Barnet Council - sensible exercise of discretion

Mr Mustard was working on site on Thursday 1 February. It was only late in the afternoon, just as he was about to leave site in Northants to drive back to Barnet for the charity pub quiz, that he checked his MrMustard emails and found this cry for help:

I implore you to please call me urgently .The bailiff has clamped my car. I have just lost my husband. This ticket he has clamped me for is very old .I do not believe i am liable for it .I have drs letters to say I am really ill and they advise due to my mental state that the ticket should be recinded. I can explain all.

I live alone and have no friends or family. Please contact me .My number is (redacted)

Mr Mustard's heart sank as he likes to avoid bailiffs if at all possible by fixing the PCN earlier. He duly phoned the number he had been given. The lady was on the verge of tears and Mr Mustard said he would be there in 2 hours as he was concerned that the bailiff might remove the car. He knew he was going to be late to the pub but at least the pub would still be there later whereas the car might not.

When he met the lady he found the situation was worse than he thought. She had no paperwork prior to the bailiff's visit which was odd as at least four official notices would have been sent to her & she had not moved in years. Mr Mustard organised a witness statement and an application to file it out of time. Barnet Council were at liberty to oppose the late application and if they did the Traffic & Enforcement Centre at Northampton County Court were likely to reject the application. 

There were two other live PCNs (a third one had been cancelled by the council) for having the blue badge of her late husband on display; in her grief she had not thought about handing it in and obtaining one for herself or a resident's permit. Due to her lack of mobility she probably qualified for a blue badge in her own right but had not applied for one.

Mr Mustard decided that he would explain the situation to Barnet Council outside of the formal process so that they would hopefully deal with it as affecting a human being rather than the PCN reference being the extent of their concern. He wrote this:

Dear Sirs

I represent Mrs Redacted as attached authority.

I am writing to make representations out of time which the council are at liberty to consider. The London Councils Code of Practice says this about them:

I am also asking you to not contest the out of time witness statement, thus giving the lady at least an opportunity to challenge the PCN, or in the alternative, to cancel the PCN. The effect of not opposing the witness statement would allow you to issue a fresh Notice to Owner if you were so minded.

I ask you to consider the proportionality of the penalty once bailiff fees are added. £373 for a badge that was placed the wrong way up, which was probably caused by the late Mr Redacted interfering with it & not appreciating what he was doing due to his Alzheimer's, which was quite advanced at that time & he died just 2 months later. I believe this lady when she tells me that she has no paperwork about this PCN as she produced it for other more recent PCNs (if there has been any reaction to statutory documents at the time I am sure you will tell me but this lady has quite bad depression and as her memory is defective that can be understood). The late Mr Redacted did use to take things, such as the mail, and hide or destroy them, so that is probably why the Notice to Owner is not to hand. This is the most trivial of contraventions as the council could check the validity of the badge from the number on the back of it.

I ask you also to take into account the vulnerable position of this lady. As her recent doctor's letter states, the lady is housebound, with severe back pain, depression and anxiety and the latter two conditions are not helped by this PCN. You will note that the doctor describes her as extraordinarily vulnerable and special consideration should be given to bailiff use in such circumstances. She is also in pretty dire financial straits, being a tenant of and living on a mere £220 a fortnight and with no savings.

I look forward to hearing from you, hopefully with positive news, that you have exercised your discretion to not enforce the PCN.

Yours faithfully

Mr Mustard

p.s. One small point about the bailiff's Notice which over-states the sum due 'at the date of this notice' as being £483 when it was only £373. That is an illegal demand for payment despite the note to the side. Perhaps you could remind your bailiffs generally not to demand sums which are not due at that moment.

Here is the reply that he received:

Thank you for your email of the 9th February 2018 to our Head of Parking and Infrastructure.

I have investigated the PCN and the evidence you supplied regarding the registered keeper’s current medical condition and based on my findings I am willing on this occasion to cancel the PCN and all associated PCNs currently active in relation to the vehicle AB02CDE. The PCNs outstanding that have been cancelled are AG11111111 issued on 29/11/2017 and AG22222222 issued on 01/12/2017. No further enforcement action will take place regarding the above PCNs and the matter is considered closed.

The Council has exercised its discretion on this occasion and cancelled the PCNs on the basis the appellant’s ill health as supported in the letter you supplied from Dr NW. It must be noted that the vehicle was parked displaying another individual’s (Mr Redacted) disabled blue badge who as you state had passed away in February 2017. The CEO issued the PCNs due to the blue badge being expired therefore no exemption from the conditions of the bay would apply. I am also aware the vehicle AB02CDE has valid road tax and MOT until May and June 2018 which would indicate the vehicle is still in use. I would advise that the vehicle be removed from the bay and parked in an alternative location or a parking Permit purchased.

The Council is satisfied an exemption can be applied in this instance. However please advise your client that this cancellation does not set a precedent and that similar PCNs incurred by the vehicle AB02CDE may be pursued in future.

In respect of the issue raised regarding the Bailiff sum due I will raise this with Marston to get their comments however this is immaterial now as the case has been closed.I hope that this information is helpful given the positive resolution to the issue raised. If I can be of assistance to you with regards to any other parking-related issue, then please don’t hesitate to let me know.

Yours sincerely

Parking Customer Service Team Leader
Parking Client Team

This is the correct and proper exercise of discretion which other councils would do well to copy (and has led to this blog instead of the one he expected to write about what utter heartless b'stards populate the parking department - Mr Mustard is pleased to be proven wrong on this occasion). Mr Mustard thinks that the existence of the recent doctor's letter was probably a key point in favour of cancelling.

The two more recent PCNs would almost certainly have been beaten by Mr Mustard had they reached the tribunal as the car had not moved during the time that they were issued so only one contravention had occurred. He is also slightly worried that the resident's permit does not show on the council computer as Mr Mustard himself applied for it on line and received a receipt for it (although the receipt does not give you the vehicle registration which isn't helpful). The bailiff's letters aren't academic if they are routinely wrong and hopefully they will be correct in the future.

How lovely to get a far better response than Mr Mustard was dreading.

So, three cheers for Barnet Council actually using their discretion in a sensible manner.  Mr Mustard has responded to Barnet Council thanking them for their letter and suggesting the following:

Thank you for this which will be a great relief to this lady who is very distressed. I note what you say about a residents permit, I went on line and did the transaction a few days ago so I do hope that I have done that properly? I'll be blogging the positive aspects of your decision as soon as I can, no names no pack drill as per usual.

Due to a multi-million debt recovery job I am engaged upon I have been forced to cut down who I am helping to those in greatest need which includes the physically & mentally ill as well as the elderly & impecunious. I readily accept that bailiffs have a job to do, I am a credit consultant / debt collector after all, but the effect of their visits weighs disproportionately upon the very people I help. I have long worried that the costs are disproportionate and sometimes make payment impossible for the elderly and of course the less physically able (not necessarily eligible for a blue badge) are the people who need their car the most and I don't think that the ethos of the due adjustment provisions of the Equality Act get taken into account by bailiffs who don't after all get paid unless they collect. The bailiff reward system is at the heart of the problem.

I would be pleased to sit down with the parking manager one day to discuss this and see if there is a better way of obtaining the council's money without causing so much anxiety.

Yours frugally

Mr Mustard

This problem having gone away Mr Mustard has another since this morning, a lady of a certain age with a Motability car & 3 Barnet PCNs. TfL have cancelled a PCN because she was so distressed she called the police as she was suicidal, he now has to ask the same of Barnet Council.

He also has a clamping of a car where it was used to transport a disabled person other than the vehicle owner & the police threatened to arrest the Owner if he didn't let the bailiff lock the clamp on, the Owner having intervened & having let his brother pay the fine as he had to take his partner to hospital for an operation that very day. The bailiff was not clamping lawfully so here we go, another complaint is imminent, in fact two, one to the council and one to the police.