Cornwall Council - complaint leads to corrective actions

Mr Mustard drafted a complaint for Tristan to send, it got over-looked at the time but finally got sent on Sunday afternoon. Mr Mustard doesn't mess about, complaints about laws not followed should be sent to the Monitoring Officer:

The Notice to Owner had already been cancelled but Mr Mustard didn't see why the late one that he saw would be an isolated incident.

Ms Langley was quick to respond to her email, wrote back very quickly (Monday morning at 9.09) in a friendly and open way and although Mr Mustard hasn't given you the numbers her email footer includes both a landline number and a mobile. That is rarely the case in Barnet Council where staff don't want the public to be able to phone them up or often to even email them. Public accountability should include multiple easy contact methods. Well done Cornwall Council.

There wasn't long to wait for parking to research and send their reply early in the afternoon of the same day. Realisation had probably dawned pretty quickly that they had blundered and were in the sights of someone who knew parking legislation pretty well.

Good to see a parking manager expressing regret rather than trying to excuse the department. The error was identified by Tristan though not by the council as you could read that sentence. It is slightly worrying that their system was not set up to prevent the council from breaking the law, there is too much automation in the world of PCNs and in the rush to extract money from the motorist for wrongful behaviour the council forget there are also rules which apply to them. Most time limits for councils are much more generous than the 28 days which is all the motorist ever gets.

The council get a pat on the back for admitting there were 9 other similar cases of which 4 had been paid and those motorists are going to get a pleasant surprise, a refund for monies they paid which were not legally due. Cornwall Council's reputation will be enhanced by their behaviour.

The apology feels sincere and there will be no need to go to stage 2.

There is however one odd fact about this, Mr Mustard himself sent a Freedom of Information request to Cornwall Council in April, which they answered quite quickly (so another bonus point) as follows:

The bonus point is somewhat wiped out by the minus 10 for a wrong answer.

The question should have rung an alarm bell. Ask yourself, FOI officers, why someone is asking a question that is so precise, it was in this case because Mr Mustard knew the answer was at least one occasion and probably more.

Mr Mustard hopes that the council are now checking all deadlines which apply to PCN processing and adapting their software to make sure they are all respected.

Yours frugally

Mr Mustard

Cornwall Council - chancers

 

Above is the view from Towan Headland, near Newquay, where Cornwall Council have a car park.

On the car park sign

at the bottom, which you will not come to for a few minutes once you have carefully read everything else, it says that motor homes (motorhome) and campers (a large motor vehicle with accommodation for camping out - says the concise Oxford dictionary)  are prohibited overnight from 23:00 to 08:00

Fair enough. So you can sleep there in your car but what about a normal van, like this one?

In the absence of side windows Mr Mustard's view is that, even with a bed thrown in the back, it isn't a motorhome or a camper. The traffic warden duly came round before 7am and slapped a PCN on the windscreen (very quietly). The PCN was contested (the informal challenge) as it was rather vague.

The informal challenge was short and sweet: 'Thank you for the PCN. I have no idea what I am accused of as your PCN does not say which class of vehicle the car park is designated for. Accordingly, the contravention is denied'.

The response, rejecting the challenge. set out why the PCN was issued but doesn't cure the deficiency in the PCN.

The definition is to be found within the Traffic Order.

Mr Mustard thought that even with a double bed in the back it wouldn't qualify as that would be the entire load area taken up, as the vehicle was not constructed for that purpose and as it had not been permanently altered. There is clearly a difference between a panel van and a motorhome or camper (called Motor Caravan by DVLA) as this extract from a DVLA letter sets out.

Mr Mustard advised the owner, let us call him Tristan (a popular name in Cornwall) to fight on as he was sure he would prevail in the end.

Time passed and the Notice to Owner didn't arrive. There is a 6 month time limit to serve it (where the driver and the keeper are one and the same person and where the witness statement procedure has not been used) and 10 days after the 6 month time limit a council employee woke up and sent the Notice to Owner out. Mr Mustard wrote the formal representations but Tristan sent them:

'The Notice to Owner has been served after the time specified in Regulation 20(d) The Civil Enforcement of Parking Contraventions (England) General Regulations 2007'

Mr Mustard was amazed when the formal representations were rejected as they were bang on the money.

