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The Commission for

Local Administration in England

Special Report
Parking enforcement by local authorities
Consideration of representations under the Road Traffic Act 1991

Advice and guidance from

The Local Government Ombudsmen

Contents
Foreword 3

A Background 5

B Case law 6

C Advice and guidance 7

D The Adjudicators’ views 9

E Examples of fault in councils’ practice 11

Misrepresentation of the council’s duties 11

‘Unacceptable reasons’ 12

At what stage should the exercise of discretion

be considered? 13

F Organisational considerations 14

G Conclusions 15

The exercise of discretion 15

The Notice to Owner 15

Practice and procedures 15

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Foreword
1 The Road Traffic Act 1991 provided for the London boroughs to enforce
parking regulations under decriminalised procedures. The transfer of parking
enforcement from the police to the London boroughs was completed by the
end of 1994. Many councils outside London have also subsequently opted to
enforce parking regulation under the decriminalised procedures.

2 We recognise that councils operating the decriminalised procedures face a

difficult task and we also understand that the efficient enforcement of parking
control is essential in managing increasing levels of traffic. This task is possibly
made more difficult by the perception of some motorists that the imposition
and pursuit of penalty charges is inherently unfair.

3 Last year we received in the region of 300 complaints about various aspects of
parking enforcement. Underlying many complaints is a sense of injustice
because the complainants feel that they have not been listened to. We have
observed a wide variety of practice on the part of councils as to how motorists
who feel a penalty is unfair or unwarranted are afforded an opportunity to
make their case. This may stem in part from a lack of clarity about what issues
a council can consider when a motorist wishes to challenge a penalty charge.

4 In order to promote good practice, we have set out here the position of the
courts, the Department for Transport and the Parking Adjudicators, and given
our view on the responsibilities of councils regarding consideration of both the
statutory grounds for appeal and other pleas of mitigation. We address this
special report both to those councils who currently have this responsibility and
to those who may assume it in the future. We trust that this will assist in the
difficult task of enforcing parking control effectively and fairly.

5 In preparing this report, we have sought the views of the Local Government
Association, the Association of London Government, the Department for
Transport, the Parking and Traffic Appeals Service, the National Parking
Adjudication Service, the Society of Local Authority Chief Executives and Senior
Managers, the Association of Council Secretaries and Solicitors, the National
Decriminalised Parking Association, the Automobile Association and the RAC
Foundation. We are very grateful for the responses we have received.

Tony Redmond
Patricia Thomas
Jerry White

Local Government Ombudsmen

December 2004

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A Background
1 Powers to enforce certain parking regulations were given to councils under the
Road Traffic Regulation Act 1984: enforcement action was taken through the
criminal (magistrates’) courts. 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, penalties are no longer considered in the magistrates’ court: they are
therefore ‘decriminalised’.

2 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. It is likely that over 120 councils outside London will have done
so by the end of 2004.

The enforcement procedure

3 If a parking attendant considers a contravention has occurred, a Penalty
Charge Notice (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 is issued to the person appearing to be the owner,
usually the person registered with the Driver and Vehicle Licensing Agency
(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

• (in London only) the parking attendant had not been prevented from serving
a Penalty Charge Notice, where a council believed that this was the case and
so had served the Notice by post.

4 Where a vehicle has been clamped or removed, additional grounds for appeal
apply.

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 5 If representations are rejected by a council, the registered keeper may make an
appeal to a Parking Adjudicator, but only on one of the statutory grounds. 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 circumstance
would the Ombudsmen consider a complaint where a right of appeal to a
Parking Adjudicator exists or existed.

6 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 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.

7 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.

8 In considering complaints about parking penalties, we have noticed that the

procedures adopted by a number of councils have the effect of fettering the
council’s exercise of its discretion, or of unreasonably or unfairly deterring a
motorist from making representations on other than the statutory grounds.
We therefore think it important to give guidance by setting out our views.

B Case law
1 The issue of discretion has been considered by the High Court.1 Although this
was primarily about another issue, in considering the role of the council,
Mr Justice Elias said:

“In short, there are two distinct categories of representation. First, there are the
statutory representations which, if successful, oblige the authority to cancel the
notice to owner and impose no penalty. There are then other representations
which may cause the authority to choose not to exercise its discretion to
pursue or enforce payment, but which do not oblige it to do so.”

1 R (Westminster City Council) v Parking

Adjudicator [2002] EWHC 1007

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 C Advice and guidance
1 In 1992 the Parking Committee for London, a joint committee of London
councils, issued a Code of Practice which discussed at some length the need
for discretion in applying penalty charges to be exercised properly. The Code
was revised in 1997. It says:

“When a motorist accepts that the contravention did occur but argues that the
PCN should be cancelled on grounds of extenuating circumstances individual
authorities will have the choice of exercising discretion.”

2 The advice suggests that the grounds for using discretion to cancel a Penalty
Charge Notice could include:

“. . . benefit of the doubt and upon demonstrating extenuating circumstances

deserving compassionate action.”

3 In 1995 the Department for Transport issued guidance2 about decriminalised

parking which, while directed at councils outside London, is the:

“. . . minimum or common standard with which the Secretary of State would

expect all local authorities enforcing decriminalised parking would comply.”

4 The Department’s guidance states that:

“There are no [statutory] grounds for making representations where the

recipient of the [Notice to Owner] acknowledges that a contravention occurred
but argues that there are extenuating circumstances. However, local authorities
should establish their own guidelines for dealing with such cases, balancing the
need to show flexibility in dealing with exceptional cases against the need to
enforce parking controls firmly in the wider public interest. Besides cancelling
PCNs where there is satisfactory evidence to support a motorist’s case on the
statutory grounds . . . , authorities should consider cancelling PCNs in the
following circumstances:

a) The parking meter or all nearby pay-and-display machines were faulty

(except where the relevant [Traffic Regulation Order] makes parking in such
circumstances a contravention).

b) The information on the PCN is inadequate or incorrect, due to an error by

the parking attendant.

c) There is satisfactory evidence that the vehicle was broken down at the
material time and that reasonable steps were being taken to move it as
soon as possible.

d) There is satisfactory evidence that the penalty charge should be waived on

2 Local Authority Circular 1/95 Guidance on well defined compassionate grounds.
Decriminalised Parking Enforcement Outside
London

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 Local authorities must decide what constitutes ‘satisfactory evidence’ in these
cases. It would be reasonable to give a motorist the benefit of the doubt on a
first representation but be stricter on any subsequent occasions.”

The guidance also says councils should ensure:

“. . . that they have sufficient authorised officers available to deal with statutory
representations. These officers should be familiar with all aspects of
decriminalised parking enforcement, so that they can judge whether or not a
representation falls within the statutory grounds under the [Act] or within the
authority’s own guidelines for exceptional cases.”

5 The Department for Transport’s guidance includes a specimen Notice to

Owner. This sets out the statutory grounds for appeal and provides tick boxes
for the motorist to indicate which of those grounds apply. The specimen notice
states that the council is not required to consider any other circumstances, but
there is provision on the notice to make ‘other representations’.

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 D The Adjudicators’ views
1 The joint annual reports of the London Parking Adjudicators have included
their concerns about how councils exercise discretion. In their 2001-2002
report3 they said:

“. . . for authorities to be able properly to exercise their discretion, motorists

must be aware of the discretion. Unless they are, they are not in a position to
make a fully informed decision whether to pay the penalty or make
representations. In our view, the Notice to Owner, as well as setting out the
grounds on which legal liability may be challenged, should also explain the
discretion. We are not aware that at present any Notices to Owner do so.
Indeed, some appear positively to discourage representations on mitigation by
including something along the lines of: ‘excuses such as . . . will not be
accepted’. We recommend that all Local Authorities should revise their Notice
to Owner accordingly.”

2 In their 2002-2003 annual report4, the London Parking Adjudicators have also
referred to continuing evidence that not all councils were properly considering
mitigation, and highlighted the need for staff to receive appropriate training in
this area. They have commented on the need for decisions to be conveyed to
motorists clearly, and that they sometimes refer appeals back to the council where
it is not clear that the council has exercised its discretion properly. They have said:

“Whilst some Local Authorities do comply with the desired standard, there are
still many whose responses are inadequate and must leave the motorist in a
quandary as to what to do. Some rejections amount to no more than a cursory
‘Your representations have been rejected’. Others go into some detail about
uncontested elements of the incident without addressing the particular issue,
often mitigation, raised by the motorist.”

They also commented that:

“Local Authorities may wish to consider that every appeal that would have
been avoided had an adequate reply been given is an expense to the Local
Authority both in terms of the fee paid to the Appeals Service and the
administrative time of preparing the appeal. So a proper reply is as much in
the Local Authority’s own interests as it is fair to the motorist.”

3 Outside London, the annual report of the National Parking Adjudication Service
for 2000-2001 (published in May 2002) included a joint report of the Parking
Adjudicators for England and Wales on the exercise of discretion by councils
when considering representations. This cited various decisions by adjudicators,
supported by the guidance issued by the Department for Transport, to the
3 Joint Report of the Parking Adjudicators to
the Association of London Government effect that:
Transport and Environment Committee
2001-2002
“. . . a council has a discretion not to pursue payment at all in deserving
4 Joint Report of the Parking Adjudicators to
the Association of London Government circumstances, even if an owner cannot bring himself within the statutory
Transport and Environment Committee
2002-2003 grounds.”

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4 The Parking Adjudicators for England and Wales also said:

“. . . we would stress again . . . the importance of a council recognising the

existence of its discretion and considering whether or not to exercise it outside
of the statutory grounds. If it fails to do either, then it does not act with
fairness towards an owner.”

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E Examples of fault in councils’
practice
1 The following examples of practice are drawn from complaints which we have
considered. Some of the issues identified have occurred in a number of councils
and even those councils who generally do things very well should review their
procedures. Where concerns have been brought to the councils’ attention, they
have taken, or are taking, action to deal with identified faults. For these reasons,
we have not identified the councils involved in these examples.

2 There are three general areas of fault we have seen:

• misrepresentation of what a council has a duty to consider;

• misleading advice about what may be accepted as a plea of mitigation; and
• denial of an opportunity to plead mitigation at an appropriate stage in the
process.

Misrepresentation of the council’s duties

3 We have seen numerous examples where the Notice to Owner inaccurately
describes the council’s responsibilities. Typically, the notice requires the
motorist to indicate which statutory ground applies by ticking a box. One
example apparently restricts the choice to only one box, although there
appears to be no reason why representations could not be made on more than
one ground. The implication is that no other reasons can be put forward.

The Road Traffic Act 1991 (as amended) sets out eight grounds only on which
you may make representations. These are given below. Please tick ONE of the
following:. . .

4 Even worse, notices commonly state that the council ‘is not required to
consider any other circumstances’ or that the 1991 Act sets out the only
grounds on which representations may be made.

5 In one of the more extreme examples we have seen, the Notice to Owner
issued by the council stated that it was unable to consider any other
circumstances. When asked about this, the council’s view was that the wording
complied with the law and was intended to explain the motorist’s legal right of
appeal. It said that councils are not obliged to consider any representations
which do not fall under these provisions, but that they had discretion “to be
applied in accordance with their internal procedures”. It said that it considered
mitigating circumstances as a matter of practice and, although this was not
referred to in the notice this was “not to discourage appellants when appealing
their case”.

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 The Road Traffic Act sets out only seven grounds on which you can make
representations (written challenges) against this notice – these are given below
and the council is not able to consider ANY OTHER CIRCUMSTANCES.

6 Clearly, the wording of the Notice to Owner did not properly reflect the
council’s responsibilities. The motorist could make representations on grounds
other than those listed and the council was obliged to consider these properly.

7 In this case, we consider that the wording had the clear effect of deterring a
motorist from making any representation other than on the statutory grounds.
It is of little comfort that the council said that it would consider such
representations, when any reasonable person would interpret the notice to
mean that the council could not do so.

8 We are pleased to say that the council accepted that the wording should be
changed and has undertaken to do this. It has also confirmed that it has the
processes and procedures in place to manage any appeals received effectively,
although it recognises that there will be resource implications in doing this.

9 It is, perhaps, unsurprising that there is a consistency in the format used by

councils as they closely follow the specimen Notice to Owner produced by the
Department for Transport. The major difference is often that the notices served
by councils, unlike the specimen, have no space for ‘other representations’.
Moreover, we believe that the duty on councils to consider other representations
is now so clearly established that the model itself is misleading in this respect.

‘Unacceptable reasons’
10 There are, of course, many councils which do indicate that they will consider
pleas of mitigation. But the documentation issued by these councils, like the
specimen Notice to Owner produced by the Department for Transport, often
includes a list of ‘unacceptable excuses’.

Unacceptable excuses include:

‘I could not find anywhere to park’
‘I went to get change for the meter’
‘I only stopped for a minute or two’
‘I thought I was legally parked but I made a mistake’

11 We agree that it is useful for a council to reinforce the fact that it is only in
exceptional circumstances that a penalty charge will be waived on discretionary
grounds. But we have seen examples where the wording is too restrictive. In
one case, it is stated that the motorist being delayed would not be accepted as
a reason – when clearly there might be instances when the reason for the delay
was itself exceptional.

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 The following reasons will not be accepted:
– That the parking restrictions were unfair.
– That you had gone to get change for a pay-and-display machine.
– That you had only parked for a few minutes.
– That there was nowhere else to park.
– That you were delayed.
– That you had a residents’ permit for another vehicle.
– That you were not aware of the parking restrictions.

12 If such examples are included, we consider that the wording in many cases
might usefully be changed to reflect what would not normally be accepted,
rather than to suggest what would never be accepted. It is important for a
council to consider all of the circumstances of a particular case, without
prejudging the outcome.

At what stage should the exercise of discretion be considered?

13 Although the Notice to Owner provides the more usual opportunity for a
motorist to make representations, many councils will consider submissions at
an earlier stage.

14 We have seen a Penalty Charge Notice which invites written representations on

any grounds within 14 days of issue. Commendably, the discount period is put
on hold while these are dealt with. But motorists are warned that no further
correspondence will be accepted without the amount payable rising to the full
penalty charge. If the matter is not resolved within 28 days of the
contravention or the serving of the Penalty Charge Notice, a Notice to Owner
is issued. However, the Notice to Owner only provides for representation on
the statutory grounds.

15 Another council advises motorists that they can submit pleas of mitigation in
writing, stating why they believe that the penalty charge is not payable. If
these are received promptly, a further 14 days discount period would normally
be granted. However, motorists are specifically told that, following this, they
could only make representations on the statutory grounds.

16 The registered keeper of a vehicle may be unaware of the issue of the Penalty
Charge Notice until the Notice to Owner is issued. If the exercise of discretion
is restricted to the period prior to the issue of the Notice to Owner, the
registered keeper would have no opportunity to ask for mitigation to be
taken into account. Such a restriction would, in our view, constitute a fettering
of discretion.

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F Organisational considerations
1 The proper consideration of representations in mitigation has resource
implications for councils. However, income from penalty charges is ring-fenced
and should therefore be used to finance the decriminalised procedures. A lack
of resources would not be a valid reason for the failure of a council to operate
the procedures properly. As the Department for Transport’s guidance says,
councils should have sufficient authorised officers to deal both with
representations on statutory grounds and where exceptional circumstances
might apply.

2 It is also important that any letter advising a motorist of a decision taken on

representations relating to mitigation should make the reasons for that decision
clear. Where the representations are rejected, the letter should refer to the
grounds for mitigation put forward, demonstrate that they have been properly
considered and explain why they have not been accepted.

3 The job of the parking attendant can be difficult. It seems likely that it would
be made easier if motorists were aware that a procedure exists for councils’
consideration of mitigating circumstances.

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G Conclusions
The exercise of discretion
1 There can be no doubt that councils are required to consider representations which
are not made on the statutory grounds and must not fetter their discretion to do
so. The process for considering mitigating circumstances should be transparent: it
should be clear to motorists that they have this right and how it can be exercised.

2 This is not an unimportant matter. Where the 1991 Act procedures are not
used, a motorist ultimately has a right to a ‘day in court’ to make a case and
seek justice. In the decriminalised procedures, the grounds for appeal are
prescribed and the adjudicators cannot, by law, allow an appeal because of
mitigation although, as we have said, they do sometimes refer mitigation back
to the council. The consideration of discretion by a council is the only
opportunity a motorist has to make a case that there were exceptional
circumstances why a contravention occurred and why a penalty charge should
therefore be waived. For the system to be seen as just, this consideration
should be not be unreasonably restricted.

The Notice to Owner

3 We consider that the form of the Notice to Owner used by many councils
actively deters motorists from submitting pleas of mitigation. Where this is the
case, the council’s procedures and documentation should be amended as soon
as possible to reflect the council’s obligation.

4 It does not seem to us that the Department for Transport’s sample Notice to
Owner makes it sufficiently clear to motorists that they can put forward
mitigating circumstances. There may be many councils that have adopted the
model, in whole or in part, but that, in our view, still prejudice the motorists’
right to have their case heard properly. However, the sample Notice to Owner
dates from 1995 and it may be timely for the Department to consider revising
its guidance to councils.

Practice and procedures

5 We commend all councils to look critically at their documentation, advice and
procedures in respect of the 1991 Act scheme, to ensure that pleas of mitigation
are not unreasonably deterred and are given proper consideration. In doing so,
we hope that councils will find the following points helpful:

• Discretion can be exercised at any point in the procedure. Councils should

not restrict consideration of mitigation to any particular part of the process,
such as the period prior to the issue of the Notice to Owner.

• Councils should ensure that that they establish clear guidance and
procedures for dealing with pleas of mitigation, and that staff who consider
representations receive guidance and training to enable them to make
rational and consistent decisions on the exercise of discretion.

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• Decisions on the exercise of discretion must be clearly explained to
motorists, particularly when representations are not accepted.

• Guidance given to staff or information given to the public on how

discretion will be exercised should not have the effect of fettering councils’
discretion. They should not, for example, list reasons for waiving a penalty
charge which would never be accepted.

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Publications available

This report is one of a series of Special reports

To view the other reports, see our website: www.lgo.org.uk/special-reports.htm

We also publish:

• an annual Digest of cases

• a series of Guidance notes on good administrative practice
• an annual report and annual accounts
• a corporate plan
• two leaflets: Complaint about the council? How to complain to the Local
Government Ombudsman, and How the Ombudsman will deal with your
complaint

These are also available on our website, www.lgo.org.uk

or you can telephone 020 7217 4683 to order publications.
 Commission for Local Administration in England
10th Floor Millbank Tower Millbank London SW1P 4QP
Tel 020 7217 4620 Fax 020 7217 4621
www.lgo.org.uk LGO 610 (12/04)