The Ombudsman's final decision
Summary: We will not investigate this complaint about a Penalty Charge Notice because it is reasonable for Ms Y to approach the courts about the matter.
The complaint
Ms Y complained the Council wrongly issued a Penalty Charge Notice (PCN) and are now wrongly pursuing her for the penalty, having not allowed her sufficient time to pay or appeal. She also says the enforcement agents then damaged her vehicle while clamping it.
Ms Y says this caused her and her family deep distress, damaged her vehicle and left Ms Y feeling humiliated. She has also had to go into debt on payments she could not make because she had to pay the enforcement agents which she is now accruing interest on. She would like the payment to be returned, including the cost of the interest now incurred.
The Ombudsman’s role and powers
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended) The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review 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 use this right. (Local Government Act 1974, section 26(6)(a), as amended) The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
How I considered this complaint
I considered information Ms Y and the Ombudsman’s Assessment Code.
My assessment
Ms Y has complained that the PCN was issued wrongly and unfairly. She also complained that she was not given a sufficient period to either pay the PCN or appeal it before the matter was passed to enforcement agents.
Ms Y has a right to submit a late witness statement to the Traffic Enforcement Centre (TEC), asking it to remove the charge certificate for the PCN, even if she has paid the enforcement agents under duress. If the TEC accepts her application it can take the process back to an earlier stage, reducing the amount of the PCN and reinstating Ms Y’s right of appeal against it to the Council initially and then the Traffic Penalty Tribunal. It can also order the Council to refund any charges made by the enforcement agents for their actions. Ms Y can then decide if she wishes to appeal the PCN or pay the penalty.
Further, the Traffic Penalty Tribunal can consider how the Council dealt with the PCN, including if it allowed sufficient time for her to appeal or pay the PCN, and whether it followed the correct process in considering any representations. If it finds that it did not consider her representations properly or did not follow the correct process, it can then consider the reasons why the PCN may be either invalid or should not be enforced.
This is often free in the initial stages and reasonable adjustments can be made where necessary for access to the service.
Consequently, as Ms Y has not provided any other reason why she cannot, it is reasonable to expect Ms Y to use this right to appeal. Therefore, we will not investigate this complaint.
Ms Y has also complained about the damage to her vehicle caused by enforcement agents clamping it while acting to try to pursue the penalty amount on the Council’s behalf. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property, such as the car Ms Y has referred to in her complaint. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to the vehicle, which Ms Y considers the Council to be responsible for, as the enforcement agents were acting on their behalf, are matters more appropriately dealt with by the courts. It is therefore reasonable for Ms Y to pursue her claim for any damage through either the Council’s insurer or the courts. We will not investigate this complaint.
Final decision
We will not investigate Ms Y’s complaint because it is reasonable for Ms Y to approach the courts about the matter.
Investigator's decision on behalf of the Ombudsman