The Ombudsman's final decision:
Summary: Mr B complains the authority wrongly began a prosecution when he had committed no offence. We find fault in the authority’s actions preceding its prosecution, when it failed to identify Mr B had committed no offence. We consider this caused injustice to Mr B in the form of distress, inconvenience and time and trouble. The authority has agreed to apologise to Mr B, make a payment to reflect his injustice and consider a further payment if he provides evidence of any additional expenses incurred.
- I have called the complainant ‘Mr B’. He complains that Transport for London (‘TfL’) wrongly confiscated an oyster card and two discount travel passes from him in September 2017. He says an Inspector acted out of racial prejudice. He complains that TfL then wrongly decided to prosecute him when he had committed no offence. TfL withdrew its prosecution in January 2018.
- Mr B says he incurred unnecessary expenses because of TfL’s actions. First, in transport costs following confiscation of his oyster card and discount passes. Second, when he took legal advice before it withdrew its prosecution.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
- If we are satisfied with an authority’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)
How I considered this complaint
- Before issuing this decision statement I considered:
- Mr B’s written complaint to this office and any information he provided in support of that.
- Records provided by TfL forming its investigation of the complaint.
- Further information provided by TfL in reply to written enquiries.
- I also sent both Mr B and TfL a draft decision setting out my thinking about the complaint and inviting their comments. Mr B did not comment further, while TfL said that it accepted my proposed findings and proposals to remedy the complaint.
What I found
- On 27 September 2017, a TfL Inspector approached Mr B while he travelled on a bus in its area. The Inspector asked Mr B to show his travel documents. Mr B produced an oyster card and a discount pass. The number on the pass did not match with the oyster card. Afterwards, Mr B showed a second discount pass to the Inspector. This one did have matching numbers.
- Despite this, the Inspector chose to confiscate Mr B’s oyster card and discount passes. They “felt something was amiss” as Mr B carried two discount cards when he would need only one to travel. They also said Mr B became highly abusive from the time they first asked him to produce travel documents. The Inspector says Mr B only produced the second discount pass when they sought help from the police.
- For his part Mr B has provided an alternative version of what happened when the Inspector approached him. He said he showed the Inspector both discount cards and it was him who approached the police for help. He says the Inspector shouted at him during the incident.
- TfL wrote to Mr B on 28 September. Its letter said he had been “reported for failing to produce a valid ticket, pass or photocard”. It said TfL would consider prosecution. It invited Mr B’s comments. He did not respond in writing but telephoned TfL on 4 October 2017 where he set out his version of events summarised in paragraph 10 above.
- Around 25 October 2018 TfL reviewed the evidence in the case. One of TfL’s Investigators working in its Investigation & Prosecution Department passed the case for prosecution. The Investigator advised Mr B TfL would prosecute him for having a counterfeit discount card.
- TfL says it received no further contact from Mr B and prosecution began in late December 2017. Mr B pleaded not guilty which led to a further case review in January 2018. A second Investigator found Mr B had committed no offence. He had carried a valid discount card. So, TfL withdrew the case from Court.
- In its consideration of these events TfL has found that both its Inspector and the Investigator reviewing the case in October 2017 should have realised Mr B carried a valid discount card. It considers there was some mitigation for the Inspector’s mistake given Mr B’s reported abuse towards her. It says its Investigator should have examined the cards more closely and explored why the Inspector thought one might be counterfeit.
- TfL says it transferred a balance of funds on Mr B’s oyster card to another oyster card later bought by him. It says it is willing to refund any extra travel costs Mr B incurred after confiscation of his discount card in September 2017 if he can provide proof of those.
- As I have explained in paragraph 4, we cannot investigate what happens once an authority has begun Court proceedings such as a prosecution. However, we can investigate events before the beginning of such action. So, I can investigate TfL’s actions before December 2017 when it began a prosecution of Mr B.
- Based on its own enquiries into the events causing Mr B’s complaint, I consider there is evidence of fault by TfL. First, its Inspector should not have confiscated Mr B’s valid discount pass. Second, the review of the case in October 2017 should have led TfL to realise Mr B had committed no offence. That case review did not properly scrutinise the Inspector’s confiscation of Mr B’s discount card nor examine it to see if it was counterfeit.
- These faults caused Mr B injustice. First, he suffered distress at facing a prosecution when but for these faults TfL would not have begun a prosecution. Second, I consider it likely Mr B suffered inconvenience and expense resulting from the wrongful confiscation, although the extent of this remains uncertain. Mr B has not provided evidence of his travel costs incurred after TfL confiscated his discount card or his legal expenses.
- Before I consider a remedy for this injustice, I have considered also Mr B’s claim that TfL’s Inspector ha d a racial motivation for their actions. I have found no evidence for this. Therefore, I do not uphold that part of the complaint.
- I also consider Mr B might have done more to limit some of his injustice. On Mr B’s own account, the incident which led to the Inspector confiscating his discount pass needed police intervention. I consider it unlikely events would have intensified requiring such intervention had Mr B produced the correct discount card at first. Mr B also failed to put in a written response to TfL’s correspondence advising it was considering prosecution in September and October. Had he done so, it could have led TfL to consider the case more thoroughly. I took these considerations into account when deciding what action TfL should take to provide a fair remedy for Mr B’s complaint.
- TfL has agreed that within 20 working days of this decision it will:
- Provide a letter of apology to Mr B accepting the findings of this investigation.
- Pay Mr B £200 in recognition of the distress caused.
- Invite Mr B to provide evidence of any travel costs incurred following confiscation or his discount card within the following 20 working days.
- Invite Mr B to provide evidence of any legal costs incurred following confiscation or his discount card within the following 20 working days.
- For reasons explained above I have upheld this complaint finding fault by TfL caused injustice to Mr B. The authority has agreed actions that will remedy the injustice caused to Mr B. So, I can now complete my investigation satisfied with its actions.
Investigator's decision on behalf of the Ombudsman