The Ombudsman's final decision
Summary: Ms X complained about the actions of the Council and the Enforcement Agency after she received a penalty charge notice. The Council was at fault when it and the Enforcement Agency failed to inform Ms X of her appeal rights or how to escalate her complaint. The Council has agreed to pay Ms X £100 and to refund the enforcement fee which is satisfactory to remedy any injustice she experienced. It has also agreed to make service changes to prevent a reoccurrence of the same events.
The complaint
Ms X complains: the Council sent documentation about a penalty charge notice she received to the wrong address; the Enforcement Agency (EA), acting on behalf of the Council, wrongly sent bailiffs to her house when she missed her final payment after she changed her debit card; the bailiffs sent by the EA lied to her when they said they could remove her car if she did not pay the outstanding amount owed; and when she called the EA to complain the call operator behaved in a disrespectful manner to her and failed to take her complaint seriously.
Ms X said that as a result, she has been caused distress and financial hardship.
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) The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended) In this case, the EA was acting on behalf of the Council. We can therefore investigate its actions. Any fault we find in their actions is the fault of the Council.
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 may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 considered Ms X’s view of her complaint.
I made enquiries of the Council and considered the information it provided.
I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
Penalty charge notices If a vehicle parks in breach of parking rules, the Council may decide to issue a penalty charge notice (PCN).
The vehicle owner can appeal to the Council and if unsuccessful, to the Traffic Enforcement Centre (TEC) for appeals outside London.
The vehicle owner must appeal to the TEC within 28 days of receiving the Council’s decision but can ask for more time under certain circumstances. These include where the owner claims they were contacted about a PCN they did not know about. These are called ‘out of time’ challenges and they must be made to the TEC.
If the vehicle owner makes an out of time challenge, the EA will be told to stop any action whilst the TEC considers it. If the challenge is successful, it reinstates the vehicle owner’s right of appeal. This means any further action by the EA is stopped and enforcement costs repaid where applicable.
Councils will often use an enforcement agency (EA) to recover debt. EAs can charge fees for each stage of the enforcement process.
Complaints handling The law says that where a third party provides a service on behalf of a council, the council keeps responsibility for third party actions, including their complaint handling.
Where councils agree third parties will respond to complaints on their behalf, they should agree appropriate arrangements to oversee and quality check those responses.
All complaints processes should signpost complainants to the next stage if they remain unhappy.
What happened At the end of 2019, Ms X received a penalty charge notice.
Ms X did not pay the fine. Therefore, in January 2020, the Council sent a notice warning of further action if the penalty charge remained unpaid to the address the car was registered with the Driver and Vehicle Licensing Agency (DVLA).
The notice was returned to the Council marked ‘Not at this address’. Subsequent documentation was also returned in the same manner.
The Council passed the debt to an EA. The EA contacted Ms X at her correct address and in March 2021 she set up a payment plan to repay the debt.
On 14 May 2021 Ms X’s last payment failed to go through. This was because she had cancelled her debit card after losing it. Ms X did not inform the EA of this.
On 21 May, bailiffs visited Ms X’s property. Ms X complained that they told her they could take her car even though she was purchasing it through a finance agreement. Ms X said this was against the law, but she paid what she owed.
In May Ms X called the EA to complain. She said the person she spoke to was unprofessional.
An EA staff member replied and made the following points: they had listened to the call when the payment plan was set up. In this call, the operator advised Ms X to call immediately if her debit card changed; they had listened to the call in May when Ms X complained. The operator had been professional and provided Ms X with the correct information; and the bailiffs were correct when they said they could seize Ms X’s car even though it was on finance.
The complaints letter did not inform Ms X of what she should do if she was unhappy with the response.
Ms X complained about the same issues to the Council.
The Council responded. It did not uphold Ms X’s complaints. It said Ms X should have advised the EA that she had a new debit card. The response did not inform Ms X how to escalate her complaint. It also did not advise her that she could make an out of time challenge to the TEC.
After another complaint to the Council, it told her that because her complaint was about the actions of the EA “no further action will be taken by ourselves or any further correspondence entered into”. It again provided no information about what Ms X could do if she remained unhappy with the EA’s complaint responses.
Ms X complained to the Ombudsman.
During my investigation the Council told me: it no longer used the EA for debt recovery. Instead, it had brought the service in house; the EA telephone operatives use a script when talking to customers which reminded customers to contact the EA if there were any changes to their debit card; once the EA had identified Ms X’s new address, it applied to the TEC to continue enforcement, and this was granted. The EA then sent a new notice of enforcement to Ms X’s new address; considering Ms X’s individual circumstances and vulnerability, it would refund the £235 enforcement stage fee and offer a further payment of £100.
My findings
Penalty charge notice 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.
In this case, it would be reasonable for Ms X to make an out of time challenge to the TEC on the basis that she did not receive any of the documentation relating to the penalty charge notice. This is because if the challenge is successful, the TEC has the power to stop any further action by the EA and reinstate Ms X’s right of appeal. Any costs added by the EA will also be cancelled and repaid where applicable. Therefore, I will not investigate this further.
Communications with Ms X Both the EA and the Council failed to inform Ms X of the next stage of the complaints process. However, Ms X was able to pursue her complaint and come to the Ombudsman, so this did not cause her an injustice.
The EA and the Council also failed to inform Ms X that she could make an out of time challenge to the TEC. Their failure to do so is poor practice and fault.
This caused unnecessary delays. However, other than that, I cannot say if Ms X has been caused any further injustice because I do not know if she will make a challenge, or if she does, what the TEC will decide. And in any case, the payment of £100 already offered by the Council is adequate to remedy any injustice this caused Ms X.
In relation to both failures, the Council should ensure it has processes in place to ensure residents are informed of further stages in the complaints process and any appeal rights they may have.
Telephone call with Ms X Ms X and the EA have different views about the nature of the telephone call to the operator. If I was to investigate and find fault, the payment of £100 already offered by the Council would be adequate to remedy the injustice this caused Ms X. And, because the EA no longer provides a service on behalf of the Council, any service improvement recommendations would be to no purpose. Therefore, I will not investigate this matter further on the basis that it is unlikely I could achieve anything more.
Complaint arrangements with the EA The law says that where a third party provides a service on behalf of a council, the council keeps responsibility for third party actions, including their complaint handling. Where councils agree third parties will respond to complaints on their behalf, they should agree appropriate arrangements to oversee and quality check those responses.
The Council’s final response to Ms X indicated it did not have appropriate arrangements in place. However, it has now ended its contract with the EA and brought arrangements in house and so there is no merit in further investigation.
Removal of Ms X’s vehicle Ms X believes the EA could not remove her vehicle. The EA disagrees.
Ms X’s car was not removed because she paid the outstanding amount she owed. The Council has agreed to refund her the enforcement fee as well as pay her £100 to remedy any injustice. Further investigation would be unlikely to achieve anything further.
Agreed actions
Within one month of the date of the final decision, the Council has agreed to pay Ms X £100 and refund the enforcement fee of £235.
Within one month of the date of the final decision, the Council has agreed to remind relevant staff that they must: signpost complainants to the next stage in the complaints procedures and then to the Ombudsman; and advise them where appropriate, of any appeal or challenge rights they may have relating to their penalty charge notice.
Final decision
There was fault leading to injustice. The Council has agreed to my recommendations. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman