Hammersmith & Fulham Council: bluff then fold

 

Scaffolding lorry stationary in a yellow box

Sorry about the poor quality image, Mr Mustard didn't grab a full sized one before the PCN was cancelled and he can't then access photos.

The driver clearly made an error and was in contravention. He could and should have changed lane and had he planned a bit further ahead he could have exited in lane 1 but Mr Mustard deals with PCNs which are due to such errors and has to make the best of them.

In this case the alleged contravention took place on 18 March 26. For 'moving traffic' contraventions like this one (even though ironically the lorry isn't moving) a council must serve (not just send) the first PCN within 28 days (there may be more than one PCN if a vehicle is hired, this one is owned). The PCN was dated 15 April and in the absence of other evidence about delivery was deemed served on 17 April, which was day 31.

H&F failed to issue the PCN in legal time. Mr Mustard handles all the PCNs for this small scaffolding company who wouldn't cope without help. He looked at the dates and smiled. He then made the formal representations. Mr Mustard took his own advice and kept it brief:

Now you might hope that the local authority, whose duty it is to respond to the representations which were made, would simply cancel at this point. They didn't. They decided that sophistry was the way to go:

Here is the substance of the reply which does not counter the legal point:

 

That unsophisticated non-reply gave Mr Mustard a second basis on which to argue, a complete failure to consider the representation which was made, it considered one which the council found easier to reject (had the PCN been in time Mr Mustard would have advised the scaffolding company to pay at 50%).  

He nearly had a third one as the representation was made on 28 April and not rejected until 24 July and Mr Mustard recently won a case based upon a delay at H&F of more than 3 months (there is no legal time limit for moving traffic PCN rejections) being procedurally unfair - a point which exercised an employee at H&F and about which a blog will appear soon.

H&F did offer the 50% reduction which they weren't legally required to do and which many councils don't now offer as they think they will make more money that way. It has very little effect on Mr Mustard's strategy which is to go to the tribunal 99% of the time. Again he kept the grounds brief:

The Appeal was started on 27 July. The tribunal processed it on 28 July and H&F would have been notified of it on 29 July.

On 29 July H&F wrote to the scaffolding company.

Total denial, however, is still in full swing. The vehicle was 100% in contravention but miracle of miracles H&F have decided to use their discretion to cancel. They don't say why and the without prejudice statement is absolute nonsense, H&F are trying to say that there was a contravention but they are forgiving it with no clear reason as to why, it wouldn't be that they 100% understand they have broken the law and don't want to commit that to paper, would it, surely not?

Now as it happens the council employee (or 'officer' if you like the grand titles that councils seem to favour) was in the tribunal hearing in May (voice only they were both attending without turning on the video feed) at which they launched an attack on the methodology employed by Mr Mustard to fight PCNs at the tribunal alleging, in effect, ambush and 'looking for loopholes' - Mr Mustard struggled to not laugh at that, a blog for another day. It got them nowhere and didn't even warrant a mention in the decision. 

There is no need for councils to think of Mr Mustard as the enemy (and some don't, they have an open dialogue from which both sides benefit). He fights less than 300 PCNs a year and in London there are about 9,000,000 being issued annually. Calm down dear is his advice. If councils simply follow the law and make no errors Mr Mustard will lose, easy enough surely?

The end but not as more H&F stories to follow. 

Belief - the supposed foundation for a PCN.

 

The motorist in this case wrote his own representation with help from experts on FTLA 

In order to issue a PCN an enforcement authority, such as Redbridge Council, must have a belief that a contravention has occurred. The way it works these days is that a computer watches the traffic and when it thinks it has spotted a contravention it extracts a short clip and saves it for a human being to check and then authorise a PCN. Much of the time Mr Mustard thinks that either the operative doesn't pay attention or blindly presses yes or assumes the computer is correct (a dangerous assumption as the Post Office Horizon Inquiry has shown us).

Mr Mustard thinks there is an inbuilt belief amongst back office PCN processing staff that because a PCN has been issued it must be correct and defended at all cost.

Here is the position at the moment which the car entered the box:

There is room to exit.

Here is the position on stopping:

Needless to say Redbridge Council rejected a perfectly good representation as 90% of the time, especially when the discount is offered again, the motorist caves in and pays because of a combination of ignorance, worry about having to pay the full penalty and an assumption that councils tell the truth (they are serial liars).

This is the relevant part of the Notice of Rejection.

Mr Mustard's comments. Careful consideration would have led to a cancellation. This is a standard line in the template. Careless consideration would be more accurate.

The exit was clear on entering so this was another standard paragraph.

Mitigation cannot have been considered as none was pleaded. 'Comments' waters down the value of the words of the motorist who made a representation not mere remarks.

The writer may well be satisfied but who knows how easily they are satisfied in their own cause?

They were also confident that the PCN was valid.

Mr Mustard took over at this point and he was confident he could get the PCN cancelled. Who was over-confident? (yes, you know the answer).

This is what he wrote in the Grounds of Appeal (you have the images above).

Grounds of Appeal - no contravention

This is the position as the car enters the box. There is clearly room for the car to exit (as can be judged by the white car in the other lane). Thus the first part of the contravention, on entering, is not made out.

The position on stopping is as follows:

The blue car had moved further away so there was even more room to exit. The driver simply chose not to, it was not due to a stationary vehicle in front.

All of a sudden Redbridge Council were less confident of their case. They left it late but 5 days before the hearing they told the tribunal that they would not contest the Appeal and they had cancelled the PCN. 

Why would they do that if they were correct in issuing the PCN and rejecting the formal representations? It is because it is a big and generally profitable game of Bluff. It is a game which Mr Mustard is happy to play all day long. Mr Mustard decides at the outset if there is a good case or not and 90% of the time he is correct.

Don't be bluffed into paying out. Work out your defence and stand your ground. Don't be diverted by talk of a discount. Why would you want to pay a 50% penalty for being innocent?

Remember you can get a free second opinion about your chances from numerous experts here, which sometimes includes Mr Mustard.

The end.

High Street North - Zone A (East Ham in Newham)

There was discussion about this PCN on twitter at the time I was challenging it. Now we have an outcome. This is the spot, near number 66.

with a close up of the sign for you

The formal representations made by the registered keeper was that a blue badge holder was the passenger. There are disabled parking bays in the pedestrian zone and this is the only way to get to them.

The main part of the Notice of Rejection now follows

 

At this juncture Mr Mustard was instructed. Mr Mustard normally keeps his powder dry until he has seen all of the evidence but this time he blasted the borough with both barrels. Here are the complete Grounds of Appeal to the tribunal (to which other points arising out of the evidence pack could have been added if Newham Council had foolishly contested the case)

Guess what happened next? You are correct, the council ran for the hills.

A big game of bluff. Instead of being £130 up, Newham Council are £30 down (the tribunal fee).

Should you get a PCN for driving off High Street North into Pilgrims Way, adjacent to Primark in East Ham, you are welcome to use any of the grounds that Mr Mustard has set out above that are applicable to your situation.

Newham Council should stop using cctv to enforce at this location. It is intrinsically unfair.

Yours frugally

Mr Mustard

Oh dear me Richard (Cornelius)

Blind man's bluff

Let's go back in time.

On 8 November 2012 Mr Mustard was in the audience at the One Barnet Question Time organised by the Barnet Alliance for Public Services

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Sent: 09 November 2012 18:04

To: Cornelius, Cllr Richard Conservative

Subject: NSL now working (my ref #1401)

Dear Cllr Cornelius

Last night you said "NSL is generating savings now" (based on my manuscript notes but it will be on film)

You know how I like to armchair audit this sort of thing.

Please send me the figures which justify your claim. Please make sure this includes how much overtime has been paid to get them up to the expected level of PCN and the number of CEO (traffic wardens) now assigned to the contract as opposed to the number at contract start (number of posts not people in post) which I do believe has increased.

By the way, based upon what happens at PATAS (the independent adjudicator ) the contract still isn't going very well.

On Tuesday 6th November the hearings went as follows, and every single parking ticket was cancelled:

1. Allowed by Order of Adjudicator (this usually means no evidence filed by Barnet council)

2. TMO wrong.

3. No copy PCN filed.

4. Council failed to deal properly with correspondence.

5. By Order.

6. By Order.

7. Inadequate evidence from council.

8. By Order.

9. By Order

NSL are still not covering you in glory. Imagine this sort of mess in month 7 on DRS and NCSCO. Don't say later that I didn't warn you.

Thank you

Best regards

Mr Mustard

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From: Cornelius, Cllr Richard Conservative

Sent: Saturday, November 10, 2012 4:34 PM

To: Mr Mustard

Subject: RE: NSL now working (my ref #1401)

I did say it whether its on film or not. I will get the info to back up .

regards

Richard

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28 November 12

Dear Mr Cornelius

It is over 2 weeks since your email as below. Do you have the info now please.

Yours sincerely

Mr Mustard

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23 January 2013

Dear Mr Cornelius

Oh dear it seems that the simplest factual question takes 10 weeks to not be answered.

On what date will I have an answer please?

Yours sincerely

Mr Mustard

At this point Mr Mustard concluded that Richard didn't have any evidence to support his statement and waited for proof to come out of its own accord.

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Mr Mustard has now obtained the minutes of meetings between NSL and the council thin client parking team for 2012/13. Here are some of the entries from the 23 November 12 meeting;

* Council raised concerns regarding RR Donnelley, as several issues arose concerning scanning, banking of cheques made out to Barnet and unallocated process.

* Council raised concerns regarding PATAS performance - NSL to provide full commentary and action plan on how performance will improve - NSL to ensure quality of appeal packs moving forward are of a high standard, NSL to arrange more training and visit to PATAS.

* Civil Enforcement Officer notes in relation to cases of where PCN handed to driver needs to be more robust as several cases lost at PATAS.

* Council advised NSL now had contract for 6 months, expect a turnaround in relation to how contract is performing.

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So what do we see from this. On 8 November Richard Cornelius, the Leader of the council said the contract is making savings which was his way of saying this One Barnet contract is working but the same month it is clear that the contract has never performed as it should have done. Problems have not gone away either. There are more blog posts to follow.

Mr Mustard has been concerned for some time that councillors generally don't get into the nitty gritty of council functions and then vote in seconds on long, complex and important committee reports. This is a classic example of a lack of in-depth understanding.

Either Corny was bluffing, or ignorant or worse, that he was making a carefully worded statement (he only spoke about savings, not about performance and left the audience to equate the two) which could be construed as a lie (I don't think Corny is a liar but he certainly didn't tell the truth, the whole truth and nothing but the truth about how well the contract was performing).

One Barnet isn't working.

Yours frugally

Mr Mustard