Summary: We will not investigate Mr X’s complaint about the Council’s decision not to cancel a penalty charge notice. The Council has agreed to remedy the complaint by reconsidering whether to cancel the penalty charge notice. Investigation by us is unlikely to achieve significantly more for Mr X.

The complaint

1. Mr X complains about the Council’s decision not to cancel a penalty charge notice (PCN) and says the Council failed to properly consider his mitigating circumstances.
2. Mr X says the Council’s decision has caused him significant distress, wasted time and disruption to his professional duties. He wants the Council to acknowledge the procedural failures in his case and review its processes.

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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 provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I also considered the Ombudsman’s Assessment Code and the Council’s parking policies.

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My assessment

6. Mr X received a PCN for entering a pedestrian zone when he was not allowed to. He asked the Council to cancel the PCN and subsequently applied for, and was granted, an exemption for the pedestrian zone. Mr X explained that he incurred the PCN while acting as a community rapid response matron, driving to the most direct route to reach a time-critical patient.
7. The Council’s policy states that it can cancel a PCN if it is satisfied there is a valid concession or exemption, or if there is a strong mitigation for the cancellation of the PCN, such as if the PCN was incurred in circumstances beyond the reasonable control of the motorist. The policy provides some examples of mitigating circumstances, including where a motorist is attending to an emergency.
8. The Council said it was unable to cancel the PCN because “all notices are reviewed under the same guidelines to ensure equity for all motorists without School exemption permit” and Mr X did not have an exemption for the pedestrian zone at the time of the contravention. It also said he had not demonstrated sufficient mitigating reasons. However, there was no reference to the nature of Mr X’s work or the circumstances he described.
9. Mr X later appealed to London Tribunals. The Adjudicator could not consider mitigating circumstances or make a recommendation to the Council not to enforce the PCN. However, it noted there were compelling circumstances in his case. The Council said it would not consider Mr X’s case further because he has used his right of appeal to the Tribunal.
10. Although Mr X has appealed to the Tribunal, the Adjudicator’s decision makes clear the grounds he relied on could not be considered. We therefore consider the appeal is misconceived and we retain jurisdiction to investigate the complaint.
11. We acknowledge the Council is entitled to apply consistent guidelines, however it must still consider where there are grounds to exercise its discretion in each case. Importantly, its policy recognises that each case should be considered on its own merits.
12. The Council’s statement that it is “unable to cancel the PCN, as all notices are reviewed under the same guidelines to ensure equity for all motorists without School exemption permit” suggests it may be applying a blanket approach to refuse all representations against PCNs issued for contravening the pedestrian zone restriction. This suggests the Council may have fettered its discretion in Mr X’s case by not properly considering the mitigating circumstances he put forward in his representations. We have therefore invited the Council to take steps to address this issue and the Council, to its credit, has agreed to our proposal.

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Agreed actions

13. The Council has agreed to reconsider whether to cancel the PCN. In deciding whether to cancel the PCN it will clearly demonstrate how it has applied its discretionary powers and considered Mr X’s mitigating circumstances. If the Council decides there are good reasons to cancel the PCN it should notify Mr X of its decision and refund any monies paid in respect of the PCN. If the Council decides not to cancel the PCN, it should provide a clear explanation of its reasons.
14. The Council has agreed to complete this action within one month of this decision statement.

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Final decision

15. We will not investigate Mr X’s complaint because the Council has agreed to remedy the complaint by reconsidering whether to cancel the PCN. This provides a suitable remedy for the complaint and further investigation by us is therefore not necessary or proportionate.

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Investigator's decision on behalf of the Ombudsman