Seeing red in Hillingdon

Mr Mustard's client, let us call her Innocence (not her real name) made a small error in Hillingdon in the early hours of the morning. Hillingdon Council pounced on her but for an error she didn't make. She did overshoot the stop line at the traffic lights but did not stop in a yellow box due to the presence of a stationary vehicle. The police could have sent her a Notice of Intended Prosecution but they didn't, those lights may not have a police camera, only a council one. Mr Mustard can't share the video on the blog as he doesn't want to release the registration number so has extracted and redacted the still images which tell the story.

Here is the car about to pass the stop line with the lights on red.

Next, the car having entered the junction with the lights on red and the brake lights are on.

Innocence reverses back.

She finds the lights are green so moves forward again and exits the box in one movement.

The next event is the arrival of a PCN.

 

The rules for a box junction are patently clear. It is only a contravention if  a vehicle has to stop due to the presence of stationary vehicles (which is read as including a single vehicle).

Clearly, patently, obviously to all the world, this, whilst a slightly sub-standard piece of driving, is not a contravention within the letter of the law.

Mr Mustard made the representation. Hillingdon Council's on line 'smarti' system is being used dumbly, it offers the wrong selection of grounds on which one may make representations. This is enough alone to win on at the tribunal.

Mr Mustard happily selected the wrong ground. The way these systems work is that the ground you choose then pre-determines the template letter which will form the base of the response so Mr Mustard messes with the system by often choosing the wrong one, or none at all, and then adding a document which has to be individually considered.

The response was utterly wrong.

The vehicle was permitted to stop as there wasn't a vehicle in front of it which had stopped.

Mitigation was not put forward. A full on challenge was made that there was no contravention.

The CCTV evidence shows the exit was clear at the moment of entry and for the entire period the car was within the junction. The exit space was 100% clear. There was no vehicle in front, except perhaps half a mile away.

The word 'obstruction' in this regard does not appear in the Traffic Signs Regulations and General Directions 2016 - Hillingdon Council are well out of date. A contravention has not been committed.

Mr Mustard's representation having been summarily and wrongly dismissed in five days it was only two days later, as soon as the Notice of Rejection arrived with Mr Mustard, that Mr Mustard started an Appeal on line to the independent adjudicator at London Councils. He was supremely confident of success. Hillingdon let most of the month pass in the run up to the hearing without doing anything and then with a week to go they DNC'd the case. DNC is shorthand for notifying the tribunal that they 'Do not Contest' the Appeal. They didn't give a reason but perhaps it was that they were 100% in the wrong and were going to read about their shortcomings in a public register. Instead they can read them here.

Had this vehicle been leased the lease company might have paid it and charged an administration fee for so doing. That is a good reason to not lease a car but to take out a normal loan with which to buy your car outright.

Councils don't think about people, they think about money from this source. Innocence's life is tough enough already. Cancer and radiotherapy have caused her to lose 40% of her body weight. Think about that Hillingdon Council when you send bogus demands for £130 and then don't see sense when your wrongdoing is pointed out to you.

Faceless, ignorant and stupid is the restrained description of your behaviour.

The end.

 

Automated unlawfulness - Redbridge Council

Here is a recent tribunal decision about a PCN

Councils make enormous use of automation to keep their industrial quantities of PCNs on track, or in this case to run it into the buffers. This is not as rare as you might think. A Notice of Rejection informs the recipient that unless payment or an Appeal is made within the period of 28 days beginning with the date of service of the Notice of Rejection that a Charge Certificate may be served. Thus the public know what should happen but probably don't realise the effect of the council failing. Actual service is the date when the Notice drops through your letterbox and deemed service is 2 working days after the Notice was actually posted (which may not be the date on the Notice if councils are slapdash or something went wrong). The state of postal deliveries is well known at present, they could be better.

In this case the Notice of Rejection was, it appears, posted on 17 June.

That was a Monday.

In the absence of evidence about actual service it was deemed served on Wednesday 19 June.

That date, 19 June counts as day 1.

Thus day 28 will be a Tuesday and the motorist had up until midnight on Tuesday 16 July to start an in time Appeal (adjudicators have discretion to accept late appeals if there is an acceptable to them reason).

An Appeal was started on 14 July but would take one or two days to be registered (the tribunal are usually very efficient) and so just as they were about to be told about the Appeal, which freezes further processing until 28 days after the hearing decision has been served, Redbridge Council had, two days too early, already issued a Charge Certificate. Although they can't serve a charge certificate the mere issuing of it early would count against them as the council don't yet have the right to serve.

If this happens to you always point it out to the adjudicator and produce the Charge Certificate you were sent as that is absolute proof of it. That should then be the end of your PCN. You can quote the above decision number as being legally persuasive (adjudication decisions are not precedents).

How could a Notice of Rejection be issued in error? Mr Mustard hears you ask. 

Of course it should never happen. There are various scenarios which include the next progression date being manually wrongly set, the wrong next progression status being applied or the software having the wrong number of numbers set for the next stage. This happened in Islington not long ago and as that is a council which listens to Mr Mustard he suggested they add a few more days to the standstill interval in the automatic process in a certain situation and they agreed. Win, win. Mr Mustard doesn't have the same good relationship with Redbridge who are near the bottom of the table, in his opinion, when it comes to the parking process and complying with the law.

