Birmingham City Council (24 012 395)
Category : Transport and highways > Parking and other penalties
Decision : Closed after initial enquiries
Decision date : 03 Dec 2024
The Ombudsman's final decision:
Summary: We will not investigate this complaint about Penalty Charge Notices because it is reasonable to expect Mr Y to appeal to the Traffic Penalty Tribunal and where he has already appealed, we do not have the power to investigate.
The complaint
- Mr Y complained the Council has issued more than 85 Penalty Charge Notices (PCNs) for entering the area’s Clean Air Zone (CAZ) without paying, despite Mr Y living in the CAZ and usually driving away from the CAZ. He is also unhappy with the way the Council has dealt with his complaint, which he says has been unpersonal.
- Mr Y says he feels the issue is unfair and illogical as he cannot drive without incurring a PCN as he lives inside the CAZ. He is seeking an exemption from the CAZ for his vehicle and for the existing PCNs to be cancelled.
The Ombudsman’s role and powers
- We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
- The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
- We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
- 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.
How I considered this complaint
- I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.
My assessment
- Initially when the area’s CAZ was introduced, residents within the CAZ boundary had an exemption for the daily charge. This exemption ended in 2023, three years approximately after the introduction of the CAZ.
- Since 2023 the exemption for residents no longer applies and as he has driven in the CAZ without making payment, Mr Y has incurred numerous PCNs. In some instances, Mr Y has appealed these PCNs to the Traffic Penalty Tribunal. With reference to the issuing of these PCNs, we cannot investigate as Mr Y has used his right to appeal to the Tribunal.
- Where Mr Y has not yet appealed to either the Tribunal or the Traffic Enforcement Centre based at Northampton County Court, we would consider it reasonable for him to use his right to appeal the PCNs. The Court can make reasonable adjustments where this is necessary and can heard an appeal for multiple PCNs in some cases. As it is reasonable to expect Mr Y to appeal, we will not investigate the issuing of those PCNs.
- Further, while Mr Y is seeking an exemption, this has been considered by the Council and it has explained why Mr Y is not exempt. As the decision has been based on relevant criteria about Mr Y’s vehicle, regardless of its direction, if he is driving within the zone, the Council has explained that Mr Y is liable for the charge. As the decision has been made properly, even though Mr Y may disagree with it, we would not find fault with the decision made. We will not investigate.
- As we are not considering the substantive issue, it is not a good use of public funds to investigate how the Council dealt with the complaint. We will not investigate.
Final decision
- We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to appeal to the Traffic Penalty Tribunal and where he has already appealed, we do not have the power to investigate.
Investigator's decision on behalf of the Ombudsman