"a somewhat unusual case" says the PATAS adjudicator

?

The notes of a recent adjudication. Remember that lawyers, as adjudicators are so qualified, are prone to make masterly statements that mean much more than they say:

"I find it surprising that a number of letters and emails appear to have gone astray"

---

This is a somewhat unusual case. Mr S accepts that his wife parked their vehicle in a residents' bay without displaying a valid permit. He further accepts that a Penalty Charge Notice was correctly issued by being placed on the windscreen. However, one of the  children took the PCN and lost it so that Mr S was unable to make the necessary payment. On 17 October (within the 14 days period for payment at the lower amount), Mr S emailed the authority explaining the situation and asking how to pay the penalty charge. He did not receive any response.

The authority says that it did not receive this email. However a copy of the email is produced at page 5 of the Notice of Appeal and I find that it was sent. On 6 November the authority sent the appellant the Notice to Owner. It appears that this, in its turn, was not received by the appellant.

Eventually a Charge Certificate was sent and to the appellant responded (on 13 December)  by pointing out that he had emailed the authority on 17 October, and repeating the account of how one of his children had lost the PCN thus making it impossible for him to pay. This letter does not appear in the correspondence enclosure but is produced by the appellant in his Notice of Appeal. He does not appear to have received an answer. On 14 January 2014, he wrote again asking why he had not had any response form the authority, then sent yet another letter on 13 February.

On 6 March the authority finally responded to the appellant. It is clear that the writer of that letter, Ms Davis, had not troubled to read Mr S's representations, as she seemed to believe that Mr S had suggested that the PCN had not been properly served either by being handed to the driver or by being attached to the vehicle. He had made no such suggestion. What he had said was that he (or one of his children) had lost the PCN and that he had emailed the authority asking how to pay the penalty charge and had been ignored.

The authority states, correctly, that it is only obliged to accept payment of £55 if such payment is made within 14 days of the issue of the PCN. However the authority for its part is obliged to consider all representations made by an appellant. I find it surprising that a number of letters and emails appear to have gone astray, but even leaving that aside, the total failure to consider the representations made by Mr S as to how he had lost the PCN amounts to procedural impropriety. Had the authority told Mr S that it was his fault that the PCN had been lost and that he must bear the consequences, that would have been reasonable. What was not reasonable was to reject his submissions on a complete misrepresentation of what he had said. I do find that procedural impropriety is present in this case and for that reason I will allow the appeal and order that the PCN been quashed.

---

Mr Mustard sends all of his challenges by email* to barnet@nslservices.co.uk because the computer sends an auto acknowledgement which he keeps and thus none of his communications can be "lost"; the odd item will go astray but so many on one file, it simply wasn't credible and that is why the adjudicator brooked no nonsense.

One should be able to implicitly trust  a local authority but when it comes to parking, especially managed out of sight by a contractor and with different companies scanning documents and printing them, quite simply, you cannot.

Yours frugally

Mr Mustard

*In the strict letter of the PCN and other Notices this is not allowed but is custom and practice. It is about time that the notices were changed to reflect reality.

PATAS adjudicators do have hearts

When an adjudicator decides that a certain decision is the correct one, and they are constrained to follow the strict application of parking law, will go out of their way to find a good reason for their decision (this has worked against Mr Mustard recently but he did understand why) and here is a classic example.

The Appeal decision was as follows:

Mr R's car was parked in a bay which was either payment by phone or pay and display. Whilst the Council can verify that no payment to park was made by phone, they cannot show that no payment was made to park at the pay and display machine.

The CEO's images show that there was no pay and display ticket on display in the windscreen of the car but this does not mean that no payment to park had been made. The car was being used by an elderly lady. Her son says that she has a blue badge which was not displayed. She could just as easily have purchased a pay and display ticket and forgotten to display it or not displayed it properly. I am not satisfied that the alleged contravention occurred.

What happened next is very unusual, Barnet Council (probably someone at NSL) decided to ask for a Review of the decision in "the interests of justice". The Review was heard by Mr Edward Houghton (Mr Mustard likes arguing with Mr Houghton who recently rehearsed all of Mr Mustard's arguments aloud for him like a one man play in which he was playing two parts and the play was about the signs in Green Lanes, Palmers Green and then he allowed the Appeal) who has more year's of experience than he would probably like to see in print and hasn't lost his appetite for parking tickets or justice. Here is his decision on the Review:

This case comes before me as an application by the enforcement authority for  review of the decision of my learned colleague Mr Stanton-Dunne allowing the Appeal. His decision was essentially made on the basis that there was insufficient evidence that no payment had in fact been made. The Council submits that the Adjudicator could not reasonably have come to this conclusion on the evidence before him. It seems to me, with respect, that the Adjudicator's finding cannot be supported (Mr Mustard thinks "supported" got in here in error and the word should have been "faulted" or similar). The evidence that payment had been made, i.e a P&D ticket was not seen on the vehicle, and had not been produced at any later stage. The Appellant himself did not state that payment had been made but based his case entirely on the failure of an elderly lady to display her disabled badge on this occasion. Whilst it is of course not wholly impossible that payment had been made it seems to me that the Adjudicator could not reasonably come to any conclusion other than that, on the evidence provided, the balance of probabilities was that it had not. However the Council seeks review on the basis of the interests of justice. This is a case of a 90 year old lady showing signs of dementia who forgot to display the disabled badge that would allow the vehicle to park. It seems to me that the circumstance would in any event have justified an exceptionally strong recommendation that the penalty should not be enforced and it is not in the interests of justice to interfere with a decision that gives effect to that. So basically Barnet Council, acting by its contractor NSL, is quite happy to put a 90 year old lady through the wringer, not once, but twice. "Lousy scumbags", would that sum up your feelings? Yours frugally Mr Mustard

Notice to Owner inadequacy - final chances to use it

In December 12 the very experienced PATAS adjudicator Edward Houghton made a decision in PATAS case 213008458A that the Notice to Owner wording in use by Barnet Council was not adequate to show "in general terms the form and manner in which an Appeal" to PATAS could be made. Mr Mustard often used this as an extra banker argument in his Appeals.

Now although you might expect the same decision on wording from a different adjudicator they are not bound by the decisions of others and can even change their mind and make the opposite decision the next day on the same facts (which is rather exasperating but is the way it is). So it was in April 13 that the adjudicator Christopher Rayner (you call them Sir at an appeal hearing by the way, you do not use their name) made the opposite decision. That decision went to a Review (very rare) by the adjudicator Timothy Thorne who over-turned the decision but on other grounds and said that Mr Rayner was entitled to make the decision he did on the wording so Mr Thorne seems to be in favour of the wording being OK (although Mr Mustard isn't 100% on that point).

That leaves your Appeal as a bit of a lottery. Mr Mustard has used the argument many a time and pretty much all adjudicators, presented with the Houghton decision decided to go along with it, perhaps Mr Mustard has been lucky and been in front of the "right" adjudicators.

The council, of course, would always mention the Thorne case in their case summary.

Mr Mustard was ready with other arguments should he have ended up in front of Mr Rayner with only this point to win the day. The council used more expansive wording on its postal PCN so he was going to argue they knew they needed more words and he was also going to produce the Camden wording as they also have NSL as the contractor and have a long explanation about the right to Appeal to PATAS.

It was only a matter of time before the council decided to bite the bullet and reword the PCN to try and avoid this argument and now, as you can see above, they have done so, probably when they changed the enforcement software.

If you have a Notice of Rejection and a PATAS form and your copy of the Notice to Owner contains the old wording as used in 2013 then this is an extra argument to put in Box 5 of the PATAS appeal form. You might find it easier to copy and paste this into a separate document and enclose it with your Appeal form.

The Notice to Owner contains a procedural impropriety.

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provide as follows (my emphasis)

(3) A notice to owner served under regulation 19 of the General Regulations must, in addition to the matters required to be included in it under that regulation, include the following information—

(a) that representations on the basis specified in regulation 4 against payment of the penalty charge may be made to the enforcement authority, but that any representations made outside the period of 28 days beginning with the date on which the notice is served (“the payment period”) may be disregarded;

(b) the nature of the representations which may be made under regulation 4;

(c) the address (including if appropriate any email address or FAX telephone number, as well as the postal address) to which representations must be sent and the form in which they must be made;

(d) that if representations which have been made— (i) within the payment period; or

(ii) outside that period but not disregarded,

are not accepted by the enforcement authority the recipient of the notice may appeal against the authority’s decision to an adjudicator; and

(e) in general terms, the form and manner in which an appeal may be made.

The Notice to Owner received, states as follows, on the second page

"We will tell you how to do this when we write to you"

and therefore the requirement to tell me in the general form and manner in which I could appeal was not attempted. This is a procedural impropriety and so my appeal should please be allowed. I claim the support of the decision in case 213008458A. 

Then just hope that you get one of the "right" adjudicators. You will, of course, also employ other arguments so that you do not only rely on this one.

Yours frugally

Mr Mustard

a combined Notice to Owner / CPZ appeal

What Mr Mustard would really like to know and councils always play with cards held close to their chest is exactly why they decided to cancel a PCN. In this appeal the council said this was "due to a technical error" which could mean anything.

They also say that it doesn't affect the outcome of other PCN issued in similar circumstances. Mr Mustard doesn't believe that line at all.

This is what his representations said:

I act for Mr X of redacted address as attached authority.

They did not find the PCN on their car (this is not a representation) and now cannot remember why their car was on the road on 6 November 13 as it does not need to be as they have off street parking. The delay in issuing the Notice to Owner has prejudiced them and that is the ground of representation. Although the council legally has 6 months in which to issue it, there must have been some exceptional circumstances to explain the delay as to why the Notice to Owner was not issued within the 56 days that the Secretary of State has stated in their guidance.

Given that the PCN was not seen on the day my client cannot remember the route they took. The council are therefore required to prove that the zone was properly signed at all entry points, on the day in question, with the necessary zone entry signs.

The council cancelled the PCN on the same day which is unusual.

What may be useful to you is to use the same wording if you receive a Notice to Owner more than 2 months after the PCN and to also, if relevant, to ask the council to prove that the CPZ zone was properly signed (it only applies to single yellow lines that are not locally time plated) as it must be a nuisance to do that and the line of least resistance will be to cancel the PCN. being sent a map with crosses to mark where the CPZ entry signs are supposedly located is not proof of anything except where they are in theory. Some adjudicators might be swayed by such paperwork so to be sure, gather your own evidence. If you find one sign missing or facing the wrong way you can produce that evidence to PATAS at your Appeal hearing as proof that the council have not proved the zone was properly signed.

Try not to rely on one argument alone but if that is all you have argue it (politely) to the maximum.

Yours frugally

Mr Mustard

Are we over-managed in Barnet?

Mr Mustard can't find the tweet now but @publicnaylor (Chris Naylor, the Chief Operating Officer) brought to his attention by re-tweeting, something about local government management and Mr Mustard tweeted back about the excessive number of levels of management. At this point the Guardian invited him to submit his view but he didn't have time as his world had gone mad following the Broadcast of Parking Mad. The final episode will be out on Thursday at 9pm on BBC1.

Unless he was dreaming (and they have been problematic recently, his new motorbike's brakes failed at 100mph approaching a T junction in France and a lady taxi driver in England took him down some country lanes that were even more pot-holed than the typical Barnet road and then she nudged a cyclist off his bike and when she got out to pick him up Mr Mustard saw her knickers were on the dashboard along with other clothes and yet she was fully clothed?)  he tweeted @publicnaylor that he could do with the latest organogram but it didn't arrive. Mr Mustard then went onto the council website and found that, for a change, it was up to date. Here is the latest staff organisational chart - Mr Mustard expected 2 or 3 pages but boy was he in for a shock.

Corporate Structure 2014, Barnet Council by MisterMustard

That rather brought Mr Mustard to a halt. Instead of a 2 or 3 page chart he found himself looking at 134 pages of corporate structure. They say that less is more but in Barnet Council management, more is more. The size of this management tree, actually more of a small forest, is ridiculous. There will be managers in this chart who don't come out of meetings from one month to the next and who add nothing to the borough apart from overhead.

We are over-managed beyond belief, we are providing a whole field of troughs for snouts to dip into. Don't talk to Mr Mustard about miserable miserly mean £45,000 cuts to Mapledown School and expect him to believe that every single person in the above structure chart is necessary and that none of them are overpaid. Someone with some management and organisational skills needs to take an axe to the chart and get chopping, hard and fast. Don't think for one moment that the above represent all of the management either as the Parking Manager and the Parking Process Manager are not listed and their equivalents in every other department (the people who actually do all of the work and get their hands dirty) are not listed.

Feel free to tweet this blog to the heavens.

Yours frugally (unlike the council who are spending our money like drunken sailors)

Mr Mustard

Mill Hill candidate - Rolf Clayton

A smart man Mr Clayton, he wrote to the bloggers to introduce himself as we have some influence and every vote counts, so if even one Mill Hill ward voter reads this and puts an X in the Clayton box it was worth his time.

Mr Mustard likes the sound of Rolf, he will listen to you which is admirable and then he will act and he has ideas on parking which Mr Mustard would vote for. He strikes Mr Mustard as having the sort of no nonsense common sense approach which is often missing from the current ruling councillors.

Rolf doesn't know, and he is entering a new arena where there is a lot to learn, that residents can already inspect Barnet's Accounts once a year usually in June and make an appointment to meet the external auditor (Mr Mustard isn't a fan of him as he thinks that Mr Hughes might be the least inquisitive auditor that Mr Mustard has ever met). The notice advertising the open inspection period will probably be found here in due course.

If you live in Mill Hill and like the sound of Rolf then give him your vote. It is your vote to use as you like; it would be good if everyone who is eligible to vote made the small effort that is required to do so.

Yours frugally

Mr Mustard

Vote of no confidence

How can something so simple get so screwed up

Some cases that reach PATAS must make the adjudicators despair. Common sense should have prevailed at an earlier stage. NSL often appear not to have any in stock. Here is an adjudicator's report from earlier in the week.

The Appellant having produced a letter from his bank the Council now, very sensibly, accepts that payment had been made. The Appeal is therefore allowed.

I would only add that in the absence of any explanation it does not give one a great deal of confidence in the reliability of the Council's evidence in such cases that the Council's system should apparently show that no payment had been received (leading to the issue of a PCN the rejection of representations, and the initial resisting of an Appeal) when in fact it had.

The adjudicator in this case has decades of experience in parking matters and is certain to remember this case when dealing with other Barnet PCN payment queries and may, in future, give the benefit of the doubt to the motorist if the payment situation is at all unclear.

Mr Mustard thinks this is a case where the council could be adjudged to have been wholly unreasonable and a costs application might succeed.

Yours frugally

Mr Mustard