Summary: Mr X complains the Council did not deal properly with an appeal about a Penalty Charge Notice (PCN). The Council is at fault because it did not properly consider Mr X’s disability in relation to how he could appeal the PCN. The Council should apologise and review its policy and processes.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has not dealt properly with an appeal concerning a penalty charge notice because it has not followed the Equality Act as he is dyslexic, cannot write letters and the Council required him to submit his appeal in writing.
2. Mr X says he has suffered avoidable distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

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How I considered this complaint

5. I spoke to Mr X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

7. recipient of an enforcement notice may make representations against the it to the enforcement authority which served it on the recipient. The representations must be made in the form determined by the enforcement authority. (The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022)
8. The Council’s website says appeals should be submitted online or in writing.
9. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.

The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty. The ‘protected characteristics’ referred to in the Act include disability

10. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.

Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened?

11. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
12. Mr X received a Penalty Charge Notice (PCN) through the post for a bus lane contravention.
13. Mr X complained to the Council that he was only able to challenge the PCN in writing.
14. The Council did not uphold Mr X’s complaint.
15. No further enforcement action was taken against Mr X and the Council has made other enquiries to identify the registered keeper of the vehicle involved.

Analysis

16. The Council says:
• The issues raised by Mr X do not relate to an appeal, as no Penalty Charge Notice (PCN) was sent to Mr X. Parking penalties are issued to a named person not an address. In law we are required to write to the registered keeper at the address that is held by DVLA but if this address is incorrect there is no liability on the resident.
• Mr X’s name was not on the initial Penalty Charge notice, and this was addressed to “Mr Y”. If the initial PCN had been returned to sender “not known at this address” the Council would have followed the same “Trace” procedure. Given that Mr X had made a complaint on the telephone and the information about the registered keeper was provided the Council moved the PCN into trace.
• On reflection a more thorough description could have been provided in the complaint response. The PCN was not cancelled but has in fact been moved to our “Trace” process on the 25th September 2023. This means that the PCN is passed to an enforcement agent who undertake further searches to see if they can locate the registered keeper.
• It should have been made clear at stage 1 that the PCN sent to Mr X’s address for a person not living at that address had been referred to trace and no further action was needed on Mr X’s part.
• The Customer Relations team always offer responses in writing, telephone, or email to facilitate reasonable adjustments. Mr X chose his response in writing. The PCN appeals process as per the Traffic Management Act 2004 dictates to us that all appeals are to be in writing.
• Had Mr X called the Parking Services Team to advise that he had received a PCN incorrectly, the team would have requested he return it in the post “not at this address” and they would have followed the trace procedure.
• Mr X’s reasonable adjustments have been considered throughout the complaints process, telephone responses have been offered at numerous times and two phone calls were made to Mr X, however he still requested the response sent in writing.
17. The Traffic Management Act 2004 does not specify how appeals should be made. The Regulations state the enforcement authority should determine the form in which appeals can be made.
18. It is for the Council to decide what form any representations should be made, and in doing so it should have regard to the Equality Act and its Public Sector Equality duty. There is no evidence that the Council considered the impact on people with disabilities or made any reasonable adjustments for Mr X when he first contacted it about the PCN. This is fault by the Council. Mr X’s ability to make representations was restricted and he was then forced to make a complaint.
19. I have seen a copy of the Council’s complaints policy and supporting evidence showing that it took his disability and reasonable adjustments into consideration when responding to his complaint. This is not fault by the Council.
20. As the Council has not taken any further enforcement action against Mr X, following his representations, he has not suffered any significant continuing injustice as a result, in any event as a result of the PCN itself.
21. During my investigation the Council has said it will take the following action.
• Where it is not possible for a customer to contest a PCN in writing or be supported in doing so at a Council Hub or Citizens Advice Bureau, we will assist a customer in making an appeal by taking this by telephone and capture the appeal for them, after confirming with them they are happy with the details taken.
• To ensure the above is followed as required, a reminder will be shared with the telephone team who would assist in such circumstances.

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Agreed action

22. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Mr X; and
• Amend its policy and processes for dealing with equality related reasonable adjustments in relation to PCN’s and appeals as identified in paragraph 20 above.
23. The Council should provide us with evidence it has complied with the above actions.

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Final decision

24. The Council is at fault which caused injustice to Mr X. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman