I parked in a 3 hour time limited on street disabled bay and the Blue Badge (BB) was clearly displayed on the windscreen. My mistake was failing to display the clock as I thought this only had to be done on yellow lines. So, I was entitled to park in the bay but hadn’t displayed the clock. We were there for about an hour.

The PCN stated Contravention 40; failing to display a BB in the prescribed manner. I appealed as the BB was clearly displayed and the rejection letter said the PCN was for failing to display the clock….although on the PCN it states failure to display the BB.

After some research it appears that failure to display the clock doesn’t invalidate the BB so the car was entitled to be in the disabled bay. The actual offence should have been Contravention 30; staying beyond the permited time allowed. (although we didn’t do this I appreciate this would be assumed as no clock was displayed).

So, is it worth pursuing this on the grounds that the PCN is invalid because the wrong Contravention code was used and would it be worthwhile contacting the council again and pointing this out.

As 40 is at the higher rate and 30 is the lower rate the council is further penalising the disabled BB holder for an honest mistake.

I appreciate parking has to be regulated but this seems disproportionate to the offence which was actually a genuine mistake and not an attempt to park illegally. In 52 years this is my first parking ticket!!!

One irritating aspect is that judging by the time on the PCN the CEO must have watched me get the wheelchair out of the boot and then help my wife out of the car and into the chair.

This post has been edited by billyblue1: Sun, 13 Oct 2019 - 18:43

In the first letter posted, they fetter their discretion by saying all instances of not using the BB correctly WILL result in a PCN. The council always have it in their power to decide to cancel or indeed not to issue

From the statutory guidance

10.3 An authority has a discretionary power to cancel a penalty charge notice at any point throughout the process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case. Under general principles of public law, authorities have a duty to act fairly and proportionately66 and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest. 10.4 Enforcement authorities have a duty67 not to fetter their discretion, so should ensure that penalty charge notices, Notices to Owners, 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. Authorities should formulate (with advice from their legal department) and then publish their policies on the exercise of discretion. They should apply these policies flexibly and judge each case on its merits. An enforcement authority should be ready to depart from its policies if the particular circumstances of the case warrant it.

Its another argument that can be made

Where?

AFAIK, there is the Sec of States regulations that publish a list of higher contraventions but that does not list lower level contraventions.
This one I am thinking of but there may be later.
http://www.legislation.gov.uk/uksi/2007/3487/made

There is no published list outside of London for lower levels that has to be used that I know of.
Patrol and Councils use the same/similar wording as London, convenience not mandatory.
In London it is mandatory. That stems from London Councils.

DancingDad the publication requirements are here:

London: http://www.legislation.gov.uk/ukpga/2004/1...e/9/paragraph/5
Outside London: http://www.legislation.gov.uk/ukpga/2004/1...e/9/paragraph/9

Most councils rely on the wording published by London Councils and PATROL, but any wording can be used providing it is published somewhere. If we ever see a PCN with wording that isn't published on the PATROL/London Councils website nor on the council website, we can challenge that as a PI.

Adjudicators have found that the published wording has no legal significance if they do not describe accurately the contravention

No
Within London you are right, only the list published by London Councils can be used.

But outside London, the list that is mentioned in TMA Schedule 9 is the one that I linked to.
And includes no standard wording for Lower amount penalties.
If a council wanted to create a parking bay for Red Cars only and listed the contravention as Not a Red Car they could. But they can only levy lower amount for it.

How does this help the OP?

The contravention in this case is one which attracts the higher level of penalty and therefore has wording prescribed under the regs.

To be honest - yes, I know, marching out of step again - a council's reply is not required to detail the exact process by which TMA contraventions cascade down to specific penalties and wording. Yes, this could have been conveyed with more clarity, but so what? In essence and in this context I do not see an adj seeing this other than they are simply saying that penalties and contraventions are determined by a legal process.

Even a council determining that it will adopt the Standard PCN Codes published by PATROL for its lower level penalties is a legal process.

Only insofar as the council take the stance that the only contravention available to them is writ in stone.
Which I believe is incorrect and penalises the BB holder at a higher level when lower would be more appropriate and possible.
If there is a document similar to London Council's that basically says to charge any penalty you must use one of our codes, I am unaware of it.
If there is a document that does so constrain them, they can show it, otherwise they are simply making it up and using a false premise to continue enforcement.