In summary, don't be mugged by a council, learn everything you can about PCNs and you will save money.

The end.

 

 

 

A Luton lay-by lash up

Luton Borough Council are inept. Mr Mustard knows that they are short of money as Luton Airport income subsidises council tax but that is no reason to go around giving out nonsense PCNs at ambiguously signed locations, such as in Old Bedford Road to his friend Mr B.

On 13 June they gave a PCN to Mr B who said, 'I was only there one hour and the sign is good for 4 hours'. Quite correct.

Unfortunately, and as Luton Borough Council have failed to realise, the double yellow lines apply up to the building line and so also apply to the lay-by.

A duplicitous collection of lines and signs such as this one create an ambiguity which will be construed against the council.

The solution is to remove the double yellow adjacent to the lay-by. No-one would park in that traffic lane given the existence of the lay-by.

How do councils keep on getting it so wrong?

Yours frugally

Mr Mustard

Eastleigh B.C. - incompetent or bluffing?

Bluffer's Park in Toronto

For a traffic enforcement authority to get a simple law wrong, or to deliberately mislead a motorist in order to raise revenue, are both things which should not happen. Luckily the motorist, Mr D, had faith in the advice he received from Mr Mustard (whose name did not appear on the file).

The facts: Mr D parked his car on double yellow lines in order to deliver glass to a customer. He got ticketed. This had happened to him previously in Barnet and when it did he produced his delivery documents and the council always cancelled.

Eastleigh saw it differently.

If you are unloading something bulky or heavy you are not in breach of the restriction, you are exempt. Mr D couldn't believe the answer so he wrote again and got the same nonsense back again:

The second answer was worse than the first one as it said you cannot unload, a patent lie. Now Mr D had to wait for the Notice to Owner. Once he had it, he made the same representation of unloading. He got knocked back again and that opened the door to the relevant tribunal, the TPT.

It is impossible to be continuously loading. You go out of sight of a traffic warden when you enter the delivery premises or if they are around the corner. Funny thing is that rule isn't in the Eastleigh traffic order which allows for loading and unloading.

Mr D made his application to the tribunal and all of a sudden the council woke up to reality and threw in the towel, for this nonsense reason:

It is fortunate that Mr D had overturned previous PCNs whilst he had been engaged in unloading as otherwise he might have believed Eastleigh Council and given then £35 or £70 (depending at what stage he gave up). One member of staff, at least, needs some training in the basic rules of parking. Perhaps they could have a read of the Highway Code

It would seem that Mr Mustard's work will never be done.

Yours frugally

Mr Mustard

Barnet - the renegade council

The above image is from the Highway Code which couldn't be clearer, you can stop to load/unload on double yellows (provided it isn't explicitly prohibited by lateral kerb marks) and you can drop off and pick up passengers.

The below is from the council's own Traffic Management Order i.e. the council enacted it:

So given both of the above why are Barnet Council rejecting representations based upon a complete lack of knowledge of both the Highway Code and their own rules? Could it be the money?

Anybody who pays up in response to the council's incorrect interpretation of the law has been conned out of £55.

If you have such a letter send a copy of the challenge you made and the council's response to Mr Mustard (mrmustard@zoho.com) as he is going to fire an email into the inbox of the parking manager and ask him to get the law applied properly. Mr Mustard can't be sure but the rejection letter was probably written by an employee of NSL Ltd who really ought to know the law by now.

Within 24 hours of Mr Mustard emailing the parking manager, the PCN is being cancelled, an apology sent and retraining is planned.

Yours frugally

Mr Mustard

Are Harrow Council deliberately incompetent?

Readers with good memories will recall that Mr Mustard wrote about Harrow being horrible at the start of 2018, the back story is here.

It might have been the case that Harrow Council just got a little bit behind and their slowness was a one off which they should then have fixed. Unfortunately that is not the case as twice this week Mr Mustard has been contacted by clients who hadn't heard from Harrow Council for a year and then suddenly they did. If his clients thought the PCNs were over due to council neglect they would be correct in principle but wrong in practice as Mr Mustard checks every PCN twice a month to make sure nothing gets away from him.

The case with the worse delay has the following timeline:

You can see that Harrow Council have been sat on their hands for 33 months.

The Order for Recovery was sent to the same address as the PCN. Luckily the recipient had not moved home. If you had moved home in 2018 would you notify the council of your change of address from 2016? No, I didn't think you would. Nor would you have a postal redirection for more than 12 months, most people probably only have 3 or 6 months of redirection given how so much documentation now arrives by email.

Mr Mustard recommends that if you have had a Harrow PCN in the last 5 years that you contact them and ask them for the number (give them your car registration and date of purchase) and ask them to tell you the current balance of every PCN ever issued since you bought the vehicle and if it is not zero, to tell you the dates of all the statutory documents they have issued.

If you have moved you could do this even if you don't think you have had a PCN as it may have gone to your old address. Mr Mustard also recommends leaving a note for the incoming resident with your new address, as he did recently for a house he sold and he left a few parking visitor vouchers to help them in their moving in period - they were very pleased and have already dropped a final utility bill letter through his door. (Another tip, he read the gas, electric & water meters hours before they moved in and left a note of them at the property to save the buyers the time of performing the same task.)

What happens next to a PCN, if you don't file a witness statement (or statutory declaration in moving traffic cases) is that a bailiff will be instructed. If the bailiff finds the car, and most people don't move far and bailiff vans have ANPR, is that it will be clamped. As all of the paperwork will have been sent to your old address and you haven't been served with at least one obligatory statutory document Mr Mustard does not think you have been properly served but it is you who has the problem, a wheel clamp on your vehicle, which you may need urgently, so you end up paying. This is grossly unfair.

In this way, by being incompetent, Harrow Council and their bailiffs profit at your expense. That is unjust.

Once Mr Mustard has the current PCN sorted out, he will file a complaint with the council and if they don't apologise he will go to the LGO. He will also complain to the Iinformation Commissioner as the council, having abandoned enforcement of the PCN by their failure to act expeditiously, they no longer have the right to process your data.

After writing this blog post Mr Mustard decided to look through decisions made at the tribunal in October 19 & he found this one:

Councils are meant to learn from the decisions of Adjudicators, Harrow haven't learnt a thing and are plouging ahead with PCNs which they know is prejudicial.

Yours frugally

Mr Mustard

Double trouble

The sometime loading bay, sometime short term fee parking bay

This story has been in the Barnet Times who Mr Mustard helps with technical PCN matters. A traffic warden will make a mistake from time to time, that is fine, it is how you deal with it that matters.

Quick story:

1. PCN issued (in error as it happens)

2. Motorist writes in expecting immediate cancellation & you never know, an apology, a bottle of wine, flowers, a box of chocolates ...something.

3. Council write back and say he should have paid to park.

4. Motorist writes back as he can't believe the second error.

5. Council write again and tell him to go away and wait until the Notice to Owner is issued, which will not be for a month.

6. Motorist contacts local newspaper which checks with Mr Mustard & then asks the council to comment.

7. PCN gets cancelled very soon thereafter.

Firstly what clues did the traffic warden (who only issued their first PCN on 6 August 2018 so is inexperienced and probably under-trained and/or not up to the job) miss? The obvious one is the sign on the pole, the one that is at a jaunty angle at the back of the car. The second one is that the bay is wide enough for a lorry as this is a part time loading bay so probably not a bay in which you have to pay. The third one is the transverse line at the end of the bay marking where the pay bay starts (although for clarity the two bays should be separated by a short stretch of yellow line). 

Why did it go wrong at the informal challenge stage? (informal just means a challenge in response to a PCN issued on street). This Freedom of Information response holds the answers.

Informal challenges are responded to by NSL Ltd. Their office deal with these is in Dingwall. Where the heck is Dingwall, Mr Mustard hears you cry. Dingwall is where the red pin is.

Dingwall is nearer to the Faroe Islands than it is to Finchley. Scots are great travellers but Mr Mustard doesn't suppose that any of the NSL employees in that office have been on familiarisation trips to Finchley. What tools do the employees have at their disposal? They have the photographs taken by the traffic wardens, eight of them in this case including the recommended one of the car and sign in the same shot but sadly the standard close up shot of the sign was of the wrong sign. The clues were still in the photos as the sign at the back of the car was on a thin grey pole and the pay by phone sign was mounted on a thick black pole.

Google street view would have answered the layout question.

The council's map based Traffic Management Order would also have been indicative of there being two types of bay.

The pink bay is the loading & free parking bay. The green dotted line marks the pay bay.

The suspicion is that NSL reject, on behalf of the council, pretty much all informal challenges without really troubling to read them (another blog is coming with an example) and it is only at the next stage when representations are made in response to the Notice to Owner that a council officer, who works within the borough and so is more likely to live in and travel about the borough, can then apply any local knowledge he/she has to the situation. In this case when the motorist wrote back to point out rejection was wrong instead of a different NSL person looking to see if the motorist might just be right, as he lives nearby, the contact was rejected out of hand. That was unhelpful & dim. It also doesn't help that the council have apparently not given NSL any guidance or policies.

Let's look at Mr Mustard's statistics for 2018. So far in 2018 he has fought 103 Barnet PCNs (+ 80 outside the borough).

He has lost 17 times so that is how many times the council were correct to fight to the end. (These include cases where people came to Mr Mustard with no available argument but were already at the stage of having missed the discount period so they may as well fight to the end as sometimes the council give up anyway).

On just 12 occasions the council, probably decided by NSL, have accepted informal challenges.

On 15 occasions the council, probably itself, have accepted formal representations. Mr Mustard usually puts in the same arguments at both stages so that means informal challenges were wrongly rejected 15 times.

On 3 occasions the council decided not to bother once a referral had been made by witness statement to the county court after a document was lost.

On 23 occasions Mr Mustard took his rejected arguments to the independent adjudicators at London Tribunals and the council threw in the towel rather than produce the evidence and have the matter decided upon it. That means good representations were rejected 23 times as otherwise surely the council would have wanted the matter argued out?

On 36 occasions an adjudicator agreed with Mr Mustard's arguments, or the council made procedural errors. Those are another 36 cases that should have seen the PCN cancelled at an earlier stage. It is also 36 fees of £30 paid to the tribunal by Barnet Council that they could have avoided.