The first paragraph shows that whoever considered the concise and precise representation thought about something else, whether or not a contravention had occurred.

The second paragraph was just plain wrong in respect of the time limit:

and also in the use of the word 'Appeal' which means an Appeal to an independent adjudicator not what had been made, the formal representations to Cornwall Council, as they correctly described them in the paragraph heading, such sloppy use of terminology.

The council weren't unable to cancel, they were unwilling to, a big difference. Pretending the decision is out of their hands isn't a good look and is legally wrong.

The Notice of Rejection didn't need to offer the discount again and the council must have thought they were on firm ground as they didn't choose to offer it as an inducement to Tristan to save £35 rather than run the risk of losing in front of the independent adjudicator (there was almost zero risk) and paying the full PCN value of £70.

Thus it was that on Thursday last at about 6pm an Appeal proper was started with the Traffic Penalty Tribunal, the home of independent adjudicators outside London, on the following simple grounds:

The very next morning, before 9am, Cornwall Council did a complete U-turn

What we have therefore is a local authority who broke the law by sending out a Notice to Owner when they were no longer entitled to, denied it and then only capitulated when they knew that an expert lawyer was going to consider the argument.

Ther question is why the representations were rejected? It may be that the council employee who considered them was ignorant of the law and didn't bother to read it or it was a cynical rejection hoping that Tristan would give up (fat chance with Mr Mustard in the shadows behind him). Neither explanation is a satisfactory one.

If you know you are correct, or even if you are only fairly sure you are, you can rest assured you will get a hearing from an independent adjudicator which is untainted by any bias caused by the monetary outcome and that when their feet get put to the fire many councils run away.

Yours frugally

Mr Mustard

Barnet Council - sparing with the actuality

 

Mr Mustard deleted this blog post, now restored, thank you to the reader who knows who they are.

The above tribunal decision is a revelation - it shows the Barnet Council parking back office in a terrible light.

It also shows a lack of record keeping in that they allegedly don't know what receipt serial numbers are loaded in the parking meter (they may even be generated by the meter itself which must have an audit trail).

What we are expected to believe, if we follow the distorted logic of the council, is that a motorist parked without paying for their parking at 9:42 guessing that they were going to get a PCN later in the day & they managed to buy an item elsewhere that cost £4.16

which by coincidence is the sum payable to park all day in the car park, as tariff here (and above) and that by a second unbelievable (Mr Mustard chooses the word carefully) coincidence their purchase was from NSL Barnet (but with a Birmingham address) and NSL just so happen to be the provider of traffic wardens, permits and back office services to Barnet Council. Now the Appellant (the motorist in question) is either the cleverest motorist in Barnet in that she manages to buy something of the same value as her parking from the same supplier (who doesn't deal in anything but parking!) or she is telling the truth and Barnet Council are unwilling to face facts which don't suit their argument. Mr Mustard would have put his money on the latter position.

If anyone who regularly parks in Lodge Lane Car Park and pays with a debit or credit card at the meter would care to send an email to mrmustard@zoho.com with a copy of the relevant part of their credit card or bank statement, that would be appreciated in allowing him to add some proof to this blog post.

Yours frugally

Mr Mustard

Mr Mustard - a finite resource

Mr Mustard only has so many free hours and wants to use them on deserving cases and not on helping people who are going to fold their hand at the first hint of difficulty. Mr Musatrd decides at the outset if you stand a good chance with your arguments and sees things through to the end, ignoring the 50% discount which is an inducement to go quietly. That is the way to win and was the case on 114 PCNs out of 130 in the year 2020.

Last year he helped a lady who had zipped up the inside of the traffic on her scooter but that put her in the bus lane, not by much obviously but by enough to be technically in contravention. She had done it four times before the first PCN landed on the mat. Mr Mustard wasn't on the case from the start but the lady ended up with 2 PCNs cancelled and two paid at £65 which was not a bad result as she was on the hook for £520.

Last week she came to Mr Mustard again as her sister had parked whilst dropping her father home. He has a blue badge but he takes it home with him as his daughter drops him off and so whereas the blue badge innoculated her against a PCN whilst on display she has the defence of assisted alighted whilst seeing him home because he needs someone with him for safety. Mr Mustard outlined the options in an email. He was confident that if the blue badge was evidenced either the council or the tribunal would, more likely than not, cancel the PCN.

Having been provided with the relevant addresses and a copy of the blue badge Mr Mustard received another email which said:

She is going to contest it herself as she doesn’t want her husband to know about the PCN! Can you please provide some text we can submit to the council?

Mr Mustard declined to provide the wording of the informal challenge (there are no magic words, anyone could have set out the facts of alighting) as they usually get rejected almost as a matter of course and if the driver would pay up at that point it was a waste of his time, he isn't in the game to give up at the beginning.

Mr Mustard checked the PCN again 5 days later, it has been paid so his guess is that an informal challenge wasn't even made.

So here we have a husband with whom you can't discuss a PCN to which you have a good defence, so let's hope he doesn't mind that £55 has been burnt.

It is the right of any motorist to pay up for a PCN if they so wish, no matter how easily defeated it might be. Mr Mustard has seen PCNs on which he is 99% sure he would win, paid for, but he does recognise he isn't the one who pays if he is wrong.

On the other hand it is the right of Mr Mustard to use his free time and brain power how he decides and he doesn't want to spend time half fighting PCNs. It is all or nothing with Mr Mustard.

Mr Mustard thought it would be useful for the world, well Barnet, to know this.

Yours frugally

Mr Mustard

 

TfL - sign of the times

Mr Mustard doesn't look tribunal decisions other than for Barnet but sometimes he stumbles over ones that are interesting, like this one. 6 December was a Sunday so the days on the sign are relevant.

Why TfL fought the Appeal is unclear as a motorist wouldn't make up a story about sign changes as they are all logged by whoever erects them. Also, they have all been photographed by the google streetview car, and others, and clearly this sign has been changed at some point.

 

Costs are rarely awarded but the adjudicator thought that the high bar had been reached on this occasion.

One can only hope that the effect of a modest costs order will make TfL more particular about facts in future.

Yours frugally

Mr Mustard

 

Hackney automation breaches the law

Everyone knows that councils automate as much of the back office PCN management process as they can. The relevant laws however, usually only that they 'may' take certain steps, they are not obliged to take them as in this section of the moving traffic legislation, the snappily titled London Local Authorities and Transport for London Act 2003.

Hackney Council came unstuck on their use of automation, which means that ahd pre-decided they were going to issue a charge certificate before they were entitled to think about one, when they forgot to turn off the automatic process after an Appeal had been made, an action which freezes things until 28 days after the Appeal has been decided.

It is worth closely checking through the evidence pack you are sent on Appeal, even if you don't get a charge certificate in error, to see if the system has been set to automatically send you one on a future date (look for a case history, if there is one). The tribunal case to quote in support of your Appeal if that does turn out to be the case is 2210111508. It is not a precedent but could just be a useful get out of jail free card if you are otherwise not going to win.

You can find the original decision in the tribunal register, here.

Yours frugally

Mr Mustard

Harrow Council - misdirectionists

 

A blog post in which Mr Mustard explains how Harrow Council tried to unlawfully get a law abiding motorist to pay £110 which wasn't due and Mr Mustard foiled their devious plot.

It is the school run. There are three children involved, two go to the same school and the third is below school, or even nursery, age.

Mr Mustard wrote the formal representations (a repeat of the informal ones) and disclosed that he was the representative, which fact alone should be enough to make sure proper consideration is given to carefully crafted and precisely targeted representations (or perhaps Mr Mustard should stop polishing his ego?)

Short and clear you would think?

The council rejection:

'Carefully' - definitely not.

Single yellow lines do mean no parking (technically no waiting) except to load/unload or, and the council forgot to mention this exemption, to board or alight. Mr Mustard had already obtained a copy of the Traffic Management Order for the place in question and read the boarding/alighting exemption within it.

The restricted hours were actually Mondays to Saturdays so you can see how sharp Harrow are on detail, as sharp as a beach ball.

No argument was made about signage so why state it is legal? Padding to make them look correct.

An alternative legal place was sought and parked in.

The photo didn't help at all except to show Harrow's incompetence.

Councils are fond of quoting the Highway Code to back themselves up. Here they go on about permits which are irrelevant. Mitigation wasn't argued, that is for when you have parked wrongly, the circumstances amounted to an exemption. The council are easily satisfied in their own favour. The formal Notice of Rejection opened the door to the tribunal so off Mr Mustard went.

Grounds of Appeal to the independent adjudicator.

The council chose to fight the Appeal. Here are some extracts from their case summary.

Once he has received the evidence pack Mr Mustard prepares a skeleton argument, summarising all that has gone before, so that the adjudicator can learn the motorist's case from one document. Here it is:

It isn't very often that the council put the wrong TMO (traffic management order) into evidence but as they have to prove their case first they were always going to be in trouble. Mr Mustard had obtained it at an early stage in order to check what the wording of the boarding/alighting exemption was.

Mr Mustard has only just noticed that the High Court decision on which he relied (which is a precedent as opposed to previous decisions of adjudicators which are only legally persuasive) and which Harrow Council rather naively suggested was irrelevant (no adjudicator is going to be taken in by such a thought as he/she is a lawyer) even though it is a key case listed on the tribunal website, was wrongly stated as being the case of Mazda, not Makda, thus demonstrating a complete lack of knowledge. In addition they showed that they hadn't read the decision because the adjudicator didn't (at that time) rule that a taxi driver could leave their vehicle unattended, they did the opposite and saw their decision overturned by a judge in a higher Court.

Mr Mustard's cases are usually listed at 2pm on a Wednesday so the adjudicator has their lunch break in which, if they feel so inclined, they can read Mr Mustard's submissions before phoning him (once we go back to in person hearings the adjudicator can read for a few minutes whilst Mr Mustard is in the waiting room and start the hearing a few minutes later than scheduled). This saves time. The adjudicator didn't have time on the particular day and so came to the case cold at 2pm when he phoned Mr Mustard. Six minutes was all it took for Mr Mustard to outline his case and for the adjudicator to check the supporting documents (he knows the decision in Makda without looking at it) and then cancel the PCN. He then wrote a short decision.

The adjudicator mentioned two grounds on which he cancelled the PCN, he didn't need the third one, that the TMO was no longer in force and the replacement was not in the council's evidence so they had not proved their right to issue a PCN. Stating two grounds should stop the council asking for a review of the decision (rarely granted in any event).

What can you learn from this decision?

- That there is a need to persevere through three rounds of the fight if you want to win.

- You need to do your research about the law and stick with it if you believe you are correct and that what the council say to the contrary may be obfuscatory and/or untrue.

- The independent adjudicator truly is independent.

- Councils often make errors which you should exploit (they exploit your parking errors in order to make money).

- The process took almost 5 months so you need to be patient.

- Having proof of your facts (like the email from the school) helps the adjudicator find in your favour.

- The council can lose based upon their behaviour, not properly considering the representations, rather than upon the facts of the parking. Mr Mustard hadn't expressly argued 'procedural impropriety' but had alluded to it.

Mr Mustard would love to see more people stand up and be counted.

Yours frugally

Mr Mustard

Legally correct but morally dubious

Another recent tribunal case, Mr Mustard suspects, in which most people will regard the issuance of a PCN as unkind and mere revenue raising. Full marks to the motorist for taking up their right of Appeal to an independent adjudicator but unfortunately their hands were tied by the law.

Do not blame the adjudicator, they have to apply the law even though they may have been unhappy to do so. The council could have chosen to cancel but made a deliberate decision not to. Discretion is entirely in their hands.

Mr Mustard wonders if there was a bus stop closed sign that the motorist should have taken a photograph of in support of their case at the time. Not a bad idea to take photos when you get a PCN of things which might be relevant. Digital photos don't cost anything so be snap happy.

Mr Mustard couldn't remember why the road was closed so did a search and then the event came back to mind, the terrible burst water main, as reported here in the local paper

Burst water main in North Finchley

The motorist did no harm and was in fact trying to do good, the council make that less likely in the future.

If you don't like the manner of a traffic warden ('civil' enforcement officer, or perhaps uncivil in this case) then what you should do, separately from the challenge to the PCN, is to write a complaint. Don't lower yourself to their level and use intemperate language on the street because it is only once sufficient people write in with complaints about conduct that traffic wardens will be told to behave properly with courtesy and respect to the public (Mr Mustard may have his rose tinted future looking spectacles on here but there is nothing wrong with hoping for the better). Most of the traffic wardens in Barnet are OK but there are a few whom Mr Mustard thinks need some training in their public manner.

Yours frugally

Mr Mustard