Summary: Mr X complained about a Council parking notice. We found fault with the notice issued. The Council agreed to provide a suitable apology and waive the notice and amend the wording on future notices and associated documents and signage. The Council also agreed to complete a review of its current parking enforcement regime.

The complaint

1. The complainant, Mr X, says the Council’s Notice to Pay Standard Charge, issued to Ms Y for an off-street parking contravention was unlawful as the Council is a civil enforcement area. He says there is no independent statutory appeal mechanism and Ms Y pursued resolution for over a year.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
4. If we are satisfied with an organisation’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)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

6. In February 2023 the Council issued a Notice to Pay Standard Charge to Ms Y for not parking wholly within a bay in one of its car parks. The Notice said: “It is an offence under section 35(A) of the Road Traffic Regulation Act for the driver of a vehicle who has left it in a parking place to fail to pay the charge. The penalty is a fine not exceeding £500 on summary conviction.”
7. Ms Y appealed to the Council at the informal appeal stage.
8. The Council rejected the appeal. It said under the Council’s (Off street) Parking Places Order 2020 (“the PPO)” a standard charge of £80 applied (£60 if paid within 14 days) except when a valid permit is clearly exhibited and a vehicle is parked wholly within a bay. It said the Notice to Pay was issued correctly because Ms Y’s vehicle was not parked wholly within a marked bay. It was parked over two bays thereby impeding another vehicle from parking in the adjacent bay.
9. In March 2023 Ms Y made a formal appeal. Ms Y said the Notice to Pay was invalid. She said the whole of the Council’s district was designated as a civil enforcement area by The Civil Enforcement of Parking Contraventions Designation (No.2) Order 2020, and regulation 8 of the Civil Enforcement of Road Traffic Contraventions (approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022 (the 2022 Regulations) provides that:

“No criminal proceedings may be instituted, and no fixed penalty notice may be issued, in respect of conduct constituting a parking contravention, except a pedestrian crossing contravention”.

10. The Council replied noting Ms X’s point that its area was designated as a civil enforcement area. However, this only related to on street parking. The legislation that applied to off street parking was the Council’s PPO. This was in exercise of its powers under Section 32, 33, 35, and 39 of the Road Traffic Regulation Act 1984, (as amended) (the 1984 Act) and Part IV of schedule 9 to the 1984 Act and of all other enabling powers.
11. The Council said the Notice to Pay was issued correctly in accordance with its policies. It said it would not waive the charge and Ms Y had exhausted the Council’s appeals process.
12. Ms Y refused to pay. She said the Council could not enforce the charge because criminal proceedings were prohibited in a civil enforcement area. If the Council pursued her via the magistrate’s court she would challenge this, and suggested the Council sought legal advice.
13. The Council replied that civil enforcement of parking in the East Sussex County Council did apply to on street parking but it did not apply to off street parking. Within the Rother District Council’s area, off street parking was covered by the PPO. The Notice to Pay Standard Charge was not a notice of a criminal offence nor was it a penalty charge or fine, it was a parking charge notice. As Ms Y did not comply with the terms of the PPO, the Council applied the Standard Charge of £80. The Council said it had sought its own legal advice.
14. In May 2023 the Council sent Ms Y a further demand for payment and said its legal department could take recovery action if the charge was not paid. Ms Y said she would resolve the matter in court and the Council should compensate her.
15. From October 2023 Mr X represented Ms Y. He complained the Council’s Notice to Pay was unlawful and should never have been issued. It had not responded since May 2023 and was now out of time to take action at a court. He considered the Council could be making unlawful demands of many people, as the notices were invalid and unenforceable.
16. Mr X said the Council should apologise for its unlawful demand and the stress caused by its threats of criminal prosecution. He said the Council should compensate Ms Y and suspend all parking enforcement, until it sought legal advice.
17. Following Mr X’s emails chasing a response, the Council called him in December and wrote to him on 25 January 2024. The Council said its legal services department had reviewed the legal basis of the charge. It confirmed the Council was in a civil enforcement area according to the Traffic Management Act 2004.
18. It noted that Mr X referred to the 2022 Regulations regulation 8(1) which states that “No criminal proceedings may be instituted, and no fixed penalty notice may be issued, in respect of conduct constituting a parking contravention, except a pedestrian crossing contravention.”
19. The Council stated that there were two parts to regulation 8(1):
• No criminal proceedings may be instituted - The Council stated its parking enforcement was civil enforcement, not criminal proceedings. The Council’s Notice to Pay Standard Charge was not a fixed penalty notice. It was a charge of £80 payable on entry to its car parks, which was waived on compliance with the parking regulations.
• No fixed penalty notice may be issued – The Council stated it did not issue fixed penalty notices for parking enforcement. It said its enforcement of the Standard Charge was charging the driver the full cost of parking in its car park, whereas issuing a fixed penalty notice was punitive and in addition to the sum that the driver had paid (or not) for parking.
20. The Council went on to explain its parking charge and regulations were displayed prominently in its car parks. It considered it had a legal right to issue its Notice to Pay Standard Charge where the driver had not complied with the regulations. However, as a gesture of goodwill it offered to reduce the charge to £4 to cover the cost of the second bay used by Ms Y.
21. In February 2024 Mr X complained at stage two of the Council’s procedure that it had not followed a statutory enforcement process (civil or criminal) but had instead adopted a civil process of its own invention. In his view the Council was operating outside of the statutory regime of the Traffic Management Act, and should not be able to access DVLA data.
22. As the Council did not reply to Mr X for four months, he complained to the Ombudsman. We asked the Council to complete its complaints procedure.
23. In October 2024, after seeking external legal advice, the Council replied. It noted Mr X said its Notice to Pay Standard Charge was invalid and unenforceable, due to the Council being in a civil enforcement area. But it disagreed with Mr X’s analysis. While it agreed the regulations restrained criminal proceedings or issuing fixed penalty notices, they did not prevent the Council recovering the debt by civil proceedings.
24. The Council’s response to our enquiries stated:
• the Notice to Pay Standard Charge issued to Ms Y had been waived
• it did not consider the wording of The Civil Enforcement of Parking Contraventions Designation (No.2) Order 2020 required amendment and its position remained as set out in its response to Mr X in October 2024
• it accepted that standard wording remained on the Notice to Pay Standard Charge and had taken steps to clarify that it enforces off-street parking contraventions through civil proceedings
• it had reviewed its standard enforcement letters and any reference to criminal enforcement had been removed
• reference to Section 35A of the Road Traffic Regulation Act 1984 and summary conviction were being removed from the Notice to Pay Standard Charge
• documents and signage were being reviewed to remove reference to criminal proceedings
25. The Ombudsman would welcome this action.

