Summary: We will not investigate this complaint about Penalty Charge Notices because it is reasonable to expect Mr Y to appeal to the Traffic Enforcement Centre, Traffic Penalty Tribunal and Information Commissioner.

The complaint

1. Mr Y complained the Council failed to provide evidence of clean air zone traffic contraventions despite him making a subject access request, gave his details to bailiffs who then harassed him for payment, escalated the enforcement of the penalties without allowing him to appeal and failed to respond to his complaint about the matter.
2. Mr Y says this has caused him upset, inconvenience and worry about the matter and a potential data breach.

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The Ombudsman’s role and powers

3. We normally expect someone to refer the matter to the Information Commissioner (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. 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)
6. 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)
7. The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
8. 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

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

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My assessment

10. Mr Y has made a subject access request (SAR) to the Council for all of the information relating to the 17 Penalty Charge Notices (PCNs) the Council has issued for entering its Clean Air Zone (CAZ) without making payment. This includes a request for all of its correspondence to Mr Y, its enforcement agent and evidence of the contravention.
11. Information, including photographs of the alleged contravention but not including further correspondence Mr Y has requested, is however available through a link the Council has provided as part of its complaint response.
12. The ICO is the UK’s independent authority set up to uphold information rights. 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. This includes failure to disclose information and Mr Y’s complaint that the Council has breached his data protection by releasing information to its bailiffs so it can take enforcement action for Mr Y’s failure to pay the penalties.
13. 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 data protection, 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.
14. Mr Y also says the bailiffs have harassed him for payment, contacting him by telephone, text and conducting home visits, warning him that if the penalties are left unpaid, the bailiffs will seek to enforce the Order for Recovery by removing goods. While Mr Y may have felt deeply upset by the repeated contact from bailiffs seeking recovery of the penalties, we would expect a bailiff to try to contact an alleged debtor by different methods, including those Mr Y experienced. There is not enough evidence of fault in the Council or its enforcement agents to justify investigating.
15. Mr Y says the Council pursued the enforcement of the PCNs without allowing him the opportunity to appeal and the Council has failed to respond to his correspondence about and against the PCNs. Mr Y has a right to appeal the matter to the Traffic Penalty Tribunal (TPT), including how the Council dealt with his appeal, and whether it followed the correct process in considering his representations.
16. If the TPT finds that it did not consider his representations properly, it can then consider the issues Mr Y has raised as the reasons why the PCNs are either invalid or should not be enforced.
17. To do this Mr Y would usually need to appeal to the TPT within 28 days of the Notice of Rejection of representations being issued. As it is unlikely Mr Y is still within this period, he will likely need to approach the Traffic Enforcement Centre (TEC) to seek permission to appeal to the TPT.
18. If the TEC accepts Mr Y’s application it can take the process back to an earlier stage, reducing the amount of the PCNs and reinstating Mr Y’s right of appeal against the PCNs to the Council initially and then the TPT. Mr Y can then decide if he wishes to appeal the PCNs or pay the penalty.
19. The TEC and TPT are free in the initial stages and can make reasonable adjustments if necessary. I would therefore consider it reasonable for Mr Y to use this right of appeal.
20. Also, the TEC and TPT has been set up for the purpose of considering the type of issues Mr Y has raised and has the power itself to cancel the PCN if warranted. It is therefore better placed than the Ombudsman, who can only ask the Council to consider cancelling the PCN, to consider this complaint. We will therefore not investigate.
21. Mr Y has also complained that the Council did not respond to his complaint. As we are not investigating the substantive issue, it is not a good use of public funds to investigate how the Council dealt with Mr Y’s complaint and we will not investigate this.

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Final decision

22. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to appeal to the Traffic Enforcement Centre, Traffic Penalty Tribunal and Information Commissioner.

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Investigator's decision on behalf of the Ombudsman