Summary: Mr and Mrs B complain that the Council was wrong to take recovery action over two penalty charge notices for driving offences and failed to respond properly when they told them they were not liable. The Ombudsman cannot consider any complaint about the decision to take recovery action because Mr B filed a statutory declaration in court. There was some fault in the Council’s subsequent actions, but we consider the £200 payment already offered and the agreed procedural changes are a suitable remedy for any injustice.

The complaint

1. Mr and Mrs B complain that there was fault by the Council, and bailiffs acting on its behalf, taking recovery action on two penalty charge notices for which the complainants were not liable. In particular they say the Council and its bailiffs:
• refused to accept they were unaware of the alleged contraventions and were not the keeper of the vehicle involved at any time;
• did not advise them of the procedure for making a statutory declaration to the Traffic Enforcement Centre; and
• failed to explain how it came to hold them liable for the penalty charge notices.
2. This resulted in stress, embarrassment, and financial loss, as they felt it necessary to engage a solicitor to represent their interests at a cost of £500, to put a chain on their front gate and install CCTV.

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What I have investigated

3. I have investigated the way the Council and its bailiffs responded to Mr and Mrs B’s concerns once they became aware of the recovery action being taken against Mr B for non-payment of two penalty charge notices. For the reasons set out below, I have not investigated other aspects of their complaint.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
6. If we are satisfied with a council’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

7. I have considered Mr and Mrs B’s written complaint and supporting papers and spoken with Mr B. I have made enquiries of the Council and considered its response. I have also sent Mr and Mrs B and the Council a draft decision and considered their comments.

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What I found

Legal and regulatory background

8. The Council enforces bus lane regulations and takes recovery action using procedures set out in the London Local Authorities Act 2004 and associated Regulations. It enforces moving traffic regulations using procedures set out in the London Local Authorities and Transport for London Act 2003. The Council and motorists must follow these procedures, although Councils can stop enforcement or recovery action if they believe there are good reasons to do so.
9. The law says that the Council may service a PCN on “the person appearing to them to be the owner of the vehicle”. In law, the owner of vehicle is responsible for any penalty charges regardless of who was driving at the time of the contravention. The owner is usually the person registered with the Driver and Vehicle Licensing Agency (DVLA) as the keeper of the vehicle. Enforcement authorities will initially send any formal documents using keeper details provided by the DVLA. However, if ownership details have not been updated at the DVLA, the Council may use other sources of information to determine who appears to be the owner.
10. The Road Vehicles (Registration and Licensing) Regulations 2002 require the owner of a vehicle to immediately inform the DVLA of any change of address. It is an offence under the Vehicle Excise and Registration Act 1994 to use a vehicle where the correct address is not held by the DVLA.

What happened

11. In July 2017, Mr B bought a car on behalf of his wife’s friend from a used car company. The receipt was in his name but the friend paid him for the car and then used the car. The friend did not register as the new owner of the vehicle or provide her address to the DVLA. Mr and Mrs B then moved out of the borough.
12. In November 2017, the Council witnessed the car wrongly stopping in a box junction. In January 2018, it witnessed the same car being driven in a bus lane during restricted hours. The Council issued penalty charge notices (PCNs) by post for both contraventions. These were initially sent to the previous owner of the vehicle, but they provided proof that they no longer owned the car. The Council then sought to recover the charge from the used car company. The used car company provided proof that it had sold the vehicle to Mr B.
13. As Mr B appeared to be the owner, in April 2018, the Council sent Mr B a Notice to Owner in respect of both PCNs at his former address. When the Council received no response, it took steps to recover the debt through the statutory process by issuing Charge Certificates and Orders for Recovery and by passing the case to bailiffs. The bailiffs carried out a DVLA check, but this showed no results, so they used alternative means to trace Mr B.
14. On 7 June 2019, the bailiffs issued Notices of Enforcement to Mr B. On 12 June, Mr B called the bailiffs and the Council. He wrote to the DVLA explaining that he helped buy the car for his wife’s friend and had understood that it was taxed and registered in her name. He asked the DVLA to confirm that he was not the vehicle owner. The same day, he wrote to the Council and said he had never owned the vehicle, had no connection with it and was contacting the DVLA for proof of this.
15. Mr and Mrs B were anxious about bailiffs coming to their door so Mr B contacted a solicitor the same day to represent him. He signed an agreement with the solicitor the following week and paid £500. In the meantime, the bailiffs reconfirmed that Mr B was living at the address on the warrant.
16. On 24 June, the Council wrote to Mr B and incorrectly explained that the DVLA had said he was the registered keeper. It understood he was contacting the DVLA but said it could not transfer the liability for the PCN until it received evidence that he was not the registered keeper.
17. Mr and Mrs B were going on holiday on 26 June, so they contacted the solicitor to check progress. The solicitor said she would prepare an out-of-time statutory declaration statement for the TEC which would suspend action and reset the process. She contacted the bailiffs but they said they could not become involved in a dispute over liability. The bailiffs then wrote to Mr B and explained that they would continue to enforce on the basis of the outstanding warrant.
18. On 5 July, the DVLA wrote to Mr B and confirmed that he was not listed as either the current or a former keeper of the vehicle, so it could only conclude that the Council’s evidence had come from another source.
19. Mr and Mrs B returned from their holiday on 14 July and contacted their solicitor to sort out the statutory declaration.
20. On 17 July, the bailiffs attended Mr and Mrs B’s home. Mr B would not let them in but says he showed them the correspondence from the Council and DVLA. The bailiffs left a Final Notice of Removal, said they would return within 24 hours and might remove goods in their absence. Mr B contacted his solicitor and said the bailiffs had confirmed that they already knew he was not the registered keeper.
21. On 19 July, the bailiffs emailed a Final Demand to Mr and Mrs B saying they were sending the removal team. Mr B contacted the solicitor who wrote to the Council and bailiffs threatening to apply for an injunction and costs. The solicitor told Mr B that she would be in touch the following day about the statutory declaration. However, as Mr B heard nothing from her, on 22 July he asked if it would be possible to meet her to sort out the statutory declaration. The solicitor replied the next day to say she would be in touch.
22. On 29 July, Mr B contacted his solicitor and said they were still worried about the bailiffs. Mrs B’s friend wrote to the solicitor the same day confirming that Mr B had helped buy the car and that she had paid him in full and taken ownership. The solicitor sent Mr B a draft statutory declaration on 1 August.
23. The bailiffs emailed Mr and Mrs B again the next day to say that they would be visiting with the intention of seizing goods. Mrs B called them back to say that they would be taking legal action.
24. On 5 August, the bailiffs sent Mr and Mrs B a text to advise that they would be taking action. The same day, the solicitor submitted a signed, but unwitnessed, statutory declaration to the TEC. She contacted the bailiffs to explain that Mr B had filed a statutory declaration but the bailiffs would not suspend action.
25. The Council did not receive a confirmation from the TEC, as would usually be the case, so an officer contacted the TEC which explained that it had returned the statutory declaration because it was unwitnessed and invalid. The bailiffs told Mr and Mrs B that because no notification had been received from the TEC, they would continue enforcement action unless advised by the Council.
26. The solicitor sent Mr B the statutory declaration to have it witnessed. On 8 August, the solicitor filed the completed statutory declaration with the TEC. She then called the bailiffs but they again declined to put the case on hold. On 12 August, the Council notified the bailiffs of the statutory declaration. The bailiffs then put the case on hold and, on 16 August, returned the file to the Council.
27. On 21 September, the TEC accepted the statutory declaration on both PCNs. This revoked the Order for Recovery and cancelled the Charge Certificate and Enforcement Notice/Notice to Owner, leaving the PCNs outstanding. On 26 September, the Council wrote to Mr B, cancelling one of the PCNs.
28. On 5 November, Mr B wrote to the bailiffs complaining that the bailiffs who visited on 17 July had known he was not the vehicle owner. He asked why they did not tell the Council. Soon after he complained to the Council.
29. The bailiffs said they were acting on instruction from the Council on the basis of warrants issued at the TEC and had been told to continue unless instructed otherwise. The Council then explained that the evidence of ownership had come from the used car company rather than from the DVLA, as the DVLA records had not been updated. Shortly after, the Council cancelled the second PCN.
30. Mr B complained again. The Council apologised because its first stage complaint response had not provided sufficient detail. It explained that:
• the enforcement on this case was followed correctly based on the information received;
• however, the Council had wrongly said that the evidence of ownership had been received from the DVLA;
• it should have put the case on hold after its 24 June response because Mr B had shown that he was checking with the DVLA.
31. The Council partly agreed Mr B’s complaint and offered him £200 compensation for his time and trouble and distress. It also agreed to review when to put action on hold.

My assessment

32. These events have clearly caused Mr and Mrs B considerable distress and they have felt it necessary to engage solicitors at a cost of £500 and take other steps to protect their interests.
33. However, this unfortunate situation arose firstly because the car was not re-registered at the DVLA after Mr B bought it on behalf of his wife’s friend. This meant that after checking with the DVLA and the used car company, the most recent person shown to have bought the car was Mr B, which is why the Council sought to recover the debt from him, as the person appearing to be the owner.
34. That said, for the reasons set out below, it is not for the Ombudsman to investigate the Council’s decision to seek to recover the debt for the two PCNs from Mr B. However, the Council’s actions after Mr B became aware of the recovery action are within the Ombudsman’s jurisdiction.
35. I note that when the Council responded on 24 June it wrongly told Mr B that the DVLA had said he was the registered keeper. The Council should have checked the facts of the case before responding. It would then have been able to confirm that it had used the sales receipt as evidence of ownership. By not providing the correct information to Mr B at this stage, this may have increased the time and trouble that Mr B spent trying to resolve these matters.
36. However, when Mr B received the enforcement notice from the bailiffs, he told the Council he had no connection with the car and was in contact with the DVLA. But he did not tell the Council that he had bought the car for his wife’s friend. Had he done so, this might also have led to the matter being resolved earlier.
37. The Council and/or the bailiffs should have told Mr B that he could file a late statutory declaration. It should also have put recovery action on hold for a period when he said he was taking steps to challenge liability; it has agreed to do so in future for two weeks in such circumstances. However, I note that, although Mr B’s solicitor told him on 26 June that filing a statutory declaration would reset the recovery process, he did not do so for six weeks. So, given the delay filing the statutory declaration, recovery action may well have proceeded in any event.
38. Lastly, I note that the Council wrongly said it had cancelled both PCNs in September 2019 when it had only cancelled one. It should have cancelled both at the same time, as the circumstances were the same. That said, it was not pursuing the second PCN when it cancelled it, so I do not consider that this has caused Mr B significant injustice.
39. I understand that Mr B incurred costs of £500 in engaging a solicitor. However, he incurred these costs before the Council had any reasonable opportunity to respond to his concerns. Moreover, as Mr B’s solicitor has advised, it is possible to file a statutory declaration to reset recovery action. This is a fairly straightforward process; it is described on the Council’s website and the form is available on the Gov.uk website. Moreover, independent advice is available from agencies such as the Citizen’s Advice Bureau, as set out on the Enforcement Notice. I am afraid that I do not therefore consider it reasonable to ask the Council to reimburse Mr B’s legal costs.
40. I also do not propose to ask the Council to reimburse the costs for security measures that Mr B undertook in response to the bailiffs’ visits. Although recovery action might have been paused, for the reasons set out above, it seems likely that it would have continued in the absence of a statutory declaration.
41. The Council has offered Mr and Mrs B £200 as a remedy. Having regard to the Ombudsman’s remedies guidance, I consider this a proportionate remedy for the injustice caused to them. I do not therefore propose to seek any further payment. However, I recommend some steps below for the Council to improve its procedures.

Agreed action

42. The Council has already agreed a two-week hold on recovery action where a complainant has shown that they are actively seeking evidence to challenge liability, and it will now arrange to pay Mr and Mrs B the £200 previously offered.
43. The Council has also agreed our recommendations that within one month it will:
• take steps to ensure that its officers and bailiffs make complainants aware that they may file a statutory declaration where they say they have not received relevant notifications regarding their liability for a PCN;
• remind officers of the importance of checking the facts before responding to correspondence questioning liability for a PCN; and
• provide evidence that it has done so.

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Final decision

44. I have closed my investigation into Mr and Mrs B’s complaint because I consider that the £200 already offered and the steps agreed above are sufficient remedy for the personal injustice to them.

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Parts of the complaint that I did not investigate

45. I have not investigated the Council’s actions in deciding that Mr B was liable in respect of the two PCNs and then taking recovery action against him. The Ombudsman has no jurisdiction to consider these matters because Mr B has used a legal remedy by filing a statutory declaration at the TEC explaining that he did not receive the PCN and is not liable for this.

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Investigator's decision on behalf of the Ombudsman