PCNs - exercise of discretion - #30 Tower Hamlets

 

Tower Hamlets Council - Policy - Cancellation of PCNs by MisterMustard on Scribd

Mr Mustard forgot to mention Tower Hamlets when he wrote this series of blogs, he was waiting for their new policy to be produced and provided. In the meantime here is the existing policy which the council produced as soon as it was requested.

Discretion doesn't appear until page 5 but at least there is some and they are the reasons that you hear the most.

Mr Mustard doesn't agree with no. 5, that isn't mitigation. If there are no lines when you park and double yellow lines appear under your car whilst you are parked you have not committed a contravention. The council should know what lines they have painted when. Furthermore the daily traffic warden briefing should tell wardens of where lines are being painted that day so they can tread lightly in that area.

Policy no. 6 appears to be less generous to blue badge holders than to other permit holders which may be a breach of the Equality Act.

Policy no. 10 for multiple moving traffic contraventions is a reasonable approach.

The end (for now).

Brent Council - a deliberate lie?

If you look at Mr Mustard's immediately prior post about battery failure you will be up with the story.

Mr Mustard wanted to establish the factual basis on which an indivdual made the decision to accuse the motorist of failing to maintain their maintenance free battery. The obvious way to do that was to make a Subject Access Request for the motorist's data, on which the letter of rejection was founded (relevant extract below).

Here is the request:

and here is the response:

Now you might yhink that the response was a standard one and that the writer simply picked the wrong paragraph to insert into the letter but that doesn't excuse the writer as they should carefully check any letter with financial implications.

Look, bold and CAPITALS, thus the most important part of the letter as far as Brent Council are concerned; show us the money!

Mr Mustard has suggested to the motorist that a complaint is lodged, there has been a failure to adhere to the Nolan principles, in particular 'honesty'.

Have you had a similar letter from Brent Council about your battery? don't pay up, make them prove their case.

The end.

Brent Council - service failure

After 10 years of requests for help you would think that Mr Mustard has seen it all, not so, there is always a little surprise popping into his inbox, like this one.

Mr Mustard knew that Brent Council had wound the claptrapometer up to ten and decided to have some fun. The letter rejecting the informal challenge, the one made in response to the PCN placed on the car, said this:

Mr Mustard did read and understand it and so he sent the following:

Look what came back (actually it was sent to the motorist and not to Mr Mustard)

Mr Mustard hadn't made a further challenge as he so clearly stated, so why was his email treated as one? because a computer replied, not a human being.

Mr Mustard wasn't raising a point that the council had answered, as otherwise he wouldn't have asked the question that he did.

Mr Mustard didn't feel strongly about the point, he was simply trying to see what Brent Council knew that he and the motorist didn't know.

Mr Mustard surmised that what Brent Council had done was to misunderstand what the AA had said about the battery they supplied after the breakdown, not the one that had been in the car when it was purchased second-hand and which wouldn't therefore have a current warranty.

Mr Mustard isn't one to let a computer get the better of him so he sent another email on 5 January 2022 (the council's plan to limit the amount of correspondence per PCN now starting to go horribly wrong for them)

It didn't take long for a human being to look at the file and conclude that the computer, programmed by a human being (hopefully) had put Brent Council in hot water. The reply dated 9 January referred to representations, none had been made (or else they are referring to the ones they rejected at the start) but it was the expected volte face (trying to think up a joke about volts being missing but have failed, much like the battery itself and Brent Council even more so) and the underlying objective was achieved, a cancellation.

It is only now that Mr Mustard has carefully read the cancellation, the benefit of the doubt? Your car refuses to start and you have an AA call out, you have a bill for a new battery, it is an item for which there is no servicing requirement, where the Dickens is the doubt?

There might be some respect for a council if it openly and honestly admitted that their first response was a travesty, that the writer (ah, the computer programmer) had been educated about their behaviour and that they were sorry. As it is Brent Council look like shysters.

There is more fun to come yet with the formal Freedom of Information and Subject Access Request responses because Mr Mustard is going to insist on them and they have been logged by the relevant department.

Not quite the end.

Bromley -where they see clearly in retrospect

In order to send a PCN for a bus lane contravention it is a legal precondition that a council believes that a contravention has occurred. This belief has to be stated on the face of the PCN, like this

Mr Mustard was pretty sure there wasn't a contravention in this cctv clip.

Due to a previous problem, resolved by management in the motorists's favour, as no contravention had occurred, the traffic warden not having realised that a sign was back to front, a manager at the jointly managed Bromley & Bexley parking department had invited contact in the future if there was occasion to be unhappy. Mr Mustard was unhappy, as a PCN had been issued that was not merited. He sent a few questions in, now numbered, and the answers are in blue.

Mr Mustard's comments:

1. Good.

2. Good again except that it should have been the conclusion that a contravention did not occur.

3. Two independent viewings would be an improvement.

4. The cctv clip should not have been progressed to a PCN, that ought to be a contractual default.

5. It isn't essential that the person who decides if a contravention has occurred holds a driving licence but it would probably give them more insight and they could do their job better.

Mr Mustard wondered what would happen to the challenge, he didn't have long to wait.

Once Mr Mustard was rubbing the council's nose into the cctv and the obvious danger if the car had not moved left, Bromley Council could 'clearly' see why the car entered the bus lane and duly cancelled the PCN thus saving everyone a lot of wasted time fighting as far as the independent tribunal, which would likely have come to the same conclusion as Mr Mustard.

Mr Mustard thinks that more care will be taken for a while in Bromley and Bexley.

The end.

Barnet Council - alleged to target ethnic minorities

 

The above clips are from the Daily Mail - this story was also in other papers. You can read the entire story here.

Barnet Council, for a while, were really good at publishing data on all sorts of topics but have become less so, by order of a particular councillor according to information given to Mr Mustard. When Fixed Penalty Notices were first issued in Barnet for environmental contraventions the contract was with NSL as they had already their enforcement foot in the door. When sent out to tender it was won by Kingdom. The problem with these contracts is that they reward contractors for issuing and collecting more FPNs, there is a revenue share arrangement, with Kingdom getting the lion's share of the revenue, 70%. 

Is this a good deal, well Kingdom have built up reserves of £8m so Mr Mustard would, if he was employed by the council, be looking for a better deal based on open book accounting i.e. to establish what the true costs are and then agree a modest profit uplift.

Remember that what Mr Forrester says is an allegation although made within a witness statement which will have been verified by a statement of truth. Mr Mustard thinks this would be a stupid matter to lie about as if ethnic data must be measured the answer will be a checkable fact.

Current data about FPNs is at this location but doesn't include any data about ethnicity.

Previously there was such data when NSL were issuing the FPNs.

In order to make any sense of the ethnicity data you need to know the ethnic breakdown of the residents of Barnet and even that will only be an approximation as every day it changes and as people who visit the borough could drop litter.

As Mr Mustard tweeted recently, there have been zero penalties for dog fouling (really for not clearing up afterwards) the pooper scooper penalty

Mr Mustard now sees that the FOI response is at odds with the council's own dataset in which 0.01% of penalties were for dog fouling, an inadequate focus on what really matters, Mr Mustard would rather tread on a fag butt than in dog mess.

Something is suspect though, given this council response.

Mr Mustard has been contacted in the past by residents of Mill Hill, above the shops, who have nowhere for wheelie bins to be stored, who would put their rubbish out on time and see it not collected and then be hit by a penalty despite being innocent of any wrongdoing & having to pay because they were in a profession where they couldn't afford the slightest blemish on their character, fixed penalty notices can be enforced in the magistrates court. Perhaps this is why timed collections haven't been expanded across the borough, because barnet Council can't keep up with their own colelction schedule, oh yes, Mr Mustard remembers now, the council ran out of the correct coloured bin bags!

The end, for now.

Redbridge Council - a casket case

 

Mr Mustard's attention was drawn by an assiduous reader of tribunal decisions to an unusual set of circumstances in Redbridge which led to a PCN and an appearance at London Tribunals (the home of Traffic Adjudicators for all of London) of a funeral director. Here is the decision in question.

As it happens Mr Mustard has a copy of this Traffic Order as he fought a case at that location about a year ago but still has the evidence pack on his computer. 

This is the information on the Redbridge Council website

The cctv camera is placed at the top of the red line, the same place as the location image at the top of the page.

You can't see the sign clearly so here is a close up

This is what the council website says:

It is therefore undisputed that any delivery provides an exemption.

So, the question was whether the unfortunate deceased person became 'goods' for the purposes of being collected by the doubtless discrete vehicle used by the undertakers for moving bodies. The Adjudicator decided that a corpse is an 'inanimate' item which it clearly is as it means 'not living'.

You may be surprised, shocked or even astonished that a local authority could be so heartless as to reject representations and force an undertakers to the tribunal. That is to overlook the insatiable desire for PCN revenue in many London councils these days. Mr Mustard's view in Redbridge's case is that it is greed combined with incompetence, based upon his previous experience of them.

The undertaker made a fair point about needing to be close by. Mr Mustard has been in a house to find an occupier had died suddenly and once the police have been along to check there wasn't anything nefarious and the police doctor has been to certify the cause of death the undertaker turns up to take care of the body. Undertakers are very good at what they do during a time of distress. Where is the gentleman or lady resting they will ask. Then they ask you to stay in a room out of the way whilst they do their job. Mr Mustard presumes, as he was out of the way as requested, that a coffin shaped box is employed. Whatever is used, a person shaped box or body bag being taken from a residence by two darkly dressed men into a plain van is going to be obvious to all and sundry as to what it is.

That includes children leaving the nearby schools, Gordon Primary School & Nursery or SS Peter and Paul's Catholic Primary, the very reason why entry into this road is prohibited at school opening and closing times, which is c. 3.30p.m. so exactly when this body was being moved. Do Redbridge Council really want undertakers to get a gurney out and trundle 100m up the street past the schools to Green Lanes with a body on board? Apparently so.

Mr Mustard sees a second problem. The PCN says this

In other boroughs, the council look at the time of entry and the time of exit (they do this in Strand on the Green near Chiswick Bridge) and if it is longer than it would take to drive between the entry and exit points at the speed limit they assume you stopped for a good reason, such as delivering a parcel or dropping off a resident. In this case one would expect that the undertaker was on site for 15 - 30 minutes and had the council looked at that and seen the vehicle was a van (a black Ford - probably a Transit - discerned from the registration and a check of the government database) they could easily have believed that loading (or unloading) was taking place. 

In order to issue a PCN a council is required to hold a 'belief' that a contravention has occurred. Redbridge Council could not legitimately hold such a belief. They have set up a system which assumes guilt, despite them knowing the exemptions they themselves specified, and in England we are meant to be innocent until proven guilty. In Redbridge you are guilty until you prove your innocence. That puts an unfair burden onto the motorist of whom 99% don't get as far as the tribunal as many people pay up for a quiet life or aren't equipped for the fight with a faceless bureaucrat. 

Redbridge are making hay, and massive profits, out of an unfair system and sending out illegal PCNs.

The end.

2021 - A quiet year for PCNs

Due to Covid and people's changing transport patterns and lower mileage the number of PCNs which Mr Mustard fought was lower than the previous year. The following numbers take no account of PCNs which Mr Mustard has told people to pay, ones where they drove the wrong way or stopped bang in the middle of a yellow box and for which the only sensible thing to do was to pay the 50%

When Mr Mustard suggests fighting a PCN he wants to see it through to the end, the tribunal, although more often councils see the wisdom in his argument, knowing they are in for a c.£30 tribunal fee otherwise and probably no income.

Of the cases aside only 9 were cancelled at the informal stage, the earliest opportunity to respond to a PCN placed on your car (there isn't an informal stage for yellow boxes and other moving traffic contraventions). What this tells you is that you don't have much chance of a cancellation unless you resolve to see your PCN all the way to the tribunal. The statistics were affected by one person who couldn't get a permit during lockdown and still left their car in a resident bay for weeks. This was resolved with the help of a councillor in Haringey.

DNC means that an Appeal was started at London Tribunals but the council threw in the towel without a hearing. They could have cancelled earlier and not wasted the fees.

The PCN being refused was the hoped for outcome as the 50% discount was offered again, this being a hire car where the rental company was dropped in it.

You can see that Mr Mustard prevailed at the tribunal on 45 times out of 56 which is a win rate of 80% and overall he beat 116 of the 128 PCNs he took on which is 91% - not bad.

The end.