not Zippy at Harrow Council

crazy as anything at Harrow Council

This is going to be a long story so get yourself a beer or a nice cool glass of wine and a comfy seat in the garden under a parasol whilst Mr Mustard steps you though a long story, which should have been a short one.

The story concerns Mr E, not his real name.

On 19 April 2015 (yes, Mr Mustard told you it was going to be a long story) Mr E had to take his son to play a football match and got a bit lost on his way to the Harrow Weald recreation ground. On his journey he managed to fall foul of the 'no right turn' restriction at The Bridge, A409 which has been in the local paper.

A lot of buses go this way and can hide the vital signs 

Mr E had used a ZipCar and it was therefore 19 June 2015 before he received a PCN through the post in his name (ZipCar would have had one first and then given the name of the person who rented the car).

Mr E made representations on time and heard nothing more. After a while he assumed the matter was over (Mr Mustard never assumes, he keeps an eye on the balance on council websites instead) and threw the paperwork away.

Luckily Mr E did not move home in all this time otherwise the story could have been a different one about a bailiff.

On 18 December 2017 Harrow Council decided to register the unpaid PCN as a debt at Northampton County Court. That of itself was a rather naughty thing for Harrow Council to do as they are required to process PCNs with reasonable expedition which requirement cannot be met by leaving a PCN to rot for two years. Harrow Council were demanding £203 by this time.

Mr E then had the slight pain of completing a witness statement and popping into the office of a Solicitor to swear it (shelling out c. £10 for the necessary signature confirming his signature). This was sent off to the TEC at Northampton County Court on 21 December 2017.

Harrow Council were pretty zippy at first. On 29 December 17 they sent this:

apologies for the copy quality

That was a fair response (although at that stage Mr Mustard had not seen guidance on the subject from London Tribunals so he didn't think it was fair) except that not many people, only Mr Mustard types, about 1% of the population, would still have what they wrote in 2015. No worries, a fresh representation can be made. So that it could not be lost it was done on line by Mr Mustard as if he was Mr E.

3 January 2018 - (Representation #1)

Your letter of 29 December is not in accordance with the 2003 Act which requires that statutory declarations on the grounds which I stated are to be referred to the independent adjudicator. My rights to independent scrutiny are being denied me.

It is unreasonable to expect me to have a copy of representations which were made two and a half years ago. It is also unreasonable of Harrow Council to be pursuing this PCN given that they have delayed to register the debt at the TEC. This is a breach of my article 6 rights to a fair trial under the Human Rights convention.

The council have no legal right to 'require' further representations be made nor to impose a 14 day deadline which does not exist in law.

As to the PCN itself the council had no right to transfer liability from Zipcar.

(The final line was a representation that fell squarely within the kind allowed).

7 February 2018 - Harrow Council reply (Mr Mustard's comments in red)

Thank you for your recent communication regarding the above PCN. (too lazy to insert the date of the communication or the type)

Although you do not have the original representation as your statutory declaration has been accepted you now have the opportunity to make a new one. (The statutory declaration had to be accepted as it was true and in time. Allowing for the representation to be made again is fair).

Please be advised that there is no time frame stated in the legislation for the Authority to register the debt with TEC. (That is true about no time limit being set but the longest time limit set within the PCN Regulations is 6 months so that is a clue as to how long is allowed for a step to be taken. Harrow Council clearly decided that they could ignore the Human Rights Act and any concept of fairness).

It should also be noted that we have the right to transfer liability as part of your Zip membership you have accepted that any traffic violations (we don't have 'violations' in the UK - creeping Americanisations must be stamped out) will be pass (sic) to the driver to pay. (Harrow Council are conceptually correct but in order to transfer liability within the law there has to be a signed written agreement containing certain facts such as the car Make & model which they did not have as unlike traditional car hire the Zipcar system does not have a paper agreement for each hire).

The penalty charge is outstanding at £65.00. If you decide to pay or make a new representation this should be received within 14 days from the date of this letter. (At least they are offering the choice although Harrow Council are ignoring the fact that a representation had already been made within the communication to which they are replying. Clearly Harrow Council preferred the payment option).

Yours sincerely

13 February 18 - (Representation #2)

Mr Mustard went on line as if he was Mr E and make the following representation.

I never was the Owner and the right to transfer liability does not exist.

28 February 2018 - Harrow Council reply.

Thank you for your correspondence in regards to the above Penalty Charge Notice.

You stated that you have never owned the vehicle AB12CDE however; to enable us to cancel the PCN we need proof to substantiate your claim.

In order for this office to amend its records, we would be most obliged if you would send us a letter from the DVLA confirming that your name has been taken off as the registered keeper of the above vehicle and removed from the above address.

We fully acknowledge that to be asked to provide this information, when you have never owned the vehicle is annoying, but I hope you will acknowledge the reason behind the Council's actions.

In view of the fact that we work to very strict deadlines, it would be appreciated if the above information was provided to this office within 14 days of the date of this letter to avoid the notice progressing.

Yours sincerely

5 March 2018 - (Representation #3)

Made on line by Mr Mustard as if he was Mr E.

I refer to your letter of 28/02/2018 - I am not going to get DVLA to say that my name has been taken off the ownership record as the car was, as you well know, registered to Zipcar at the relevant time.

Please either accept my representations so that no more of my time is taken up with this ancient PCN or reject them so that an independent adjudicator can decide upon the fate of the PCN.

28 March 18 - Harrow Council reply

Thank you for writing to us.

I can confirm that you are not the registered keeper as so the DVLA will not remove your details from their records.

However, when you hired the vehicle from ZIP Car you entered an agreement that stipulated any PCN's issued to the vehicle whilst in your possession, you were liable for, (Please see enclosed a copy of the agreement).

As we have stated in our previous letters dated 29/12/2017, 07/02/2018 and 28/02/2018, you have filed a Witness Statement under grounds 2, that you made a representation, however, never received a response.

In our letters dated 29/12/2017 and 07/02/2018 we advised that you have 14 days to either provide your representation or make a new representation.

As this has not been done, the case will now be taken off hold and allowed to progress. You have 14 days to make the payment of £65.00. If no payment is received the case may progress to the bailiff.

Yours sincerely

4 April 2018 - Mr Mustard writes to the independent adjudicators at London Tribunals in the hope of being granted an Appeal although as he didn't have a Notice of Rejection, as such, he was doubtful that he would be granted one. He sent a copy of his long letter to Harrow Council in the hope that someone more senior might see it and stop the rot.

I write to set out the grounds on which Mr E should be granted an Appeal hearing (which I will attend in person).

I attach a detailed chronology, in so far as I have the data. Following the filing at the TEC of a sworn witness statement, Harrow Council, in their letter of 29 December 17, invited fresh representations to be made if the original ones had not been retained. That was perfectly fair & reasonable of them although at that time I thought it was procedurally wrong.

I did not at that time have a copy of Procedural Guidance 2016 no. 1 & so the response to Harrow Council was firstly that they should refer the PCN to an adjudicator and secondly that there was no right to transfer liability from Zipcar. There was also a complaint that Mr E's human rights were being breached due to the delay. The denial of liability transfer is within the ambit of the statutory representation that 'the penalty charge exceeded the amount applicable in the circumstances of the case.'

In their letter of 7 February Harrow Council again invited a representation to be made. I consider that one had already been made but as it isn't wise to ignore a council's request as the computer will keep escalating the PCN a new representation was indeed made on 13 February 18. It was that Mr E 'was not the owner of the vehicle at the material time' and that the 'right to transfer liability does not exist'. Those are representations which fit fairly and squarely with the ones legislated for.

Harrow Council's response was to ask Mr E to get proof from DVLA that his name & address had been removed from the DVLA record. It was pointed out to them on 5 March 2018 that the council knew that Zipcar were the registered keeper and Harrow Council were invited to either accept or reject the representations.

Harrow Council have decided in their letter of 28 March 2018 that no recent representation has been made to them and that failing payment the case may progress to the bailiff.

The whole point of the witness statement procedure is to ensure that the Appellant is not disadvantaged if a document goes astray. Harrow Council's actions in this case are denying Mr E the possibility of an Appeal hearing at which his representations can be heard.

Grounds of Appeal.

1. Human Rights breach

Due to the passage of time the right to a fair trial (tribunal hearing) has been compromised. The decisions in cases 2130453008, 213026715A & 2140188388 are consistent in their attitude towards delays which are much less than the one in this case, which saw 2 years and 6 months pass between the issue of the postal PCN and the Order for Recovery.

2. No right to transfer.

Zipcars do not have a paper hire agreement for each individual car hire so one cannot be produced to support the transfer of liability by Harrow Council & that is a legal requirement. The council say they have provided one in their letter of 28 March 2018 but no such copy was provided.

I hope that in the particular circumstances of the case that the Appeal will be scheduled for a hearing. My cases are usually on a Wednesday at 2pm.

I am sending a copy of this letter, Mr E's letter, my authority letter & the chronology (although not all the other documents which they have or can download) to Harrow Council by email.

Yours faithfully

After a delay caused by the request being non-standard the tribunal declined to grant an Appeal hearing.

Clearly there was some sort of thinking going on in response to the request to the tribunal as Harrow Council wrote again:

18 April 2018

Thank you for your recent correspondence in regards to the above Penalty Charge Notice.

Further to our recent letter dated 28/3/18 (copy enclosed) you were required to make a new representation or pay the amount due which is £65.00 which has not been done in this case.

I will allow a further 14 days from the date of this letter for you to submit your representation or pay the amount due.

If we do not hear from you within the specified time, your case will progress in accordance with the legislation.

Yours sincerely

26 April 2018 - (Representation #4)

Mr Mustard had to try again as the option of paying was not a viable or fair option. He again made representations on line as if he was Mr E (whose patience and trust in Mr Mustard was admirable)

These are my representations.

I never was the Owner (although in order to make these representations I have to select from a drop down menu that I am the owner/registered keeper).

The council did not have the right to transfer liability from Zipcar to me.

Mr Mustard is sorry for the quality of the scanned response by Harrow Council but rather than retype it, as he has done all of the others, it is such a masterpiece that he wants you to share it in all its glory

29 May 2018 

Phew.

There is a big 'if' in Harrow Council's letter which is that there wasn't a hire car agreement covering the hire in question then Harrow Council cannot legally transfer liability, but they will do so all the same. Also, they are 'contraventions' not 'offences'. Harrow Council are correct in one thing that they say, which is that there has been an administrative error, except it isn't 'an' error but a whole catalogue of them.

Now, to summarise.

Harrow Council should not have transferred liability. That though leave the hirer with the problem that rather than fighting PCNs in their own name Zipcar (et al) may simply pay the PCN and add an administrative charge thus denying the hirer to fight any PCN which he believes to be wrong. It cannot be natural justice to allow a car hire company to decide if you are liable to pay the penalty or not. A better system needs to be devised to allow for cheap and rapid payment if that is what the customer wants to do, with a reasonable admin charge, or for liability to be transferred so that the hirer can fight the PCN if he/she so wishes.

Harrow Council should not have left the PCN to rot for 2+ years. Here is an example of the type of decision they would have got from an adjudicator.

Having found the overlooked PCN they should then have written it off rather than bring it back to life. Had Mr E moved house during the dormant period he would not have received any further notices and the bailiff would have been on his tail.

Harrow Council should not have engaged Mr E in extended correspondence when he had clearly made properly formulated representations. Mr E had not met Mr Mustard before and many members of the public would have lost faith after two rejections by Harrow Council and paid up assuming that Mr Mustard didn't know what he was doing. Mr Mustard purposely stayed in the background as he wanted to see how Harrow Council would treat an ordinary member of the public and the answer was 'very badly'.

Harrow Council have clearly demonstrated that councils have been given too much power and it is not wielded fairly. There needs to be oversight of their daily activities much in the same way as OFSTED inspect schools and CQC inspect care homes, with both routine and unannounced inspections. If such a body ever came into existence Mr Mustard would apply to be an inspector.

Mr Mustard is now off to make a refreshing cup of tea. He thinks he has deserved it.

Yours frugally

Mr Mustard