The reason that so many informal challenges are rejected is because experience has shown councils, not just Barnet, that most people don't realise you can use the same argument at all three rounds of the process and they give up the fight. That, combined with apathy, a shortage of time & a lack of knowledge of parking law and PCN processes tilts the playing field towards the council. Mr Mustard grabs it and pushes it firmly back the other way and is always ready to trust his judgment and fight to the very end & in 2018 he has been shown to be right 83% of the time or to put it another way, 5 times out of 6.

Whatever you do, if you are sure of your ground, don't give in. Stick to the timetable and make firm but polite challenges at the relevant times. If your situation is patently absurd then do email the local paper and/or go to your local councillor. The council hate bad publicity and it is in their interests to cancel your PCN at the earliest possible stage if they aren't going to make any money from it. It can though be hard sometimes to get them to see the error of their ways.

Yours frugally

Mr Mustard

Capita - 7 months to do something

Images for 7 months were all about babies, which is fine by Mr Mustard, but he preferred the 7 Monks image. Perhaps the Capita staff were all in the pub (or taproom) all that time instead of doing what they were, at a guess, contracted to do.

Mr Mustard's contact renewed his Resident Permit in February 2016. As a model citizen he uploaded the necessary documents to prove ownership and residence. In September 16 he received the following email:

RE: PARKING PERMIT VERIFICATION DOCUMENTS

After review of the documentation supplied to support your current Emissions based resident permit, we have identified that the documents you have provided are incorrect.

To validate your permit, I require one of the following documents:-

1.   V5 Log Book – Please note that we do not accept the New Keeper Supplement
2.   Insurance Schedule – Please note we do not accept the Insurance Certificate
3.   Vehicle Hire Agreement showing the vehicle is hired for a period of 6 months or more.
 

Whilst I am sure this is an oversight*, can you please submit your documents electronically to parking.verification@barnet.gov.uk within 7 days quoting your permit number in the subject heading.

Failure to comply could result in your Parking Permit being cancelled leaving your vehicle liable to a Penalty Charge Notice/s being issued by our Parking Enforcement Officers.

* They can't be sure of anything, not even their own names probably.

Of course the resident can't remember which document they uploaded SEVEN MONTHS AGO so they will simply do it again.

Mr Mustard can't help but think that the contract, or service agreement, had much tighter timescales for checking documents. If it didn't then the council are incompetent, if it did then Capita are incompetent as are the council for not properly auditing what they are not doing.

Doubly incompetent.

What this means is that anyone can apply for a permit for any vehicle for any zone and park for free for over half of the year before being found out, or maybe they won't be? Mr Mustard did not suggest that dishonest course of action to you.

Yours frugally

Mr Mustard

NSL - one of the seven great blunders of the world

Would an NSL traffic warden give this car a parking ticket?

Mr Mustard is a little behind on blogging as he is so busy sorting out multifarious PCN.

Mr Mustard likes a joke so here is one, maybe. Mr Mustard claims to be only average when it comes to challenging PCN but luckily NSL are so incompetent that he looks to be brilliant by comparison.

Last week Mr Mustard had the following NSL errors to sweep up after:

1.   A Charge Certificate was sent to Mr Mustard in his real name instead of his client's name. That was an illegal demand for payment and a procedural impropriety (a blunder in common parlance)

2.   The Evidence Pack sent to Mr Mustard and to his client both contained a Notice to Owner for another person who was unknown to them. The evidence pack sent to the adjudicator was probably the same. The PATAS hearing was wisely cancelled.

3.   The ex-husband of the registered keeper was granted an Appeal at PATAS but that simply isn't possible as only the registered keeper is liable. Another PATAS hearing bit the dust.

4.   A Charge Certificate for another client was put in Mr Mustard's name. That led to another PCN being cancelled.

5.   The Notice to Owner contained defective amounts. £110 minus £nil is not £165.

6.   A PCN was given for an expired permit for a permit that expires in January 2015. The owner of the car is worried that this will happen again.

7.   A motorist entitled to 2 hours free parking with no action required on her part received her third PCN at the same spot. There is a bet on how many days it is until she gets her 4th PCN.

So there we have it, a week in which Mr Mustard noted down seven blunders by NSL. If they are the best service provider there is, as Mr Mustard supposes they must be as they won the tender, he would hate to see the results of the work of the worst one.

We are almost halfway through the 5 year contract. Mr Mustard fervently hopes that the penny has dropped to councillors that this is one service that really should be closely managed in-house.

Yours frugally

Mr Mustard

One Barnet parking contract - less for more

Mr Mustard's twitter followers asked why NSL managed to issue so many more PCN than Barnet Council and then collect a lower amount of money.

To save you going back to the previous blog (you easily can by clicking on older post at the bottom) the number of PCN went up by 30,000 in the year that NSL took over (they were in charge of issuing and processing for 11 months of that year) and the sum recovered from motorists for PCN fell by £1.4 million - that is a spectacular result by any measure - spectacularly bad unfortunately. Mr Mustard seems to recall the council "Leader" Richard Cornelius telling the audience at the BAPS Question Time event how well this contract was working; you didn't have a clue did you Richard? you were simply bluffing. The contract with NSL was intended to save £600,000 a year.

Mr Mustard does accept that costs are down by more than the drop in income but he doesn't have an analysis of why that is so (he might have to make his first FOI request for many a month) and thinks that it is because there are a number of one-off events such as the movement of £167,000 out of the parking budget into the customer services budget. We must compare apples with apples, or more likely lemons with lemons in this case. Costs were only targeted to reduce by £600,000 so a drop of £1.9m must have some other explanation.

So possible reasons for the dismal performance by NSL are (and these are simply the as informed as possible views of Mr Mustard, if NSL want to write in and explain Mr Mustard will publish what they have to say)

When traffic wardens were employed by the council they were paid about £10 an hour. New ones taken on by NSL to fill existing and new vacancies are only paid £8.20 an hour. Applicants are likely to be of lower quality.

Traffic wardens were being sent out on the beat before they had sat their NVQ in parking tickets which would be a breach of contract by NSL that was probably swept under the carpet by Barnet Council; at least until Mr Mustard asked a direct question about the start dates and exam pass dates of traffic wardens. It is only a level 2 NVQ which isn't exactly difficult to obtain. You might think that NVQ stands for National Vocational Qualification but others know it as Not Very Qualified.

Traffic wardens are issuing more marginal parking tickets which motorists are more likely to contest. People have an inbuilt sense of fairness and won't pay if they have been unfairly treated. Marginal tickets include for being 2cm across a dropped kerb, having half a wheel on a bay line, overstaying for 1 minute, being ticketed whilst in the process of paying by phone and being stood next to the traffic warden and telling that what you are doing. 

Parking tickets were also being issued when you, or a visitor, parked across your own dropped kerb (which only serves your property) and which should only be enforced if you ring up saying there is a problem. 

Parking tickets have been issued for scratching out vouchers with a pen instead of a coin. Ridiculous as the voucher has been rendered unusable a second time.

When NSL took over the existing back office team of local people who answered your letters and emails about parking tickets were all made redundant (a handful scrabbled to find new posts elsewhere within the council) and the whole operation was moved to Croydon. Posts that were previously worth £25k were suddenly only worth £18k. The quality of staff employed by NSL must be lower than those previously employed by Barnet Council directly.

Some of these new Notice Processing Officers (NPO) simply don't know enough about parking law and get corrected by the independent adjudicator at PATAS who is legally qualified. These NPO keep writing, for example, that you should go on the internet before you set off on a journey to see if Saracens are playing. The Adjudicator keeps giving that comment a drubbing.

The back office is in Croydon so there is no local knowledge or affinity with the residents.

The back office team should have been increased in size by 20% to reflect the increased volume of parking tickets which will have led to an increased volume of appeals. It probably hasn't been increased in size. In fact, as NSL are paid a fixed price per month they have probably tried to slim down the team. You can see the temptation to do that. 

Some of the extra PCN were due to the Saracens Zone which has added from 200 to 500 parking tickets on each match day (up to 16 a year). This has led to new arguments because the zone wasn't advertised well enough, because the zone is far too large and because people miss the zone entry signs and then have no idea if it is an Event Day or not.

The back office team weren't familiar with the back office software used by the council and which NSL are still using (new software is being purchased later this year; that will lead to a few new cock-ups). This meant that some parking tickets weren't chased at all and others were wrongly chased and had to be cancelled.

NSL were meant to have had bailiffs ready to roll on 1 May 12 but they didn't get them appointed until April 13. How incompetent can you get? The delay also meant that the parking tickets sent to bailiffs were harder to collect as many more of the cars would have been sold on or scrapped and so couldn't be seized.

Finally, the whole structure of parking enforcement is not designed to enable good communications and team working.

Traffic Management Orders, permits, sign installation and the organisation of line painting are all managed by the council out of North London Business Park or the Mill Hill depot.

Traffic wardens work out of Solar House in North Finchley (which incidentally will be why there are so many traffic wardens in the town centre there. Mr Mustard saw one at 8.10 and two more at 8.20 whilst eating his poached eggs on toast at Cafe Buzz and co-incidentally reading emails from the parking manager about the Lodge Lane Car Park Meter)

Documents are scanned in Worthing.

Challenges to parking tickets are dealt with in Croydon.

Not quite sure where bulk document printing takes place but it could be somewhere else again.

How can the poor client side parking manager ensures everyone works as a team when they are in so many different places? He can't, as we see.

This experience has a parallel in the Capita contract for collecting Council Tax. If their collection performance is inferior to that of the previous council team the drop in income could obliterate any cost saving.

If Mr Mustard had his way he would bring parking back in house. Mainly because it is a front line service that the council is measured by and it always upsets people which causes reputational damage to the council and secondly because it would be twice as easy to manage if it were in one place. The money doesn't matter. It will always make a profit which shouldn't be used to artificially subsidise Council Tax. The surplus made from parking tickets should be used for special one off projects which otherwise wouldn't happen and should be spent in the following year so that there isn't pressure to make a certain amount. The surplus should be spent on things that make Barnet a better place to live.

Yours frugally

Mr Mustard

Mr Mustard tenders his apologies to the council client side parking team who have probably now got senior management and/or the "leader" or Cllr Dean Cohen breathing down their necks wanting instant results which just isn't possible when each PCN is only 0.0000606% of the problem. This mess is not of your creation; it is the fault of the Cabinet Resources Committee for voting it through.

Best practice has to be the best

Saturday at PATAS saw Barnet Council, represented one would assume by NSL although only by post, have costs awarded against them because of not following best practice. Here are the notes of the adjudication.

Firstly; the adjudication itself:

The Appellant complained about the delay in the enforcement process. He has specifically denied that he received a Notice to Owner in 2012 and he has put the Authority to proof but the Authority did not produce a copy of the first Notice to Owner. Even if I were to accept that one was sent, there was no explanation as to why no action was taken to enforce the debt for six months. I note that the Authority has also failed, as required by PATAS, to provided a copy of the proceedings in the County Court (This would the the form TE9 witness statement to return the PCN back to the PCN stage when you have not received a Notice to Owner).

The Appellant also pointed out that there was no yellow line. The CEO's notes indicated that the vehicle was opposite no. 2 Shirehall Park. The Authority said that Google confirmed the presence of a yellow line. It then produced an image of the location which did not seem to have a yellow line or time-plate.

I have looked at Google myself and, I have to say, I have some concern about the way the Authority presented the evidence. The Authority had chosen an image which provided a rather distant view of the exact location. It placed a yellow box in the view and suggested that the vehicle was within the yellow box. A closer Google view would show that there was no yellow line where the silver vehicle was. The yellow line stopped about a car length in front of the silver vehicle.

I am not satisfied that there had been a contravention. I am allowing the appeal.

It is very rare for costs to be awarded. It happens less than a dozen times a year in Barnet. The test is that a party (costs can also be awarded against a motorist) has to have been wholly unreasonable, vexatious or frivolous in their behaviour (best not claim to have been bitten by a radioactive spider, unless you have!).

The motorist was evidently unhappy with the behaviour of Barnet Council, largely acting by their contractor NSL (the council itself has by law to make the decision about the formal appeal but NSL look like they do pretty much else. In theory the council check NSL's submissions to PATAS but Mr Mustard thinks that does not happen as he receives them postmarked Croydon). Thus the motorist made a claim for costs. This has to be in writing. Time spent dealing with the PCN at the beginning and responding to the Notice to Owner are ignored although if you didn't undertake them you wouldn't end up at PATAS in the first place, which seems like an odd decision which will doubtless get challenged at some point. I have read positive comments  about the adjudicator Mr Anthony Chan in other cases on the Pepipoo forum. Funny name Pepipoo but seriously good advice.

The costs application: (slightly tidied up by Mr M)

This is an application for costs by the Appellant after I allowed his appeal against a PCN issued on 12 March 2012. Both parties are aware of the high threshold before costs can be awarded and I shall not repeat it here.

I allowed the appeal on several points each one of which can potentially lead to a finding that the Authority had acted vexatiously, frivolously or otherwise unreasonably. I deal with each in turn.

Was the Appellant's vehicle on a yellow line?

The Appellant stated in his Notice of Appeal that there was no proof of the restriction. There were no photographs of the vehicle and, as far as I can see from the Authority's case, a description of the exact location of the vehicle. The Authority submitted an image from Google as a site photograph. It said that the Appellant's vehicle was in a yellow box in the image. I have already said that there was no evidence of the specific location of the vehicle so it is not clear how anybody can say that the yellow box marked the exact location of the vehicle. I have also pointed out that no yellow line can be seen on the yellow box. This meant that even if I were to find that the Appellant's vehicle was within the yellow box, I cannot possibly find that a contravention occurred. Mr Mustard objects to the use of google images in most of the appeals he deals with as they are not contemporaneous and so not reliable. His own photographs taken a week or two after the offence are likely to be more representative of reality.

The Authority now accepts that there was an "administrative error" with the site photograph. It submitted another image slightly further up Shirehall Park. It used a red box to identify a yellow line. I do not think that anybody doubted that there was a yellow line on Shirehall Park. The issue was whether the Appellant's vehicle was on it. A Google image on its own is never going to prove the point because a contravention is not proved by somebody putting a box on a Google image. There has to be some evidence to show that the vehicle was in the area marked by the box. The usual mealy mouthed explanation excuse from the council when caught with their pants down. A slapped bottom is often the result.

The delay

There was substantial delay between the issue of a Charge Certificate and the next stage of the enforcement process. The Authority said that best practice allowed six months and a technical issue took it to nine months. I am not aware of this best practice. Best practice is to enforce without undue delay and anything longer than six months is unlikely to be justified. I am not told what the technical issue is but the Authority has not explained why, as a public authority exacting a penalty, that it has not or would not consider that such a delay was unfair on the motorist.

As I am still none the wiser about the exact location of the vehicle, I do not know whether the service of the PCN and Notice to Owner was justified. The Authority said that it was, but rather missed the point that it has a responsibility to make progress with the enforcement action and that when it comes to an appeal, it should really have ensured that it has at least an arguable case supported by evidence. The point was the council wanted the motorist's money and they were blind to everything else.

Nothing that the Authority has said has persuaded me that its conduct of the proceedings was reasonable. I am making an award of costs.

The Appellant has set out his clam in detail. I allow the disbursements of £2.75. I am not entitled to allow cost for work done prior to the appeal. I am however allowing three hours of work in preparing and lodging the appeal, two and a half hours in studying the Authority's case, and one and a half hours preparation for the cost application. The last takes into account the Authority's conduct in the cost application. There is a total preparation time of 18 hours.

This Tribunal award costs on an hourly rate equivalent to the hourly late for a litigant in person at the small claims court. It is currently £18 an hour. This makes the cost of time spent £126 (7 hours allowed). The total costs allowed is £128.75 (ouch)

So Barnet council set out to make £110. They seem to have issued a marginal PCN, it used an invalid wording which the otherwise very able motorist did not pick up, the council let the PCN die and then brought it back to life, they left paperwork out of the evidence pack (a cynic would think that was deliberate and it does seem to have sent the adjudicator off-side)  used evidence that wasn't and then not argued very well (because they didn't really have a case).

Here is what the Secretary of State for Transport says in his enforcement guidance.

If the penalty charge is not paid the enforcement authority may issue a Notice to Owner (NtO). The purpose of the NtO is to ensure that the PCN was received by the vehicle owner and to remind the vehicle owner that the PCN is now due to be paid in full and if it is not paid within a further 28 days it may be increased. The NtO may be issued 28 days after serving the PCN, and we expect authorities to send them within 56 days after serving the PCN. The ultimate time limit, in exceptional circumstances, is six months from the “relevant date”. There should be a very good reason for waiting that long to serve a notice to owner. 

Mr Mustard has forgotten this point and can be sure to now use it in future cases. You can use it in your own appeals.

Now thinking about appeals generally. If you appeal to Barnet Council (NSL) informally in response to the PCN and then again formally in response to the Notice to Owner and then they turn you down both times but then file a Do Not Contest form at PATAS and simply give way; have they acted frivolously? Mr Mustard would say "possibly". Please write in to PATAS and ask for costs if this happens to you especially if you weren't told the council had given way and flogged to the Islington hearing centre. You can claim £18 per hour from the point where you receive a Notice of Rejection of representations.

Update: Next Monday 9 September sit yourself in front of the TV at 7.30pm and put on BBC 1 Inside Out on parking
and see if Barnet Council or NSL feature.

Yours frugally

Mr Mustard

ICO: bite - Mrs Angry: bark - Mr Mustard: growl

Mr Mustard expects that you have read Mrs Angry's blog on the subject of her recent battle, alongside the ICO, to get some minutes, that were intended to be published, out of the grasping hands of Barnet Council. As a regular user of Freedom of Information, although hardly at all recently, Mr Mustard felt duty bound to add one of his experiences to the publicly available information.

In relation to Barnet Council now being on the naughty step, for, in essence, not following the law, it is interesting to note what the deputy Leader, Dan Thomas, told the local paper, The Barnet Press, which you can read here:

Deputy council leader Dan Thomas said: “It will be interesting to see how we can improve performance as in January to March this year our rate for responding in time was 99.5 per cent, one of the best in the UK." (Mr Mustard is not convinced)

Of course, having frustrated Mr Mustard's best efforts to get interesting information into the public domain by embarking on a series of responses that his questions were vexatious (which was apparently a spontaneous matter that no officer will admit to positively deciding), when the questions were anodyne and simple to respond to, the number of requests to respond to had been artificially depressed thus making better performance easier.

However, although the ICO said publicly that delay was the reason there are almost certainly other factors taken into account such as there being 10 live complaints with the Information Commissioner (possibly the most of any council) and a case with the First Tier Tribunal about which more later (the ICO reminded Barnet Council last week that they were behind timetable on providing the evidence packs to all parties - Mr Mustard is on time with his legal requirements) and so Dan's "we are almost perfect" remark focused only on a narrow element of FOI law. Maybe Daniel asked officers the wrong question or officers failed to mention their various other shortcomings which were not specifically raised - we can't expect Daniel to have gone into Governance and got his hands dirty taking a good look at the actual requests, can we?

Mr Mustard received an email from the FOI section this week but let us go through the history of the request in order.

3 December 2011 (yes, 18 months ago)

Question: Please provide all minutes of, reports of and briefing papers of the Council Directors Group which have been created or presented since 1 January 2010 (contrary to possible belief, when it comes to FOI the Barnet bloggers work alone - we all want the scoop!)

7 December 2011

Question acknowledged. Response due promptly (try not to laugh Mr Mustard) but in any event within 20 working days starting the day after receipt which would be about 10 January 2012 (all those bank holidays got in the way).

6 January 2012 - holding response

I can confirm that the Council holds the information you are requesting. I have been advised that the Council Directors Group meetings are held fortnightly and that the information you are requesting relates to about 40 meetings.

There is a possibility that information contained within the papers you have requested would satisfy the criteria for exemption under the FOIA and the documents have to be looked at by a senior officer in order to determine if this is the case. Due to the volume and nature of the materials we are unable to complete this exercise within the 20 working day deadline and estimate that this will take a significant amount of time. Our approach to this request will be to release the information in stages as we work through the documents.

I apologise for any inconvenience this delay may cause you.

19 January 2012 - Mr Mustard is very helpful.

Thank you for you response.

I do not wish to waste the council's time if the information turns out not to be of great interest. Might I suggest that you redact the minutes of the first two meetings (one at once if necessary) and send them to me and then I will hopefully be able to tell if I want the subsequent minutes or not.

Do you have an estimate of what a "significant amount of time" is? It might be helpful if you time yourself, or a colleague, redacting the first set of minutes.

7 February 2012 -from the council.

Thank you for your email below. Please accept my apologies for not responding sooner.

I note that you have refined your request to the first two set of minutes and I have passed this message along with your comment to time the process of redacting the set of minutes.

I will forward the minutes to you as soon as they are made available to me.

So the council are already a month behind the 20 day deadline and Mr Mustard tends not to routinely chase the council (he does have a life!).

21 June 2012 - the council wake up

Our records indicate that the information requests below which were allocated to the Corporate Governance Directorate are still outstanding,

#1031A - Corporate Governance (Deleted Posts)
#1169 - Council Directors Group
#1223 - Procurement consultants
#1170 PWC Report Names (Internal Review)

We are aware that there may also be a few requests outstanding with other services within the council.

While we do aim to respond to requests within 20 working days we may on this occasion have missed the deadline. The council is committed to improving its ability to comply with its statutory duties under the Freedom of Information Act 2000 (FOIA) and, to this end, has implemented a new Freedom of Information case management system along with a continuing programme of raising awareness of officers’ duties under the FOIA.

In order to ensure that we respond to all outstanding requests and close off cases on the old system, we are writing to you to ask that you confirm that you are still interested in receiving a response or in the alternative to confirm your willingness to withdraw the request.

I would be grateful if you could respond to this email before June 29 2012; if we do not receive your response; we will assume that you have withdrawn your request and we will close the case on our system. (A council simply cannot withdraw your request for you!)

I look forward to your response.

2 Hours later:

I still require a response please, Mr Mustard.

later the same day:

Thank you for your prompt response. We will aim to fully respond to all the requests within the next 20 working days. (to requests that were already well overdue!).

Please accept my apologies on behalf of the council for the delays associated with your requests.

28 August 2012: Mr Mustard notices a response has still not been received and sends an email directly to the FOI officer handling his case.

I think I have been more than reasonable in waiting nearly 6 months for this simple task to be carried out.

I don't think my behaviour could be described as bullying or harassment if I were now to send this to the ICO, do you?

In response from the council governance officer:

I am out of the office until September 6, 2012; with no access to emails. Doh!

For FOI queries/advice please email foi@barnet.gov.uk (Mr Mustard thinks that emails should not be bounced back to the customer to take action - that is partly why management exist, to ensure all correspondence is dealt with in a timely manner)

28 August 2012: Mr Mustard sends the message again to the FOI inbox.

29 August 2012: A different officer (there are only 3 of them) responds: "Thank you for your email below of which I acknowledge safe receipt, and the contents of which have been noted." which means nothing at all.

27 September 2012: Still no reply so Mr Mustard sends a complaint to the Information Commissioner (ICO) as nearly a year has passed without his simple question getting any sort of a response.

14 November 2012: The ICO writes to Mr Mustard:

When considering complaints about delayed or failed responses to information requests our priority is to ensure requesters receive a response as quickly as possible (where one has not been provided) and to monitor any persistent trends which might indicate that a public authority was routinely failing to respond within the statutory 20 working days permitted under section 10 of the Freedom of Information Act.

We monitor complaints where a serious contravention of section 10 is recorded and where persistent contraventions occur we will consider placing a public authority on our monitoring programme.

The delay in this case has been brought to the attention of our Enforcement team for their further consideration.

I have written to the public authority to provide them with a copy of your original request, reminding them of their responsibilities and asking them to respond to you within 10 working days of receiving our letter.

and to Barnet Council:

Any public authority in receipt of such a request is under a duty to respond within 20 working days of receipt. As it is the case that you have not responded but acknowledged receipt of the request, we would ask that you now respond within 10 working days of receipt of this letter.

8 May 2013: The council woke up. Is it any wonder that the ICO has put Barnet Council on the naughty step when even after a prompt from the ICO they take 6 months to provide simple copy documents.

Mr Mustard was provided with 2 sets of minutes from January 2010. Here is the first one. There is a typo in the heading stated as 2009.

5 January 2010 Minutes of Barnet Council Directors group by MisterMustard

What is quite revealing about these minutes is that they contain a reference to the Judicial Review of the planned removal of wardens from sheltered housing (the very basis of that type of housing is that there is a warden!) which was all over the paper at the time which is pre Mr Mustard. The attitude of the council is not to change their policy but simply to do more consultation and then carry on as planned. We can expect the same with the New Support & Customer Services Organisation 10 year contract with Crapita.

What is also interesting is that the supposed "significant amount of time" to look at the documents appears not to have been significant at all, as there are no redactions, and the council did not tell Mr Mustard the time taken to check the first 2 sets of minutes which they doubtless would have if it was appreciable.

9 May 2013: away we go again.

Mr Mustard therefore asked for the rest of the documents and the 20 days clock in which to reply promptly has been set running again by Barnet Council. You never know, by 2015 Mr Mustard might even get them.

That naughty step is going to prove very hard to get off.

Yours frugally

Mr Mustard