18 July 2011 The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB

Transcription

1 Report on an investigation into complaint no against the London Borough of Bexley 18 July 2011 The Oaks No 2, Westwood Way, Westwood Business Park, Coventry CV4 8JB

2 Investigation into complaint no against the London Borough of Bexley Table of Contents Page Report summary 1 Introduction 3 Legal and administrative background 3 My jurisdiction 3 Parking enforcement 3 The enforcement procedure 5 The use of bailiffs 7 Investigation 7 Council s response 10 Conclusions 10 Finding 12 The Local Government Act 1974, section 30(3) generally requires me to report without naming or identifying the complainant or other individuals. The names used in this report are therefore not the real names. Key to names used Ms Smith the complainant

3 Report summary Parking Ms Smith complained that the Council pursued her at an old address for a Penalty Charge Notice (PCN) of 100. Ms Smith had not updated the Driver and Vehicle Licensing Agency (DVLA) of her new address and did not have a mail forwarding service in place. As a result, Ms Smith became aware of the parking fine on collection of post from her old address, which included the PCN and Charge Certificate advising the fine had increased to 150. She wrote to the Council to advise of her new address and requested to pay the reduced fine of 50 as she had missed the opportunity. The Council did not respond to the letter. The Council pursued the debt to bailiff action unbeknownst to Ms Smith as correspondence was directed to her old address; six months after her letter she made a payment of to the bailiffs to clear the debt. Ms Smith believes the Council should have responded to her correspondence at the address she supplied, so that the bailiff action could have been avoided. The Ombudsman considers that whilst the Council followed the correct recovery process, it at no time considered its discretion. It did not consider correspondence which Ms Smith sent in; failed to update Ms Smith s address and so continued to send all correspondence to an old address where Ms Smith no longer resided. As a result Ms Smith did not receive relevant documents, and was not aware of the actions being taken against her. The Council rigidly followed its automated process, did not consider the individual circumstances of the case, and at no time considered the use of its discretion. The Ombudsman considers that had such failings not occurred Ms Smith would have paid the 150 fine for which she was liable, because at no time did she seek to evade payment of the debt. Ms Smith lost the opportunity to pay the original fine or the reduced amount due to her initial failings. But had the Council used its available discretion it would have recognised her change of address and properly explained the position to her regarding the ongoing debt recovery action. Ms Smith would not then have faced unexpected and avoidable bailiff action. Finding Maladministration causing injustice. Recommended remedy In order to put Ms Smith in the position that she would have been in had no maladministration occurred, as explained above, the Ombudsman recommends that the Council pays to Ms Smith, being the difference of the costs she paid and the costs she could have paid had the Council not fettered its discretion by its rigid 1

4 procedures. The Ombudsman also recommends that the Council undertakes a review of its automated PCN recovery procedure, ensuring that correspondence is considered even if received outside the statutory notification period to ensure the Council considers its discretion based on the individual circumstances of each case. 2

5 Introduction 1. Ms Smith complained that the Council pursued her at an old address for a PCN of 100. Ms Smith had not updated the DVLA of her new address and did not have a mail forwarding service in place. As a result, Ms Smith only became aware of the parking fine on collection of post from her old address, which included the PCN and Charge Certificate advising the fine had increased to 150. She wrote to the Council to advise of her new address and requested to pay the reduced fine of 50 as she had missed the opportunity. The Council did not respond to the letter. The Council pursued the debt to bailiff action unbeknownst to Ms Smith as correspondence continued to be directed to her old address; six months after her letter she made a payment of to the bailiffs to clear the debt. Ms Smith believes the Council should have responded to her correspondence at the address she supplied, so that the bailiff action could have been avoided. Legal and administrative background My jurisdiction 2. Everything the Ombudsman does is governed by the 1974 Local Government Act. The Act sets out that the Ombudsman shall not investigate a complaint where the complainant has, or had, a remedy by way of an appeal to a Tribunal, unless it is not reasonable to expect that remedy to be used. 3. A Local Government Ombudsman may not investigate a complaint where there is a right to appeal to a Parking Adjudicator unless it is not reasonable to expect someone to use or to have used that right. The parking appeals procedure is free and readily accessible: only in exceptional circumstances would the Ombudsman consider a complaint where a right of appeal to a Parking Adjudicator exists or existed. 4. If an appeal has been made, the Ombudsman has no discretion to investigate. 5. The Ombudsman has exercised discretion to investigate this case. As Ms Smith did not receive the correspondence advising her of her right of appeal the Ombudsman could not expect her to pursue that right. Parking enforcement 6. Powers to enforce certain parking regulations were given to councils under the Road Traffic Regulation Act The Road Traffic Act 1991 made councils in London responsible for the majority of parking enforcement and provided a right of appeal against penalty charges, on specified grounds, to independent adjudicators through the Parking and Traffic Appeals Service. Under this regime, 3

6 penalties are no longer considered in the magistrates court: they are therefore decriminalised. 7. The decriminalised arrangements have also now been adopted by many councils outside London, with appeals being dealt with by the National Parking Adjudication Service. It is for individual councils to opt in to these arrangements. 8. The Traffic Management Act 2004 came into force for contraventions after 30 March The Department for Transport issued two sets of guidance in 2008: The Secretary of State s statutory guidance, in February Operational Guidance to Local Authorities: Parking Policy and Enforcement, in March This is the statutory guidance with additional advice on how to implement it. 10. In relation to the exercise of discretion, the Secretary of State s statutory guidance sets out at paragraph 85 that: An authority has a discretionary power to cancel a Penalty Charge Notice at any point throughout the civil parking enforcement process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case. Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest. 11. The guidance goes on to paragraph 86 to say that: Enforcement authorities have a duty not to fetter their discretion, so should ensure that Penalty Charge Notice s (PCN s), Notice to Owner s(nto s), leaflets and any other advice they give do not mislead the public about what they may consider in the way of representations. They should approach the exercise of discretion objectively and without regard to any financial interest in the penalty or decisions that may have been taken at an earlier stage in proceedings. Authorities should formulate (with advice from their legal department) and then publish their policies on the exercise of discretion. They should apply these policies flexibly and judge each case on its merits. An enforcement authority should be ready to depart from its policies if the particular circumstances of the case warrant it. 12. In regard to bailiff action the Operational Guidance to Local Authorities sets out at paragraphs that: The warrant of execution must be carried by the certificated bailiff when s/he visits a person or premises with a view to enforcing it. S/he must produce it on demand to anyone who has reasonable grounds to see it. However, if the name and address on the warrant 4

7 is incorrect, this would suggest that the order for recovery also gave the incorrect name and address. If so, the order must be re-served before the authority can ask for permission to prepare a warrant. However, if the debtor has moved since the issue of the warrant the bailiff should return the warrant to the local authority for them to apply for a reissue. Authorities should instruct their bailiffs to liaise with them before taking this action. If the name or address on the county court order Warrant was incorrect the name or address on the Notice to Owner and the Charge Certificate may also have been incorrect, and neither have been served on the motorist. If the NtO and/or the Charge Certificate were never served the Warrant of Execution should not be served. An NtO (or Charge Certificate) should be served to the name or the address established by the bailiff. If the NtO and the Charge Certificate were served, the order should be re-served. A Warrant of Execution has a lifespan of 12 months only and cannot be reissued. If the authority has failed to recover the charge by means of a warrant within this time and wishes to pursue this means of enforcement, it must ask the TEC 1 for authorisation to prepare another warrant. The enforcement procedure 13. If a parking attendant considers a contravention has occurred, a PCN is issued. A discount (currently 50%) is applied where the penalty charge is paid within 14 days. If the penalty remains unpaid after 28 days, a Notice to Owner (NTO) is issued to the person appearing to be the owner, usually the person registered with the DVLA as the keeper of the vehicle. The owner may then make representations to the council against the penalty charge. The council is required to cancel the penalty charge if it considers that a statutory ground is met. In summary these grounds are principally that: the recipient did not own the vehicle at the time of the contravention; the alleged contravention did not occur; the vehicle had been parked by someone who had taken it without the consent of the owner; the designation (parking) order was invalid; the vehicle had been hired and the person who hired it had agreed to be responsible for penalty charges; the penalty charge exceeded the amount applicable in the circumstances of the case; and 1 Traffic Enforcement Centre 5

8 (in London only) the parking attendant had not been prevented from serving a PCN, where a council believed that this was the case and so had served the Notice by post. 14. The council should also allow the recipient to put forward other grounds for not paying the penalty (mitigating circumstances). If representations are made, the council must issue a notice either accepting or rejecting them. 15. If representations are rejected by a council, the notice should explain the reasons for this and give details of how to appeal. The registered keeper may make an appeal to a Parking Adjudicator, but only on one of the statutory grounds. In London the appeal would be heard by the Parking and Traffic Appeals Service. 16. Adjudicators can only uphold the appeal on statutory grounds, not mitigating circumstances. The Adjudicator can make a recommendation that a council reviews a case on the basis of mitigating circumstances. A council must do this but is not compelled to cancel the penalty. 17. If representations are rejected, no payment has been received following the NTO, and no appeal has been submitted, the council will issue a Charge Certificate. This tells the vehicle owner that the penalty charge has increased (currently by 50%), and that action will be taken to recover the amount due through the County Court if it is not paid within 14 days. 18. If payment has not been made 14 days after the Charge Certificate has been issued the council may register the penalty as a debt at the TEC at Northampton County Court. The TEC then writes to the owner, enclosing a statutory declaration form. The owner must either pay the outstanding penalty or lodge a witness statement at the TEC if they had not received a NTO, had not received a Notice of Rejection after having made formal representations to the Authority, or had made an appeal to the Parking and Traffic Appeal Service but had had no response. 19. The enforcement action would be suspended and the council would be required to consider the application. If the application was accepted the Order for Recovery would be cancelled and the council would consider what action to take next. If the council rejected the application it would be returned to the Courts for an impartial judicial decision. 20. If the vehicle owner fails to pay the fine or submit a witness statement, the council can ask the TEC for authority to prepare a Warrant of Execution. The Warrant of Execution authorises a certified bailiff to seize and sell goods belonging to the motorist to the value of the outstanding amount plus the cost of executing the warrant. 21. There will be occasions where the motorist accepts that a contravention occurred and no statutory ground of appeal applies, but he or she considers that the 6

9 imposition of a penalty charge is nevertheless inappropriate and wishes to make a plea of mitigation as to why the penalty charge should not be pursued. 22. Councils have discretion not to pursue a penalty charge at any stage of the procedure and have, as a matter of administrative law, a duty to act reasonably, fairly and without fettering that discretion. It would therefore be a breach of that duty if a council were to act unreasonably or unfairly or to fetter its discretion when considering such representations. The use of bailiffs 23. Bailiffs can be instructed by councils to collect outstanding debts, if necessary through securing a levy against certain goods that might be owned by the debtor. Bailiffs are legally able to seize a vehicle if they have satisfied themselves that vehicle is owned by the debtor. If no payment agreement is reached, the bailiffs can sell the vehicle to settle the outstanding debt. Investigation 24. Ms Smith moved house on 1 December The parking offence took place on 2 December 2009 and is not disputed, although Ms Smith was unaware at the time that any offence had taken place. 25. On 9 December 2009 one document entitled Penalty Charge Notice & Notice to Owner (PCN) was served by the Council at the address the DVLA had supplied to the Council that day. Ms Smith had not updated her details with the DVLA and so the address supplied was her previous address where she no longer resided. Vehicle owners have a legal duty to update the DVLA of any change of address, so the Council was entitled to rely on the information supplied by the DVLA at that stage. The PCN was for 100, and offered the reduced charge of 50 if paid within 14 days. The PCN allowed 28 days for payment or submission of representations. No payment or challenge was received by the Council, so a Charge Certificate was sent to the same address on 18 January Ms Smith had not arranged with the Royal Mail to forward post to her new address. She was unaware of the parking offence and subsequent PCN until she collected post from her previous address in January At this point she received the original PCN offering the reduced price of 50, and the subsequent Charge Certificate advising the increased amount of 150 was due within 14 days of the delivery of the Charge Certificate. As she had not changed her address with the DVLA or arranged any mail forwarding service, she had lost the opportunity to pay the original PCN of 100 or the reduced penalty of The Charge Certificate document explained that failure to pay the required charge within the specified period may result in the Council applying to the TEC to recover the debt; a further 5 charge would be added if such action was taken. Ultimately, if the debt remained unresolved a Warrant may be issued to 7

10 certificated bailiffs to recover the outstanding debt; additional charges to cover the costs of collecting the debt would be added. 28. The Charge Certificate stated that: The time given by statute to contest the issue of this PCN has now expired and no further communication in respect of this matter may be acknowledged or considered. Submission of further communication may delay resolution of this matter further resulting in possible additional charges being incurred. 29. The Council s records show that Ms Smith telephoned the Council on 25 January 2010 to explain her situation and was told by a Council officer to make formal representations. The Council says the officer was referring to the recovery process, in relation to the service of further recovery documents where Ms Smith could submit a witness statement to the County Court which may result in the Council serving a second NTO. The Council accepts there is no record to support this. As the Charge Certificate had already been issued there was no provision within the statutory regulations for a person to challenge the terms of a Charge Certificate. 30. Ms Smith followed the advice she received from the Council officer, and wrote to the Council on 31 January 2010 to explain what had happened, offering to pay the reduced fine as she had missed the opportunity. The Council received this on 2 February Ms Smith did not get a response to her letter. The Council says it did not read the letter as it was received outside the statutory timescales. 31. Ms Smith says she telephoned the Council a few weeks later. Officers confirmed that her letter was logged on the system, the complaint would be looked into, and she would be contacted accordingly. There is no record of this conversation. 32. Despite Ms Smith having told the Council she was no longer at the previous address, an automatic letter was sent there on 3 February 2010 confirming the penalty charge was still due. At this stage Ms Smith was waiting to hear from the Council about her letter of 31 January 2010, and assumed that any correspondence would be sent to the new address that she had notified to the Council. 33. The Council says that it would not normally commission an authorised officer to investigate circumstances surrounding the issue of the PCN in response to communication received at the Charge Certificate stage, as the system automatically handles the communication. The Council says that further recovery action was automatically scheduled at the address held by the DVLA and documents were sent accordingly. The Council says these documents would have enabled the owner to have indicated that they had not received previous communication from the Council or had not received responses to communication they had sent. However, as documents were sent to an old address Ms Smith was unaware she could do so. 8

11 34. The Council says that had a change of address been presented at the statutory formal representation stage in response to the NTO then the Council would have been obliged to ensure that further recovery action was taken against the correct address. 35. Because Ms Smith had not updated the DVLA or arranged mail forwarding, she did not know of the PCN and subsequent recovery action until after the time limit on the NTO had expired. She notified the Council of her change of address as soon as she became aware of the debt. 36. Despite the Council receiving correspondence on 2 February 2010 advising of a change of address it did not take any steps to amend its records, or to verify with the DVLA whether there had been any change to the registered address. No response was provided to Ms Smith s letter, and no correspondence sent to her new address. The Council has said that the correspondence was never considered and accordingly the Council took no steps to amend the address details. 37. The Council wrote again to Ms Smith s previous address on 8 June 2010 confirming that the Charge had been registered at the County Court and that if a payment or witness statement was not received by 2 July 2010 possessions or goods may be removed in settlement. The Council says it did not receive any reply so two further letters were sent, again to the previous address. 38. Ms Smith was expecting any further correspondence to come to the new address she had supplied. She says she did visit her old address but the occupiers told her there was no further post for her so she was not aware of the recovery proceedings being taken against her. So she lost the opportunity at that stage to submit a witness statement, seeking to get the Judgment set aside. 39. The Council has a record on its file dated 14 June 2010 stating Ms Smith: telephoned to say that she gave us her new address in letter we received 2 February 2010 but because correspondence is being sent to old address she has no chance to respond. We advised her 25 January 2010 to make formal representations which the letter of 2 February 2010 was but sent unique letter to old address. 40. There is no evidence that officers used this contact to alert Ms Smith about the ongoing recovery action or tell her to send in a witness statement by 2 July The case was referred to bailiffs to collect the debt. The bailiffs wrote to Ms Smith at her old address on 23 July 2010, and hand delivered a letter there on 3 August 2010, but neither reached Ms Smith. 42. The bailiffs carried out a finance check on 26 August 2010 which confirmed Ms Smith was the registered keeper. This was never in dispute. 9

12 43. Ms Smith s vehicle was identified by automatic number plate recognition and in August 2010 her car was clamped by bailiffs at her place of work. Ms Smith borrowed money from her mother to pay the to the bailiffs to clear the debt. She was not aware that she could have filed a witness statement to the TEC seeking to have the warrant set aside. Council s response 44. The Council refers to the Traffic Management Act 2004 which states the authority may disregard representations received outside the statutory 28 day period from the date the NTO was served. As such the Council has streamlined and automated its procedure resulting in officers not considering any correspondence received after the statutory period. The Council accepts that Ms Smith s letter of 31 January 2010 was not read. The Council says that Ms Smith was aware of this as she received the Charge Certificate which explained that representations received after the 28 day period may be disregarded. 45. The Council says that had Ms Smith provided her new address during the period in which the Council is obliged to consider representations then it could have amended the address details. As correspondence was received outside the 28 days it was not read and so the address could not be changed. 46. The Council considers it was not afforded the opportunity to exercise the discretionary powers available to it because the correspondence Ms Smith sent was outside the statutory timescale. Conclusions 47. It seems to me to be perverse for Council officers not to read correspondence received outside the statutory period for representations to be submitted. This is because such comment may include mitigating circumstances that could prompt the Council to consider exercising its discretion. The Council accepts it did not consider its discretionary powers at any stage of the civil enforcement procedure process. The Council s procedure seems only to allow consideration of discretion during the initial 28 day period after the NTO is served. By having such a rigid procedure the Council fettered its own discretion: this was maladministration. 48. I accept that the initial problem in this case was caused by Ms Smith s failure to update the DVLA with her change of address, or to have any mail forwarding service in place. Had she done so it is reasonable to believe she would have received the PCN document in good time and either made the payment or submitted representations to challenge the fine. As a result of not complying with her legal obligation to update the DVLA with her change of address, Ms Smith did not receive the documents until she visited her previous address and collected both the PCN and the Charge Certificate, by which time the fine had risen to 10

13 150. At this stage she was outside of the statutory timescales to submit representations. 49. I also accept that the Council has followed the correct statutory process in the recovery of the PCN. However, it is clear that the Council did not consider the discretion available to it at any stage in the recovery process. Indeed, the ability to consider its discretion is fettered by its rigid automated recovery process: this was maladministration. 50. Ms Smith was unable to provide her new address to the Council within the 28 day statutory period as she was unaware of the PCN until after the 28 days had expired. She contacted the Council promptly once the matter was known to her and acted on the advice she received from the Council. But the Council did not take Ms Smith s address details during the telephone conversation on 25 January The Council s response to me indicates that had it done so it could have amended its records at that time: this was maladministration. 51. The Council also advised Ms Smith to write in despite knowing its procedure meant her correspondence would not be read. The Council provided incorrect advice and this was maladministration. 52. Correspondence must be sent to the registered owner of the vehicle. There is no dispute that Ms Smith is the registered owner, therefore once the Council was advised of the new address there is no reason it could not have sent correspondence to Ms Smith, as the registered owner, at the address she gave. That the Council did not update its records was maladministration. 53. The Council then failed to read the letter it received from Ms Smith on 2 February 2010, and failed to update its records with the new address which she supplied. Had the Council sent future correspondence to this address then it is unlikely the matter would have been referred to bailiff action as Ms Smith would have paid the fine. 54. There is no evidence to show that the Council had considered the Department for Transport s Operational Guidance in respect of bailiff action. There is no evidence to show whether it considered if the Warrant was correctly served, as the address was incorrect, or whether the Order for Recovery should be re-served as it was to an address where the registered keeper did not reside. 55. The Council did not consider its discretion prior to referring the matter to the bailiffs. The Council then increased the debt due by sending bailiffs to an address where the debtor did not reside; information it had in its possession: this was maladministration. 56. As a result of the maladministration identified above I consider Ms Smith has been caused an injustice. I consider that had the Council considered its discretion during the recovery process it would have responded to Ms Smith at the correct 11

14 Finding address and she would have paid the appropriate fine. So the debt would not have been referred to the bailiffs and the bailiff s costs would not have been incurred. 57. For the reasons given above, I find maladministration by the Council causing Ms Smith injustice. As a consequence of the Council s actions in not considering its discretion and not updating the change of address, Ms Smith has incurred a debt of which reasonably she could have expected to have been only 150. Ms Smith has been caused distress and time and trouble in trying to resolve the matter. However, I have considered Ms Smith s own failure to update the DVLA or have a mail forwarding service; if she had done this the problem may never have occurred. She would have received the documents within the statutory period and could have submitted representations which the Council would be obliged to consider. So I have taken into account Ms Smith s own contribution to her distress and inconvenience in making my recommendations. 58. I recommend that the Council pays Ms Smith , being the difference between the paid and the 150 she could have paid had the Council not fettered its discretion by its rigid procedures. 59. I also recommend that the Council undertakes a review of its automated PCN recovery procedure, ensuring that correspondence is considered even if received outside the statutory notification period, to ensure the Council considers its discretion based on the individual circumstances of each case. Dr Jane Martin Local Government Ombudsman The Oaks No 2 Westwood Way Westwood Business Park Coventry CV4 8JB 18 July