Hi there. I just want to say I tried to find what to do now on this forum but I'm stock on statutory declaration. From where I can get this, council should send this to me? Last letter from them ( order for recovery) informed me I have to : "File a statutory declaration on the enclosed form and send it to the Traffic Enforcement Center..."
They didn't enclosed this declaration. From where I can take this? Please note, 1st correspondence regarding this PCN was Charge Certificate, never received PCN etc
Thank you
Chris
Hi Neil. As you can see this is Copy and they send me this few days ago with order for recovery
1st correspondence regarding this PCN was Charge Certificate, never received PCN etc.
And yet you've posted the PCN. Pl explain.
Anyway, assuming you came by this later then submit a SD. That they did not enclose one is not IMO a winning line at appeal, so just download it - https://www.gov.uk/government/publications/form-pe3-challenge-an-unpaid-penalty-charge-notice
Note the potential penalties for filing a false declaration.
This is the back Neil:
Sorry I can't add photo link.
There is information how to pay or complete enclosed statutory declaration. Now I know from where I can take it, thanks. No information on the back from where I can download it. I will try add picture tomorrow.
The back normally IS the SD.
Host images externally and post image codes here. e.g Imgur or Tinypic.
What about my query re first image?
and question about date?
1st image is the back of Penalty Charge Notice ( copy) as you can see on the bottom is date 17/05/2018 but PCN is from 19/01/2017. Why?
[/img]
Hi Neil. This is the back of OfR:
Thank you
The SD states clearly that the SD is enclosed.
You say it wasn't, they'll claim it was. IMO, it's a red herring anyway because procedural impropriety is not grounds of appeal.
So, download the form, complete, sign/get witnessed, send to TEC.
Then we can see whether you have grounds for making reps against the PCN...once you've got it.
Will do that.
Neil no any other dates a specially no Date of Notice, it is Blank as you can see. as well no date of Notice on the other correspondence from Ealing.
The true is I never received it Neil and nothing until Certificate. I see a lot people have similar problem, this should be show in Tv. I have to go now to Solicitor and pay them for Statutory declaration because their mistake. Thanks Neil
What is the best way to send this to TEC?
Recorded delivery or 1st class with proof of postage?
Hello. I sent it few days ago but I didn't receive any confirmation. Is that typical? Thanks in advance
Yes Neil by email
Hi Neil, good news:
What is the next step?
Thanks,
Chris
25 may 2018 is in the middle on the right side Neil. Waiting for council respond then. Thanks Neil
Neil but on this Order is information:
" You should contact the local authority as they may take future action on it. The authority should inform you asap if it's intends to do so."
I should contact them or not?
No, hang on, I just found something: I can't remember us seeing this happen before; we have to think about it.
From the legislation -
"(9)Service of a declaration under sub-paragraph (2)(a) above shall not prevent the enforcing authority serving a fresh penalty charge notice but if, when it was served, the relevant order under paragraph 6 was accompanied by a copy of the penalty charge notice to which the charge certificate relates, a fresh penalty charge notice in the same terms shall be deemed to have been served on the person making the declaration on the same day as the declaration was served."
Which means, as I read it, you already have the new PCN.
Wait for others' views: I will whistle up the cavalry.
Morning Chris.
Looking at the section of the legislation above, it seems you are deemed to have received a new PCN.
I'm not quite clear but I think it is deemed to be dated 25th May (?).
That leaves the discount £65 in play, only until 7th June.
You now have to decide whether you want to pay or fight it.
But we can't be sure how Ealing are understanding process at this point, so your first task is to check the
current status of the PCN online - and take a screenshot in case we need it.
------
Connell Cres has been a big issue and I'm sure others here can advise you on that.
This bit of the cavalry has arrived but is milling around in confusion.
Can't remember seeing a PCN copy sent with an OfR before or for that matter, seen the significance of it under LLAA2003.
But agree with Neil, it would seem that whether Ealing recognise it or not, you must set deadline of 7th June to either challenge or pay at discount.
Getting PCN status and screenshots is valuable.
If they have not reset to discount amount, ground of penalty exceeds can be claimed and IMO shown to be valid against the legislation.
and as you've said to me cp, the wording of the leg. doesn't quite might sense, so perhaps there's a later amendment?
Hello,
Nothing change on Ealing website:
If there is any ground for challenge then I'm happy to try ( if still 65 pounds will be for pay if they declined).
1st email to TEC was send on:
23 May 2018, 21:20
I didn't receive any confirmation then I resent this email to the exactly same email address on:
29 May 2018, 04:39
And after that I'm recived confirmation from them.
So the TEC must have acted on the first email, as the 2nd email is dated after the date of the revoking order. The email sent on 23 May 2018 at 9:20 pm is deemed to be filed with the court on 24 May 2018.
The real problem is what did Parliament mean with "a fresh penalty charge notice in the same terms"? This could mean a penalty charge notice which, in the ordinary course of events, would have been served on 24 May 2018. This would make the date of the PCN 22 May 2018, making the last day of the discount period Monday 4 June. This is the interpretation that most closely ties in with the wording of the Act, but it also gives the shortest possible discount period.
If the deemed date of the PCN is 24 May 2018, the discount period ends on 6 June 2018, but a PCN issued on 24 May 2018 could not be served on that date.
We also have to consider that the Statutory Declaration is sent to the court, not the council, so the council doesn't find out about it until it gets the revoking order. It must be assumed the council have a reasonable amount of time to act on the order (or else you could file an SD and immediately claim a penalty exceeds defence, which would frustrate the purpose of the legislation), but it doesn't look like this has ever been tested before the tribunal.
I'd be tempted to take a screenshot from the council website each day next week, if by 6 June it's still more than £65, a penalty exceeds appeal should be successful.The likelihood of the council officers being able to get their heads round this stuff and properly consider the representations are, IMO, very remote.
Thank You for that. I will do screenshot every day now.
Hi. Still nothing change when I want to pay, still £203.
We wait with bated breath.
It's a bit like Stingray ---
Hi Just FYI still £203 on their website. Have a nice weekend :-)
Well this is interesting, I was sure they would have fixed it by now.
Hi. It is now the time to think about penalty exceeds representations ? Still 203 for pay on their website.
Thank you
Ok.
I just didn't understand the 2 day buffer you are employing.
All good.
I'm not fully convinced they're being as clever/crafty as we thought but we'll find out soon.
Hello everyone. Today is changed to 65 pounds. What to do?
This is how it looks like when check PCN
Too small.
Maybe now:
That changes things slightly, but at this point there's nothing to lose so send this asap:
---------
Dear Sir or Madam,
Representations against the fresh Penalty Charge Notice deemed to have been served on 24 May 2018
As you will now be aware, I never received the original Penalty Charge Notice. I first became aware of the matter upon receipt of the Order for Recovery, dated 17 May 2018. Very helpfully the council provided a copy of the original Penalty Charge Notice, so I was made aware of the details of the allegation at this early stage. As is now a matter of record, I filed a statutory declaration with the County Court and the Order for Recovery was revoked by order of the court dated 25 May 2018 (copy enclosed).
As you can see from the enclosed email, the Statutory Declaration was sent to the County Court on 23 May 2018 at 9:20 pm. Paragraph 4.2 of Practice Direction 5B to the Civil Procedure Rules provides that:
"4.2 Where an e-mail, including any attachment, is sent pursuant to this practice direction and the e-mail is recorded by HMCTS e-mail software as received by the court at or after 4.00pm and before or at 11.59pm—
(a) the date of receipt of the e-mail will be deemed to be the next day the court office is open;
(b) the date of issue of any application will not be before that date; and
( c) any document attached to that e-mail will be treated as filed on that date."
It follows that the Statutory Declaration is deemed to have been filed at court on 24 May 2018. Paragraph 7(9) of Schedule 1 to the London Local Authorities and Transport for London Act 2003 provides that (my emphasis):
"Service of a declaration under sub-paragraph (2)(a) above shall not prevent the enforcing authority serving a fresh penalty charge notice but if, when it was served, the relevant order under paragraph 6 was accompanied by a copy of the penalty charge notice to which the charge certificate relates, a fresh penalty charge notice in the same terms shall be deemed to have been served on the person making the declaration on the same day as the declaration was served."
As the council helpfully provided a copy of the PCN with the Order for Recovery, a fresh penalty charge notice in the same terms is deemed to have been served on 24 May 2018 as this is the day that the Statutory Declaration is deemed to have been filed with the County Court. It follows that the period of 14 days during which the council was required to accept payment of the discounted penalty of £65 ended on 6 June 2018, and the period of 28 days during which the amount of £130 must be paid or representations must be made will end on 20 Jun 2018. Therefore as a matter of law, the amount of the Penalty Charge Notice due as of Tuesday 12 June 2018 was £130.
