Transfer deadline - 6 months is not less than 6 months

 

This is the hire agreement which relates to this decision, in which Haringey Council extracted £160 from Islington Council. Evidence packs for such a case can be requested under Freedom of Information regulations (or possible environmental regulations which are similar). Mr Mustard often asks to see the paperwork when it comes to one council fighting another as he likes to see how proficient the council are who received the PCN. Councils should ask their own parking departments for help but it seems they don't.

When Mr Mustard studied the evidence pack he found a blunder. The law allows for a transfer of liability from a hire company to the hirer under certain circumstances of which two are that the hire agreement is for less than 6 months

 and that the hirer signs to say that liability for a PCN can be transferred.

The above agreement isn't signed and someone might have signed it on behalf of Islington Council and their signature has been redacted with an eraser function that leaves no trace but given that the Reg. No. has been redacted with a black block it seems unlikely the signature will have been erased by a different manner. 

Leaving that aside the hire agreement is for 6 months exactly. That is not a period which is less than 6 months and thus Haringey Council were wrong to accept the On hire agreement as sufficient to agree to a transfer of liability as they did.

Had Mr Mustard, or any other seasoned expert, represented Islington Council at the hearing he would have pointed the error out in their skeleton argument and expected to win the day.

It isn't just Haringey who are sloppy in this regard, most councils are, they accept bald assertions about long term hires (to which different rules apply, an effective change of keeper) without seeing adequate backup.

The end.

Internecine PCN warfare

 

Some motorists have a pessimistic attitude, that councils and TfL have it in for them. They shouldn't feel individually persecuted, councils have it in for everyone, including other local authorities (and possibly their contractors). Every motorist is a possible rich revenue source.

Here is a tribunal case in which Islington Council try to avoid giving Haringey Council £160 and fail.

 

 

An adjudicator decides the case based upon the evidence put in front of them. The argument put forward was 

Had there been an official diversion in place one would expect there to be diversion signs. The cctv at this location is within Frobisher Road so looks at the backs of the signs (they can be proven by library images). If Islington Council had proof of signage diverting them into Frobisher Road that would have been an exemption to the pedestrian and cycle zone. However, Frobisher Road is part of the 'Haringey ladder' and I would therefore expect any diversion to have been through a different 'rung' one without a school within it. it is easy to lose a case by not proving it. If the explanation was true it was not adequately evidenced.

Islington Council lost £160 (unless they make the employee pay) and Haringey Council lost a c.£30 tribunal fee. Both sides lost bundles of time.

The alternative is that councils let each other off but that isn't satisfactory either, as council employees piously tell us we should look out for signs, so what is sauce for the goose....

The end. 

Islington Council - how much to tell a lie? - £80 - £160

 

A motorist who had been helped previously by Mr Mustard decided his case was so obviously acceptable that he sent in his own proof of delivery glass panels worth £450. To his probable surprise Islington Council said no. At that point he consulted Mr Mustard.

Mr Mustard dug out the relevant traffic order (there are only two sets of wording to cover the whole borough although several hundred pages of maps to go with the refreshingly short wording).

Mr Mustard read through the order (and also searched for the word 'private' which did not find anything relevant) and found this exemption which applies in pay bays:

Nowhere in the traffic order does it draw a distinction about the type of vehicle you are loading/unloading from (it would be different if a private car was parked in a goods vehicles only loading bay but that is not the case here).

Now, if the motorist didn't know Mr Mustard he would probably pay the penalty which is currently £80 but would rise to £160 after 14 days (and not everyone has £80 spare before pay day) but he certainly isn't going to be paying this time.

The council are writing untruths and the PCN will wend its way slowly towards the independent tribunal if Islington Council don't cancel it when Mr Mustard's complaint arrives.

The end (for now).

 

You can look at the wording of the traffic order here 

Click on 'View our 2023....'

Update 11 August 25.

Mr Mustard has been helped by Islington's parking manager before. They are always helpful.

They responded to his complaint over the weekend, which was a bonus and not expected, and the PCN is no more.

Here is some of what one of their team said:

I can confirm that the PCN should have been cancelled and that a mistake has been made by the staff member who dealt with the appeal. Just to reassure you, the officer responding to the case has not intentionally lied. They are relatively new (started around 1 month ago) and they have mistakenly rejected the appeal. I have asked for more training to be provided to this officer as it should be clear that loading/unloading exemptions do not only apply to commercial vehicles or when loading is taking place for business use. 

Regarding the other questions, I can confirm that the email has been logged with our FOI team, but I am able to provide answers with this response. 

There is no section of the traffic order which draws a distinction as to the type of vehicle which can unload in a pay by phone bay. 

The paragraph used is not a standard paragraph and the paragraph will not have been used in other letters. I must caveat that though as it is possible the officer may have made the same decision in another case and therefore used the same or similar wording. I am going to ask that the officer’s correspondence is reviewed to ensure that similar decisions have not been made.

Mr Mustard was concerned that this was a standard response and is pleased that it wasn't. Unfortunate for the enw employee to meet Mr Mustard so soon !

 

A rubbish PCN

 

Mr Mustard is an occasional visitor to play snooker in the Mildmay Club (well worth joining if you live nearby as it has lots more attractions than the green baize) and has done some PCNs at this location and is on 7 wins out of 7 at the tribunal.

A Hackney Council bin lorry fell foul of the restriction and didn't ask Mr Mustard for help despite being on the receiving end of his fire many times. They managed to win without him due to an adjudicator who took a pragmatic approach.

The problem with this retriction is that just after you pass Jolene Bakery (top notch bread sold there and at their other branches) instead of going straight on to reach The Duke of Wellington you have to drive west and take the next exit off the roundabout whereas you know you need to head south east. At the junction south east of The Alma you should then turn left onto the Balls Pond Road.

Here is the decision.

 

The problem with these weight limits is that you don't know how far away the other end of the weight limit is nor are diversions or suggested routes posted.

If you get caught here by Islington do email mrmustard@zoho.com for free help (you only need to donate to the North London Hospice).

The end.

Dirty number plate problem

Here is Islington Council's photo of a contravening vehicle GO-ing where it shouldn't

To preserre the innocent motorist's identity Mr Mustard has redacted the number plate.

He made a short formal representation that there had been a number plate read error.

As parking management at Islington are always happy to hear from and respond to Mr Mustard he also sent them an email with some questions which he would like to have had answers to, as follows:

Unusually Mr Mustard did not hear back. As this is the only case of this type to land on his desk Mr Mustard just let it go. He will link to this case if another similar one comes along.

He did receive a proper and polite cancellation so Mr Peugeot was happy.

 

The nagging unhappiness in Mr Mustard's brain is that when a council sends out a postal PCN they need to have a belief that the person sent the PCN is the registered keeper. In this case clearly when told by DVLA of the name and address of an orange Peugeot they should have compared this information to their cctv images and realised they could not hold this belief. They are not the only council not checking. If the car had been leased the lease company might have just paid up as some (wrongly) do.

The end.

 

Islington - not everything was as it first appeared.

 

One of Mr Mustard's regulars is a heating engineer. Despite being from Enfield, and also notwithstanding the extra £10 per hour or part thereof, Harry (not his real name) is still prepared to drive up his diesel van up to Islington. Naturally he asks his customer to arrange parking rights if they are willing (they may be a tenant so they may not have an account or may not think it is their responsibility) and if they can't he then pays to park. This can take a few minutes and in that time a traffic warden inevitably arrives.

In this case the PCN didn't make it off Harry's dashboard, a veritable paperwork graveyard, in time to challenge with the discount still intact. In such a situation Mr Mustard fights to the end even if he thinks he doesn't have a prayer. Mr Mustard would need to be frivolous, vexatious or wholly unreasonable in order to have costs awarded against him. They are rarely awarded and in this case the PCN had a wording error in that the 28 days quoted should refer to the date of the alleged contravention and not the date of service which was an argument that held sway at first and then adjudicators changed their minds.

Once the Notice to Owner dated 22 January 24 arrived Mr Mustard made the formal representations (as they are known, it is simply a challenge made at the correct time). His representation was the sign and the traffic order differed. He relied on a decision he had himself obtained against Barnet Council, that the traffic order did contain a tariff for the location in question.

 

Needless to say, Islington Council rejected the contention.

It is irrelevant whether or not the decision relied on was for the same road or a different one or whether it is for Islington Council or another one. It is the case that tribunal decisions are not precedents as they are 'legally persuasive'. What they means is that the council should look at the factual matrix of the decision and compare it to the facts in their case and decide the extent to which they are on 'all fours'. The failure to do so was, in Mr Mustard's opinion a procedural impropriety i.e. a failure to consider the representations which is a statutory duty. Mr Mustard often wins on procedural error.

 

The error which Islington made was to not offer the discount as at this stage Mr Mustard had quite a weak hand but there was nothing to lose by bluffing it out. Not offering the discount at this stage when it isn't obligatory is a growing trend that Mr Mustard has noticed.

Mr Mustard duly started an Appeal at London Tribunals. That is free for the motorist but costs the council the thick end of £30. Only 1% of PCNs end up at the tribunal. Mr Mustard would like to see that percentage rise radically.

Mr Mustard doesn't mince his words at Appeal.

Mr Chan is now the Chief Adjudicator so you would expect his decisions to be given careful consideration by other adjudicators.

The Appeal was started on 26 February with an in-person hearing date of 28 March. Islington served the Evidence Pack, which contains the arguments of both sides, on 19 March.

There was more nonsense in the council's case summary:

The next paragraph in the Case Summary piqued the interest of Mr Mustard

What this means is that in Islington if you pay for location 61095 and you should have paid for 61059 but they are both within zone A then you are not in breach of the requirement to pay. People often pay for the next bay along or the one opposite and in Islington 99% of the time that will be OK.

At this point a curve ball arrived. Mr Mustard asked Harry for his payment records for the day in question. They disclosed that on the day in question Harry had paid for parking in Hardwick Street (and as it happens for the correct bay number) and it has expired at 10:32 am. He had paid for a mere 10 minutes of parking but that gives you 20 minutes as thanks to the Right Honourable Eric Pickles MP as he was at the time (now Lord Pickles) a payment of 10 minutes leads to an extra period of 10 minutes when a PCN cannot be issued.

If you look back to the start of the blog the PCN was issued at 14:05. The PCN was for not paying. The actual contravention which had occurred was staying beyond paid for time. Mr Mustard had a little laugh to himself, he had been on the high wire and he was saved, the traffic warden had blundered. Mr Mustard wonders if the hand held equipment of the traffic warden simply does not show expired payments? The evidence pack suggested that the traffic warden only checked for payments from 1:29 when he first observed the van.

Mr Mustard filed a preliminary argument on 22 March. Adjudicators probably quite like these as if they are correct they can ignore everything on the file and Allow the Appeal, thus cancelling the PCN, without having to study the typical 100 pages of evidence.

Islington Council saw the writing was on the wall and took the very rare decision, after they had done all of the work to produce the Evidence Pack of cancelling the PCN which thus vacated the hearing.

Mr Mustard learnt a lot from this case.

The end.

Islington Council - a role model

 

The above PCN was issued to a lady who had passed away and her car was insured for family to drive until it went back to the lease company shortly thereafter. Islington Council were very considerate in cancelling without fuss.

 

Mr Mustard thought that the PCN was served late being more than 28 days after the alleged contravention date, that being the rule (with an exception or two) for moving traffic cases.

 

He asked Islington how many such PCNs there were in the year to 31 March 2023. The answer was 1,162.

 

Mr Mustard told Islington they should refund them all and made noises about going to the external auditor (a deadline he missed as he was away on holiday).

 

Being late didn't matter as it turns out that Islington Council have morals.

Mr Mustard complains quite often so likes to dole out some praise as well.

The next story will be good news as well, also from Islington.

The end.

Islington Council having a laugh

If a PCN offers the ability to make representations by email

a council cannot then in all fairness unilaterally withdraw the option (until they have stopped putting the method on Penalty Charge Notices and other documents) but for some unaccountable reason Islington Council have done just that (2023 isn't a good year for them, see previous blog post).

Mr Mustard often raises the concept of fairness with traffic (PCN) adjudicators as there is a duty on councils as pronounced by Lord Mustill.

One adjudicator wrote this in a tribunal decision:

 

Councils must act with honour, a concept which parking departments lose sight of when they focus on the money.

Mr Mustard will ask Islington Council to either accept emailed representations or remove the option from their documents.

The end.

Islington blunder but recover well

Mr Mustard has a regular client, let us call him Mr L, who, due to working all over London collects a few PCNs. If Mr Mustard can find an angle, he fights them. Every PCN won is £50 to the North London Hospice. This time Mr L, who is good at paperwork, said he had received a Charge Certificate but not the postal PCN for driving where he shouldn't have. Mr Mustard knows that Mr L and his secretary are well organised so he could believe what they said.

The charge certificate was dated 8 March.

The PCN was supposedly sent on 9 February.

The above explanation was wishful thinking. A Charge Certificate can only be served if 28 days have elapsed from the service of the PCN, if a PCN has not been sent then the Charge Certificate isn't lawful and is good grounds for cancellation of the PCN. Islington looked like they were trying to get away with it but were forced to change their minds by circumstances.

Mr Mustard made a challenge, it was a simple but effective one:

The PCN value was quietly set to zero without a formal Notice of Acceptance (Mr Mustard checks balances weekly).

Mr Mustard also made a request for information and that has been responded to, as follows:

Islington cancelled once the extent of the problem became clear, they couldn't cope with their phone lines melting.

The end.

Keep in touch if you struggle to pay

Here is the location in question, the same signs are back to back so this makes a virtual barrier, one the council makes a mint from by not installing rising bollards but installing a camera instead.

Mr X, whose identity Mr Mustard is at pains to hide and thus he has edited the place descriptions and removed small pieces of other information in the representation made to Islington Council but you still have the gist of the plea for mitigation - health and financial problems.

 

That was a considered request for clemency coupled with the promise of future compliance which is what councils claim to be their aim, not revenue raising. Mercy came there none.

A templated start to the rejection, the gap after 'letter' should probably say 'of dd/mm/yyyy' and besides, it was an email.

Not 100% accurate as relevant permit holders are allowed through.

The email has now been described as a letter and this paragragh was clearly a bespoke one. Some boroughs do let all blue badge holders through these restrictions as this restriction means resident blue badge holders can leave through the square but the wider group of disabled people can't do so, they will have to go around, if they know the way. If you do have genuine business on the other side of the barrier, perhaps a visit to your physio who lives and works there, it would be helpful if diversion signs were posted. AMW permits are issued to blue badge holders who live within:

 

Pish, this is over egging the danger. Police cars, ambulances, fire engines can all hell through, dustbin lorries can rumble through, cyclists should abound, blue badge residents will be driving there. Any motorist can drive into Lloyd Square turn around and leave again, there are parking bays on all four sides. Mr Mustard recommends you stick to the pavement if on foot.

The London Gazette, the Official Public Record of traffic orders, says the order is experimental and recent:

This is the most extraordinary statement which Mr Mustard has ever seen within a Notice of Rejection, a document which must have certain statutory content and then 'may contain such other information as the enforcing authority consider appropriate'. What is appropriate about saying the motorist should 'keep in touch'? 

Is this meant to be a friendly gesture but why? as the writer (whose name Mr Mustard is not releasing) has the power to cancel the PCN and has not done so. It isn't as if the stated illnesses are likely to change within the 28 day deadline or that Universal Credit or PiP payments will skyrocket.

Mr Mustard thinks that we may have run over a parking officer with a conscience and perhaps they didn't like the message their boss told them to write so decided to soften it a bit but without a clear indication of Islington's policy for the impecunious then these rather odd words about keeping in touch are pointless. Islington Council didn't have a policy on the exercise of discretion when Mr Mustard asked them a year ago.

Mr Mustard has accepted the invitation to start an Appeal to the independent adjudicator for which he has a technical argument which he will tell you later, if it works.

Finally, before you say the driver is an idiot who doesn't know his road signs, we are all conditioned by what we see. If you shop at Sainsburys in North Finchley and travel there by car, you have, for years, been driving into Ravensdale Avenue from the High Road as that is the only way you can turn into the supermarket car park. Look out of your windscreen and what do you see?

That is correct, no motor vehicle should enter Ravensdale Avenue, the plate below is an error, not being a permitted variant, the round sign already banning all vehicles, whether above or below the stated weight. No-one who lives in this street should be driving home. The same sign, without the weight plate, is at the other end of the road so zero traffic should enter from the eastern end. If Barnet Council can't even keep their signs correct, what chance the motoring public especially if you have entered Ravensdale Avenue a hundred times without receiving a penalty charge notice.

End.