The Ombudsman's final decision
Summary: Ms X complained the Council delayed in considering or acknowledging her representations against a Penalty Charge Notice (PCN). As a result she had to pay the fine to ensure she could do so at the reduced rate. Once she had paid the Council refused to consider her representations. There was fault which has been remedied by the action already taken by the Council.
The complaint
Ms X complained the Council delayed in considering or acknowledging her representations against a Penalty Charge Notice (PCN). As a result she had to pay the fine to ensure she could do so at the reduced rate. Once she had paid the Council refused to consider her representations.
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) 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 the complaint and documents provided by Ms X and spoke to her I asked the Council to comment on the complaint and provide information. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
What I found
The Road User Charging Schemes Regulations Regulation 8, paragraph 9, of The Road User Charging Schemes Regulations 2013 explains the charging authority has a duty to consider representations made to them within 28 days. This places a duty on councils to consider and respond to representations. It does not make an exception for cases where a driver has paid their PCN.
Regulation 8, paragraph 10, goes onto say where the charging authority fails to comply with paragraph 9 within 56 days it must, as soon as reasonably practicable, refund any sum paid for the PCN. This allows for circumstances where a PCN has been paid and representations made but a council has failed to consider them within 56 days.
Regulation 11, paragraph 7(b) explains that, where an appeal is allowed, the adjudicator may instruct the charging authority to refund any money already paid for a PCN. This means that appeals can be considered, regardless of whether a PCN has been paid.
The Council’s policy The Council introduced a clean air zone with penalties for vehicles driving in the zone that do not meet the emission standards and where payment is not made within the specified period.
The Council applies a fixed penalty charge of £120 and will discount this charge by 50% if a person pays the penalty charge within 14 days. People can challenge the PCN but if it is unsuccessful then the full amount must be paid. If the challenge is unsuccessful, they will not be entitled to pay at the reduced rate but can submit an appeal to the Traffic Penalty Tribunal.
At the time of the events Ms X complained about, the Council would not consider representations made after it received payment at the reduced rate. It changed this practice in December 2021, following the Ombudsman’s recommendation on another case.
What happened Ms X drove in the clean air zone. She says she did not see any signs so was unaware of the zone. She received a PCN and made representations online. She did not receive an acknowledgement so resubmitted them but still did not receive an acknowledgement. She therefore paid at the reduced rate. The Council would not then consider her representations.
Analysis The Council has commented that the software does not send an email acknowledgement when representations are made but a message is displayed on screen saying it has been allocated to the case and they will endeavour to respond as soon as possible. The Council’s correspondence to Ms X said this was introduced later and at the time Ms X made her representations no form of acknowledgement was given. In responding to a draft of this decision the Council said that was incorrect and the on-screen acknowledgement had been in place for many years.
Ms X was told when she phoned up about the PCN that the Council had initially been letting people pay the charge rather than requiring payment of the PCN. The Council has confirmed that for the first two months the zone was in place it would offer people a further chance to pay the charge. But the PCN Ms X received was outside of this period. It was at the Council’s discretion to adopt this approach. As Ms X’s charge was outside this period there was nothing wrong with the Council not offering her that option.
The software used by the Council automatically closes the case when payment is made. The Council is working with its suppliers to find a permanent solution that enables representations to be considered when payment has been made. It has put an arrangement in place to ensure it can consider representations.
The Council has now considered Ms X’s representations and is issuing a refund to her. That is a sufficient remedy of her complaint.
Final decision
There was fault by the Council which has been remedied by the action taken by the Council.
Investigator's decision on behalf of the Ombudsman