5 May 2021

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

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