Islington - not everything was as it first appeared.

 

One of Mr Mustard's regulars is a heating engineer. Despite being from Enfield, and also notwithstanding the extra £10 per hour or part thereof, Harry (not his real name) is still prepared to drive up his diesel van up to Islington. Naturally he asks his customer to arrange parking rights if they are willing (they may be a tenant so they may not have an account or may not think it is their responsibility) and if they can't he then pays to park. This can take a few minutes and in that time a traffic warden inevitably arrives.

In this case the PCN didn't make it off Harry's dashboard, a veritable paperwork graveyard, in time to challenge with the discount still intact. In such a situation Mr Mustard fights to the end even if he thinks he doesn't have a prayer. Mr Mustard would need to be frivolous, vexatious or wholly unreasonable in order to have costs awarded against him. They are rarely awarded and in this case the PCN had a wording error in that the 28 days quoted should refer to the date of the alleged contravention and not the date of service which was an argument that held sway at first and then adjudicators changed their minds.

Once the Notice to Owner dated 22 January 24 arrived Mr Mustard made the formal representations (as they are known, it is simply a challenge made at the correct time). His representation was the sign and the traffic order differed. He relied on a decision he had himself obtained against Barnet Council, that the traffic order did contain a tariff for the location in question.

 

Needless to say, Islington Council rejected the contention.

It is irrelevant whether or not the decision relied on was for the same road or a different one or whether it is for Islington Council or another one. It is the case that tribunal decisions are not precedents as they are 'legally persuasive'. What they means is that the council should look at the factual matrix of the decision and compare it to the facts in their case and decide the extent to which they are on 'all fours'. The failure to do so was, in Mr Mustard's opinion a procedural impropriety i.e. a failure to consider the representations which is a statutory duty. Mr Mustard often wins on procedural error.

 

The error which Islington made was to not offer the discount as at this stage Mr Mustard had quite a weak hand but there was nothing to lose by bluffing it out. Not offering the discount at this stage when it isn't obligatory is a growing trend that Mr Mustard has noticed.

Mr Mustard duly started an Appeal at London Tribunals. That is free for the motorist but costs the council the thick end of £30. Only 1% of PCNs end up at the tribunal. Mr Mustard would like to see that percentage rise radically.

Mr Mustard doesn't mince his words at Appeal.

Mr Chan is now the Chief Adjudicator so you would expect his decisions to be given careful consideration by other adjudicators.

The Appeal was started on 26 February with an in-person hearing date of 28 March. Islington served the Evidence Pack, which contains the arguments of both sides, on 19 March.

There was more nonsense in the council's case summary:

The next paragraph in the Case Summary piqued the interest of Mr Mustard

What this means is that in Islington if you pay for location 61095 and you should have paid for 61059 but they are both within zone A then you are not in breach of the requirement to pay. People often pay for the next bay along or the one opposite and in Islington 99% of the time that will be OK.

At this point a curve ball arrived. Mr Mustard asked Harry for his payment records for the day in question. They disclosed that on the day in question Harry had paid for parking in Hardwick Street (and as it happens for the correct bay number) and it has expired at 10:32 am. He had paid for a mere 10 minutes of parking but that gives you 20 minutes as thanks to the Right Honourable Eric Pickles MP as he was at the time (now Lord Pickles) a payment of 10 minutes leads to an extra period of 10 minutes when a PCN cannot be issued.

If you look back to the start of the blog the PCN was issued at 14:05. The PCN was for not paying. The actual contravention which had occurred was staying beyond paid for time. Mr Mustard had a little laugh to himself, he had been on the high wire and he was saved, the traffic warden had blundered. Mr Mustard wonders if the hand held equipment of the traffic warden simply does not show expired payments? The evidence pack suggested that the traffic warden only checked for payments from 1:29 when he first observed the van.

Mr Mustard filed a preliminary argument on 22 March. Adjudicators probably quite like these as if they are correct they can ignore everything on the file and Allow the Appeal, thus cancelling the PCN, without having to study the typical 100 pages of evidence.

Islington Council saw the writing was on the wall and took the very rare decision, after they had done all of the work to produce the Evidence Pack of cancelling the PCN which thus vacated the hearing.

Mr Mustard learnt a lot from this case.

The end.

Case summary confusion

As part of the evidence pack which enforcement authorities have to submit to London Tribunals at least 3 clear days in advance of the hearing, is a case summary which is meant to give the adjudicator an overview of the case, address all the issues raised, summarise the council's case, make submissions & comment on the representations made by the Appellant. 

It should, of course, be even-handed as it is the duty of the council to assist the tribunal, not to mislead.

Mr Mustard finds Barnet Council's case summaries to be verbose, inaccurate and partial.

Looking at the extract above, for a case coming up next week, the first thing to note is the council have failed to check it before submission. They comment both upon fact that the appellant (the registered keeper of the car & the driver in this instance) was collecting their child from their school (and there isn't a school in the road in question) and that they were dropping off elderly relatives. Both statements are not true, the second one is.

The council omit the part of the TMO (Traffic Management Order) which allows 2 minutes for anyone to be collected or dropped off. One of the passengers being dropped off is a blue badge holder so by (current) definition has mobility problems, or is blind. For such passengers there isn't a 2 minute limit.

The council apply a ridiculous and unsafe rule for boarding and alighting of children, that you cannot leave the vehicle unattended. There are keep clear zig zag markings outside most schools so you can't get that near especially with the parental competition for space at drop off and pick-up times. At what age is it safe to sit in your car whilst your child exits the school gates and comes to find you, when they don't know if they should go left or right or across the road? Mr Mustard isn't a parent so asked one and the answer was not until year 6, when the child will most likely be 11.

It doesn't matter how credible the council think the traffic warden (CEO) is. What matters is what the adjudicator thinks, as one told them a long time ago, as it is their job to weight up the evidence in an Appeal, not the council's.

There wasn't any catering going on, as the council suggest.

The second observation time is before the initial observation time!

This is an example of how you need to read the evidence pack slowly & carefully and point out the flaws in the council's case, which even if not fatal to it, may undermine it enough for you to get the benefit of the doubt when the adjudicator would otherwise be unsure of what decision to make.

Mr Mustard doesn't mind that Barnet Council write utter tripe so often, it helps him to win.

Yours frugally

Mr Mustard

Incredible (but true - only the fact of writing it)

The City Hall of Truth or Consequences, New Mexico

Mr Mustard has read numerous Case Summaries in Evidence Packs sent to PATAS and copied to the people who are appealing their parking tickets. They often contain the phrase "The Civil Enforcement Officer is a credible witness" which usually gets a hollow laugh from Mr Mustard who has found some cheating by CEOs in his time. Everything written in the case summary must be borne out by actual supporting evidence and it would be quite difficult to prove a CEO was credible without him or her turning up at PATAS and proving it, which never happens. It is a waste of ink to write it.

Unfortunately for Barnet Council, NSL, who write these works of fiction Case Summaries went one further recently when they made the unsubstantiated suggestion that the motorist was not to be believed, which is more or less the same as saying he is a liar. Unfortunately, and rather stupidly, they chose to try this new line out on a man of the cloth with disastrous consequences. Here is what the PATAS adjudicator, Mamta Parekh said (Mr Mustard has not had the pleasure of appearing in front of this adjudicator and looks forward to it happening one day):

Rabbi L. attended the personal hearing listed for today. I found him to be a very honest and credible witness.

He said that it was a very dark and rainy night and he and his passengers parked in Brent Street where he was aware that there were no restrictions on a Saturday evening. He stated that he had not noticed any suspension signs but had nevertheless been willing to pay at the discounted rate, but was unable to do so as he had not received the original penalty charge notice. It must have blown / been washed away in the heavy downpour which may not have happened had the CEO placed the same under the windscreen (wiper?)

He was therefore very aggrieved at the manner in which the local authority failed to take into account his representations and the insulting tone of their correspondence, and which I will refer to further below.

I accept the appellant's evidence that he had not received the original penalty charge notice and that it must have somehow become removed from the vehicle. However this would not affect the appellant's liability for the penalty charge if found to be validly issued.

I have considered the evidence carefully. I am not satisfied that the suspension sign was adequate. It would appear that the contents of the suspension sign were written in pen which writing also appears to have washed away in the rain so that the contents are no longer legible. I am therefore not satisfied that the contravention did occur and allow this appeal.

I would add that I am somewhat shocked at the local authority's correspondence where they say that the appellant is not a credible witness without any foundation whatsoever to make such a comment, and which has caused considerable offense (sic) to the appellant who is a Minister of Religion. The Adjudicator has the opportunity to hear live evidence upon which to make judgments as to credibility. It is not for the local authority to make such comments and I do not expect to see such language or conduct from the local authority again.

This is a sign of desperation creeping in. Barnet Council (NSL) are obliged to consider your representations fully & fairly, with an open mind, even handedly and without thinking about the money they won't collect if they cancel. Instead they write letters which are designed to put you off from appealing.

Let's hope that the above Barnet Council / NSL letter was indeed a one-off. If however you, dear reader, have such a letter then Mr Mustard would be pleased to see it and to assist you with your appeal to PATAS and he would suggest that we specifically ask for the case to be listed in front of the same adjudicator. Won't that be fun apart from the fact that you have been called a liar and a cheat. Together, we can make the council eat their words and some humble pie.

That washed away suspension sign argument might be one you could use as well, if it happens to you.

Yours frugally

Mr Mustard