Persistence pays - all councils, not just Haringey

Mr Mustard was contacted by a motorist who put the health and safety of his father before petty parking considerations. The bay was a pure Event Day one. If the motorist has described the facts in a good manner there is no need for Mr Mustard to rewrite them. On 1 June he made the informal challenge (the one in response to a PCN placed on your car or put in your hand):

 It was 5 July before the challenge was rejected. Here it is:

Mr Mustard expects that you find it hard to believe that there is any real sympathy otherwise the PCN would have been cancelled. The (un)Fitness for Work note confirmed that the patient was not fit for work, suffered seizures and had been referred to hospital for tests. How much more sick do you have to be to get Haringey to exercise their discretion?

Mr Mustard advised the motorist not to pay at the 'bribe' rate of 50% as he was fairly confident that he could beat the PCN on the basis of inadequate signage. Councils offer this discount even when they don't have to (it was required in this case as the challenge was within 14 days of the PCN) as they know that motorists worry about it and that the vast majority of motorists do not have sufficient determination to see things through and may mistakenly think they cannot re-use a challenge which has been rejected. They can and they should for consistency.

On 24 July the Notice to Owner arrived.

Mr Mustard made representations against it, known as formal representations as they are the ones described in statute, and the heading apart, they repeated the earlier challenge and were made on 26 July:

 This time, the same challenge met the opposite outcome, acceptance.

This was done by a different council staff member.

Mr Mustard finds Haringey Council now accept most of his challenges either because there has been a change of management or someone has analysed all of Mr Mustard's cases and discovered that he almost never loses against them.

What the public should learn from this experience is that if you want to get a PCN cancelled, and you have a half decent argument, is that you have to see the fight through. You might also have to start an Appeal at the independent  Environment and Traffic Adjudicators. Decide at the beginning, pay or fight. If the idea is to fight don't be put off by the first council rejection, it is all about the money.

The end.

Havering 0 - Rundle 7 (10)

 

You need to be like Mr Rundle. He will stand up for his rights.

Looking only at the seven recent PCNs which are all related we can see that Havering have the same problem as Redbridge, defaced signs, and behind the shops is the sort of place where that is more likely to occur.

Mr Rundle was potentially on the hook for £420. Given his importance to the health of society isn't it the case that a council should be trying to help him, not penalise him?

The independent adjudicator, who is not affected by the thought of the huge income for the council, made her decisions, of which one is repeated in full here:

The local authority accept that the signs are so bad that they cannot take a photograph which can be read and therefore the motorist is not on notice. It is of no assistance to them that Mr Rundle may have known what the restriction was on a particular date as it could easily have changed the next day and as they were overlooking their legal duty to erect and maintain signs.

When Havering refer to previous cancellations not setting 'precedence' they do of course mean that they do not set a precedent. However, if on occasion one the sign is spray painted and on day two it is still spray painted then the same outcome will apply regardless as due notice has not been given of the restriction.

This adjudication decision is bang on the money.

Instead of harassing this first responder Havering Council should be looking to see what they can do to help him.

The end.

Merton Council - making it up

 

The restriction probably starts at the junction meeting point, where the give way markings are. Thus Mr Mustard would probably have argued that the signs were not adequate due to placement. The motorist had his own ideas and picked up a sign point which Mr Mustard might have missed, the authorised vehicles point, but not the school term times which he is well aware is improper.

The adjudicator gave careful consideration to the Appeals, far more than Merton Council would have done, as the adjudicator is completely impartial and Merton Council were trying to stiff a motorist for £780

These decisions, as are the hearings, are public which is how Mr Mustard can bring them to you. He often looks at multiple penalty cases.

 

If the same flaws are in your case at a different location or in a different council area you can claim the support of these decisions but they are not precedents. Other adjudicators make up their own minds but may be persuaded by the view of another adjudicator.

Don't just pay PCNs, see if you can find something wrong, you will be amazed if you look hard enough how often councils get it wrong.

