The Ombudsman's final decision
Summary: Ms X complained she did not receive a Penalty Charge Notice and missed the opportunity to pay the early discount fee or appeal. The Council was not at fault because it followed the procedure set out in legislation.
The complaint
The Council served Ms X with a Penalty Charge Notice for a parking contravention. Ms X says she did not receive the original Notice, and the first correspondence she received was the Charge Certificate. Ms X therefore missed the opportunity to pay the early discount fee or appeal the Notice. This has caused Ms X emotional and financial distress.
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 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
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 2004.
Ms X and the Council had an opportunity to comment on my draft decision.
What I found
Relevant legislation The Traffic Management Act 2004 (TMA) sets out the process for enforcing parking regulations and recovering unpaid penalties.
Where councils carry out enforcement under TMA, the first document is the penalty charge notice (PCN). If a civil enforcement officer believes a parking contravention has occurred, they may fix a PCN to the vehicle or give it to the person in charge of the vehicle.
The council can send the PCN by post to the registered keeper (according to the DVLA records) of the vehicle if a camera witnessed the contravention. The PCN also acts as the notice to owner (NTO).
A motorist can pay a reduced penalty charge within 14 days, or 21 days if a council serves the penalty charge notice by post. The discount is 50%.
The keeper can choose to make formal representations against the penalty charge within 28 days of the date of the notice. They can appeal under the statutory grounds of appeal or any other reason.
A council must consider representations received within 28 days of the NTO and has discretion to consider any received outside this period. A council should respond to representations and explain its reasons if it decides to disregard them.
If a council accepts the formal representations, it sends the keeper a 'Notice of Acceptance of Representations'. The penalty charge is no longer payable.
If a council does not accept the formal representations, it must send a 'Notice of Rejection of Representation' to the keeper with details of the rights of appeal. The keeper can pay the full penalty charge or appeal to a parking adjudicator within 28 days.
If the 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%.
The Council’s policies and procedures The Councils website has a section on incorrect parking and parking enforcement action. It refers to the statutory process set out in the TMA.
In response to my enquiries, the Council said it does not have a specific policy for issuing PCNs and considering appeals and representations. The Council follows the process set out in the TMA.
What happened I have summarised below the key events; this is not intended to be a detailed account.
On 29 April 2022, Ms X’s vehicle parked in a restricted zone outside a school. A camera witnessed the contravention.
The Council sent a PCN and NTO dated 9 May 2022 to Ms X. The PCN states the charge is £110 which must be paid within 28 days from the date of service. The Council will reduce the charge to £55 (a 50% discount) if paid within 21 days from the date of service. Alternatively, Ms X could put in representations.
The Council posted a charge certificate dated 10 June 2022 to Ms X. It said the Council had not received a formal representation or payment for the PCN. The charge had increased by 50% to £165.
Ms X emailed the Council on 11 June 2022 appealing the PCN. She explained she had received the charge certificate but not the original PCN. Ms X said if she had received the PCN originally, she would have responded.
The Council posted a PCN Enquiry Response to Ms X dated 20 June 2022. It referred to the following section of the TMA: ‘The authority may disregard any such representations which are received by them after the end of the period of 28 days beginning with the date on which the notice to owner was served.’ The Council received Ms X’s correspondence after the 28-day period and after it had served the charge certificate. The Council said it did not have to consider it.
The PCN Enquiry Response said Ms X must pay the full £165 within 21 days from the date of the notice. Ms X paid the charge at the beginning of July 2022.
Ms X complained to the Ombudsman in July 2022. She explained she did not receive the PCN and could not appeal. Ms X said her car number plates had been cloned which the police were investigating.
In response to my enquiries, the Council said it always sends notices first class, to the address provided by the DVLA. The Council confirmed the PCN, NTO, charge certificate and PCN Enquiry Response were all posted first class to Ms X’s address.
In conversation with me, Ms X said she does not dispute parking in the restricted zone. She said she would have paid the fee had she received the original PCN.
Analysis The Council cannot evidence it posted the PCN to Ms X as it did not use recorded delivery, the legislation does not require this. The Council confirmed it sends all its correspondence first class post. I have seen copies of all the documents which are addressed correctly to Ms X at her address. Ms X received the charge certificate and the PCN Enquiry Response, the Council used the same process to send the original PCN and NTO. On balance, I have no reason to believe the Council did not post the PCN first class to Ms X.
Under the TMA, councils must consider representations made within 28 days of the NTO and PCN. Ms X did not present representations within 28 days, the Council therefore had nothing to consider.
Ms X submitted representations outside the 28 day period. The Council did not consider Ms X’s representations and was not obliged to do so under the TMA. The Council replied to Ms X and explained its reasons for not considering her representations, as is required in the TMA. The Council followed the process set out within the legislation. The Council is not at fault.
I understand Ms X is upset and frustrated as she says she did not receive the PCN and therefore missed the opportunity to appeal or pay the reduced fee. I found the Council followed the process set out in the legislation. The Council does not have to send the notice recorded delivery, it did not receive representations from Ms X within the 28 day statutory period and is not obliged to consider representations received after this time. The Council followed the procedure as set out in the TMA and is therefore not at fault.
Final decision
I have completed my investigation. The Council is not at fault as it followed the process set out in legislation for serving the PCN and charge certificate.
Parts of the complaint that I did not investigate Ms X confirmed she parked in the restricted zone. I have not considered her statement about her car being cloned and the impact this may have on the PCN.
Investigator's decision on behalf of the Ombudsman