow Mr Y to appeal to the London Tribunals.
13. While this offer could have ideally been clearer, the email said prior to the offer that the Council had considered Mr Y’s view concerning the signage at the site of the contravention but had found it visible. It then made the offer and immediately after this referred Mr Y to the Tribunal’s website. This is sufficient for Mr Y to have understood the offer made. It was also then clarified further before Mr Y had accepted the offer of a refund in a separate email. As Mr Y has declined the refund on these terms which were sufficiently clear and clarified, it is unlikely we would find fault so we will not investigate.
14. The ICO is the UK’s independent authority set up to uphold information rights, including where someone had made a FOI request. It promotes openness by public bodies and protects the privacy of individuals. It deals with complaints about public authorities’ failures to comply with data protection legislation.
15. There is no charge for making a complaint to the ICO, and its complaints procedure is relatively easy to use. Where someone has a complaint about freedom of information, the Ombudsman usually expects them to bring the matter to the attention of the ICO. This is because the ICO is in a better position than the Ombudsman to consider such complaints. I consider that to be the case here and Mr Y should therefore approach the ICO about his concerns. We will not investigate this complaint.
16. As we are not investigating the substantive matter in this complaint, it is not a good use of our public resources to consider how the Council responded to Mr Y’s complaint correspondence. We will not investigate this complaint.

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Final decision

17. We will not investigate Mr Y’s complaint because there is not enough evidence of fault to justify investigating and it is reasonable to expect Mr Y to approach the Information Commissioner about his freedom of information complaint.

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Investigator's decision on behalf of the Ombudsman