Come on Barnet Council - give the money back - you are legally and morally in the wrong

Mr Mustard noticed an unusual statutory notice in the local paper, here it is:

Mr Mustard hadn't been asked to fight a PCN at any of these locations and therefore he hadn't noticed the omission error in the map based traffic order. Mr Mustard concluded that any PCN issued there would be ultra vires i.e. beyond the powers of the council to issue it.

To be sure, in March 21, he emailed the boss of parking at Barnet Council to ask pertinent questions

Usually Mr Mustard gets an email back within 24 hours, even outside the usual working week. This time his email was met with a resounding silence. Mr Mustard knew he was on to something. Mr Mustard then sent, in August 21 (he was busy doing nothing during the summer) a request to Parking Consultations. Again he was busy and it wasn't until December that he noticed the lack of response and had to nudge the department. They registered his request as a Freedom of Information request with a request date of 8 December. That is how you fiddle your FOI statistics, the request was made on 17 August. For some reason there was delay in responding (this was the simplest of requests, get a document out of the electronic filing cabinet and send it to the requestor, Hackney can do that in 10 minutes) for which FOI apologised and said Mr Mustard should have the documents by 25 January. They arrived on 27 January.

Mr Mustard went back to the original 2012 Traffic Order which led to signs being erected about the Event Day zone. He couldn't find a complete copy Traffic Order but did see that Barford Close was listed as being eligible for permits and thus was clearly part of the Order and signs were erected to reflect the rules. Back in 2012 every section of road had the rules described based on written descriptions, like this one

In 2014 the council decided to move over to a mostly map based Traffic Order (there were still a lot of words). The statement of reasons included this gem, 'without change', which Mr Mustard knew was nonsense as some of the boilerplate was different and various forms of words used over the years were simultaneously brought up to date.

Mr Mustard worked out over time that the way in which all the dozens of Traffic Orders were consolidated didn't involve anyone reading them and plotting them on a map. No, it involved people with gps trackers walking the streets of Barnet pressing buttons at the start and ends of bays or lines and recording the data on all signs they saw, whether or not they were correctly installed. What must have happened in the case of these now added roads is that either the foot soldiers forgot to walk down them or the data fell off the computer somewhere and when the map was checked before publication the omissions were not noticed (not a surprise in a place as big as Barnet).

You can see the differences here. 

Before:

After:

Here is the relevant section of the CPZ map produced in 2012 when the Saracens zone was first mooted. 

For your reference, here is the amending (correcting) Traffic Order.

Traffic Management Order - Barnet Council - fixing omissions 2021 by MisterMustard on Scribd

Then Mr Mustard went to look at tribunal cases for the omitted event day locations since December 2014 when the maps became law. There were only 3 cases all of which the motorist won without the maps needing to be carefully consulted.

Finally Mr Mustard's research took him to the April 2015 to March 2021 database of issued PCNs. He extracted all of them (codes 01,16 and 19) for Wheatley Close, Barford Close, Westside and Hall Lane. Here they are.

Barnet Council ultra vires PCNs in the Event Day Zone by MisterMustard on Scribd

So that is 864 PCNs, all but 15 of them issued at £110. The usual rule of thumb is that half of them will be paid at 50% and then enough at 100% or even 150% to counterbalance the ones which aren't paid and lead to an overall income level of c.50% of the face value.

864 * £110 * 50% =  £45,720 of illegal income.

Mr Mustard would have heard if the council had made plans to automatically refund the PCNs as would be the proper course of action. Consider also that some will have been sent to bailiffs and the warrant cannot be valid if the underlying PCN isn't legal.

If you are affected (you can check with Mr Mustard if you are unsure, email mrmustard@zoho.com) Mr Mustard recommends you make a complaint.

You can do this by telephoning 020 8359 2000 although Mr Mustard doesn't suggest this method as you don't have a written record, by writing to: Corporate Complaints, Barnet Council, 2 Bristol Avenue, London, NW9 4EW or, using Mr Mustard's preferred method, by sending an email to barnet@nsl.co.uk

If you no longer have the details of any PCN that you paid for, give the council the name and address of the registered keeper and the vehicle registration and ask to be refunded for any PCN in the streets listed at the very top of the blog issued to the vehicle registration number which you will provide them with.

Please add a comment if you get a refund. If you do, please also consider donating part of it to the North London Hospice.

End.

Brent - sloppy work on the removals truck

It is the black car which was removed.

A friend who helps his extended family approached Mr Mustard for his help and was apologetic for asking because he knows Mr Mustard has a heavy workload. The friend hadn't deal with a removals case before so wanted some reassurance. In fact removals cases aren't much different to normal PCNs except that your car has gone for a walk and you have to pay before you get it back. The procedure in these cases is much quicker as some steps get omitted.

All you have to do is to make representations within 28 days of getting your car back from the pound (& the day you do so is day 1) and then wait up to 56 days for the council to either accept or reject your representations. You must always make representations as that is the only way in which you may get your money back. If the council accept your representations they will refund you for the PCN & the £200 removal charge. If they don't, you get the chance to Appeal to the independent tribunal.

Mr Mustard will spend longing writing this blog than dealing with the PCN as it is a council blunder, one of the categories for which his help is reserved.

This is what the PCN was issued for:

You are already there aren't you? The PCN is invalid as the car wasn't more than 50cm from the edge of the carriageway, it was on top of the edge of the carriageway. This contravention describes in a measurable form the fact of double parking which authorities wished to curb (pun intended). It can only be used for a vehicle which is wholly on the carriageway not on the pavement.

If any contravention could have occurred it was that of being parked other than on the carriageway (pavement parking) but that wouldn't apply anyway as the location in question is not enforced for that reason.

Mr Mustard doesn't know what they are doing in Brent but then clearly they don't either. A hard working innocent law abiding member of the public has had the horror of thinking his car has been stolen, been issued with a clearly invalid PCN, had a senior traffic warden authorise his car for removal, had an evening wasted, had to lend Brent £265, had to pay out £10 for a taxi (& £25 later on to the hospice for Mr Mustard's assistance).

Can you see Brent Council issuing a fulsome apology, making good the out of pocket expenses and then giving him some compensation for his stress, time and trouble on top? No, nor can Mr Mustard. All he is likely to get is his money back and a short apology.

There really does need to be a fixed price compensation payment in such circumstances, of clear council wrongdoing but it seems, councils can, in the eyes of the law, do no wrong.

Yours frugally

Mr Mustard

An apology of an apology

You'll remember the above cctv from the previous blog post. The car to watch is the one turning right into Avenue Road. Mr Mustard set you a little challenge as to whether or not it was a contravention and told you that Barnet Council thought it was and had sent a PCN in the post demanding £130. So far, 43 people have voted and 38 correctly say that it isn't a contravention and 5 say it is. So 5 motorists would have paid Barnet Council £65 each which they would not have ever seen again.

Here are the relevant rules from the TSRGD 2016:

Thus, the grey car turning right can enter the box, as his exit, the road to the right, is clear and he is prevented by completing the turn by oncoming vehicle(s).

Mr Mustard made both the formal representations in the name of the registered keeper (the driver if different cannot make them), they were short 'I have done nothing wrong' and also submitted a complaint, viz:

I have repeatedly been assured that an operative watches the cctv clip before taking the decision to issue a PCN.

I don't think it can have been the case for this PCN as no contravention has occurred, so that is the complaint.

If, in the alternative, operator 5** (recently employed I think) did watch the cctv clip and decide a contravention had occurred then I don't think they know what they are doing, is my alternative complaint.

The turning is not that busy, most of the people who will be caught are residents of the road, as in this case. I can't see they will cause traffic mayhem at this spot as Sainsbury shoppers are most of the turning traffic. I think you could turn off the contravention spotting for the right turn, all the others PCN at this location that I have seen are for people southbound on the High Rd which is really the intention of the box, to create a break for traffic to exit into Ravensdale Avenue.

If the PCN is unlawful it again raises the question as to whether an apology & cancellation alone is sufficient remedy and as you know I don't think it is.

Best regards

Mr Mustard

It only took 3 days for the complaint to do its work.

Here is what the council have sent in the way of an apology & explanation.

Interesting. Mr Mustard's first email on the subject was on 31 July not 29 July which was the date of the blog (Mr Mustard is pleased to see that Barnet Council read it). Error 1. Oops, Mr Mustard made an error. He really is very sorry. He hadn't appreciated, or remembered, that the motorist had made his own complaint about the PCN on the day of receipt. He has no excuse. He is pleased to confirm that there are not 11 errors in the council's letter, only 10, so that's all right then.

They have cancelled the 'Notice to Owner'. That is quite a trick as in moving traffic cases there isn't a Notice to Owner, only a postal PCN. Error 2.

Of course the decision sets a precedent as they agree that driving like this is not a contravention (almost what they say but read on) and so as this motorist is going to turn into his road like this at least 5 times a week he is going to continue to drive into the box and await oncoming traffic to clear rather than trying to bulldoze through it. Isn't safety the prime consideration, or is it revenue raising? Error 3.

It is not the motorist's responsibility, when turning right, to ensure the vehicle can travel freely through the box junction. It is his responsibility to follow the law which allows for entry, and stopping, when turning right and prevented by other stationary vehicles or oncoming traffic. Error 4.

It is not prohibited to enter the box junction and 'become stationary' (stop!) if you are turning right and.... Error 5.

Stopping in a box junction is not always a contravention. If you are turning right etc etc. Error 6.

It is not an 'exemption' to the box if you are turning right. It isn't, by definition, a contravention. See how the council think in this sentence. They start from the premise of wrongdoing, the public are always guilty as charged. Error 7.

There are no 'oncomming' vehicles, there were some 'oncoming' ones. Error 8.

Of course the officer (whose number Mr Mustard has rather generously partially redacted) needs additional training. He/she hasn't the foggiest what he/she is doing in respect of box junctions. Does he/she even drive and have any sympathy for the plight of the motorist watched by big brother on telescreens? This motorist was simply trying to get home fully in accordance with the rules of the road. Error 9.

One cannot 'assertain' anything. There is certainly an 'ass' involved but if you can't spell 'ascertain' then perhaps you should say 'find out'. Error 10.

Finally an apology 'on this occassion' for 'any inconvenience' as if there might not be any inconvenience on this 'occasion'. If a PCN isn't an inconvenience when it isn't legally issued, what is? Error 11.

"An apology without feeling is just a collection of words.", © Mr Mustard, 2017.

There is a symptomatic sickness at the heart of many local authority traffic enforcement departments (often jokingly called 'services') who think it acceptable to make illegal demands for money and then send out half baked, inaccurate, insincere, spelling error strewn letters and make no offer of amends for the time, stress and inconvenience of their illegal actions. Sadly there is no body with power and the teeth (the LGO would probably regard the cancellation and pseudo-apology as adequate recompense for this maladministration) to keep councils in line. It is only the bad publicity that councils fear & hate and so this blog will go on highlighting their misdemeanours to try and make them learn from their errors.

It is very difficult to get the money back once a PCN has been paid but if you have been wrongly caught turning into Avenue Road, N12 and you paid the PCN do please let Mr Mustard know, by email to mrmustard@zoho.com

The underlying problem here, as the parking manager is a good egg (Mr Mustard never writes about him, oops!) is that when he took over he was already lumbered with outsourced suppliers like NSL who are obliged to keep staff wages low in order to meet the financial imperatives of the contract. It is NSL who initially review the cctv to check if a contravention has occurred. It doesn't necessarily follow that the more expensive the employee the better the literacy level, tales of bin men with degrees are the stuff of legend, but it usually follows and he can't do everything. Clearly this response was delegated, sadly to the wrong person (and whether to a council or NSL employee Mr Mustard does not know).

Councillors, you are responsible for the decision to outsource. That makes this sort of situation more likely. You have ceded control, that was your mistake.

Yours frugally

Mr Mustard

It takes 18 months for Ealing Council to do the right thing

The above image is Ealing Council's reverse date order log of all events for one PCN. If you look at the seventh line from the bottom you will see that it is a statutory document which has been returned. The only document issued at that stage was a postal PCN for a bus lane contravention. That should signal a pause in the process whilst the council establishes why the document came back (somewhere between the DVLA and Ealing Council the address got mangled, it was correctly recorded at DVLA). Did it stop the process? did it hell as like. The very next day the council issued the Enforcement Notice (not to be confused with a Notice of Enforcement) which is the bus lane equivalent of a parking Notice to Owner. From 15 October onwards every action taken by Ealing Council was ultra vires, 'beyond their powers', or just plain illegal to you and me, as well as immoral but council parking departments are often a moral free zone.

Mr Mustard's chronology in forward date order is easier to follow:

Following the filing of a witness statement, the council get the chance to reconsider their position and cancel, the smart choice, or to refer the matter to the tribunal. They chose the latter and then got hit with one of Mr Mustard's skeleton arguments, the type of argument which a certain adjudicator has said looks nothing like a skeleton, it being more than bare bones:

At this point many councils recognise they are in for a battle and gracefully withdraw, especially as failure looked inevitable on the PCN service point alone, but no, Ealing Council let the matter go to a hearing. Mr Mustard had 6 hearings that day and didn't expect that disposing of Ealing would slow him down much. The Adjudicator was more than fair to Ealing, who had been given 7 days notice of the skeleton argument so had ample time to respond to it, and he asked them to clarify two points which was too much for Ealing. Finally after 18 months of almost relentless pursuit (a bit of a hiatus in the middle) they withdrew the Appeal which automatically means the cancellation of the PCN.

Late is usually regarded as within 4 days of the hearing.

What a palaver, one which Mr Mustard is never defeated by, he simply reacts properly and in time to every piece of paper.

Ealing Council were bang out of order in continuing to escalate the case after the return of the postal PCN. Just looking at the file at that time would have revealed the address error and they could & should have sent a fresh PCN to the correct address or cancelled (a fresh PCN might have been out of time but that isn't the question today). The way they were headed the matter would have been with the bailiff before long and bailiffs don't listen to not had the PCN stories, they just take your car (generally speaking). Ealing Council are guilty, in Mr Mustard's view, of an abuse of process. What a pity there isn't a regular external audit scheme to check that they are not misusing their powers.

Councils have more power than they can be trusted with.

Yours frugally

Mr Mustard

The chronicles of Westminster

Sometimes PCN just take a long time to sort out, especially when faced with intransigence from an enforcement authority, combined with a refusal on their part to accept they have done anything wrong. In this case they had omitted the house name for a rural location out of the address, and there weren't street numbers, and as the client lives on the edge of a wood and the Royal Mail often delivered his mail next door and they don't 'get on', mail often doesn't reach its destination.

What was especially naughty was when the client paid £120 in error, at a time that only £80 was due, was that Worstminster decided they would stop the process at that point. Dishonest is not too strong a word.

Equally naughty was to send a fresh Notice to Owner before the refund had been processed. The Notice demanded £80 at a time when the client was £120 in credit.

Had it not been for Mr Mustard the motorist would never have sorted this one out on his own.

Finally, it was cynical to reject Representations and then decline to attend an Appeal. Worstminster wasted a £30 tribunal fee for that little piece of bluffery (Mr Mustard makes a tribunal Appeal in 99% percent of cases for which he has the opportunity).

Mr Mustard does not give up once he gets his teeth into something. Enforcement authorities take note.

Don't think either City of Westminster that Mr Mustard didn't notice that you let NSL reply to complaints. When they are about what they are doing, you should be looking at them in house.

Yours frugally

Mr Mustard

The 56 day law

Mr Mustard had a PCN cancelled by Barnet Council parking management yesterday on the simple basis that they were acting ultra vires (outside of its powers).

For parking PCN (not for moving traffic contraventions or bus lanes where there is a 90 day guideline) where you have made 'formal representations' (just a challenge in plain English) against a PCN received through the post (as it acts in effect as the Notice to Owner) or where you have made formal representations after receiving a Notice to Owner the council get 56 days, starting with the date on which they received the said representations, to write and accept or reject them. If the council fail to respond they are deemed to have accepted the representations and the PCN cannot be chased further. (The fact that the public only get 28 days to respond to a Notice to Owner is an inbuilt system unfairness).

Mr Mustard had submitted the representations by email (you can do this to barnet@nsl.co.uk - set a delivery receipt) on 15 June and that is day 1. The council therefore had to serve their response by 9 August. What they did was to post their negative response (Notice of Rejection of representations) on 9 August and service is, unless shown otherwise, presumed to have occurred on 11 August. The council were therefore late and their Notice of Rejection was an unlawful offer to make an Appeal to the Adjudicator or to pay £110.

Mr Mustard counts the days (is 8 weeks) on a printed calendar or uses a spreadsheet to calculate 56 days but there is a useful on line calculator here

and Mr Mustard has given you the worked example for 56 days from 15 June

As this calculator counts the start date you choose as day 0 not day 1 you only add 55 days and you should do the same with your chosen date.

Mr Mustard is now waiting to find out the answer as to why there are not systems in place to stop the council from breaking the law in the way they did. This case will not be the only one in which they have acted illegally, they just tried to defraud £110 from the wrong victim this time.

Yours frugally

Mr Mustard

NSL employ a rotten liar

A lyre, not a liar

Mr Mustard has been a debt collector since 1987. Thus, he usually knows when he is being lied to. It was therefore a foolish NSL employee who decided to tell Mr Mustard an absolute whopper.

Here is how the exchange went:

27 Nov 13: PCN issued to car.

12 Dec 13: Mr Mustard is introduced to the motorist. We are already out of time for the 50% discount so might as well fight to the bitter end.

30 Dec 13: Notice to Owner issued.

3 Jan 14: Mr Mustard files the formal representations. He includes the following:

I have a copy of the contract between NSL and Barnet Council. For a code 19 PCN the contract stipulates an observation time of 3 minutes which has not been adhered to so this PCN has been issued in breach of contract and is ultra vires. I further note the use of the "z" suffix for an expired permit but Mr G. hasn't had a permit at this address.

20 Jan 14; NSL, on behalf of Barnet Council, reject the formal representations and include the following:

It has been stated that the observation period given before issuing this notice is insufficient according to the contract between NSL and Barnet Council; however as with all contracts they are subject to amendments from time to time and contravention 19(z) is now an instant contravention meaning no observation period is required prior to issuing a notice.

Mr Mustard's nose twitched when his client sent the response on to him.

3 Feb 14: Mr Mustard filed an Appeal at PATAS.

9 Feb 14: Mr Mustard sent the doubtful response to the parking manager.

11 Feb 14: Mr Mustard saw the parking manager at a committee meeting. He was then told that no contract changes had been made since the contract started and an apology was on its way from NSL. The parking manager seemed not to be amused.

11 Feb 14: NSL write on behalf of Barnet Council to the motorist and say the PCN has been cancelled due to insufficient observation. They don't write to the representative, Mr Mustard, and apologise for insufficient truthfullness. The apology is not sent by the dirty rotten liar themselves.

26 Feb 14: The PATAS Appeal is dismissed as the council has thrown in the towel. The council are £40 down in fees.

12 May 14: Mr Mustard decides that NSL have no honour and that a proper apology will not arrive. He decides it is high time that the world knew what outsourcing means, it means that you have no real control of the outsourced process and that at least one employee (Mr Mustard knows who you are; you have had your one bite and will remain anonymous for now) of NSL will stop at nothing to deny a genuine reason for cancellation of a PCN.

This is why you don't stop when your first and second challenges get rejected and you stick with the process and Appeal to PATAS where you will get an inpartial hearing.

Why do parking contractors have no manners?

Yours frugally

Mr Mustard

Note: The Parking Enforcement Contract which started on 1 May 12 for a 5 year period with a possible 2 year extension (if that idea hasn't already been squashed then we are managed by fools) is one of the earliest of the first wave of One Barnet contracts (and the sooner we wave goodbye to it the better) and this disgusting event just goes to prove Mr Mustard's point that outsourcing is not the answer to all your problems (Barnet cabinet councillors please take note) but simply removes some and replaces them with others. The big problem that you inherit is managing at a distance. If this had been a council employee writing to Mr Mustard such a stupid and blatant lie would not have been attempted as direct employees would know that sometimes the manager's phone will ring and Mr Mustard is on the line and sometimes Mr Mustard's home phone rings and a parking manager is on the line.

One Barnet isn't working.

The curious case of the £16.1 million payout to Capita: a joint statement from the Barnet bloggers

Dear Councillors

Throughout the history of the One Barnet outsourcing programme, statements by the leader of Barnet council, Cabinet members, Conservative councillors and the senior management team have all maintained that as a fundamental commitment to the NSCSO contract Capita would make a large ‘upfront’ capital investment.

The necessity of this investment by a private sector partner was given as the reason why the authority refused even to consider an in-house option as an alternative to privatisation of council services.

If an in-house option had been adopted, not only would many local jobs have been saved, all efficiencies made through better management of such functions as procurement would have been retained by the authority, as opposed to a limited amount capped in the contractual agreement with Capita. By ignoring this option, it is arguable that the statutory duty of the authority to make the best use of taxpayers' money may have been breached.

We have now learnt that not only has Capita failed to make the promised capital funding but that in August, in a complete reversal of  policy, the Leader of the Council sanctioned the payment to Capita of £16.1 million of taxpayers’ money held in the authority’s reserves, in order to cover the cost of the capital investment.

We believe that not only have the leadership, Conservative members and senior management team of Barnet Council promoted the need for privatisation, and the contract with Capita, on a totally false premise, they have continued to mislead residents by misrepresenting the facts, and maintaining that capital investment is to be given by the company, rather than admitting that money has been taken from the authority's reserves and paid to Capita for this purpose.

After the Cabinet meeting of 6th December 2012 which approved the contract with Capita, Councillor Cornelius made this claim in a statement published on the BBC London news website. Council leader Richard Cornelius said the combination of a saving to the taxpayer of a million pounds a month and an £8m investment in technology by Capita made it a "very, very good deal for the Barnet taxpayer".

bbc news website

This misrepresentation of the truth has continued even after the payment £16.1 million was formally authorised by the Leader of the council.

The business model approved by Cabinet on 6th December 2012 stated clearly that this investment was to come from Capita: how can it be lawful, therefore, that having approved the contract on this basis, we now find the reverse is true, and that taxpayers are paying for the investment?

If there is any financial argument for such a fundamental change, why has the authority not been open and transparent about this new agreement, and sought approval through the appropriate procedures?

The authorisation to add £16.1 million to the capital programme in order to pay for the capital investment was made on 5th August this year by Councillor Richard Cornelius, in an action defined as a 'non key' decision.

Barnet council wesbite

According to the council's own constitution, key decisions are those that are 'significant in financial terms or in their effect on communities comprising two or more wards'.

Clearly the decision to remove £16.1 million from reserve funds in this way most certainly is a key decision, and departs in the most fundamental way from the business model approved in December.

Quite incredibly, on 6th August, the day on which the contracts were signed, and the very next day after the leader signed off the £16.1 million to cover the capital investment, Barnet Council issued a press release: 

Press release

in which it is stated:

"Capita will also make an £8 million pound investment in technology to improve council back office services".

What is that statement, other than a deliberate misrepresentation of an unpalatable truth?

We note that the explanation of the NSCSO contract on the council's own website, updated after 5th August, continues to maintain falsely that an upfront investment will come from Capita: see here -

NSCSO details

Capita will make an upfront investment which will provide improved Information Technology and telephone support to improve council back office services.

In regard to the approval of 5th August, the constitution says:

When key decisions are to be discussed or made, notification is published at least 28 days before. If these decisions are to be discussed with council officers at a meeting of the Executive, this will generally be open for the public to attend, except where personal or confidential matters are being discussed. The Executive has to make decisions that are in line with the Council’s overall policies and budget. If it wishes to make a decision that is outside the budget or policy framework, this must be referred to the full Council to decide.

Unless the change of policy, and a radical change to the terms of the business model represented by the decision to use reserve funds for a capital investment payment to Capita has been formally agreed through the relevant constitutional procedures, therefore, it is reasonable to conclude that the payment may well be unlawful, and as residents, taxpayers and citizen journalists in Barnet we object in the strongest terms to what would appear to be a serious breach of the regulations that are supposed to protect our best interests, and we ask you to instigate an immediate investigation into the issues we have raised.

Derek Dishman
John Dix
Theresa Musgrove
Roger Tichborne

(The famous five have become four as Citizen Barnet has sadly left the borough. She still maintains close links with all her old friends.)