The end.

Redbridge - Cranbrook Road - PHVs not exempt on red route (black cabs are exempt)

 

The vast majority of Appeals by PHV drivers at this location have been accepted. They only occur of course once the motorist has made representations to Redbridge Council and been rejected, even though the council know that the small percentage of people who Appeal to the tribunal are likely to win. The council don't want anything to get in the way of revenue raising, certainly not fairness.

It is quite rare for red routes in London to be under the control of any authority apart from TfL. This has left PHV drivers in a difficult situation, they don't know when the passenger wants to be dropped on a red route whether or not they will receive a PCN for it.

If you are calling a minicab and are adjacent to a red route please help the driver by going 25m down a side road, where the red route has ended and calling from there.

The original Appeal was lost. It shouldn't have been as the Traffic Order was not in evidence and there doesn't need to be a consideration of exemptions until the enforcement authority has proved its case.

More Review requests are turned down than accepted for a hearing and more of the second hearings are lost than allowed but in this the Chief Adjudicator carried out the Review. He picked up the lack of reasoning and thus this request looks like it came under the 'Interests of Justice' ground.

Having asked Redbridge Council to produce the Traffic Order and not been sent it, it is no surprise that the PCN was cancelled accordingly by the Chief Adjudicator.

If you take a mini-cab in Redbridge please ask your driver to spread the word around his driving mates.

The end (although Cranbrook Road is likely to appear again in the blog).

Hell's Belz in Hackney

The double kerb marks are more prominent now

Mr & Mrs Smith (not their real name) have a young child who goes to nursery in Belz Terrace on Clapton Common. Civil enforcement officers ('traffic wardens') seem to target Belz Terrace at nursery drop off times. Thus it was that a few months ago Mr Smith was driving the family car, registered to Mrs Smith, and during the nursery drop off a PCN was issued. This is fair enough, that a PCN is issued, as it takes a few minutes to walk your child to the nursery, go in and formally hand them over to a member of staff and sign the register, and the traffic warden doesn't know where you are. All they see is a car on double yellows. Perhaps parents should have a small laminated card including the nursery logo to put in the windscreen which says 'Boarding or alighting' just as delivery drivers sometimes have ones that say 'loading'.

What you do expect, or hope for, is that Hackney Council will, when presented with relevant evidence, cancel the PCN without ado if shown adequate evidence.

Mr Mustard challenged the PCN during the 14 day discount period although he wasn't fretting about discount, he would have taken the PCN all the way to the tribunal.

The online representation system didn't offer boarding and alighting but did offer loading and unloading so Mr Mustard chose that as the nearest option and pointed out the lack of choice.

He kept the challenge simple 'The x year old child Jim Smith was being alighted to the Adjacent Nursey. This is an exemption. Please cancel the PCN.' The nursery contract was attached.

Ten days later a rejection was received. The substance follows:

There was nothing careful about Hackney's consideration. No mitigation was advanced so there was none to consider so clearly this was a template response and the council diddn't consider the evidence even though that is their exact duty. A representation isn't a comment, which would be something like 'ooh, that blue dress suits you' which clearly he didn't write. Councils are easily satisfied in their own favour.

At this point he decided to step outside of the formal process which required him to patiently sit and wait for a Notice to Owner and instead to make a complaint, which he did on 7 February.

Just before that complaint a second PCN had been issued and thus it was that 2 days after the complaint Mr Mustard found himself challenging a second PCN issued at the same location in the same circumstances. He expanded upon the challenge to make it idiot proof (it wasn't).

The response really wasn't very good.

Before Mr Mustard could do anything another email popped into his inbox, just one second later!

The next day an explanation arrived in response to Mr Mustard's complaint.

Whilst pleased with the honest admission of error Mr Mustard was concerned about the public in general and so he asked about other possible errors:

The staff at Hackney are getting used to Mr Mustard and so they know it is best to reply as Mr Mustard will see things through.

As one can't force a parking department do the right thing, as they are generally self policing, so Mr Mustard went outside their world and asked the chief auditor to consider having a look. At that point he stopped chasing as audit programmes have to be planned in advance and he had put the germ of an idea there which may bring fruit in the future. That was all he could reasonably do.

If Hackney Council write the same load of old toffee to you do please ask Mr Mustard to act for you.

The end, for now.

Having completed the blog Mr Mustard went to shred the file and found a third PCN he had forgotten about. It was raised just before his email to the Auditor and it should have led Mr Mustard to point out further errors. Here is the gist of the third rejection, written by a third council employee, who also needs retraining as it contains different errors.

Error 1: The yellow stripes on the kerb signify a ban on loading, not on parking (waiting).

Error 2: You do not have to stay with your vehicle, you cannot ask your toddler to cross the road and walk to the nursery on their own. This question was considered by the High Court in the case of Makda, a taxi driver who went looking for his passenger.

Error 3: Never mind 'future contraventions' there hasn't been a contravention.

The end, until Hackney Council issue yet another PCN.

Reversing the burden of proof in Newham

 

Here is a still image taken from the cctv record which led to two PCNs being sent in the post to Mr Niceman (not his real name) who takes his mum shopping in Newham as she has a blue badge and difficulties in walking. His sister has done the same kindness and also received PCNs.

 

We can see from the sign that any car displaying a blue badge (or in Mr Mustard's opinion containing a driver or passenger with a blue badge in their possession) is entitled to drive that way and not be given a PCN as they are exempt. Newham have reversed the burden of proof. They send you a PCN in the post which states that they believe a penalty is due. They don't genuinely believe that, they believe you passed the sign is all they can honestly believe.

The registered keeper had the worry of being liable for £130 and/or having to go to the independent tribunal if the council reject the representations and perfectly good representations get rejected every day.

In this case the representations were accepted:

There is an apology which is a good start but there will have to be apologies for the next decade unless something changes and this method of operation is all wrong.

Newham Council did not have to move the camera. If they had left it face forward and took regular, say monthly, photos of the signs most adjudicators would accept that as adequate evidence of what was there.

The council had a second option. Two cameras, one from behind and one focussed on the car as it goes through the signs which would show any blue badge on display, it is unlikely to show the expiry date clearly enough, but it would show the layout of a badge (cameras are getting better all the time so sufficient detail might be discerned). The council could also offer motorists the opportunity for residents to register vehicles which are regularly used to transport blue badge holders.

Newham Council need to think again. If a PCN is lost in the post, as does happen, the motorist is already at £195 and out of time to challenge when the Charge Certificate arrives. Then they have the worry of waiting for the Order for Recovery, at £205, before they have to swear a Statutory Declaration which entails a visit to a Solicitor (more inconvenience for being law abiding) and forking out £5 for the privilege of being innocent and a postal delivery going wrong.

The end.

A load of nonsense in Bexley

Mr Mustard is going to take you step by step through a Regulation 10 PCN - one sent by post as the service of a PCN at the roadside was either prevented by violence (or the threat of) or by driving away (which is more common and is the case here. Mr Mustard advocates saying nothing to the 'traffic warden' give them a smile and a wave and get out of there as often councils get these situations wrong.

 

9 November 2023: a heavy parcel needs dropping off at the post office. The driver stops on a single yellow line just around the corner from the post office and on his way back from his mission sees the traffic warden, hurries to the car and drives away. The return and drive away is captured on the body worn camera of the traffic warden.

 

14 November 2023: A PCN is posted to the registered keeper who is the wife of the driver. The contravention time is given as 16:36

The notes of the traffic warden include 'VDA. Announced to driver it will be sent to his house'. It will but it won't be sent to him as it isn't his car.

