Parking use standard letters

This is funny. When a PCN goes to the independent adjudicator, based at London Tribunals, the council in question have to produce certain documents which include a copy of the Notice of Rejection which refused the representation made in response to the Notice to Owner. Technically the Appeal is against the Notice of Rejection but naturally also against the alleged contravention itself.

 

In a case due to be the subject of an in-person hearing next week (Mr Mustard likes to eyeball the adjudicators and it is the most effective forum rather than by telephone or cases decided upon the papers alone) Newham Council have, in error, and amusingly, exhibited the template from which the Notice of Rejection is produced. There will be similar templates for most situations. The failure to produce a true copy of the Notice of Rejection should lead to cancellation for that reason alone.

The dates, times and alleged contravention are all inserted automatically. The template includes a reference to mitigation which was not pleaded. That is a giveaway that a template was used even without this proof.

What is interesting to note is that the discount is always offered again (unless there is a second template for rejecting at 100% which seems possible).

The paragraph about not paying and appealing at the same time is not legally correct. The Appeal will always be against 100% of the PCN. If you pay and file an Appeal, perhaps to be heard on the papers because you are going on a round the world cruise and so wouldn't want to miss the payment date, the Adjudicator will automatically order a refund if you win. What you can't do is make an Appeal and pay 50% in full settlement. Having your cake and eating it isn't allowed.

The unique appeal verification code isn't actually unique, it identifies a date and a type of PCN. Lots of people get sent the same code on the same day. If you lose your code you can get help to Appeal on line here. You can also start an Appeal by letter without needing a code.

Councils love to frighten motorists. When they write about an extra fee for registering the PCN as a debt at the County Court (which doesn't incidentally appear on your credit record) they are hoping you will think it is large. They are referring to the princely sum of £9. Also because of previous bad behaviour by bailiffs their fees are now set by law. £75 for notifying you they have a warrant they will enforce. £235 for any number of home visits. So, not a blank cheque to charge their 'own costs and fees'; only the fees set by law (still best avoided though).

The line 'it will then be too late to appeal further' is designed to put your off from doing anything but pay up. It is unfair. It is technically correct that if you miss a deadline you can be liable by default and that councils may disregard any representations made out of time but if something has gone wrong, such as you were in hospital or in prison for a short while, the council should give what you have to say some thought. The system is not intended to punish the innocent, although it often does.

It is a common error to write back to the council if you don't like what they say and by that means to time yourself out of an Appeal. Don't do it. Just start an Appeal as there is a one in 4 or 5 chance that the council will give up at that stage anyway.

The end.

 

Capita

 

Mr Mustard owns a few shares. Mr Mustard is jolly pleased that he doesn't own any in Capita.

Mr Mustard did think, for a brief period, that once the conglomerate was stripped back to a much simpler corporate structure, running such lovely repeat business as the Red Route, ULEZ and Congestion Charge charging schemes and processing the hundreds of thousands of PCNs  that capita might we worth a punt.

Whilst Capita negotiated themselves a marvellous deal with Barnet Council, which gave them lots of juicy billing for extras, it looks like TfL are better at negotiating.

One thing that Capita have to do is to present the case for the prosecution (so to speak) for TfL when a motorist takes his PCN to Appeal. Mr Mustard bumps into them occasionally and this is a summary sheet of the evidence which TfL (or any other enforcement authority) have to produce for the adjudicator which includes the evidence of both parties.

What takes the most time is section B. TfL have to produce a case summary. One Mr Mustard looked at recently was 3 closely typed pages and another was 14 pages. Naturally these take time.

 

Even getting out the statutory documents, the photographs, the representations which were made, the rejection letters, the traffic order, a marked up map, photographs of the locale, perhaps a video.

 

Mr Mustard doubts that even with the maximum automation, an evidence pack can be produced in less than a couple of hours and maybe four for a complicated case, perhaps also including a transfer of liability from a hire company. They usually run to between 50 and 100 pages.

 

For preparing these, and there about 5,500 TfL PCN appeals a year, TfL pay Capita the princely sum of £16.66 per case. 

If Capita are being similarly lowly paid for other services under this contract, they don't appear to be making money.

Mr Mustard will put his savings into something a bit more blue chip and a lot less risky.

The end (and possibly not far off for Capita?).
 

Barnet Council trip on the kerb

 

The above is a badly parked car which, despite the driver being in attendance and ready to move, was given a PCN for being adjacent to a dropped kerb.

 

What you can probably tell from the council's own photograph is that the kerb isn't dropped.

 

How, therefore, the traffic warden justified issuing a PCN for an alleged contravention of being adjacent to a dropped kerb when there simply isn't one, only they know.

 

The motorist made their own informal challenge saying that the PCN was ridiculous as there isn't a dropped kerb at the location but that, despite being true, cut no ice.

 

Barnet Council's response included that the vehicle was adjacent to a dropped footway and, in a line which surprised Mr Mustard, that 'The CEO has a legal obligation to issue PCNs to any vehicle seen parked in contravention'. That tells you a lot about the thinking which goes on in the parking back office which can be summarised as motorists must be punished.

 

In this case the punishment is not merited.

 

Mr Mustard wrote the formal representations in response to the Notice to Owner. They were very simple and pointed out the lack of a dropped kerb in Heather Gradens NW11 and included an image taken from google street view.

 

That didn't convince Barnet Council either who opined that the image I had provided is not conclusive.

 

Mr Mustard therefore had to pop to the location in question and take photographs. Here is one of them, anyone who can see a dropped kerb here needs their eyes tested.

 

What the council have forgotten is that at the tribunal the council have to prove their case before any argument needs to be presented by the keeper. This will be fun. Mr Mustard has started an Appeal at the tribunal. He expects the towel to be thrown in pretty quickly.

The end (for now).

p.s. Please don't park this close to junctions.

Nonsense from Newham

 

Parking departments don't live in the real world. It isn't the intended function of penalty charge notices to make the life of people with limited mobility any harder. It is as many motorists would say, all about the money.

 

Here we have a case of a good son collecting his dad, who uses a stick, from the mosque on a Tuesday evening towards 8pm. The son parked as near as he could which was on the double yellow lines in Hilda Road just out of picture (which was excluded as it is pixellated for some reason).

 

Whilst he went inside to find his father and then slowly come out to the car due to his use of a walking aid, a PCN was issued with a 2 minute observation. The son made his own challenge, probably expecting it to be accepted (reasonable but optimistic these days) but it wasn't, as follows:

 

The rejection makes it sound like Newham Council only very rarely (exceptional circumstances) cancel a PCN. They are required to have due regard to the statutory guidance of the Secretary of State which includes:

Authorities should take account of the CEO’s actions in issuing the penalty charge but should always give challenges and representations a fresh and impartial consideration.

Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest. Failure to act in accordance with the general principles of public law may lead to a claim for a decision to be judicially reviewed.

Enforcement authorities have a duty not to fetter their discretion, so should ensure that PCNs, NtOs, leaflets and any other advice they give do not mislead the public about what they may consider in the way of representations.

They should approach the exercise of discretion objectively and without regard to any financial interest in the penalty or decisions that may have been taken at an earlier stage in proceedings.

What Newham Council have also forgotten is their own traffic order, which has this section:

The two minute rule doesn't apply as this is a little side road (not in Schedules 5 and 2) and not within the 2 minute limited times.

Therefore the time which is allowed, for a person who uses a stick or a frame or who simply walks slowly without any aids, due to age or infirmity, is as long as it takes. Newham Council have therefore unreasonably rejected a perfectly fair challenge (and also tried to put the motorist off a further challenge by the usual reminder that the discount will be gone at the next stage).

Mr Mustard doesn't much care for the discount expect for one of 100% as he fights to the end and generally knows the parameters an independent adjudicator, who makes decisions without an eye on the income, will apply. They will generally allow at least 5 minutes for assisted boarding. The frailty of a passenger can be demonstrated by a medical report, a photo of them with their stick or frame or a 10 second video of them walking.

Mr Mustard doesn't fear Newham Council. He has fought 38 of their PCNs since 2017 of which 24 went as far as the independent adjudicators. He has lost 2. He isn't about to lose a third case.

To their credit, Newham Council weren't 100% unhelpful, they did add this to their letter:

We only know that father walks with an aid, we don't know whether or not he could make his own application, which would be a more respectful way to write.

The end (for now).

 

Parasites

Mr Mustard is used to perfectly good challenges being rejected. Mr Mustard isn't medically qualified but is an advanced motorist and a human being. The person, Mr Mustard uses the term loosely, who rejected the below motorist's challenge is none of the above (one can't be sure they aren't an IAM or ROSPA member but Mr Mustard doesn't want to be their passenger if the safety of a fitting passenger isn't their first priority.)

Mr Mustard thinks that many people will be absolutely astonished by this rejection. Mr Mustard wasn't as he sees similar rejections all the time and is one reason why he keeps winning at the tribunal as there is an absolute disconnect between common sense, fairness & safety and the relentless drive to fill multi million pound holes in council budgets.

Barnet Council aren't unusual in this respect partly because there is a small handful of unaccountable outsourcing companies who process PCNs, like NSL, as in this case, whose disconnected employees sit in remote back offices (Dingwall in Scotland and Oldham) have probably never visited Barnet and will never be face to face with a motorist and have to be utterly hateful to their face. The concept of public service has been lost.

Councillors are too hands off. Do they speak to parking management to ensure that all challenges are given a fair and impartial consideration without any thought as to the income as the Secretary of State requires? Based on this response, it would seem not.

Get yourself ready for a sudden goodwill (PR based) cancellation, the PCN was correctly issued, blah blah, a one off error by a new officer, blah blah.

Mr Mustard is on the case. The Notice to Owner is awaited and will be robustly challenged.

The end, for now.

 

 

Councils can't afford to be kind

When he gets a fresh PCN Mr Mustard often has to warn people that, more likely than not, the council will not look kindly on the reason why they received the PCN. The council want your money, most of the time, and whilst they have a wide discretion, councils can cancel any PCN for any reason, the adjudicator cannot & must strictly apply the law. Adjudicators can only recommend that a council think again although Mr Mustard has seen them bend the law in order to excuse an error.

Here is a classic example of a situation in which Mr Mustard thinks the public would expect leniency to come into play but he wasn't at all surprised when it didn't. This is a situation which, other things being equal, will only happen the once.

The informal challenge submitted to Lewisham Council:

and the relevant part of their response:

This is a Catch 22 response. There is no evidence that the writer thought about exercising their discretion. Their explanation is that because the contravention happened, which was already conceded by the motorist, the council won't cancel because the contravention happened.

What should happen is that Lewisham Council should consider the mitigation put forward, decide if it has the ring of truth (why would you stay in a hotel in SE13 when you live in SE6?) which it does and then consider whether or not to cancel the PCN. There is no revenue loss to the council which didn't instigate an automatic refund of a payment for which no value was given (once you have a PCN you cannot get another the same day, unless the rules of the bay change, if you don't move).

The rejection letter should explain why discretion is not being exercised, like one of these responses:

a    your proof is not credible

b    we don't think the mitigation is sufficient as you could have paid the night before (if you can, although the driver might have been intending to get up early, buy flowers and attempt a reconciliation)

c    we want your money so won't cancel

d    we are venal and rapacious. (* copyright another PCN expert, Incandescent).

The law assumes that a public body endowed with absolute power will exercise that power in a manner which is fair in all the circumstances. Although this appeal for clemency can be argued both for and against what is apparent from hundreds of PCNs that Mr Mustard has seen is that in many councils heartlessness and ruthlessness are the order of the day (He does have good experiences, he recounted one with Islington Council on twitter last week but he sees far more bad than good).

The problem is that councils are not routinely monitored or inspected for the way they go about the issue and enforcement of PCNs. We need an outside body which referees the whole system and can visit councils and encourage best practice and fairness. There are 7 million PCNs issued in London every year. Councils are out of control in their quest for revenue.

Time to create OffPen.

The end.

Hounslow Community Transport - breaching Human Rights

One always finds lovely cuddly statements on the websites of public facing organisations. Here is part of the HCT's claimed values:

Those values are looking like mere words on a screen today.

Look at this minibus parked outside of a space in the Montague Road, Hounslow car park.

 

What could be behind it, you might wonder? The answer is the car of a member of the public who parked in the dark and didn't see the little fairly well hidden sign.

 

What is to the side of the blue car?

Yes, you guessed it, another minibus .

The blocked in photos were taken at midnight. Mr Bluecar (not his real name) phoned up HCT and asked them for help. They declined and put the phone down. Not a very charitable act in the view of Mr Mustard. Mr Bluecar had to take the bus 6 miles to get home.

HCT don't answer the phone on a Saturday morning so Mr Bluecar didn't know when he might be able to get his car back. He tried his luck late morning and he could drive away. There was however a piece of paper which caught his attention on the windscreen. It wasn't a rude note. Yes, you guessed it:

Mr Mustard has challenged the PCN on the grounds of events beyond the control of the driver.

Mr Mustard has emailed HCT pointing out the relevant part of the Human Rights Act

Mr Mustard rather expects that management will not be as happy to break the law as one of their drivers was.

We'll see. Watch this space.

The end, for now.

Update 21 February. Hounslow Council responded quickly, they have cancelled the PCN. HCT not yet responded.