Decision : Upheld
Decision date : 19 Feb 2019
The Ombudsman's final decision:
Summary: Mr X complains Transport for London (TfL) were at fault for repeatedly issuing Penalty Charge Notices in error for vehicles that were compliant with the Low Emissions Zone. He also complained that TfL failed to respond to his complaint properly. We upheld Mr X’s complaint. TfL cancelled the outstanding PCNs. We recommended action by TfL to resolve the problem that caused these errors. We also recommended a payment to Mr X to reflect the injustice caused by the multiple PCNs sent to him and the failings when responding to his complaint.
- Mr X complains TfL have failed to properly manage the Low Emission Charging Zone and T-Charge. He complains TfLs systems and processes are not robust resulting in TfL issuing multiple Penalty Charge Notices (PCNs) to him. TfL have since cancelled PCNs because his vehicles are compliant. Mr X also complains TfL failed to respond to his correspondence about PCNs properly in a reasonable timescale.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- 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)
- If we are satisfied with a council’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
- I spoke to Mr X and considered the information he provided.
- I contacted TfL and asked it for information. I sent a witness summons to TfL to obtain its response. I considered the information TfL provided.
- I sent TfL and Mr X a draft decision to enable them to comment and I considered the comments I received before reaching a final decision.
What I found
- Mr X’s complaint concerns PCNs issued to him for the T-Charge and the Low Emissions Zone (LEZ). We would not generally investigate complaints about the validity of individual Penalty Charge Notices. This is because a tribunal exists to specifically consider complaints that PCNs are unwarranted. However, Mr X complained of problems with TfL’s systems and processes that caused TfL to issue multiple PCNs wrongly. Mr X argued it would be unreasonable to expect him to make multiple appeals if flaws in TfL’s systems or records led to it issue PCNs in error. We have exercised discretion to investigate the complaint and the cause of the problems Mr X raised.
Low Emissions Zone (LEZ)
- TfL have a set of emissions standards for vehicles driving in Greater London. If a vehicle meets the standard it can use the area without charge. If a vehicle does not meet the standard the owner can have an abatement device fitted. Otherwise they would need to pay the LEZ charge.
- Abatement devices can be fitted at test centres approved by the Driver and Vehicle Standards Agency (DVSA). When they are fitted, the test centre issues a Low Emissions Certificate (LEC).
- Vehicle owners do not need to tell TfL that they have an LEC. Rather, when DVSA update their records, this information is passed on to TfL. LECs generally last for a year, and vehicle owners must arrange for re-testing to ensure an up to date LEC exists for their vehicle. If an LEC expires, the vehicle becomes non-compliant and would be subject to the LEZ charge.
- The T-Charge is a separate regime which operates in central London. It requires older vehicles to meet minimum euro emission standards. If they do not meet the standard they must pay a daily T-Charge.
- Two emissions standards are covered by T-Charge. This is the level of Particulate Matter (PM) and the level of Nitrates of Oxide (Nox).
- An LEC for the Low Emissions Zone (LEZ) only confirms compliance with the PM standard. It cannot confirm compliance with the Nox standard. TfL has data from the Vehicle Certification Agency (VCA) and Driver and Vehicle Licensing Agency (DVLA) to try to determine the level of Nox created from individual vehicles. However, TfL acknowledged that some incorrect vehicle information within DVLA records has led to some inaccurate assessments of emissions.
- If vehicle owners wish to challenge the compliance status of their vehicle, they may do this. This may be by correcting wrong the information DVLA hold about their vehicle or by getting a declaration from the vehicle manufacturer about the emissions for the specific vehicle concerned.
- Mr X runs a coach company. Mr X has private registration plates for his coaches. When he replaces a coach, he moves the private registration plate from the old to the new vehicle.
Mr X’s complaint
- Mr X complains that TfL have regularly issued PCNs for compliant vehicles. He stated he had spent many hours on the telephone and sent letters to TfL to question why he is receiving PCNs. However, the problem continued. He felt there was confusion at TfL about when vehicles were compliant.
- Mr X says TfL went on to take recovery action and to pass debts on to bailiffs for some of the PCNs. He explained, because of his family and health circumstances, this was stressful.
- Although I understand Mr X spoke to staff at TfL to question the why they were issuing PCNs, he did not appeal them all. Mr X told me there were too many PCNs and he had not been able to deal with the volume of PCNs he had received.
- TfL explained the PCNs issued for Mr X’s coaches for non-compliance with the LEZ. In response to our enquiries it stated:
Coaches One & Two
- In August Mr X moved the registration plate from two old coaches to two new ones. On 7 August 2017 TfL received confirmation from the DVSA that a valid LEC had been transferred to Coach One. It also received confirmation on the same day that Coach Two held a valid LEC. However, on 7 October 2017 TfL issued a PCN to Mr X for Coach One for non‑payment of the LEZ. On 20 October TfL issued a PCN for Coach Two.
- TfL accepted on both occasions it acted in error. It was unclear why TfL’s records were not showing the vehicles as compliant given DVSA had provided this information to TfL two months earlier.
- TfL says it received no representation or challenge to these PCNs. TfL accepted they should not have been issued and they had been cancelled.
- TfL noted a second PCN had been issued for Coach Two on 18 September 2018. TfL stated this was correctly issued because the LEC for Coach Two expired on 31 July 2018. However, as a gesture of goodwill this PCN has also been cancelled.
- The registration plate for Coach Three had been on a non-compliant vehicle. Like Coaches One and Two, the DVSA told TfL that Coach Three held a valid LEC on 7 August 2017.
- TfL issued three PCNS for Coach Three. One of these was in July 2017, one in October 2017 and one in January 2018. It stated it could not establish why the information from DVSA did not prevent the PCNs from being issued. It accepted it was at fault. It cancelled all three PCNs in response to my decision.
- TfL issued the first PCN before it received the DVSA information. However, it appears the DVSA information from August should have prevented TfL issuing the second and third PCNs. I note that TfL have cancelled all three PCNs because of Mr X’s complaint.
- Again, TfL is not clear why TfL did not take account of the DVSA information and why it issued these PCNs.
- The registration plate for Coach Three had also been on a non-compliant vehicle previously. DVSA knew on 7 August that Mr X had moved it to a new vehicle with an LEC. However, TfL says on this occasion an error by DVSA meant it did not pass on this information until 25 November 2017. On 25 November 2017, a PCN was issued even though the coach held a valid LEC.
- Despite TfL knowing of the valid LEC on 25 November, it issued three further PCNs for this coach in April 2018, May 2018 and August 2018.
Coaches Five, Six and Seven
- TfL stated all three of these registration plates were originally on vehicles that did not meet LEZ standards. It stated it had not been told Mr X had transferred these registration plates to new vehicles that met LEZ standards.
- TfL stated it had contacted DVSA to investigate this complaint. DVSA confirmed the registration plates were now on new vehicles that met the LEZ emission standards. It is not clear when these changes occurred. However, because TfL were not aware Mr X had moved the registration plates to new vehicles, they considered they issued the PCNs properly based on the information they held.
- TfL issued PCNs on 20 January 2018 for Coach Six and 29 January 2018 for Coach Five. It issued five PCNs for Coach Seven on 6 February 2018, 2 July, 4 August, 9 August, and 1 September.
- TfL noted that Mr X had not appealed against the PCNs to challenge them. However, as TfL were now aware these registrations were on compliant vehicles, they had cancelled all the PCNs.
Foreign registration plates
- TfL’s original response to our enquiries accepted the DVSA had confirmed Coaches One, Two and Three were compliant when TfL issued the PCNs. At first, TfL were unclear why the DVSA information did not prevent PCNs being issued. However, TfL clarified the private registration plates for Coaches One, Two, Three and Four were similar in format to some foreign registration plates. It felt this may have been the cause of the problem.
- TfL stated the process for enforcing the LEZ for foreign vehicles is different. Foreign vehicles are not issued with LECs by the DVSA. So, if a vehicle is foreign, the case goes straight to a foreign debt recovery agent without any check to see if an LEC exists. TfL stated it mistook the registration plates for Coaches One, Two, Three and Four for foreign vehicles, so the check for an LEC was bypassed. When it found out the coaches were UK vehicles, TfL went straight to enforcement, without checking whether they had valid LECs. TfL stated this was rare but it was now reviewing how it deals with this to prevent this happening in future cases.
PCNs issued to Mr X for the T-Charge
- Between March and September 2018 TfL issued 11 T‑Charge PCNs to Mr X for five of his coaches.
- TfL stated it now understands that two of Mr X’s coaches were manufactured in 2010. Because of this, these coaches are compliant. The remaining coaches were manufactured in 2004 or 2006, so it needs evidence of compliance for these vehicles.
- TfL stated Mr X did not challenge the PCNs. It stated, had Mr X done so, TfL may well have been able to resolve the matter before it passed these PCNs to bailiffs and took recovery action.
- As a gesture of goodwill TfL stated it would cancel all PCNs issued for the T‑Charge on these five vehicles. It invited Mr X to discuss these vehicles with TfL to ensure they had the most up to date information and to prevent further PCNs being issued where possible.
- Mr X provided copies of some of his correspondence with TfL in late 2017. He wrote to TfL to challenge PCNs he was receiving for multiple coaches, all of which he considered to be compliant with the LEZ. He explained the evidence he had that showed their compliance.
