Hackney Council bullying

 

The PCN was issued in a simple situation. A 3 year old was being alighted to the adjacent nursery i.e. within the same street.

 

This is the third PCN in respect of the same child/car. All three PCNs have been cancelled, this time in 3 days.

 

An apology is more appropriate than the bullying content of the Notice of Acceptance. The PCN starts badly because there is zero observation time so any argument about alighting gives Hackney Council a problem. The challenge also included a copy of the nursery childcare contract.

 

Yellow stripes on the kerb do not mean no parking (which should read no waiting in any event although they are sort of the same) as the law about signs clearly states they mean 'no loading/unloading':

Rule 247 of the Highway Code explains this is an easier to find form, councils are fond of spouting from the Highway Code, Hackney Council staff need to actually read and understand it.

In 'claryfing the rules' the writer introduces irrelevant information about the elderly and disabled. The law does not say the driver must stay with the car, the High Court decided differently in the case of Makda in which a cab driver had to go looking for his passenger who it turned out was not to be found and whose PCN was cancelled by the Court.

Please don't start sentences with 'And', it makes you look like an illiterate, which you are. (I do make grammatical errors but not that one!)

Whether or not the PCN was 'correctly issued' which it was on the face of it, as soon as the facts are accepted that establish that the PCN was not warranted, in the event & unknown to the CEO (traffic warden), then it was no longer correctly issued and in any event whether it was thought to be correct at the time and date in question became irrelevant. This is the council self-justifying the actions of their CEO against whom the only complaint is that he/she should have waited 2-5 minutes in a street where there is a nursery and when the time is between 9am and 10am at which hour it is likely that children are being dropped off for the day.

The simple reasoning for cancelling the PCNs are that the evidence was overwhelming and that Mr Mustard is acting. Hackney Council know from his long history that Mr Mustard will also make formal representations against the Notice to Owner once issued and if those representations are rejected he will start a tribunal Appeal. That Appeal will cost Hackney Council c.£30 which they will never see again and 99.9% of well documented Appeals like this one will be won.

Adjudicators decisions don't set a Precedent (with a capital P, as in a legal precedent) so council decisions certainly don't, but councils should be consistent. All documented cases of dropping off at a time when the nursery is opening (or picking up at closing time) should lead to a cancellation.

When Hackney Council write of 'future contraventions of this nature' they can't be referring to this case as THERE WASN'T A CONTRAVENTION. Please excuse my shouty behaviour. The staff who write letters about PCNs really need to get one thing straight about a PCN, it refers to an 'alleged' contravention, by law, as in this case:

The end, until next week when yet another PCN gets issued, probably.

PCN Cameras - my observations

Cameras are (almost) everywhere you look and are used to send out over 3,000,000 PCNs in London each year.

Given that the stated aim, as stated by the Secretary of State, of parking (and presumably traffic) enforcement is this:

then one might think that the location and purpose of every traffic camera should be publicised widely.

There are some that Mr Mustard knows about:

 You can look at a sample video it took here

 

You can look at a sample video it took here

Video

42 Bow Road

Video

Video

 Video

 Video

 Video

What Mr Mustard has witnessed from TfL is a reluctance to let the public see real detail about the cameras they use. There have been PCN Appeals which have cast doubt upon the certification or approval of various cameras and TfL's approach to this is to try and avoid providing any details of the actual camera used as part of a certified system and there is therefore no way of knowing if they are using the actual equipment which has been certified as a whole with the individual detail hidden away in a technical construction file.

If they, or other enforcement authorities, aren't doing anything wrong they shouldn't be worried about the public seeing that.

Trying to hide the locations of cameras is a bit silly, stand on the street corner, look up and there they are.

Whilst we are here, please stop vandalising cameras, it is a pure waste of money.

Parking use standard letters

This is funny. When a PCN goes to the independent adjudicator, based at London Tribunals, the council in question have to produce certain documents which include a copy of the Notice of Rejection which refused the representation made in response to the Notice to Owner. Technically the Appeal is against the Notice of Rejection but naturally also against the alleged contravention itself.

 

In a case due to be the subject of an in-person hearing next week (Mr Mustard likes to eyeball the adjudicators and it is the most effective forum rather than by telephone or cases decided upon the papers alone) Newham Council have, in error, and amusingly, exhibited the template from which the Notice of Rejection is produced. There will be similar templates for most situations. The failure to produce a true copy of the Notice of Rejection should lead to cancellation for that reason alone.

The dates, times and alleged contravention are all inserted automatically. The template includes a reference to mitigation which was not pleaded. That is a giveaway that a template was used even without this proof.

What is interesting to note is that the discount is always offered again (unless there is a second template for rejecting at 100% which seems possible).

The paragraph about not paying and appealing at the same time is not legally correct. The Appeal will always be against 100% of the PCN. If you pay and file an Appeal, perhaps to be heard on the papers because you are going on a round the world cruise and so wouldn't want to miss the payment date, the Adjudicator will automatically order a refund if you win. What you can't do is make an Appeal and pay 50% in full settlement. Having your cake and eating it isn't allowed.

The unique appeal verification code isn't actually unique, it identifies a date and a type of PCN. Lots of people get sent the same code on the same day. If you lose your code you can get help to Appeal on line here. You can also start an Appeal by letter without needing a code.

Councils love to frighten motorists. When they write about an extra fee for registering the PCN as a debt at the County Court (which doesn't incidentally appear on your credit record) they are hoping you will think it is large. They are referring to the princely sum of £9. Also because of previous bad behaviour by bailiffs their fees are now set by law. £75 for notifying you they have a warrant they will enforce. £235 for any number of home visits. So, not a blank cheque to charge their 'own costs and fees'; only the fees set by law (still best avoided though).

The line 'it will then be too late to appeal further' is designed to put your off from doing anything but pay up. It is unfair. It is technically correct that if you miss a deadline you can be liable by default and that councils may disregard any representations made out of time but if something has gone wrong, such as you were in hospital or in prison for a short while, the council should give what you have to say some thought. The system is not intended to punish the innocent, although it often does.

It is a common error to write back to the council if you don't like what they say and by that means to time yourself out of an Appeal. Don't do it. Just start an Appeal as there is a one in 4 or 5 chance that the council will give up at that stage anyway.

The end.

 

Capita

 

Mr Mustard owns a few shares. Mr Mustard is jolly pleased that he doesn't own any in Capita.

Mr Mustard did think, for a brief period, that once the conglomerate was stripped back to a much simpler corporate structure, running such lovely repeat business as the Red Route, ULEZ and Congestion Charge charging schemes and processing the hundreds of thousands of PCNs  that capita might we worth a punt.

Whilst Capita negotiated themselves a marvellous deal with Barnet Council, which gave them lots of juicy billing for extras, it looks like TfL are better at negotiating.

One thing that Capita have to do is to present the case for the prosecution (so to speak) for TfL when a motorist takes his PCN to Appeal. Mr Mustard bumps into them occasionally and this is a summary sheet of the evidence which TfL (or any other enforcement authority) have to produce for the adjudicator which includes the evidence of both parties.

What takes the most time is section B. TfL have to produce a case summary. One Mr Mustard looked at recently was 3 closely typed pages and another was 14 pages. Naturally these take time.

 

Even getting out the statutory documents, the photographs, the representations which were made, the rejection letters, the traffic order, a marked up map, photographs of the locale, perhaps a video.

 

Mr Mustard doubts that even with the maximum automation, an evidence pack can be produced in less than a couple of hours and maybe four for a complicated case, perhaps also including a transfer of liability from a hire company. They usually run to between 50 and 100 pages.

 

For preparing these, and there about 5,500 TfL PCN appeals a year, TfL pay Capita the princely sum of £16.66 per case. 

If Capita are being similarly lowly paid for other services under this contract, they don't appear to be making money.

Mr Mustard will put his savings into something a bit more blue chip and a lot less risky.

The end (and possibly not far off for Capita?).
 

Barnet Council trip on the kerb

 

The above is a badly parked car which, despite the driver being in attendance and ready to move, was given a PCN for being adjacent to a dropped kerb.

 

What you can probably tell from the council's own photograph is that the kerb isn't dropped.

 

How, therefore, the traffic warden justified issuing a PCN for an alleged contravention of being adjacent to a dropped kerb when there simply isn't one, only they know.

 

The motorist made their own informal challenge saying that the PCN was ridiculous as there isn't a dropped kerb at the location but that, despite being true, cut no ice.

 

Barnet Council's response included that the vehicle was adjacent to a dropped footway and, in a line which surprised Mr Mustard, that 'The CEO has a legal obligation to issue PCNs to any vehicle seen parked in contravention'. That tells you a lot about the thinking which goes on in the parking back office which can be summarised as motorists must be punished.

 

In this case the punishment is not merited.

 

Mr Mustard wrote the formal representations in response to the Notice to Owner. They were very simple and pointed out the lack of a dropped kerb in Heather Gradens NW11 and included an image taken from google street view.

 

That didn't convince Barnet Council either who opined that the image I had provided is not conclusive.

 

Mr Mustard therefore had to pop to the location in question and take photographs. Here is one of them, anyone who can see a dropped kerb here needs their eyes tested.

 

What the council have forgotten is that at the tribunal the council have to prove their case before any argument needs to be presented by the keeper. This will be fun. Mr Mustard has started an Appeal at the tribunal. He expects the towel to be thrown in pretty quickly.

The end (for now).

p.s. Please don't park this close to junctions.

Nonsense from Newham

 

Parking departments don't live in the real world. It isn't the intended function of penalty charge notices to make the life of people with limited mobility any harder. It is as many motorists would say, all about the money.

 

Here we have a case of a good son collecting his dad, who uses a stick, from the mosque on a Tuesday evening towards 8pm. The son parked as near as he could which was on the double yellow lines in Hilda Road just out of picture (which was excluded as it is pixellated for some reason).

 

Whilst he went inside to find his father and then slowly come out to the car due to his use of a walking aid, a PCN was issued with a 2 minute observation. The son made his own challenge, probably expecting it to be accepted (reasonable but optimistic these days) but it wasn't, as follows:

 

The rejection makes it sound like Newham Council only very rarely (exceptional circumstances) cancel a PCN. They are required to have due regard to the statutory guidance of the Secretary of State which includes:

Authorities should take account of the CEO’s actions in issuing the penalty charge but should always give challenges and representations a fresh and impartial consideration.

Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest. Failure to act in accordance with the general principles of public law may lead to a claim for a decision to be judicially reviewed.

Enforcement authorities have a duty not to fetter their discretion, so should ensure that PCNs, NtOs, leaflets and any other advice they give do not mislead the public about what they may consider in the way of representations.

They should approach the exercise of discretion objectively and without regard to any financial interest in the penalty or decisions that may have been taken at an earlier stage in proceedings.

What Newham Council have also forgotten is their own traffic order, which has this section:

The two minute rule doesn't apply as this is a little side road (not in Schedules 5 and 2) and not within the 2 minute limited times.

Therefore the time which is allowed, for a person who uses a stick or a frame or who simply walks slowly without any aids, due to age or infirmity, is as long as it takes. Newham Council have therefore unreasonably rejected a perfectly fair challenge (and also tried to put the motorist off a further challenge by the usual reminder that the discount will be gone at the next stage).

Mr Mustard doesn't much care for the discount expect for one of 100% as he fights to the end and generally knows the parameters an independent adjudicator, who makes decisions without an eye on the income, will apply. They will generally allow at least 5 minutes for assisted boarding. The frailty of a passenger can be demonstrated by a medical report, a photo of them with their stick or frame or a 10 second video of them walking.

Mr Mustard doesn't fear Newham Council. He has fought 38 of their PCNs since 2017 of which 24 went as far as the independent adjudicators. He has lost 2. He isn't about to lose a third case.

To their credit, Newham Council weren't 100% unhelpful, they did add this to their letter:

We only know that father walks with an aid, we don't know whether or not he could make his own application, which would be a more respectful way to write.

The end (for now).

 

Parasites

Mr Mustard is used to perfectly good challenges being rejected. Mr Mustard isn't medically qualified but is an advanced motorist and a human being. The person, Mr Mustard uses the term loosely, who rejected the below motorist's challenge is none of the above (one can't be sure they aren't an IAM or ROSPA member but Mr Mustard doesn't want to be their passenger if the safety of a fitting passenger isn't their first priority.)

Mr Mustard thinks that many people will be absolutely astonished by this rejection. Mr Mustard wasn't as he sees similar rejections all the time and is one reason why he keeps winning at the tribunal as there is an absolute disconnect between common sense, fairness & safety and the relentless drive to fill multi million pound holes in council budgets.

Barnet Council aren't unusual in this respect partly because there is a small handful of unaccountable outsourcing companies who process PCNs, like NSL, as in this case, whose disconnected employees sit in remote back offices (Dingwall in Scotland and Oldham) have probably never visited Barnet and will never be face to face with a motorist and have to be utterly hateful to their face. The concept of public service has been lost.

Councillors are too hands off. Do they speak to parking management to ensure that all challenges are given a fair and impartial consideration without any thought as to the income as the Secretary of State requires? Based on this response, it would seem not.

Get yourself ready for a sudden goodwill (PR based) cancellation, the PCN was correctly issued, blah blah, a one off error by a new officer, blah blah.

Mr Mustard is on the case. The Notice to Owner is awaited and will be robustly challenged.

The end, for now.

 

 

Councils can't afford to be kind

When he gets a fresh PCN Mr Mustard often has to warn people that, more likely than not, the council will not look kindly on the reason why they received the PCN. The council want your money, most of the time, and whilst they have a wide discretion, councils can cancel any PCN for any reason, the adjudicator cannot & must strictly apply the law. Adjudicators can only recommend that a council think again although Mr Mustard has seen them bend the law in order to excuse an error.

Here is a classic example of a situation in which Mr Mustard thinks the public would expect leniency to come into play but he wasn't at all surprised when it didn't. This is a situation which, other things being equal, will only happen the once.

The informal challenge submitted to Lewisham Council:

and the relevant part of their response:

This is a Catch 22 response. There is no evidence that the writer thought about exercising their discretion. Their explanation is that because the contravention happened, which was already conceded by the motorist, the council won't cancel because the contravention happened.

What should happen is that Lewisham Council should consider the mitigation put forward, decide if it has the ring of truth (why would you stay in a hotel in SE13 when you live in SE6?) which it does and then consider whether or not to cancel the PCN. There is no revenue loss to the council which didn't instigate an automatic refund of a payment for which no value was given (once you have a PCN you cannot get another the same day, unless the rules of the bay change, if you don't move).

The rejection letter should explain why discretion is not being exercised, like one of these responses:

a    your proof is not credible

b    we don't think the mitigation is sufficient as you could have paid the night before (if you can, although the driver might have been intending to get up early, buy flowers and attempt a reconciliation)

c    we want your money so won't cancel

d    we are venal and rapacious. (* copyright another PCN expert, Incandescent).

The law assumes that a public body endowed with absolute power will exercise that power in a manner which is fair in all the circumstances. Although this appeal for clemency can be argued both for and against what is apparent from hundreds of PCNs that Mr Mustard has seen is that in many councils heartlessness and ruthlessness are the order of the day (He does have good experiences, he recounted one with Islington Council on twitter last week but he sees far more bad than good).

The problem is that councils are not routinely monitored or inspected for the way they go about the issue and enforcement of PCNs. We need an outside body which referees the whole system and can visit councils and encourage best practice and fairness. There are 7 million PCNs issued in London every year. Councils are out of control in their quest for revenue.

Time to create OffPen.

The end.

Hounslow Community Transport - breaching Human Rights

One always finds lovely cuddly statements on the websites of public facing organisations. Here is part of the HCT's claimed values:

Those values are looking like mere words on a screen today.

Look at this minibus parked outside of a space in the Montague Road, Hounslow car park.

 

What could be behind it, you might wonder? The answer is the car of a member of the public who parked in the dark and didn't see the little fairly well hidden sign.

 

What is to the side of the blue car?

Yes, you guessed it, another minibus .

The blocked in photos were taken at midnight. Mr Bluecar (not his real name) phoned up HCT and asked them for help. They declined and put the phone down. Not a very charitable act in the view of Mr Mustard. Mr Bluecar had to take the bus 6 miles to get home.

HCT don't answer the phone on a Saturday morning so Mr Bluecar didn't know when he might be able to get his car back. He tried his luck late morning and he could drive away. There was however a piece of paper which caught his attention on the windscreen. It wasn't a rude note. Yes, you guessed it:

Mr Mustard has challenged the PCN on the grounds of events beyond the control of the driver.

Mr Mustard has emailed HCT pointing out the relevant part of the Human Rights Act

Mr Mustard rather expects that management will not be as happy to break the law as one of their drivers was.

We'll see. Watch this space.

The end, for now.

Update 21 February. Hounslow Council responded quickly, they have cancelled the PCN. HCT not yet responded.

 

Westminster decide that 4 arguments do not a representation make

This might be a bit of a long read as a lot happened but if you want to know more about processing of a parking PCN it will be useful to you.

We start on 6 September 2023 with a PCN being put on the car in Albemarle St. which has, Mr Mustard finds, associations at different times with Lord Byron and Oscar Wilde

The sign, which the driver only spotted afterwards, was missed because it was within a suspended section and turned away.

After the event, on finding the PCN, the driver thought that the sign was the one above the suspended bay sign, the one we can see the back of. Mr Mustard wouldn't find himself in Westminster in a car but if he did he would be more inquisitive before concluding that a spot of free parking was in order. We were where we were. Although Mr Mustard acts regularly for the company which owns the car the driver decided to make their own challenge on the grounds of inadequate signage which they did on 20 September.

 

The City of Westminster rejected the informal challenge on the same day. Unusual and odd as the letter apologised for the delay in responding. Who said it was a cut and paste job? The letter didn't say why the challenge wasn't accepted just that they wouldn't cancel. This is an unhelpful trend which Mr Mustard has noticed creeping in during 2023.

 

All then went quiet, as the driver wasn't sucked into paying at a discount, as she knew that the company would refer to Mr Mustard who usually finds something which which to attack the ticket. On 6 November the Notice to Owner was issued to the company as the registered keeper. On 10 November Mr Mustard was instructed and he rustled up the formal representations on the same day. He found four strands on which to make representations.

 

 

 

 

 

 

 

A council, or the City in this case, are allowed 56 days for an on street parking PCN in which to serve their Notice of Rejection otherwise they are deemed to have accepted and must serve a Notice of Acceptance and cancel the PCN.

 

Service of a Notice of Rejection at this stage opens the door to the independent tribunal which Mr Mustard attends nearly every week and where he was expecting to win on argument #4 as he has done five times already.

 

Mr Mustard keeps an eye on enforcement authority websites so he can glean if an Acceptance or Rejection has likely been issued.

 

Something unusual happened on 20 December which was day 41 of 56, the City of Westminster wrote to Mr Mustard's client:

Mr Mustard looked at the ticking clock and thought there was the possibility that a Notice of Rejection would not be served (sending isn't enough, it has to arrive) by the 56th day being 4 January 2024.

On 4 January Mr Mustard emailed the City of Westminster as follows:

 

Not long after sending that email Mr Mustard's client, who is also very efficient, sent him a copy of the Charge Certificate which had been issued on 2 January 2024 and was a procedural impropriety as a response to representations was outstanding so the file must be placed on hold.

 

Having raised his query at a senior level the job of responding was given to 'Customer relations' (this isn't going to end well). The sort of response which makes Mr Mustard happy is short, simple and apologetic, something like this:

'Dear Mr Mustard. Thank you for your email. You are quite correct. We have cancelled the Charge Certificate and the PCn and apologise for the inconvenience. Yours etc'.

Here is what he got instead, just the 'good' bits:

Oh yes it does. If there is a procedural impropriety an adjudicator is bound to allow an Appeal by a motorist.

The 'correspondence' that the City of Westminster received was all in the one document with an image of the authority letter inserted into the text of the document which was headed 'Formal representations'.

Apparently in the City of Westminster a fundamental challenge to the legal wording and thus the right to issue a PCN isn't a representation. Nor, it seems, is a challenge that the Contravention did not occur despite that being one of the statutory grounds specified in the legislation. What we can gather from this is that the City of Westminster decided to act as if Mr Mustard had not written a word which put his client into a position where having been deemed to not have made a formal representation within 28 days of receiving the Notice to Owner they became liable for the PCN by default and then saw the penalty illegally increased by 50%.

Clearly, the City of Westminster had forgotten the contents of their own Notice to Owner, viz;

 

 

The non apology continued:

The City of Westminster are in for a shock. Mr Mustard doesn't fight many PCNs against this authority but one of his expert friends does. There are already 6 adjudication decisions made by 3 different adjudicators covering 4 enforcement authorities where this wording has been found to be wrong. 

Here is part of a tribunal decision which went against the London Borough of Hounslow and which you can quote to any other enforcement authority issuing parking PCNs on street (not through the post, they have different rules) when you ask them to cancel your PCN.

When an enforcement authority writes to you telling you that they are right and you are wrong, stop and think what is in it for the enforcement authority, £130 possibly. Look at what happened in the Post Office, innocent people were told they were the only one. The difference here is that Mr Mustard and the band of PCN experts to which he belongs know the difference between right and wrong. Success with a particular argument cannot be guaranteed as the decision above isn't a precedent, it is under the law as it stands legally persuasive and likely to be followed because the adjudicator named above has been deciding the fate of PCNs for more than the 13 years Mr Mustard has been appearing in front of him and the second adjudicator likewise. They are highly experienced qualified lawyers and came to their decisions after careful consideration of all the arguments. It matters not a jot to an adjudicator if they Allow or Refuse an Appeal as there is no financial incentive for them to decide either way, they apply the law without fear or favour.

Mr Mustard's final word for the parking department. Mr Mustard isn't a 'customer' so has no need of 'customer relations'. The City of Westminster have zero respect until they learn to say sorry when they have right royally lashed up.

Pity the motorist acting for themselves as knowledge is power and Mr Mustard knows what should be what. The more you all know, the better.

The end.

 

When 'traffic wardens' meet

A funny story from the tribunal in Saturday's decisions. Here it is in full.

What is clear is that the Hounslow Council traffic warden who issued the PCN did so in a great hurry, as per usual, even though the motorist was in the frame from the very beginning.

Mr Mustard's advice is to calmly drive off in such a case as the notes made will often be deficient or the warden will make a false note as in this case. Mr Mustard has known the notes of the traffic warden to be destroyed by dashcam or doorbell footage.

If a traffic warden cheats you, please make a complaint to the council as otherwise they will continue.

The end.