Traffic Enforcement Centre (TEC) cancelled. This has caused Mr X financial distress. The Council correctly issued the PCN and progressed to enforcement. The Council is at fault for failing to repay the additional fees following the Court Order revoking the charge.
The complaint
Mr X complained the Council refused to refund a Penalty Charge Notice which the Traffic Enforcement Centre cancelled. This has caused Mr X and his family financial and emotional stress. Mr X wants the Council to make the full refund and pay him compensation.
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 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) 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
As part of the investigation I have considered the following: The complaint and the documents provided by the complainant.
Documents provided by the Council and its comments in response to my enquiries.
The Traffic Management Act 2008, London Local Authorities and Transport for London Act 2003, Taking Control of Goods Regulations 2013 Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
A registered keeper of a vehicle must update their contact details with the Driver and Car Licensing Agency (DVLA).
If a civil enforcement officer believes a traffic contravention has occurred, they may issue a penalty charge notice (PCN). The council can send the PCN by post to the registered keeper (according to the DVLA records) of the vehicle.
The registered keeper must pay the charge within 28 days. There is a discounted rate for early payment. Alternatively, the registered keeper can make formal representations against the penalty charge within 28 days. They can appeal under the statutory grounds of appeal or any other reason.
If the registered keeper does not appeal or appeals unsuccessfully, and does not pay the penalty charge, a council can issue a charge certificate. A charge certificate increases the penalty payable by a further 50%.
If the registered keeper did not receive the PCN (among other reasons), they may apply to the Traffic Enforcement Centre (TEC) and file an out of time witness statement or statutory declaration. This includes cases where the complainant received no correspondence from the council and only became aware of the PCN when enforcement agents contacted them or clamped their vehicle.
A valid witness statement or statutory declaration revokes the order for the recovery of the unpaid penalty charge and the charge certificate. The council can reissue the PCN.
Although the keeper should make witness statement or statutory declaration within 21 days of the order of recovery, the TEC has discretion to accept an application made outside this time limit. The TEC will decide whether to accept the late application and, if it does, this has the same effect as a valid witness statement/statutory declaration.
What happened I have summarised below the key events; this is not intended to be a detailed account.
In early July 2022, Mr X’s car entered a restricted pedestrian zone.
The Council checked the vehicle details with the DVLA which said Mr X was the registered keeper. The DVLA provided Mr X’s contact details to the Council. The Council served a PCN on Mr X in mid-June at the address provided by the DVLA.
Mr X could pay the PCN at a reduced payment of £65 within 14 days. He did not.
Within 28 days, Mr X had to pay the £130 charge, or he could write to the Council and explain why he should not have to pay. He did neither.
As Mr X had not paid or written to the Council, it issued a charge certificate towards the end of August. This increased the PCN by 50% to £195. The certificate explained Mr X had 14 days to pay or appeal. If he did not, the Council could pass the PCN to enforcement agents to recover the debt. The Council did not receive payment or an appeal from Mr X.
In late September, the TEC made an order for recovery of unpaid penalties. This said Mr X must pay the unpaid penalty charge. It also explained Mr X could make a statutory declaration if he had not received the PCN.
The Council did not hear from Mr X so it referred the case to enforcement agents. The agents sent Mr X a notice of enforcement in late November and the middle of December and added extra fees and charges to the total amount payable.
Mr X emailed the Council in early January 2023. He said he had received the correspondence from the enforcement agents in December 2022, but had not received any previous correspondence from the Council. The Council responded to Mr X a few days later and said it did not need to consider appeals at this late stage. It said it correctly issued the PCN and had sent several notices to Mr X’s address according to the DVLA which Mr X was responsible for keeping updated. It told Mr X to contact the enforcement agent directly.
Mr X filed an application for an out of time statutory declaration in February. His grounds for appeal were that he did not receive the correspondence.
In March, the Council opposed Mr X’s application and said it had sent all correspondence to the address Mr X had given to the DVLA.
In April, the Court refused Mr X’s application. The Council recommenced warrant enforcement. Mr X said he asked the TEC to review his case in May.
In June, enforcement agents visited Mr X’s home, clamped his car and threatened to tow it away. Mr X said his wife and children were at home and were upset and intimidated by the enforcement agent. Mr X told the enforcement agent he had asked the Court to review the case. The Council had no record of this. Mr X said the enforcement agent ignored what he said about his application to review the case and continued to threaten to take his car. Mr X paid the £500 charge to prevent this. Mr X settled the debt, and the Council closed its file.
The following week, the Council received an email from the TEC saying it had accepted a valid application from Mr X to review his case. This was the first time the Council had been notified of Mr X’s application for a review by the Court. The Council had already received payment for the charge and closed its file.
At the beginning of August, the TEC ordered the recovery of unpaid penalty charges to be revoked and the charge certificate to be cancelled. The order states this does not cancel the original PCN. The Council date stamped the order which shows it received it the following week.
Roughly two weeks later, the Council wrote to Mr X and said it would refund the PCN charge of £130 but not the fees from the enforcement agent. It said this was because the court order refers to unpaid penalties only. As Mr X had already paid the PCN, there were no unpaid penalties and the Council had closed the case.
Mr X emailed the Council on three occasions in September asking for the full amount to be refunded. In early November, the Council wrote to Mr X and said again it used its discretion to refund the £130 but not the charges.
Mr X’s complaint Mr X complained to the Council the following week. The Council responded a week later and explained the action it had taken as set out above. It said it had sent the notices to the address Mr X gave to the DVLA and it was his responsibility to keep this updated. It said Mr X received correspondence from the enforcement agents in December 2022 and he had chance to settle the debt then. The Council said it received an email from the TEC saying it accepted Mr X’s review application seven days after he paid the PCN. It explained as the order ‘refers to an unpaid PCN; as this PCN was fully paid the Council considers the debt to be settled and the case closed.’ The complaint response said it was satisfied the Council had administered the PCN correctly.
In response to my enquiries, the Council said if Mr X had not paid the enforcement agents in June, they would have taken his car and sold it at auction. The money raised would have been used to pay the debt. If the debt was outstanding when the TEC revoked the recovery order, the Council would have stopped enforcement and reissued the original PCN to Mr X’s new address.
The Council says where a PCN has been paid in full before the TEC revokes a recovery order, it will review each case individually and decide whether to offer a refund. In this case, the Council provided evidence it received notice from the TEC of Mr X’s application the week after he had settled the charges. On that basis, it decided it would not be appropriate to refund the enforcement agents fees as they were legally incurred and correctly applied. The Council also said this could have been avoided if Mr X updated his contact details with the DVLA.
Analysis The PCN and enforcement activity The Council checked Mr X’s contact details with the DVLA and addressed correspondence enclosing the PCN to this address. It is not at fault.
The Council followed the procedure and timescales and sent the PCN to Mr X, offering the early discount and then the requiring the full payment or written representations. When the Council received neither of these, it moved to the next stage and issued a charge certificate. The correspondence warned Mr X the charges would increase at each stage if he did not pay and explained it would pass the case to enforcement agents. When Mr X did not respond to these, the Council passed the case to enforcement agents for collection. The Council followed the legislative procedures and timeframes, it is not at fault.
Mr X says the first he knew about the PCN when enforcement agents contacted him. He contacted the Council for further information and said he did not know what the charge was for. The Council referred him to the enforcement agents as the matter was with them. Mr X had several opportunities to contact the enforcement agents to query the matter.
The Council and enforcement agents do not need to ‘wait and see’ if an individual makes an application to the TEC once the deadlines have passed. In this case, Mr X said he made a review application to the TEC in May. In early June, Mr X paid the PCN charges, and the Council closed the case. The TEC told the Council Mr X had put in the review application later in June. From this date, the Council should put a hold on enforcement. As Mr X had already paid the fees, the Council had already closed the case and stopped enforcement. It had already done what the Order said. The Council is not at fault.
Mr X said the enforcement agents visit to his property was illegal because the case was still in Court. I have not found this to be the case. As explained in the previous paragraph, the TEC had not told the Council it had received and accepted Mr X’s application. The Council considered the PCN was outstanding and instructed the enforcement agents to recover the amount. While the timing is unfortunate and I understand Mr X’s frustration, the TEC had not told the Council it had accepted his application. The Council is not at fault.
After the Court Order In response to my enquiries, the Council explained it has discretion to refund extra charges attached to a PCN when the TEC cancels a charge certificate. In this case, the Council refunded the original PCN but not the extra charges. It said this situation would not have arisen if Mr X told the DVLA his new address. While I understand the Council’s point of view, the Courts decision is final and the Council cannot now question its order. Saying Mr X did not update the DVLA is not a reason to refuse to refund the charges.
The Order states it does not cancel the original PCN and the Council may take further action. The Council has refunded the original PCN. While the Council has discretion to do this, it contradicts the Order and standard procedure.
There is no legislation or case law which states if councils should refund enforcement fees when the court makes an order to revoke recovery. The Ombudsman’s view is that councils should refund everything the registered keeper has paid except the penalty charge. This is because acceptance of a witness statement is effectively acceptance of a flaw in the process. The Council has not done this, it is at fault.
Summary of fault causing injustice The Council followed legislation and procedure and is not at fault for how it issued the PCN and how it dealt with enforcement. The Council is at fault for refusing to refund the additional charges to Mr X after it received the Court Order.
The Council’s refusal to refund the additional fees to Mr X has caused him financial hardship. That is his injustice.
Agreed action
Within four weeks of my final decision, the Council agreed to Refund the total amount Mr X paid, minus the £130 charge of the original PCN.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have completed my investigation. The Council issued the PCN and progressed to enforcement correctly but is at fault for failing to repay the additional fees and charges.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman