2 September 2013

Best practice has to be the best

Saturday at PATAS saw Barnet Council, represented one would assume by NSL although only by post, have costs awarded against them because of not following best practice. Here are the notes of the adjudication.

Firstly; the adjudication itself:

The Appellant complained about the delay in the enforcement process. He has specifically denied that he received a Notice to Owner in 2012 and he has put the Authority to proof but the Authority did not produce a copy of the first Notice to Owner. Even if I were to accept that one was sent, there was no explanation as to why no action was taken to enforce the debt for six months. I note that the Authority has also failed, as required by PATAS, to provided a copy of the proceedings in the County Court (This would the the form TE9 witness statement to return the PCN back to the PCN stage when you have not received a Notice to Owner).

The Appellant also pointed out that there was no yellow line. The CEO's notes indicated that the vehicle was opposite no. 2 Shirehall Park. The Authority said that Google confirmed the presence of a yellow line. It then produced an image of the location which did not seem to have a yellow line or time-plate.

I have looked at Google myself and, I have to say, I have some concern about the way the Authority presented the evidence. The Authority had chosen an image which provided a rather distant view of the exact location. It placed a yellow box in the view and suggested that the vehicle was within the yellow box. A closer Google view would show that there was no yellow line where the silver vehicle was. The yellow line stopped about a car length in front of the silver vehicle.

I am not satisfied that there had been a contravention. I am allowing the appeal.

It is very rare for costs to be awarded. It happens less than a dozen times a year in Barnet. The test is that a party (costs can also be awarded against a motorist) has to have been wholly unreasonable, vexatious or frivolous in their behaviour (best not claim to have been bitten by a radioactive spider, unless you have!).

The motorist was evidently unhappy with the behaviour of Barnet Council, largely acting by their contractor NSL (the council itself has by law to make the decision about the formal appeal but NSL look like they do pretty much else. In theory the council check NSL's submissions to PATAS but Mr Mustard thinks that does not happen as he receives them postmarked Croydon). Thus the motorist made a claim for costs. This has to be in writing. Time spent dealing with the PCN at the beginning and responding to the Notice to Owner are ignored although if you didn't undertake them you wouldn't end up at PATAS in the first place, which seems like an odd decision which will doubtless get challenged at some point. I have read positive comments  about the adjudicator Mr Anthony Chan in other cases on the Pepipoo forum. Funny name Pepipoo but seriously good advice.

The costs application: (slightly tidied up by Mr M)

This is an application for costs by the Appellant after I allowed his appeal against a PCN issued on 12 March 2012. Both parties are aware of the high threshold before costs can be awarded and I shall not repeat it here.

I allowed the appeal on several points each one of which can potentially lead to a finding that the Authority had acted vexatiously, frivolously or otherwise unreasonably. I deal with each in turn.

Was the Appellant's vehicle on a yellow line?

The Appellant stated in his Notice of Appeal that there was no proof of the restriction. There were no photographs of the vehicle and, as far as I can see from the Authority's case, a description of the exact location of the vehicle. The Authority submitted an image from Google as a site photograph. It said that the Appellant's vehicle was in a yellow box in the image. I have already said that there was no evidence of the specific location of the vehicle so it is not clear how anybody can say that the yellow box marked the exact location of the vehicle. I have also pointed out that no yellow line can be seen on the yellow box. This meant that even if I were to find that the Appellant's vehicle was within the yellow box, I cannot possibly find that a contravention occurred. Mr Mustard objects to the use of google images in most of the appeals he deals with as they are not contemporaneous and so not reliable. His own photographs taken a week or two after the offence are likely to be more representative of reality.

The Authority now accepts that there was an "administrative error" with the site photograph. It submitted another image slightly further up Shirehall Park. It used a red box to identify a yellow line. I do not think that anybody doubted that there was a yellow line on Shirehall Park. The issue was whether the Appellant's vehicle was on it. A Google image on its own is never going to prove the point because a contravention is not proved by somebody putting a box on a Google image. There has to be some evidence to show that the vehicle was in the area marked by the box. The usual mealy mouthed explanation excuse from the council when caught with their pants down. A slapped bottom is often the result.

The delay

There was substantial delay between the issue of a Charge Certificate and the next stage of the enforcement process. The Authority said that best practice allowed six months and a technical issue took it to nine months. I am not aware of this best practice. Best practice is to enforce without undue delay and anything longer than six months is unlikely to be justified. I am not told what the technical issue is but the Authority has not explained why, as a public authority exacting a penalty, that it has not or would not consider that such a delay was unfair on the motorist.

As I am still none the wiser about the exact location of the vehicle, I do not know whether the service of the PCN and Notice to Owner was justified. The Authority said that it was, but rather missed the point that it has a responsibility to make progress with the enforcement action and that when it comes to an appeal, it should really have ensured that it has at least an arguable case supported by evidence. The point was the council wanted the motorist's money and they were blind to everything else.

Nothing that the Authority has said has persuaded me that its conduct of the proceedings was reasonable. I am making an award of costs.

The Appellant has set out his clam in detail. I allow the disbursements of £2.75. I am not entitled to allow cost for work done prior to the appeal. I am however allowing three hours of work in preparing and lodging the appeal, two and a half hours in studying the Authority's case, and one and a half hours preparation for the cost application. The last takes into account the Authority's conduct in the cost application. There is a total preparation time of 18 hours.

This Tribunal award costs on an hourly rate equivalent to the hourly late for a litigant in person at the small claims court. It is currently £18 an hour. This makes the cost of time spent £126 (7 hours allowed). The total costs allowed is £128.75 (ouch)

So Barnet council set out to make £110. They seem to have issued a marginal PCN, it used an invalid wording which the otherwise very able motorist did not pick up, the council let the PCN die and then brought it back to life, they left paperwork out of the evidence pack (a cynic would think that was deliberate and it does seem to have sent the adjudicator off-side)  used evidence that wasn't and then not argued very well (because they didn't really have a case).

Here is what the Secretary of State for Transport says in his enforcement guidance.

If the penalty charge is not paid the enforcement authority may issue a Notice to Owner (NtO). The purpose of the NtO is to ensure that the PCN was received by the vehicle owner and to remind the vehicle owner that the PCN is now due to be paid in full and if it is not paid within a further 28 days it may be increased. The NtO may be issued 28 days after serving the PCN, and we expect authorities to send them within 56 days after serving the PCN. The ultimate time limit, in exceptional circumstances, is six months from the “relevant date”. There should be a very good reason for waiting that long to serve a notice to owner. 

Mr Mustard has forgotten this point and can be sure to now use it in future cases. You can use it in your own appeals.

Now thinking about appeals generally. If you appeal to Barnet Council (NSL) informally in response to the PCN and then again formally in response to the Notice to Owner and then they turn you down both times but then file a Do Not Contest form at PATAS and simply give way; have they acted frivolously? Mr Mustard would say "possibly". Please write in to PATAS and ask for costs if this happens to you especially if you weren't told the council had given way and flogged to the Islington hearing centre. You can claim £18 per hour from the point where you receive a Notice of Rejection of representations.

Update: Next Monday 9 September sit yourself in front of the TV at 7.30pm and put on BBC 1 Inside Out on parking
and see if Barnet Council or NSL feature.

Yours frugally

Mr Mustard

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