- In May 2018 TfL stated it had issued PCNs for Coaches One, Two and Three because it had not updated its records show them as compliant. TfL apologised for this. It offered to cancel eight PCNs and it offered to pay Mr X £50 as a gesture of goodwill. Mr X rejected the payment. He stated the payment was insulting, given the correspondence he had with TfL to try and resolve the issue since November 2017. He told TfL the matter was causing him sleepless nights, high levels of stress and affecting his mental health.
- TfL agreed to conduct a review of his case and respond within 7 working days. TfL told us it had failed to respond after May 2018 due to an administrative error, which led to Mr X’s complaint being closed down rather than followed up.
- In response to Mr X’s complaint to the Ombudsman, TfL responded further in August 2018. Its letter stated what PCNs were outstanding and explained its position. It stated its records showed some of Mr X’s coaches were non-compliant. TfL’s response suggested it had not been at fault, other than the long delay in responding.
- There was clear fault in the way that TfL issued PCNs to Mr X. Seemingly due to their private registration plates, TfL wrongly identified Mr X’s coaches as foreign vehicles, and then TfL failed to properly check their compliance before issuing PCNs. These failings represent fault by TfL.
- While I note what TfL found when looking into the complaint, this is not consistent with what TfL told Mr X in May 2018. At that point TfL stated it issued PCNs for Coaches One, Two and Three because its records were not up to date. The records stated Mr X’s coaches were not compliant. It stated this was due to a communication error. It told us it had not updated its records when it should have done. This suggests the problem may not only have been confusion with the foreign registration plates, but with the accuracy of its records. It raises questions about the way it keeps its records up to date with information about LECs from DVSA. TfL need to explain this process to us in more detail and to review whether there remain issues that need to be resolved to prevent a re-occurrence of the issues in Mr X’s case.
- On the whole there seems evidence that Mr X’s vehicles were compliant and most of the PCNs TfL sent to him were through failings by TfL. I accept that Mr X should generally follow the appeal process to challenge individual PCNs. However, it is clear there was a significant problem causing TfL to issue multiple PCNs on various compliant vehicles in Mr X’s case. So, in my view it was reasonable for him to seek to resolve the issue in correspondence with TfL.
- TfL argue if Mr X had made appeals for individual PCNs, it would have resolved the matter sooner. I do not consider this is clearly the case. I say this as TfL accepted little fault in response to Mr X’s complaint in August 2018 and had not previously found the faults that we have now identified.
- There was further fault by TfL in its failure to respond to Mr X’s complaint. He had explained to TfL that he could not keep up with the correspondence about vehicles that he knew to be compliant and the matter was causing him high levels of stress. Yet, TfL closed his complaint without responding. TfL only responded after Mr X brought his complaint to the Ombudsman.
- There was also significant delay in TfL’s response to the Ombudsman’s enquiries on the complaint, resulting in us issuing a witness summons.
- For the reasons I set out above, I found there was also fault in the way TfL responded to the complaint. This caused avoidable stress and uncertainty to Mr X. The matter became worse because some the PCNs issued to Mr X went to enforcement through bailiffs.
- TfL has now cancelled the outstanding PCNs on the vehicles Mr X complained about. This partially puts the matter right for Mr X. TfL have also paid Mr X £100 in total to reflect the problems in its response to the complaint. TfL has also agreed to contact or meet with Mr X to discuss his vehicles. This is to ensure its records are up to date and Mr X is clear about anything he needs to do to avoid further PCNs. I welcome the action TfL has taken. However, further action is required to remedy the complaint. I have set this out below.
- TfL has cancelled the PCNs outstanding on Mr X’s vehicles. It should also cancel any recovery fees and all bailiff action without charge to Mr X.
- TfL should contact Mr X to clarify the position with all of his coaches and to ensure he is clear about any actions it needs him to take for compliance. It should do this within two weeks of my final decision.
- TfL should make changes to its processes and procedures to prevent a reoccurrence of the problems that occurred by misinterpreting Mr X’s private registration plates as foreign vehicles. This should be done within four weeks of my final decision.
- TfL should explain to the LGSCO its process for correct and timely updates to information about LECs from the DVSA to TfL records. This is the process that provides information about which vehicles are LEZ compliant. TfL should also review this process and explain any action it intends to take to make the process more robust. It should explain when any action will be taken. TfL should send the LGSCO this information within four weeks of my final decision.
- TfL has already paid Mr X £100. TfL agreed to pay Mr X another £400. The overall sum is to properly reflect the impact of the delay in responding to his complaint, and the distress caused to Mr X from wrongly issuing multiple PCNs to him.
- There was fault by TfL which it has agreed to put right.
Investigator's decision on behalf of the Ombudsman