Summary: We will not investigate this complaint about the enforcement of a penalty charge notice issued for a road user charging contravention. The complainant has already taken court action about the matter, it is reasonable to expect him to have used his right of appeal to the Traffic Penalty Tribunal in any case, and there is insufficient evidence of fault in the way his request for a payment plan was considered.

The complaint

1. Mr X complains about the enforcement of a penalty charge notice (PCN) for a road user charging contravention, particularly that the Council’s enforcement agent has refused to accept his proposed payment plan.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. The courts have said that where someone has sought a remedy by way of proceedings in any court of law, we cannot investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
5. The law also says we cannot normally investigate a complaint when someone had 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 Traffic Penalty Tribunal (TPT) considers parking and traffic offence appeals for all areas of England outside London.

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How I considered this complaint

7. I considered:
• information provided by Mr X,
• information provided by the Council, which included its complaint correspondence with Mr X and an update on the current status of the PCN.
• the Ombudsman’s Assessment Code.

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My assessment

8. The restriction detailed in paragraph 4 above would apply to any parts of Mr X’s complaint about matters which were the subject of his judicial review application about the PCN. Although the courts rejected the judicial review, the restriction on our jurisdiction still applies.
9. And even if Mr X had not taken court action, the restriction detailed in paragraphs 5 and 6 above would apply. This is because it is reasonable to expect Mr X to have followed the statutory process and used his right of appeal to the TPT if he wanted to challenge the PCN following the Council’s refusal of his representations.
10. And with regards to the refusal of the payment plan proposed by Mr X, the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how the decision was made. If we decide there is insufficient evidence of fault, we cannot ask whether a particular decision should have been made, or say a different outcome should have been reached.
11. There is no duty or requirement for councils, or enforcement agents acting on its behalf, to offer a payment plan, and the Council’s complaint responses have explained why one was refused in this case. That was a decision it was entitled to make. As such, there is insufficient evidence of fault by the Council in respect of this part of the complaint, so we will not start an investigation.

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Final decision

12. We will not investigate Mr X’s complaint because:
• he has already taken court action relating to the PCN,
• in any case, it is reasonable to expect him to have use his right of appeal to the TPT, and,
• there is insufficient evidence of fault in the way his request for a payment plan was considered.

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Investigator's decision on behalf of the Ombudsman