As I have said before, the duty to consider does not mean finding any excuse, valid or otherwise, to persuade the punter to part with their hard earned.
If they take the stance that failing to put up the time clock somehow invalidates the BB or fails the prescribed manner, they can justify it.
That they believe they have to use preset wording and codes does not cut it for me.

The other issue with shoehorning the contravention into standard wording is that this may fail to describe the actual contravention in a way that the General Regs require on a PCN.
There is a key case on that, Martin Woods in the chair IIRC.

There is no question in my mind that Billy failed to display all that was required to "legalise" his stay in the disabled bay.
A contravention occurred.
But I am by no means convinced that he failed to display a valid BB in the prescribed manner.

Only insofar as the council take the stance that the only contravention available to them is writ in stone.

This is the one they've chosen and IMO was open to them to use and its applicability is referred to in the response.

Dress it up as one might, I fear that in what is clear cut as regards the essential facts the spectre of substantial compliance, regulations read as a whole and purposive interpretation could haunt the OP.

Ain't gonna argue and why it is important that both sides are aired so the OP is fully informed.

I certainly cannot point to much that guarantees a win.
Equally you cannot guarantee a loss.
Billy's choice

hcandersen I am still waiting with eager anticipation your explanation as to why grandma visiting from the Outer Hebrides is the victim of a burning injustice if she doesn't know about the ULEZ (which I think we both agree on), but if she doesn't know that there's such a thing as a parking clock in England it's fair and square that she gets penalised for not displaying one in a time limited bay.

How might an adjudicator find?

That there has been a PI because 1(e) of schedule 1 0f the appeals regs has not been complied with (The badge was displayed) so the contravention as described on the PCN did not occur . or

The description is correct because the TRO requires the clock to validate the clock

So then

That the signage in situ does not convey the requirements of the TRO, LATOR 18 Nothing about the requirement for a clock. CP's Scottish grannie comes into play along with all the EU visitors

add fettered discretion. and we do not know what else because we still have not seen full documents to check their voracity

Good arguments can be made. Winning arguments?

I have now received the NtO from St Helens Council and intend to make further representations on the form provided. I'd really appreciate some expert advice on how to construct this, at this stage.

Are the NtO letters/forms generic or should I post them here?

The rejection letter statement that the Equality Act can only be applied if a "policy" is in place and cannot be applied to individual cases is damning. The Council have fettered their discretion big time.

If they regard what the OP sent as mitigation rather than a clear request under the Equality Act they are again at fault.

Unless the OP has a string of cancelled PCNs for similar circumstances this case will be considered by a higher level officer at the NTO stage and be successful IMO.

Mick

Thanks Mick,

That's an interesting aspect which had escaped me but is obvious when pointed out.

This is my first PCN since a speeding one in 1983. The only parking one I've ever had is for a motorbike in 1966!!

Post up the NtO so we can look for flaws.

NtO


https://ibb.co/tzxdkks

https://ibb.co/0QHyMDc

https://ibb.co/hYSvCnr


Hope the quality is OK. Can post a closeup of any part if required.

This post has been edited by billyblue1: Tue, 3 Dec 2019 - 23:53

The council will not understand, let alone accept a technical argument. Therefore personally I would advise going down the plea for discretion route, explaining that you were unaware of the requirement for a clock in a time-limited bay and asking for the council to exercise discretion to cancel.

If that is rejected, we can then throw everything at the council at the tribunal stage, failure to consider, fettered discretion, LATOR, the badge was displayed in the prescribed manner, higher level penalty etc etc...

For now, I'd like to see all of the CEO's photos please.

Apologies for taking so long to reply. My wife is very ill and has been in hospital. Will post the CEO's photos later today (Thursday)

CEO's photos

https://ibb.co/SxZKdD5

https://ibb.co/L6V3n4X

https://ibb.co/x3pCDC6

cp8759, Mad Mick V, DD and all.

Following receipt of the NtO I now need to make a further representation to the council. They have already said they won't use their discretion to cancel the PCN


I would appreciate some advice on just what to include at this stage. Should I just maintain the wrong PCN code was used as the PCN was for failure to display the BB in the prescribed manner when it was actually issued (as admitted by the council in their reply to an earlier representation) for failure to display a clock in a time limited disabled bay and should I provide them with examples of previous cases which have successfully argued this point?
I could also bring in other arguments at this stage or would it be better to save them until a tribunal appeal?