The Ombudsman's final decision
Summary: Mr R complains enforcement agents acting for the Council removed his car despite it being used by a blue badge holder. The Ombudsman’s view is there was enough doubt about whether the car was used by a blue badge holder to justify the enforcement agents’ decision. So we do not uphold the complaint.
The complaint
The complainant (whom I shall describe as Mr R) complains that: the Council enforced penalty charge notices without a court judgement. Mr R’s view is administrative court judgements like these are illegal; enforcement agents, acting on the Council’s behalf, removed his car despite there being a blue badge on display.
Mr R says he wants his car returned and compensation, including for his costs and any damage to his car. He would also like an apology.
What I have investigated I am investigating the second part of the complaint. I explain the reasons for not investigating the other part at the end of this statement.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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
As part of the investigation, I have: considered the complaint and the documents provided by Mr R; made enquiries of the Council and its enforcement agents and considered their responses; spoken to Mr R; sent my draft decision to Mr R and the Council and considered their responses.
What I found
Legal and administrative background Enforcement of unpaid penalty charge notices (PCN) The Taking Control of Good Regulations 2013 (which I shall refer to as the Regulations) sets out the procedure for debt recovery by enforcement agents. This includes parking fines that have been through the enforcement process under the Traffic Management Act 2004.
The Regulations set out what goods enforcement agents should consider as exempt from enforcement. These include: “a vehicle on which a valid disabled person's badge is displayed because it is used for, or in relation to which there are reasonable grounds for believing that it is used for, the carriage of a disabled person.” (Taking Control of Good Regulations 2013, Regulation 4(1)(d)) Blue Badges Councils issue blue badges under guidance set out by the Department for Transport. They are issued to people who have disabilities that cause mobility problems. The badge is valid irrespective of whether the holder is a driver or passenger in a vehicle.
What happened Mr R’s dependant son has a blue badge.
The Council had issued Mr R with a series of Penalty Charge Notices (PCN) for parking offences. Mr R did not pay the charges so the Council followed the enforcement process, resulting in March 2020, with it obtaining an order for recovery.
The Council sent the debt to its enforcement agents. After some preliminary attempts to contact Mr R, in October the enforcement agents visited Mr R’s address. Before visiting the agents had checked the Driver and Vehicle Licensing Agency records and found there were three vehicles registered to Mr R’s address. Mr R held the registration for two of those vehicles.
The day after a first visit, the enforcement agents visited Mr R’s address again. It took control of a car registered to Mr R parked on the road near to Mr R’s home. It says (and has provided an undated photograph as evidence) there was no blue badge on display in the car when it took control. Mr R disputes this and says the blue badge was on display.
After taking control of the car, a man they believed to be Mr R (but who would not identify himself) approached the enforcement agents. The man at first said the car was sold. He later placed a blue badge in the car. One of the enforcement agents contacted his office who advised they should continue with the enforcement action. The car was later removed to a pound, where it remains.
The day after removing the car, the enforcement agents wrote to Mr R confirming they were in control of the car. They advised him of the amount of the outstanding debt.
Mr R complained to the Council about the enforcement action.
Later in October the enforcement agents contacted Mr R to invite him to collect his blue badge. It says it sent a reminder in early November; Mr R collected the badge at the end of December.
The Council’s responses to Mr R’s complaint advised later evidence provided by Mr R “…only shows that there was a blue badge in the vehicle. However, does not indicate that the badge was showing in the vehicle before the EAs (Enforcement Agents) took control of the vehicle.”
Mr R complained to the Ombudsman. In response to my enquiries, the Council and its enforcement agents said: the enforcement agents’ view was Mr R placed the blue badge in the car to prevent removal; “There was no evidence to suggest that the blue badge holder was present within the vehicle or in the vicinity, contrary to the statutory guidelines in relation to the lawful use of blue badges. Consequently, the EAs did not have reasonable grounds to believe that the … vehicle … was used for the transportation of a disabled person”; “[Mr R] had at least two other vehicles registered or otherwise available for use [one of which he arrived in] … and which appeared to the EAs to be more suitable for the carriage of a disabled person”.
the Council was still willing to consider a reasonable payment plan as a gesture of goodwill; the car had the appearance (for example cobwebs) that it had not been used for some time.
Analysis The Council and agents acting for it have the right to take enforcement action to recover debts. (I know Mr R disputes this, but as explained at the end of this statement, that is not an issue the Ombudsman can resolve). Sometimes debtors deny ownership of goods, or cite other reasons to avoid paying the debt. So the Ombudsman cannot question enforcement action unless an agent has not followed a policy or procedure.
With Mr R’s complaint, the issue that needs resolving is whether the enforcement agents had reasonable grounds for believing that the car was used for transporting a disabled person.
Contrary to the Council’s view, whether the blue badge was on display when the enforcement agents took control of the car was not particularly significant. It was parked near to Mr R’s home, so likely, then, not in use by a disabled person. But we know that when the car was removed a blue badge was on display. The question then was whether that gave reasonable grounds for believing the car was used for the transport of a disabled person.
Mr R’s argument is that because the car had a blue badge showing, it showed its use by a disabled person. But that is not necessarily the case. Councils issue blue badges to disabled people, not to vehicles. So it does not automatically follow that a vehicle with a blue badge displayed should never be removed by enforcement agents.
Here, the enforcement agents’ and Council’s files shows there were several issues which cast doubt on whether removing Mr R’s vehicle was needed for a blue badge holder. The issues include: there were other vehicles registered to the address Mr R lives at; the person who approached the enforcement agents arrived at the scene in a different car; the enforcement agent’s statement the car had the appearance that it had not been in recent use.
In his response to my draft decision, Mr R gives further information about the use of the car and why it was needed for transporting his son. But I need to consider, on the balance of probabilities, whether the enforcement agents’ actions at the time were reasonable, given what the Regulations say. The issues Mr R raises in response to my draft decision were not ones he raised at the time with the enforcement agents. So my decision is there was enough evidence to suggest the car was not crucial for the transport of a disabled person, that the enforcement agents were entitled to continue with enforcement. I do not uphold the complaint.
Final decision
I make a finding of no fault by the Council and its contractors.
Parts of the complaint that I did not investigate I have not investigated Mr R’s complaint the Council’s actions were illegal. He is not complaining the Council missed some part of the enforcement process. Rather he argues the whole basis of parking enforcement, through the administrative courts, is illegal.
It is beyond the Ombudsman’s role to make a finding on such a fundamental question about the status of the legal system. The Ombudsman is not a substitute for the courts. It is not our role to make decisions on contested questions of fact and law. That needs the more stringent and structured procedures of civil litigation for its proper determination.
Investigator's decision on behalf of the Ombudsman