Analysis

26. The Notice to Pay Standard Charge issued to Ms Y set out using a tick box format that the vehicle was ‘Not wholly within a bay.’ The Council’s Off-Street Parking Places Order 2020 (the Order) includes the following:

8. Overlapping Bays – Should the body work of any vehicle overlap into an adjoining bay, or bays, the driver will be required to pay for the adjoining bay or bays.

9. Overextending into thoroughfare – Any vehicle that is parked that extends beyond a marked bay in excess of 2ft/61cm and obstructs the throughways will be subject to Standard Charge Notice to Pay.

27. Therefore, there are multiple situations possible where a car is ‘not wholly within a bay’ and only one of these is penalised within the Order by a Standard Charge:

• Car is not within the marked bay and encroaches into another parking bay. Result: the driver must pay for the adjoining bay as well (i.e. the total for the bay used and the bay overlapped will be the usual parking cost x2). A very large vehicle or a very badly parked vehicle might manage to overlap into multiple bays, so will pay additional parking costs accordingly. This scenario only involves paying for more than 1 bay: it does not result in a ‘charge’.
• Car is not within the marked lines and encroaches into space outside the bay, which is a thoroughfare by 2 feet or less, regardless of obstruction caused to thoroughway: the Order imposes no extra parking cost and no ‘charge’.
• Car is not within the marked lines and encroaches into space outside the bay that is a thoroughfare by 2 feet or more, but no obstruction caused to thoroughway: the Order imposes no extra parking cost and no ‘charge’.
• Car is not within the marked lines and encroaches into space outside the bay that is a thoroughfare by 2 feet or more, and obstruction caused to thoroughway: the Order imposes a ‘charge’.

28. On this basis, I do not consider parking ‘not wholly within a bay’ provides a proper basis for a charge under the Order. I note the Council has waived the Notice issued to Ms Y albeit some considerable time after it was issued.
29. In addition, the Notice in this complaint does not allege or provide evidence that the complainant a) parked in a way that intruded at least 2 feet into the thoroughfare and b) in so doing caused obstruction. I note it would not be possible to do so using the format being used by the Council as it does not prompt those filling it in to consider these questions. The form being used by the Council may lead its employees to impose charges in situations where all that should be levied is an additional sum for another parking bay. The format does not allow a driver to understand whether what is alleged in fact permits a charge to be imposed under the Order.
30. It remains the Council’s view is that it is not obliged to use the statutory system provided by the Traffic Management Act 2004 (TMA) in respect of off-street parking even though it is designated as a Civil Enforcement Authority (CEA). Mr X disagrees with the Council’s view.
31. This is not a straightforward issue and I note the TMA amended the Road Traffic Regulation Act 1984 Act in relation to on-street parking and not in relation to off-street parking. However, I am concerned that the Council’s current approach could be seen to undermine one of the purposes of the TMA by not using the statutory mechanism – the oversight provided by the Tribunal system.
32. The fact that the Council is bypassing that system in the light of the fault identified above in relation to the Notice raises some concern. I have taken into account the Ombudsman’s Principles of Good Administrative Practice which sets out that we expect councils to act fairly and proportionately and to be open and accountable. We cannot be satisfied the Council’s current practices comply with these principles.
33. Finally, there was an unacceptable delay in the Council responding to Mr X at the second stage of its complaint procedure. This is fault.
34. The Council has confirmed to the Ombudsman that it will complete a review of its current parking enforcement regime to ensure it complies with the requirements of the relevant legislation and statutory guidance and meets with basic legal principles of transparency and accountability. The Council is due to go through a reorganisation which is a longer term project and so this review will form part of the wider review of policies and procedures.

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Action

35. The Council will take the following action within one month of my final decision:
1. provide an apology to Ms Y for her avoidable upset and inconvenience due to the fault identified in the Notice to Pay Standard Charge she received;
2. provide an apology to Mr X for the delay in responding to his complaint;
3. provide evidence to the Ombudsman of the Councils actions outlined at paragraph 24 above; and
4. review its processes to ensure complaints receive a response in accordance with the Council’s complaint procedure.
36. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman