TfL - South of the River - no chance

A friend of Mr Mustard's received a PCN in the post. Let us call her Miss A. Here it is, suitably redacted.

Where is Borough Road? Not far from Elephant and Castle, clearly south of the river. Miss A was confused, she knew she had been a bit lost but she never crossed The Thames being on her way to the Barbican and not having realised that the congestion charge now applied from 7am to 10pm every day except Christmas Day. Now she may have been guilty of straying into the congestion charge zone in north London but that isn't the alleged contravention so Mr Mustard assured her that, in the end, she wouldn't have to pay and not to drive into town again without paying the charge first (she was taking a friend with poor mobility with her so needed the car).

After a little research Mr Mustard found this tribunal decision for Borough Road from August 2019 and it wasn't the only time the location had been queried:

Mr Mustard made the formal representations to the effect that the car never went south of the river that day hence the contravention, as alleged, didn't occur.

He also noticed this legend at the top of a photograph

so here we have a camera that isn't fixed but can be moved about, all it needs is for someone to update the camera database as to the location.

Instead of either accepting or rejecting the representations, TFL sent a letter, to assist them i.e. to hinder you!
 

Mr Mustard wasn't born yesterday and certainly wasn't going to have Miss A file a false affidavit that she was not within the zone at the time, although she didn't know where she was at that precise minute, the vehicle wasn't cloned and he didn't have proof that the vehicle was at a different location so he sent the following, there being no legal obligation to reply at all, an inconvenient fact that TfL forgot to mention:

Needless to say a Notice of Rejection duly followed and here are some snippets from it:

What sort of witness statement is a person meant to provide except one that they wrote and signed themselves? Mr Mustard doesn't understand what TfL are saying here and merely notes that it would bother a member of the public who might think they have done something wrong and pay up.

TfL made the untrue statement that the photograph is in the Borough Road, they clearly didn't compare street view images to their own ones. The cctv probably also includes latitude (TfL don't give you any latitude) and longitude.

TfL confirm their own evidential record is accurate when Mr Mustard knows full well that it isn't. People believe what enforcement authorities write to them about PCNs, it should be the truth, not clearly false.

TfL write far too much, most of which is irrelevant to the very simple representations. This would put most people off, Mr Mustard isn't most people. Amazing that they researched the optimum number and best locations for cameras but don't know where this one is! In addition, they claim the representation was about 'mitigating factors' which is not correct, it was a head on challenge to the facts i.e. the alleged contravention did not occur. TfL also claim to have fully considered all the circumstances - poppycock.

Mr Mustard started an Appeal to an independent adjudicator at London Tribunals (Road User Charging Adjudicators), he didn't hold back:

The 2001 regulations require that a PCN contains, inter alia, the following:

Which must include a statement of where, given the size of the zone, the alleged contravention took place.

TfL made the allegation that the car was in Borough Road.

When the location was challenged, rather than prove it, TfL required the Appellant to disprove it, which is rather to put the cart before the horse. Miss A doesn’t know where her car was at HH:mm except that it was somewhere in North London. She may well, in which case, have strayed into the zone but she doesn’t have to incriminate herself even if she knew where she was at the precise time of the allegation.

It is unhelpful of TfL to fail to make the cctv available, unlike pretty much all enforcement authorities in London, until the tribunal stage. Had the cctv been available I might have been able to work out the location but from the rather poor still photographs it simply isn’t possible.

It is wrong of TfL to refuse to accept a ‘self-signed statement’ as a witness statement. I have no idea what they find unacceptable given that the witness statement contained a statement of truth and written falsehoods are liable to liable to prosecution and a fine of up to £5,000 (I think TfL’s PCN is wrong on page 4 where it says, in terms, that a fine upon conviction will be £5,000 not up to £5,000 which seems more likely. That is to put unfair pressure on the signatory.)

TfL state that their camera did correctly capture the vehicle in Borough Rd. I note that the photos are headed with ‘LEZ Transportable CAM T794’ and what I surmise has happened to this transportable camera is that it was transported to another location and no-one updated the camera location database. This hypothesis is supported by the decisions 9190468543 and 9200039172 in both of which the vehicle was found not to have been in Borough Road. TfL’s system is clearly not reliable.

I question the legality of TfL’s whole approach in this case. The Regulations require that they consider representations (Regulation 13) and serve notice of acceptance or otherwise, there is no legislated right to engage the accused in correspondence and then dismiss it on grounds that were not advanced i.e. at no point was the question of cloning raised as all along it was thought that this was a camera location error.

The council are put to strict proof of the physical location of their camera on the date and at the time in question (which should be easy for them given they claim to have thoroughly researched the potential locations).

The Notice of Rejection is unfairly long for an Appellant acting without a representative. It contains many probably standard paragraphs of no relevance to the advanced representations. TfL claim their evidential Record is accurate but have not produced correlating photographs of Borough Road to show that.

The Notice of Rejection is also confusing in that in one paragraph it says ‘You should now make payment’ and in the next ‘If you wish to Appeal’ without making it clear that they are options.

TfL fetter their discretion and over-state their powers when they say they will apply to the County Court to recover the charges. TfL should follow the wording in Regulation 18 which means they should say they ‘may, if a county court so orders, recover the increased charge...’. Their approach is a bullying one, unbecoming of an enforcement authority.

At the same time Mr Mustard made a freedom of Information request as to the location of camera T794 on 15 October. Just within the 28 days he got his response.

An honest response 'There is a system error' although they mean human error. The request didn't say the request was anything to do with a PCN, although it was unlikely to be about anything else, and it isn't the role of the FOI department to second guess requests and suggest that you contact customer services because there is a statutory process which must be followed and if you don't you can become liable to the charge by default. Mr Mustard din't do anything except have a little chuckle.

'As soon as we can' in TfL parlance means 'over a year' based upon the other tribunal decision set out above.

Mr Mustard didn't need to do anything as the day after the FOI response was sent TfL threw in the towel at the tribunal and cancelled the PCN. 

Mr Mustard's advice to all motorists is if you think that an enforcement authority are wrong put everything they say through a stress test, do research on the internet, read everything you can on the subject, look at previous cases on the tribunal and take them all the way to the end of the statutory process. The worst that can happen is you lose the 50% discount and the best is of course that you have nothing to pay. You will also learn a lot which can only be a good thing.

Yours frugally

Mr Mustard

Update: 16 January 2021

Mr Mustard received a letter (addressed to Miss A but at his address) from TfL confirming they had filed a DNC (Do Not Contest form). Here it is:

This was sent the day after the Freedom of Information response.

Enforcmenet authorities somehow find it so hard to simply say that they got it wrong and apologise for the trouble they have caused.

When Mr Mustard started the Appeal on behalf of Miss A he did not provide any 'additional evidence' so that is factually wrong.

They do have discretion to cancel but that isn't the reason they cancelled in this case, it was because they were bound to lose.

The address which TfL have noted is the 'proper address' which one is entitled to specify for the service of any notice or other document required or authorised to be sent to a party to an appeal, it isn't 'their address'. The alternative address is a simple correspondence address for that purpose alone and has nothing at all to do with the address where the car is registered with DVLA which should be the address at which the car is usually kept. TfL have therefore misunderstood the law and are poking their oar into an area which isn't within their responsibility or authority. The implication that there will be future PCNs just shows you how they think. The adjudicator doesn't give a hoot about the thinking of TfL as an adjudicator isn't going to look at the file, the proper officer will rubber stamp the file as closed on behalf of the chief adjudicator.