21 August 2019

ULEZ - were TfL frit?

Mr Mustard is going to tell you a story. He was asked to take over fighting a PCN at the tribunal Appeal stage. He said yes, but let's start at the beginning.

Let us call the motorist Mr H. He entered the ULEZ area at 9 of an evening so the congestion zone was not in force at that time. He knew nothing of the ULEZ as he is a member of a religious minority which does not expose itself to mass media and he did not see a ULEZ sign as he said in his representations against the PCN. He pointed out to TfL that Dart Charge let you off your first contravention if you ask them (usually) as long as you pay for the crossing itself and asked to be allowed to do the same for the ULEZ. He could not, of course, use that argument again in the future.

The whole point of these schemes is to obtain compliance but enforcement authorities appear to run them instead to maximise revenue.

Despite the short nature of the representations, TFL's Notice of Rejection ran into 3 dense pages of explanation about the setting up of the scheme, consultations, publicity, signs and so on. Ultimately, TfL rejected the representations which admitted to not paying to enter the zone because Mr H hadn't paid to enter the zone, a somewhat circular reason. There was no attempt to consider cancelling the PCN because this was a first contravention or due to not having seen any advertisements about it. Nor did TfL point out where the missed sign or signs where.

Mr H was unhappy so he put the whole £160 penalty at risk and make his own Appeal to the tribunal. The grounds were technical ones, that the Notice of Rejection threatened to send him a Charge Certificate before TfL were legally entitled to do so. At that point TfL did not know Mr Mustard was waiting in the wings. TfL decided to contest the Appeal and produced the evidence pack which had the usual 70 pages. TfL only wanted 50% (£80) if they won. They sometimes do this when you get your Appeal in to the tribunal within 14 days of their Notice of Rejection being issued. It is a simple decision therefore to go to the tribunal as there is nothing to lose.

At this point Mr Mustard went on file at the tribunal as an authorised representative and filed a skeleton argument a few days before the hearing date. As TfL rather unhelpfully don't allow on line Appeals to be made to the tribunal, and don't give out an email address, their copy of the skeleton argument had to be posted to them, so they would only have got it 2 days before the hearing, which doesn't give them a fair crack at defending themselves.

At the scheduled tribunal hearing the Adjudicator had clearly read the papers before Mr Mustard had entered the room and said that he wanted to adjourn the hearing for 28 days to give TfL an opportunity to respond to the important points which had only just been raised. Mr Mustard agreed as he wanted the points decided upon as they were substantive issues. The Adjudicator duly wrote to TfL seeking their detailed response.

This was the skeleton argument which Mr Mustard had filed:

Early threat of a charge certificate.*

Whilst TfL refer to this ground of Appeal in the case summary (and 8 pages is not a summary and is unfair on Appellants who represent themselves) they do not dispute it.

Accordingly the demand exceeded that applicable in the circumstances of the case.

The Notice of Rejection did not comply with Reg 17(2)(a). It is ultra vires. (Reg 15(1) is also applicable so add that in. Best have a good read!)

Mitigation not properly considered

The Appellant's case was very simple. His religious observance meant he did not know of the new ULEZ scheme. The Notice of Rejection goes on for 3 pages (which is procedurally unfair and likely to put many people off the idea of Appealing to the tribunal as they are effectively browbeaten by the volume) and doesn't really get to grips with the actual representation. TfL said 'because the daily charge has not been purchased. It is clear the PCN had been correctly issued'. Using against the motorist the facts which had been admitted cannot be said to be considering the mitigation. The nub of the representation was that the ULEZ scheme had not been heard of and nor had a sign been observed en route. The Notice of Rejection should have said why TfL were not prepared to exercise their discretion (they would only have to do this once as Dart Charge do as it happens and future compliance should be more important than raising revenue) and provided evidence of the sign that was passed. Neither of these things were in the Notice of Rejection.

I do not think that, based upon what they have written, which was all about the preparations for and implementation of the charging scheme, TfL can be said to have adequately considered the representations in line with Reg 13(6) (RUC Regs 2001**).

No evidence a sign was passed.

The representations denied that a sign was passed. No proof has been adduced of the sign or signs in place at the point of entry to the charging zone. Baker Street is a long road. A more informative description is essential to adequately describe the contravention. (Such a description does arrive in the case summary, the junction with Paddington St)

Sign is compliant but not adequate.

It is all very well putting up compliant signs but are they adequate? To a person who has never heard of the ULEZ coming across 'sign A' whilst driving along and at the point of entering the zone, has seconds in which to decide what classes of vehicle are affected and whether or not their particular vehicle is likely to be affected. Given the complete lack of information on the sign I do not think that the individual motorist is given adequate information as they aren't given any except that they are at the edge of the zone. They are not told the classes of vehicle which are affected nor the emissions levels which a vehicle must meet.

Mr Mustard went on holiday for 2 weeks. Whilst he was away, and a mere 6 days after the adjudicator had asked TfL to provide their detailed response, TfL instead decided to exercise their discretion and no longer wished to contest the Appeal. Now why didn't they do that when Mr H wrote to them or when Mr H filed their Appeal?

Have they taken fright or has Mr Mustard hit the bulls eye with one of this arguments? We'll never know except that we might. If you have a Notice of Rejection for a ULEZ PCN or if you have already started an Appeal at London Tribunals you might want to borrow one or more of Mr Mustard's arguments. (Mr Mustard expects that the Notice of Rejection will have been recently corrected, since the start of August).

*Expanding on the first argument, the PCN said this:

The Notice of Rejection said this:

and thus the Notice of Rejection demanded payment before it was legally due, because the date of service of the Notice of Rejection is usually 2 days after the date of the Notice and as the Notice of Rejection did not offer what the PCN offered nor what the legislation demands (the time periods for paying or Appealing the Notice of Rejection being the same 28 days after service).

Good luck.

Yours frugally

Mr Mustard

This story, received via the twitter account of the ABD (@TheABD) shows you how little known the ULEZ is. Close to 130,000 PCNs in 3 months. £10,400,000 to shore up TFL's budget and ultra low emissions within the zone clearly not achieved.

** The Road User Charging (Enforcement and Adjudication) (London) Regulations 2001.