The Ombudsman's final decision
Summary: We will not investigate this complaint about the enforcement of a Penalty Charge Notice. It is reasonable to expect the complainant to apply to the Traffic Enforcement Centre to make a late witness statement/statutory declaration.
The complaint
Mrs X says the Council failed to follow the correct procedure for a Penalty Charge Notice (PCN). She says its enforcement agents (bailiffs) traced her to her new address but a council officer overrode the change of address. As a result, Mrs X says she did not receive any correspondence about the PCN until the bailiffs visited her at home.
Mrs X is unhappy the bailiffs refused to wait for her husband and threatened to tow her car. She paid the PCN, plus enforcement fees, but wants the Council to refund her payment in full. The Council has agreed to refund part of the penalty charge, meaning she has effectively paid the penalty charge at the discounted rate, but it has refused to refund its bailiff’s fees.
Mrs X wants the Council to refund the remaining £310 in bailiff fees to put her back in the position she would have been, had she received the Council’s correspondence about the PCN.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) The Local Government Act 1974 sets out our powers but also imposes limits on what we can investigate.
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 Traffic Enforcement Centre (TEC), part of the county court, considers applications to set PCN processes back where there has been procedural fault.
How I considered this complaint
I considered information from Mrs X and the Ombudsman’s Assessment Code.
My assessment
Because Mrs X did not receive the PCN/’notice to owner’ she may apply to the TEC to make a late witness statement/statutory declaration. Mrs X says the Council’s actions deprived her of her right to do this but that is not the case. If the TEC accepts Mrs X’s application it may order the Council to take the process back to an earlier stage, removing the basis for the bailiff’s fees. We would then expect the Council to direct the bailiffs to refund them. I have seen nothing to show it would be unreasonable for Mrs X to follow this process and I will not therefore exercise my discretion to consider the complaint further.
I appreciate Mrs X is unhappy the bailiffs refused to wait for her husband but at the time they had a valid warrant of control from the TEC and were entitled to prepare to remove her car if she did not pay. I note Mrs X says she did not receive notice of the bailiff’s actions as required but she may take this issue to the Enforcement Conduct Board and/or apply to the court to challenge their fitness to practice.
The process set out at Paragraph 8 above can provide a remedy for the financial impact of the alleged flaws in the Council’s escalation of the case, which is what Mrs X wants, and the lack of notice by the bailiffs is too closely related to this issue to investigate it separately.
Final decision
We will not investigate this complaint because it is reasonable for Mrs X to apply to the TEC to challenge the Council’s escalation of the case.
Investigator's decision on behalf of the Ombudsman