Summary: The Council failed properly to consider its discretion to accept Mr X’s late representations against a penalty charge notice. This was fault. The Council has agreed to apologise to Mr X for the resulting uncertainty and act to improve its services.

The complaint

1. Mr X complained that the Council wrongly issued him a penalty charge notice and refused to exercise its discretion to accept his late representations against the Notice.
2. As a result, Mr X says he was visited by bailiffs without warning and had to pay £385.

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The Ombudsman’s role and powers

3. 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)
4. A council should not adopt a blanket approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of councils that ‘fetter their discretion’ in this way.
5. 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

6. I considered the complaint and the information Mr X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
9. Mr X and the organisation 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

PCN

10. If a civil enforcement officer believes a parking contravention has occurred, they may fix a penalty charge notice (PCN) to the car or give it to the person appearing to be in charge of it.
11. The motorist can pay a lower charge within 14 days or make an informal challenge to the PCN.
12. If the penalty charge is not paid, the council may send a notice to owner to the keeper of the vehicle at the address where the it is registered. This provides an opportunity for the keeper to either pay the penalty charge at the full amount or to make formal representations against the penalty charge within 28 days of the date of the notice.
13. The formal representations stage provides the opportunity for the keeper to state a case for not paying the penalty charge. 
14. A council must consider representations received within 28 days of the notice to owner and has discretion to consider any received outside this period. A council should always respond to such representations and explain its reasons if it decides to disregard them. 
15. If the keeper does not appeal, or appeals unsuccessfully, and still does not pay the penalty charge, a council can issue a charge certificate.  A charge certificate increases the penalty payable by a further 50%.
16. If a penalty charge remains unpaid after 14 days from the charge certificate, the council can register it as a debt at court, adding further court costs. Within seven days the council must then send an order for recovery telling the keeper that within a further 21 days from receipt of the order, they must either pay the amount outstanding or make a witness statement to the court. 
17. If the debt remains unpaid and no witness statement has been made, the council may apply to the court for a warrant of execution which it may pass to bailiffs to recover the debt. The bailiffs may recover their own costs. The maximum amount bailiffs can add is £75 for the ‘compliance’ stage (writing to the debtor) and £235 for the ‘enforcement’ stage (visiting the debtor’s property to get payment).

Late representations

18. The statutory guidance for councils on enforcing parking contraventions says councils have discretion to cancel a PCN at any point in the process.
19. The guidance says councils have discretion to accept representations outside the 28 days from the notice to owner. It says councils should use this discretion when a vehicle owner gives a valid reason for the delay and has strong grounds for representations. 

What happened

20. The Council issued Mr X a PCN in May 2022 for parking in a car park without a valid ticket. It left the notice on the car. At that point, the charge was £50. It would be £25 if Mr X paid within 14 days.
21. In July, the Council sent Mr X a notice to owner. This said Mr X should pay £50 or make representations within 28 days about why he should not have to pay.
22. In August, the Council sent Mr X a charge certificate. This said he had 14 days to pay £75.
23. At the end of August, Mr X wrote to the Council making representations. These were late. He said he had paid for parking. He did not provide any explanation for why his representations were late. He said he would provide evidence he had paid if the Council told him how to provide this.
24. In October, the Council wrote to Mr X. It said his appeal was late and “once the Charge Certificate has been issued, you have no further right to appeal”. He could pay £75 within 21 days. Mr X did not pay.
25. In November, the Council issued Mr X an order for recovery. This said he could pay £84 or file a witness statement with the court within 21 days. Mr X did not pay. Nor did he give a witness statement.
26. In December, therefore, the court issued a warrant and passed the debt to bailiffs. The bailiffs wrote to Mr X a few days later. This said Mr X now owed £159. Mr X did not pay.
27. In January, bailiffs visited Mr X’s address. The payment due was now £394. Mr X paid this amount. He then complained to the Council.
28. In his complaint, he said he had made representations but had not received a response. He said he had no communication from the Council before the enforcement visit in January.
29. The Council’s response explained that there is a statutory process for appealing PCNs and this meant it would not deal with it through the complaints process. And because Mr X had now paid the charge, the matter was closed.
30. Mr X made a further complaint in March 2023. At this point, he attached proof that he paid for parking using the Council’s online payment system. In response to my enquiries, the Council explained that although Mr X paid for parking, it was for the wrong car park.

My findings

31. Mr X had a right to make representations against the PCN. The Council provided information about how to do this on the PCN itself and in the notice to owner. It was only after receiving the charge certificate, however, that Mr X made representations. His representations were therefore late. The Council did not have to accept them, but had discretion do so.
32. Where a council has discretion, the Ombudsman expects it to consider the circumstances of the case in deciding whether to exercise discretion. The statutory guidance sets the same expectation.
33. The Council’s letter to Mr X does not show it properly considered its discretion. It only says Mr X had no right to appeal because it had already issued the charge certificate. This was fault.
34. I cannot say that had it properly considered its discretion the Council would or should have accepted Mr X’s late representations. Mr X did not provide any explanation for why they were late and the Council may not have accepted those reasons had he done so.
35. However, in his representations, Mr X said he would provide evidence he had paid if the Council told him how to send it. The Council reviewed the evidence he provided in March 2023 and found that Mr X had paid to park in the wrong car park. Had it told him how to provide this evidence in September 2022, it would have been able to tell him this sooner.
36. Had it done so, Mr X may then have accepted the PCN was not wrongly issued. I cannot say that this would have changed Mr X’s decision about whether to pay, but not doing so denied him the opportunity to make an informed decision. The resulting uncertainty is an injustice to Mr X.
37. At this point, Mr X could have paid £75 but did not do so. This was his choice. Mr X says he received no letters or notice before bailiffs visited his address in January 2023. However, the Council and the bailiffs sent a further two letters, in November and December, before the visit in January. If Mr X did not receive or respond to these, this was not because of fault by the Council. I do not, therefore, find that any fault by the Council resulted in Mr X having to pay £385. He had opportunities to pay lesser amounts which he did not take.

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Agreed action

38. To remedy the injustice to Mr X from the fault I have identified, the Council has agreed to apologise to Mr X in writing within four weeks of my final decision.
39. The Council has also agreed to take the following action to improve its services:
• Remind relevant staff that the Council should consider the merits of late representations against a penalty charge and explain why it does not accept them. The Council should amend any guidance and template letters to ensure it is not fettering its discretion.
• Remind relevant staff that where a motorist asks how to provide evidence in support of representations against a penalty charge, the Council should give them the opportunity to provide that evidence before deciding to reject the representations.
40. The Council should tell the Ombudsman about the action it has taken within eight weeks of my final decision.

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Final decision

41. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman