Summary: We found fault by the Council on Ms B’s complaint about its refusal to refund money paid to enforcement agents following the revocation of previous Orders for Recovery by the Traffic Enforcement Centre. The agreed action remedies the injustice caused.

The complaint

1. Ms B complains about the Council’s refusal to return enforcement action to an earlier stage, and refund money she paid the enforcement agents, following three orders from the Traffic Enforcement Centre revoking previous orders for the recovery of unpaid parking charges and cancelling the Charge Certificates and Notice to Owners: as a result, this caused her a great deal of anxiety, stress, and financial hardship because of the enforcement agents’ involvement.

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The Ombudsman’s role and powers

2. 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)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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Bus Lane Penalty Charge Notice

5. A council can issue a Bus Lane Penalty Notice (PCN) to a motorist who contravenes its traffic restrictions. Driving in a bus lane during its hours of operation is an example of a contravention.
6. A PCN is sent through the post to the registered keeper of the vehicle. This is also known as a ‘Notice to Owner’. This is the person who is liable to pay the PCN who has their details registered with the Driver and Vehicle Licensing Agency (DVLA). A council will check the registered keeper details at the DVLA before issuing the PCN. The law requires the DVLA is kept informed about the current registered keeper (driver and vehicle details).
7. The registered keeper can pay the PCN when it is received or challenge it by way of representations. Representations need to be made within 28 days of the PCN issue date.
8. A Charge Certificate increases the amount of the PCN by 50% and is issued to the registered keeper 28 days after it has not been paid or no representations were made to the Council. (Regulation 32, The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005)
9. If the PCN remains unpaid after 14 days after receipt of the Charge Certificate, the council can register the debt with the Traffic Enforcement Centre at the Northampton County Court (TEC). The TEC will issue an Order for Recovery. (Regulation 33, The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005)
10. An Order for Recovery tells the registered keeper the PCN has been registered as a debt. A debt registration fee is added. A Witness Statement is included with the Order which gives the chance to explain why the debt should not be registered on specific grounds. One of the most common is not receiving the PCN as it went to a previous address.
11. If the PCN and registration debt are not paid, or a Witness Statement is not received, a civil enforcement agent is asked to recover the money owed.
12. When a Charge Certificate, Order for Recovery, or a letter from the enforcement agents is received for an unpaid PCN, the registered keeper no longer has the right to make representations to the council.
13. The registered keeper can apply to the TEC to file a late Witness Statement. The council has to suspend enforcement action while the court deals with the application. The registered keeper needs to show one of several grounds which includes not receiving the PCN. (Regulation 34, The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005)
14. If satisfied with the Witness Statement, the court shall treat:

• the Order for Recovery as revoked;
• the Charge Certificate as cancelled; and
• the court shall serve written notice of the effect of the Witness Statement on the person making it and the council.

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How I considered this complaint

15. I considered all the information provided by Ms B, along with the Council’s response to my enquiries on this complaint. I also considered our Focus report (‘Fairer Fines: Ensuring good practice in the management of Parking and Traffic Penalties’) and the decision on a previous complaint (18 007 796). I sent a copy of my draft decision to Ms B and the Council. I considered their responses.

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What I found

16. In April 2022, Ms B moved from her previous property (address 1) to her current home (address 2), although did not move in until July. She claimed due to an error by the DVLA, the registered address for her car was not changed. Ms B provided no evidence to support her claim.
17. In October, TEC made three Orders for Recovery against her for contraventions that took place in May. The orders gave her until November to pay the total amount or file a statutory declaration on an attached form if she believed she had grounds for not paying the charge.
18. In February 2023, Ms B received an enforcement letter from the Council’s enforcement agents (the agents). This was to do with her driving along a bus lane on three separate occasions. The Council had issued her with three separate charge notices, one for each driving offence. As she had moved since the offences, she said she did not receive them from the Council. She reluctantly paid the agents the £552 demanded. She claimed the new occupants of address 1 had not sent her correspondence on to address 2 as they had thrown her mail away or returned it to sender. She provided no evidence to support this claim.
19. The following month, she filed a Witness Statement with the TEC. This was after she contacted the Council to explain she had not received documents until the agent’s letter. A Council officer advised her to contact the TEC. The Council said this advice was wrong.
20. Her Witness Statements for the three contraventions said all notices went to address 1 and not to address 2. Nothing was forwarded to her. She ended by stating the first she knew about the charges was when the agents visited and she ‘immediately paid in full’.
21. The TEC made orders in May for each of the PCNs and the orders the Council obtained. The TEC said the orders did not cancel the original PCNs. The TEC ordered:

• the Orders for Recovery of the unpaid penalty charge be revoked; and
• the Charge Certificates and the Notices to Owner/enforcement notice be cancelled.

22. When she contacted the Council in June, it told her it would not make her a refund. Ms B then complained to the Council but was told this decision was correct. It explained the filing of a Witness Statement did not affect payments previously made. The TEC was unaware payment had already been made by Ms B. Making payment closed each of the three cases against her.
23. The Council refused to give Ms B a refund because it said:

• the Witness Statement was made late, and she had paid the PCN. It argued the Witness Statement should not have been considered by the TEC because of her payment.

• the Orders for Recovery had advice on them which said Ms B had to, by a set date, pay the total amount due to the Council or, file a Witness Statement and send it to the TEC. The Council argued it was not an option to do both.

• the Witness Statement was, therefore, not valid as it was for unpaid penalty charges only.

• our previous decision on a similar complaint (18 007 796) was not reasonable as an outstanding penalty paid in 2013 should not be subject to a Witness Statement filed in 2017.

• having considered the above case, and our focus report (‘Fairer Fines: Ensuring good practice in the management of Parking and Traffic Penalties’), it maintained it was correct not to refund Ms B.

My findings

24. I found fault on this complaint having taken account of the following:
1. Our focus report referred to a similar case where a complainant paid the bailiffs the outstanding penalty charge and their fees. The TEC accepted her Witness Statement in which she said she had been unaware of the original PCN and had not received a Notice to Owner. The TEC ordered the Order for Recovery be revoked which meant it took the case back to the Notice to Owner stage. The TEC made it clear it had not cancelled the original PCN. When the Council refused to refund the money, including the bailiff’s fees, she complained to us. The Ombudsman decided when the TEC revoked the Order for Recovery, it withdrew the basis for the bailiff’s fees and additional penalty charges should not be paid. The Ombudsman decided the Council should refund all payments received, except the original penalty charge, and take the case back to the Notice to Owner stage of the process.
2. I considered the Council’s argument about the impact Ms B paying the PCN made in this case. In doing so, I took account of The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005). These refer to the PCN not having been paid at the time a council serves a Charge Certificate during the relevant period. This period includes where no representations are made during the period of 28 days starting from the date on which the PCN was served. So, non-payment of the PCN is specifically referred to for this stage of proceedings.
3. The Regulations go on to set out when an Order for Recovery can be made. This again refers to the expiry of the relevant period, and the increased PCN charge under the Charge Certificate has not been paid at the end of 14 days from the date it was served. Again, non-payment is specifically referred to for this stage of proceedings.
4. The Regulations go on to set out the requirements for the cancellation of the Charge Certificate and the Order for Recovery. There is no mention in this about payment or non-payment of the PCN. They say when a statutory declaration is served, the order of the court shall be revoked, and the Charge Certificate shall be treated as cancelled.
5. I considered the Council’s argument about the Order for Recovery of unpaid penalty charges. I have seen the orders for Ms B’s case. They gave a date by which she must either pay the total amount or file a Witness Statement if she believed she had grounds for not paying. While this was relevant to this stage of the process, it was a stage Ms B was unaware of as she had not been served with any papers.
6. There was the possibility of filing a late Witness Statement. I have seen the Application to file a Statutory Declaration Out of Time (PE2) Ms B completed. The form to complete makes no reference about payment or non-payment of the PCN.
7. A separate Witness Statement form (PE3) for unpaid penalty charge was also needed to accompany this form. I have not seen the one Ms B sent. I have seen a template of this form on a government website. It asks the applicant to tick one of three boxes which set out grounds for making the application. The first ground would have applied to Ms B as it was for those who did not receive the Notice to Owner or the PCN. The form does not ask whether the charges have since been paid or not.
8. The TEC was fully aware from her application that she had already paid all charges in full as she declared this on it. The court, therefore, knew she had already paid it all and went on to make the orders.
9. To summarise, having taken all the above in to account, I am satisfied there was fault on this complaint because:

• the circumstances with Ms B’s complaint are very similar to those set out in our Focus Report. The rationale for that decision was the TEC’s revocation of the Order for Recovery removed the basis for the bailiff’s fees and additional penalty charges. I consider the same principle applies to Ms B’s case;
• there is nothing in the Regulations, or on the application to file a Witness Statement out of time, or the Witness Statement template itself, which specifically states payment already made would invalidate the application; and
• Ms B declared in her application she had already paid the agents in full. The court, therefore, was fully aware of this information at the time it made its decision.
10. I am satisfied the identified fault caused Ms B an injustice from May 2023 by the Council’s refusal to make a refund and take the enforcement process back to an earlier stage. This caused her distress, as she suffered from frustration, as well as financial loss.

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Agreed action

25. I considered our guidance on remedies.
26. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Ms B a written apology for failing to: provide her with a refund of payments she had already made; take the enforcement process back to an earlier stage.
2. Refund all payments Ms B made except the original penalty charge.
3. Pay £150 to Mrs B for the injustice caused.
4. Take the enforcement case against Ms B back to the Notice to Owner stage.
5. Provide advice to relevant officers about the decision on this complaint and its implication for future similar cases.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I found fault on Ms B’s complaint against the Council. The agreed action remedies the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman