Summary: There was fault by the Council which applied timescales for challenging a penalty charge notice too rigidly. It also failed to consider Mr X’s request for reasonable adjustments due to his disabilities. The Council will apologise, make a symbolic payment and reconsider Mr X’s representations.

The complaint

1. Mr X complained the Council failed to make reasonable adjustments for him when he tried to challenge two PCNs and failed to consider using discretion to cancel one of the PCNs.
2. Mr X also complained the Council discriminated against him on the grounds of a disability.
3. He said this caused avoidable distress and a missed opportunity for him to appeal to the London tribunal.

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What I have and have not investigated

4. The Council cancelled one of the PCNs in complaint one and I am satisfied this action means there is no significant injustice to Mr X concerning that PCN. I have investigated the other PCN which is unresolved.
5. I did not investigate complaint two because it is reasonable for Mr X to make a claim of discrimination to the county court.

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The Ombudsman’s role and powers

6. 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)
7. We provide a free service and we use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions a council has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
9. 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

10. I considered Mr X’s complaint to us and the Council’s responses.
11. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

The duty to make reasonable adjustments

12. The reasonable adjustment duty is set out in the Equality Act 2010. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
13. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
14. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but they must think in advance about what disabled people with a range of impairments might reasonably need.
15. The Council’s website explains people who have a protected characteristic under the Equality Act or another condition which makes it difficult for them to challenge or pay a PCN, can call a number or email parking services so the Council can consider what reasonable adjustments to make.

Moving traffic contraventions

16. The Council enforces moving traffic restrictions and takes recovery action using procedures set out in the London Local Authorities and Transport for London Act 2003. Councils and motorists must follow these procedures although councils have discretion to stop enforcement or recovery action if they believe there are good reasons to do so.
17. The procedure for challenging a PCN is:
• The council issues a PCN by post. The 2003 Act allows a 14-day discount period.
• The PCN by post also acts as the Notice to Owner (NtO). The NtO provides the opportunity for the recipient to either pay the full penalty charge within 28 days or make formal representations. (There is no informal challenge stage where PCNs are served by post.)
• The person makes formal representations to state a case for not paying the penalty charge either on one of the statutory grounds of appeal or for any other reason. A council must consider representations received within 28 days of the NtO and has discretion to consider late ones
• The council decides whether to accept the representations or reject them. If it accepts them, it cancels the PCN and issues a Notice of Acceptance. If it rejects them, it issues a Notice of Rejection and Appeal form
• The keeper should appeal to the London tribunal within 28 days
• If the keeper does not appeal, or appeals unsuccessfully, and still does not pay the penalty charge, a council can issue a charge certificate. At this time, the penalty payable is increased by a further 50% if it is not paid within 14 days.
18. If the PCN is not paid after 14 days of a charge certificate being served the council may register the debt with the court.

Fettering discretion

19. Public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.
20. Guidance for local authorities on enforcing parking restrictions sets out how authorities should consider discretion. Where a PCN is served for a moving traffic contravention, this guidance does not apply but we expect councils to consider it.
21. The guidance says an authority has a power to cancel a PCN at any point throughout a process, even when an undoubted contravention has occurred. It says enforcement authorities should judge each case on its merits and should apply policy in a flexible way. It says an enforcement authority should be ready to depart from its policies if the particular circumstances of the case justify this.

What happened

22. Mr X told us in his complaint that he has disabilities which make writing and typing painful. He told us and the Council he can read written communication, but he struggles to respond to it in writing and it may take him a long time to do so because of pain.
23. In August 2022, Mr X complained to the Council about two PCNs he received in March. He said he had a blue badge and was housebound with neck and spinal pain and wasn’t staying at his home, but with relatives. He said he did not recall receiving any correspondence about the PCNs.
24. In its first complaint response, the Council said:
• The first PCN was issued as CCTV captured his car entering a pedestrian and cycle zone and the second PCN was because he parked in a disabled parking bay without displaying/activating a blue badge.
• The parking team sent the correct notices in line with law.
• It used discretion to cancel the second PCN and reduced the first from £204 to £130 if he paid it within 14 days.
25. The Council’s letter did not say anything about Mr X’s complaint about a failure to make reasonable adjustments for him.
26. In September, Mr X made an out of time challenge to the London Tribunal. He also emailed the Council saying he was in chronic pain, confused and forgetful and said his disabilities prevented him from dealing with the matter. He said he did not have regular access to email or the internet. The Council logged the matter as an escalation to stage two of its complaint procedure.
27. The Council’s parking team wrote to Mr X at the end of September. It said the PCN no longer had a right to appeal or have any representation considered by the Council. The letter went on to say he could pay the discounted amount of £65 until the end of October, after which the payment would be £195.
28. The Council’s letter did not say anything about how the Council considered Mr X’s request for reasonable adjustments when he was using the PCN challenge process.
29. Mr X emailed the tribunal and the Council at the start of October. He said the Council should suspend the PCN until it had investigated and responded to his complaint about disability discrimination.
30. The Council’s Stage 2 complaint response at the start of October said:.
• The Council sent all its letters by post. So the fact he did not have regular internet access did not make any difference
• It did not have information about his disability when the PCN was issued
• He was asking the Council for extra time to respond to correspondence. In response to this, the Council:
1. Offered him the option of paying a discounted rate for 14 days
2. Advised how to file a statutory declaration or make payment
3. Offered to pay a discounted rate in the stage one response
4. Returned the PCN from enforcement agents and offered a further discounted rate
5. On 30 September, made a further reduction to £65 and gave him until 31 October to pay this. This further reduction complied with his request to the tribunal in July 2022 to adjust the PCN back to £65.

Findings

31. The Council cancelled one of the PCNs at an early stage. So there is no continuing injustice for Mr X on that PCN. As I have explained in paragraph four, my findings are about the outstanding PCN.
32. While the Council has agreed through the internal complaint procedure, to reduce the amount to the discounted rate, it has not documented any reasonable adjustments concerning Mr X’s ability to challenge the PCN. This was fault.
33. The Council was wrong to say the timescales were required by law and it did not have discretion. As I have set out in paragraphs 16 to 18, guidance, which we expect councils to consider and apply, is clear there is discretion to accept representations at any stage and to cancel the PCN. The Council’s position that it does not is wrong and fetters discretion which was fault. It denied Mr X an opportunity to have his representations heard and to appeal to the tribunal.
34. There has been a failure to properly address Mr X’s request for reasonable adjustments. The Council should have identified information from Mr X about his disabilities and concerned whether it needed to make any changes to its service and processes. It should have confirmed any adjustments in writing to Mr X or explained why it considered his request unreasonable if it rejected a request. The failure to do so was fault. I note also that the reasonable adjustment duty is anticipatory. The Council ought to have been aware that Mr X has disabilities as he has a blue badge. The Council was not proactive enough in identifying Mr X’s communication needs. This was fault causing avoidable frustration and a lost opportunity to lodge a late appeal to the tribunal.

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Agreed action

35. Our remedies aim to put a complainant back to the position they would have been, ‘but for’ the fault. The Council has taken some action by reducing the PCN to the lowest discount figure (£65). This is a partial remedy for the injustice.
36. The Council will, within one month of this statement:
1. Apologise for the frustration caused by the fault I have identified and make him a symbolic payment of £100 to reflect his avoidable distress.
2. Discuss by phone with Mr X what reasonable adjustments he needs to complete the PCN appeal process and write to him setting out those adjustments it has agreed as reasonable ones. If it considers adjustments unreasonable, it should explain why in writing.
3. Reconsider Mr X’s late representations and either accept these and cancel the PCN or issue a Notice of Rejection which would allow him to go to the tribunal with an appeal, in time.
4. Place further debt-recovery action on hold until completion of (a) to (c).
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council which applied timescales for challenging a penalty charge notice too rigidly. It also failed to consider Mr X’s request for reasonable adjustments due to his disabilities. The Council will apologise, make a symbolic payment and reconsider Mr X’s representations.
39. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman