The Ombudsman's final decision
Summary: Mrs X complains about the Council’s decision not to consider her circumstances when she incurred a fine for accessing a pedestrian zone in error. The Council should have explained Mrs X’s representations did not change its decision to uphold the Penalty Charge Notice (PCN) it issued. This fault does not however cause Mrs X significant injustice to warrant a remedy.
The complaint
The complainant, who I have called Mrs X, complains about the Council’s decision not to consider her exceptional circumstances when she incurred a fine for accessing a pedestrian zone in error. Mrs X says she paid the fine before the Council had considered her representations because she did not want to incur further costs. She would like the Council to use its discretion to reimburse the fine in light of her circumstances.
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
I have spoken to Mrs X and considered the information she has provided in support of her complaint.
I have considered the information the Council has provided in response to my enquiries.
Mrs 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
Relevant guidance and procedure Where a council believes a moving traffic contravention has occurred, it may serve a Penalty Charge Notice (PCN) on the owner of the vehicle. Councils often use cameras to detect contraventions, so the PCN will usually be served by post.
The Council’s PCN letter says you can choose to either pay or make representations why you think you should not have to pay the penalty. The PCN says the penalty is halved if made within the first 14 days and makes clear that you should not pay if you wish to make representations. The Council’s PCN letter also states that the period of 14 days to make a reduced payment is paused while the Council considers any representations, so that the recipient of the PCN is not penalised with a higher charge for challenging the notice.
There are set grounds on which to make representations. Even if one of the grounds does not apply you can ask the council to consider other reasons for cancelling the penalty, such as mitigation. However, the council is only bound to cancel the PCN if it accepts that one of the statutory grounds applies.
What happened Mrs X was driving her son back home following a scheduled medical procedure in hospital. Mrs X says her son was in extreme pain following the procedure, which caused her significant distress and worry. She drove her car into a pedestrian zone in error because she followed online map directions which had not been updated with details of the restricted zone. Mrs X left the pedestrian zone as soon as she realised her mistake.
The Council sent Mrs X a PCN for entering the pedestrian zone. The Council’s PCN included all the information described in paragraph 8 above about how to challenge the PCN and make payment at the reduced rate.
Mrs X and her son contacted the Council to explain the circumstances that led to her entering the pedestrian zone in error. She provided a copy of her son’s hospital appointment letter and an image from the online map website. She asked the Council to consider her extenuating circumstances and the inaccuracy with the online map as reasons to waive the PCN in her case. A few hours later (on the same day), Mrs X paid the PCN.
The Council responded and said it had closed its case because Mrs X had now paid the fine. It said it was no longer possible to consider any representations Mrs X (or her son) had made.
Mrs X brought her complaint to us shortly afterwards because she feels the Council’s decision is unfair and does not take account of her circumstances.
Was there fault causing injustice?
The Council’s PCN letter clearly states you should not make payment if you wish to make representations to challenge a PCN. Mrs X’s decision to make payment before the Council had the chance to consider her representations is not fault by the Council.
In response to our enquiries, the Council explained that as Mrs X son’s hospital treatment was planned, it does not consider this was an emergency medical situation that would normally be accepted as mitigation to justify overturning a PCN.
The Council accepts it should have considered Mrs X and her son’s representations, despite the case being closed by virtue of Mrs X’s payment. It has since decided their explanations do not change its decision that the PCN should still stand. It should have explained this to Mrs X at the time and it was fault not to do so. While this fault has caused Mrs X frustration and distress, it has not changed the outcome of the PCN and has therefore not caused significant injustice to warrant me recommending the remedy Mrs X would like, which is for the Council to reimburse the fine she has paid.
The Council says it has issued a reminder to relevant staff to ensure they still consider any representations made shortly before payment and issue refunds where the mitigation is accepted. As this is the action I would have suggested, I have no additional service improvements to recommend in this case.
Final decision
I have completed my investigation with a finding of fault. This fault did not cause Mrs X significant injustice to warrant a remedy and the Council has already taken action to improve its service.
Investigator's decision on behalf of the Ombudsman