 

24 November 2023: The driver makes a representation which is an error as he has no right to, his name not being on the face of the PCN. It was a well constructed challenge as he had taken advice on a forum of PCN experts who can't have been told of the fact of who was going to challenge:

You are absolutely entitled to wait for a reasonably short period on a single yellow line in order to load or unload provided that there aren't kerb marks across the kerb which prohibit such an activity some or all of the time.

 

This was a representation which the council should have accepted. They didn't.

 

12 January 2024: A Notice of Rejection is issued. Assuming it was posted the same day it would be deemed served two working days later which is 16 January. Thus the council had taken 54 days in which to serve their Notice of Rejection. 

 

They were only 2 days within the 56 day deadline.

 

Only one paragraph of the Notice of Rejection responded directly to the representation, viz:

Just because you express sympathy doesn't mean you have any and clearly the council didn't otherwise they would have cancelled the PCN. What is more, the rejection is based on the false premise that the car was not legally parked, when it clearly was.

 

22 January 2024: Mr Mustard stepped in and started an Appeal to London Tribunals, the home of the independent adjudicators. Mr Mustard hasn't shown you ground #2 as it was unlikely to succeed and he doesn't want you to rely on it alone.

At this point Bexley Council have a choice to make. Cancel the PCN because the Grounds of Appeal are likely to succeed or spend at least a couple of hours in producing the evidence pack which gives the adjudicator both sides of the story. 

6 February 2024: Bexley opted to contest the Appeal and duly produced the evidence pack.

14 February 2024: Mr Mustard went carefully through the evidence and filed a skeleton argument. The relevant parts follow (The motorist is not called Smith):

Now Mr Mustard has seen the Traffic Order which sets the council's rules for parking he has absolute proof that the parking was not unlawful (provided that the adjudicator accepts that the time taken to unload was not unreasonable) and so pokes Bexley Council firmly in the eye with their own rules.

As it happens Mr Oliver no longer sits as an adjudicator, his decisions were often followed by other adjudicators. Mr Chan is now the Chief Adjudicator and therefore his decisions are likely to garner respect. The adjudicator in this case is not bound by either of them as their decisions are not precedents but are legally persuasive. Here we had decisions in opposite directions on the same facts. That is the adjudicator lottery which sometimes faces Mr Mustard and why even having won before he cannot guarantee the outcome on an identical set of facts in another case. Mr Mustard is also obliged to point out cases both before and against his argument and his duty is to assist the adjudicator, not to be partisan.

The skeleton said that he would deal with the 'merely observing' argument on the day as he thought he would get a win on the other grounds so didn't need to spend further time in formulating and typing up his arguments.

In this case the bodycam footage was really useful to show exactly what happened at the time. Bear this in mind if you are thinking of exaggerating the truth in your representations.

14 February 2024: With the hearing set to take place on 22 February Mr Mustard emailed the skeleton argument to Bexley Council so that they were on immediate notice of it.

19 February 2024: Bexley Council emailed him to say they cannot disclose the case with me as I am not the registered keeper. The council had missed Mr Mustard's authority letter on file. It didn't notice the lack of authority when Mr Smith wrote in and wasn't authorised.

What happened next was unusual, the penny dropped with someone at Bexley Council, they have already done all the work but were perhaps concerned there might be a costs application for wholly unreasonable behaviour on their part.

Mr Mustard hasn't made a note of it but he probably received a phone call from the tribunal to tell him that the hearing on 22 February 2024 would not go ahead.

21 February 2024: the tribunal sent an email confirming the hearing would not go ahead.

What you can learn from this is that if you have a good argument a council will reject it regardless of merit and that you may have to go to an independent adjudicator to obtain justice. It costs you nothing and costs the council c. £30 which they never see again. Bexley Council have met Mr Mustard a time or two before and should have realised sooner that they were up against it.

Be persistent, forget about the 50% discount, you are aiming for a 100% discount. The odd loss is the price of learning.

The end.