The Ombudsman's final decision
Summary: Mrs X complained the Council failed to consider mitigating circumstances that she presented to the Council at the same time that she paid a Penalty Charge Notice (PCN). She complained the Council failed to consider whether to exercise discretion and waive the penalty fee. We found the Council was not at fault.
The complaint
Mrs X complained the Council failed to consider representations she made about mitigating circumstances when she received a Penalty Charge Notice (PCN) for entering a yellow box junction. She complains the Council failed to consider whether to exercise discretion and waive the penalty fee.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. 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 of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
We considered the information provided by both Mrs X and the Council. We considered the relevant guidance and our own Focus report. We also took account of evidence sent by the Council in response to a draft decision. This set out details of the formal process for making representations about PCNs.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.
What I found
Our Jurisdiction The Local Government Act 1974 says that we should not investigate a complaint where someone has a right of appeal to a tribunal, unless we decide there is a good reason to do so in a particular case. We cannot investigate if someone has already appealed, regardless of the outcome.
For these reasons we can only look at a complaint about a penalty charge notice itself in certain circumstances, usually when there is a question over how the process was followed.
Our Focus Report: Fairer Fines; Ensuring good practice in the management of Parking and Traffic Penalties In our focus report on the management of parking penalties we state that councils should be open to considering exceptional circumstances presented by the public. Councils should consider whether to exercise their discretion not to pursue a penalty charge notice at any stage of the process.
London Councils’ Code of Practice on Civil Parking Enforcement Part F of the London Councils’ Code of Practice says that a PCN is deemed paid as soon as payment arrives. However, it states where members of the public submit a payment with a letter challenging the PCN and seeking redress, the authority should always consider the challenge. It states where payment has been made which subsequently needs to be refunded (e.g. following acceptable representations) it should be refunded as soon as possible.
Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022 Regulation 5 states that the recipient of an enforcement notice may make representations against it. It stipulates that the representations must be in the form determined by the Authority.
The Council provided a copy of the notes with a PCN explaining the process for making representations. This states that representations may be made in writing to the parking services team or online.
What happened The Council issued a PCN to Mrs Y in July 2022 after she stopped in a yellow box junction. Mrs Y paid the penalty for the PCN in August, within the discounted period, without having made an appeal to the Council.
She emailed the Council on the same day she made payment. Mrs X used a general council email address. She asked the Council to use its discretion to cancel the PCN. Mrs X said she was not appealing the PCN, and admitted the contravention. However, she stated she acted as a carer for her elderly mother, which involved a regular journey by car and the situation caused stress. She asked the Council to accept her apology and use its discretion to waive the penalty fee and refund her payment.
In September, Mrs Y approached us. She told us the Council ignored her comments and did not cancel the PCN. She provided a copy of the email she sent to the Council the same day that payment was made and a follow up email sent to chase for a response around a month later.
The Council told us that it issued a Notice to Owner on 1 August and the PCN was paid on 4 August. It stated it had no record of communication on its case file and the record was closed. It also had no complaint record. However, the Council confirmed it would not consider this matter through its complaints process due to the right of appeal.
The Council provided a copy of the notes on the PCNs it issues. These set out the way in which the recipient of the PCN may make representations. The Council stipulates that representations must be made in writing to the parking services team or online. Mrs X sent an email to a general council email address instead. The Council stated as Mrs X’s comments were not sent in the prescribed format they were not considered.
Was there fault by the Council Mrs X’s complaint is not about the legitimacy of the PCN itself, but about the process followed by the Council when she made representations on a PCN. For this reason, we have considered her complaint.
Councils are not obliged to waive PCNs when they receive representations. However, we would expect a council to consider representations that are properly made and to respond, explaining whether it would agree to exercise discretion. They should consider whether to exercise their discretion not to pursue a penalty charge notice at any stage of the process, even if the PCN has been paid and that may mean refunding a PCN. This principle is set out in the London Councils’ Code of Practice on Civil Parking Enforcement.
On the basis of the information provided by Mrs X and the Council, there is evidence that Mrs X emailed the Council and made a representation at the same time that she set out circumstances that she asked the Council to consider. However, the Civil Enforcement regulations allow councils to specify how representations should be made. The regulations state that representations must be made in the form prescribed by the Council.
While I recognise Mrs X made representations, these were not made in the format that the council required. As a result, I found that the Council were not at fault for not considering them.
I also note that the Council has since looked at the representations Mrs X made while considering its response to our investigation. It determined that her representations would not have been sufficient to exercise discretion to cancel the PCN. As a result, it also appears the outcome of the matter would not have been different had the comments been sent in the correct format and considered at the time.
Final decision
The Council were not at fault. I have now completed my investigation and closed my file.
Investigator's decision on behalf of the Ombudsman