Summary: We will not investigate this complaint about the Council pursuing penalty charges for its Clean Air Zone. This is mainly because the key points are for the courts and a tribunal to decide.

The complaint

1. Miss X complains about the Council’s handling of matters related to penalty charges it wants her to pay for allegedly driving in the Birmingham Clean Air Zone without paying the charge. Miss X says this has caused her to spend time and trouble pursuing the matter and has affected her physical and mental health.

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The Ombudsman’s role and powers

2. 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)
3. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
4. The Traffic Enforcement Centre (TEC) is part of the county court.
5. The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London, including for the Birmingham Clean Air Zone. The law says we cannot normally investigate a complaint when someone can appeal 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 appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or there is no worthwhile outcome achievable by our investigation, or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered information provided by the complainant and copy complaint correspondence from the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Miss X says the Council was at fault for not issuing documents related to five penalty charges in time due to the Council’s backlog. From the context, this concerns the Council’s delays reissuing documents after the TEC revoked earlier notices. The Council accepts it delayed but says there was no legal time limit for reissuing. Anyway, this point is not for the Ombudsman to decide because, if the Council does not waive Miss X’s penalty charges, Miss X will have the right to appeal to the Traffic Penalty Tribunal (TPT), including on the grounds of any alleged procedural improprieties by the Council. So the TPT could consider this.
10. Soon after Miss X complained to us, the Council’s stage 2 response to Miss X’s complaint implied the Council was going to issue a notice of rejection of Miss X’s representations against the penalty charges. When the Council issues that (if it has not already done so), Miss X can then appeal to the TPT.
11. If the Council does not issue a notice of rejection of representations, Miss X will have the right to go to the TEC saying the Council has failed to respond to her representations. The TEC would then decide whether to halt the current recovery process, which could ultimately lead to the Council issuing a notice of rejection and Miss X getting her right to appeal to the TPT. It would be reasonable to expect Miss X to use this right in those circumstances, because that is the route the law provides and the TEC can decide the matter.
12. Either way, it is reasonable to expect Miss X to use her right to go to the TPT. The law expressly provides this route for such situations, appealing is relatively straightforward and the TPT has the expertise and power to cancel penalty charges if it sees fit.
13. Miss X says the Council told her it had not received letters from the TEC revoking the notices, months after the TEC had revoked them. She says the Council advised her to await further paperwork, even when she said she had not received it, then recovery action escalated. The Council accepts it gave wrong advice once when an officer referred to a different case than the one Miss X was calling about. The Council apologised and raised this with the officer and their manager. It is unlikely we could achieve more than this. It is also unlikely we could reach a clear enough view, on balance, about what happened on all the relevant telephone calls. Any wrong advice on is unlikely in itself to have caused Miss X a significant enough injustice to warrant investigation by the Ombudsman. While I appreciate Miss X’s concern about this point, it is somewhat peripheral to the key issues about whether the Council has properly followed the various formal stages of recovery action if it wants Miss X to pay penalty charges.
14. Miss X also says when she contacted the Council, its advice was not in line with the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 section 10 about the timeframe for issuing penalty charges. However:
1. As the Council said, those regulations covered parking contraventions. Miss X’s penalty charges were not about parking but about the road user charge for the Clean Air Zone. Different regulations cover that.
2. The regulations Miss X cites were anyway revoked on 31 May 2022, before much of Miss X’s contact with the Council.
15. If Miss X argues the Council broke regulations that apply to the timescale for issuing documents (though she cited regulations that do not apply), that would be a claim of procedural impropriety. The TPT could consider that, so my comments in paragraph 12 apply to this point.
16. Miss X argues the Council acted outside its policy on the time limit to issue penalty charges. The Council says it initially issued the penalty charge notices (PCNs) in time and there is no time limit for reissuing after the TEC revokes a notice. This is an argument about alleged procedural impropriety, so is a ground for appeal to the TPT. My comments in paragraph 12 therefore apply here, too.
17. In correspondence with the Council, Miss X argued she did not believe the Council had posted to her all the legally required documents for each stage of recovery action. In some of those cases Miss X made witness statements to the TEC that she had not received relevant documents. In those cases, Miss X used her right to go to court, so we cannot consider those matters, as paragraph 3 explained. In other cases, if Miss X has not put those points to the TEC, she has the right to do so. The TEC can halt recovery action if it sees fit, and the Council would then decide whether to waive the penalty charges or seek payment again. In the latter case, the Council would have to issue documents again. It is reasonable to expect Miss X to use her right to go to the TEC because the law provides that route, it need not be expensive or difficult, and it could address the claimed problem of not receiving essential documents.
18. The alleged effect on Miss X’s health is a personal injury claim. The courts can consider that, so the restriction in paragraph 2 applies. There might be some cost to court action but that in itself does not automatically mean we should investigate instead. Liability for alleged personal injury is not straightforward legally. It is more appropriate for the courts than the Ombudsman to consider this. So it would be reasonable for Miss X to go to court for a decision on this point.
19. Miss X wants the Council to have clearer policies, more staff to meet demand, better staff training, and to handle these matters better overall. These are wishes about the Council’s general performance. The Ombudsman is not a regulator. It is not our role to police or oversee the Council’s PCN-related activities generally.

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Final decision

20. We will not investigate Miss X’s complaint. If the Council does not waive the penalty charges, Miss X could reasonably use her right to appeal to the TPT about any alleged procedural irregularities. On other points, Miss X has either used, or could reasonably use, her right to go to the TEC. It would also be reasonable for Miss X to take court action about the claimed impact on her health. Any inaccurate advice the Council gave is unlikely in itself to have caused a significant enough injustice to warrant the Ombudsman devoting time and public money to investigating.

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Investigator's decision on behalf of the Ombudsman