Hammersmith & Fulham Council: bluff then fold

 

Scaffolding lorry stationary in a yellow box

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Barnet - the council that likes to say 'No'

Yesterday, Mr Mustard received the below rejection of an informal challenge (an informal challenge is one made in response to a PCN served on street or in a car park).

Mr Mustard didn't provide any evidence? How odd, as here is the challenge he sent in.

That seems pretty conclusive evidence to Mr Mustard, the supplier of the PayByPhone service says there was a problem with texting that day. The council are unable to corroborate this statement, perhaps because they haven't tried to? or maybe they just don't want to as then they would have to think seriously about cancelling the PCN. It makes Mr Mustard wonder about all the times that the council say that there were no reported problems with the PayByPhone system, that might be because there is no system to report such problems to the council from their supplier.

Here is an extract of the tribunal decision on which Mr Mustard will claim the persuasive support (as it doesn't set a binding precedent).

Mr Mustard's client's payment went through 2 days later, which is why she doesn't show as having paid on the day in question. Mr Mustard doesn't think it reasonable that Barnet Council expect her to have waited in her car until she got the confirmatory text.

What peevs Mr Mustard is that the council can write such blatant rubbish in response to clear, evidenced arguments. Barnet Council have a general duty at law to be procedurally fair and Mr Mustard can't see how they have been in this case. Had his client been representing herself she might easily have accepted the council's opinion as gospel and paid up the 50% to avoid going to the tribunal, writing two further challenges and then attending at the Chancery Lane hearing centre. Mr Mustard has a block booking at the adjudication centre so one more case (on top of the 7 he has on his next appearance) is no big deal.

Mr Mustard suspects however, that this case won't be going anywhere near an adjudicator as his next email is to the parking manager with a complaint that his representations are not being properly considered, they are being rejected for nonsensical reasons. Mr Mustard doesn't think he will be amused at yet another trashing of the council's image. The rejection was probably written by an employee of NSL but at the behest of a council 'officer' (staff member).

Yours frugally

Mr Mustard


Update: 12 June 17

Well that didn't take long. If you complain to the correct person, the parking Manager (poor lad), and have a point, he sorts it out fast.

Oops, there is a contact with NSL Ltd not NSL Services Ltd; service was certainly missing!