However as you can see from the enclosed screenshot, the amount demanded on the council website as of Tuesday 12 June 2018 was £203. As the revocation order issued by the County Court would is deemed to have been served on 29 May (unless the council can show that it was not), there has been ample time for the council to update its systems to reflect the correct amount of the Penalty Charge Notice.
One of the statutory grounds to appeal a Penalty Charge Notice is that "the penalty charge exceeded the amount applicable in the circumstances of the case"; the amount applicable in the circumstances of the case is £130 but the council is demanding a penalty of £203. It follow that the penalty charge exceeds the amount applicable in the circumstances of the case, and the fresh Penalty Charge Notice must therefore be cancelled.
Yours faithfully
chrisSM
-------------------------------
With a bit of luck they'll mess up the response and then you can get them for failure to consider. However it would help if, when it comes to the adjudicator, we had something to say about the contravention. Can you get the video from the council website and post it on here?
I'm in two minds because the only way that screen can be showing £65 is if a new PCN has now been issued.
That would mean they never were being 'clever' with the part of the Act I flagged up (or a different clerk has changed
the situation).
A new PCN now, when we know the law says one was, effectively, issued 24/5 should be disastrous for them.
I'm thinking we should wait a day: We have the leeway.
Received today:
LOL.
Well it's wrong but it's in your favour, which is awkward.
I shall now go and put my head in a saucepan and simmer for a while.
chrisSM you should now definitely make the representations outlined in post 56. They won't understand what you're on about so we should then get them for failure to consider. If they send another PCN as well, that'll be the final nail in the coffin.
How to send this? Recorded delivery or 1st class with proof of postage? I understand I have send this to : Parking Service , Ealing council...?
Thank you
Chris
At this point I would make them online, the back of the PCN (which you uploaded in post 1) says you can send representations by email.
Sent today 14/07 around 21:30 thank you
Received today, PCN number is the same
PCN number is the same
Dated?
Date of Notice 14/06/2018
That's great. Thank you very much. Really appreciate it.
Draft below, again keep italics and bold exactly as I have used it:
-------------------------
Dear Sir or Madam,
I am in received of a further Penalty Charge Notice dated 14 June 2018, I therefore submit the following additional formal representations.
Paragraph 7(9) of Schedule 1 to the London Local Authorities and Transport for London Act 2003 provides that (my emphasis):
"Service of a declaration under sub-paragraph (2)(a) above shall not prevent the enforcing authority serving a fresh penalty charge notice but if, when it was served, the relevant order under paragraph 6 was accompanied by a copy of the penalty charge notice to which the charge certificate relates, a fresh penalty charge notice in the same terms shall be deemed to have been served on the person making the declaration on the same day as the declaration was served."
This means that there are two enforcement routes open to the authority: If the authority doesn’t serve a copy of the original PCN with the Order for Recovery, and a Statutory Declaration is made to the effect that the original PCN was never received, the authority can serve a fresh PCN.
But if, as happened here, the authority does serve a copy of the original PCN with the Order for Recovery, and a Statutory Declaration is made to the effect that the original PCN was never received, then a fresh PCN is deemed to have been served on the day that the statutory declaration was filed with the court.
As explained in my previous formal representations, because the Statutory Declaration was filed with the court on 24 May 2018, paragraph 7(9) above means that a fresh penalty charge notice was deemed to have been served on 24 May 2018. If a PCN was deemed to have been served on 24 May 2018, it is not open to the enforcement authority to issue additional PCNs at a time of its choosing, as this is outwith the statutory scheme.
The process laid out by Parliament is clear: Given the authority served a copy of the original PCN with the order for recovery, a fresh PCN was deemed served on 24 May 2018 and that is the PCN the enforcement authority should have pursued. The statutory time-frame within which that Penalty Charge Notice must be paid or challenged is due to expire on 20 June 2018, it is not open to the authority to extend that period to 15 July 2018, as the PCN dated 14 June 2018 purports to do.
The purported and unauthorised service of a further Penalty Charge Notice, when the Penalty Charge Notice deemed to have been served on 24 May 2018 was still extant, means that the penalty charge now exceeds the amount applicable in the circumstances of the case. Where the authority purports to serve additional Penalty Charge Notices when the previous notice has not been withdrawn or cancelled, the only amount that may be lawfully demanded is zero. It follows that you must now cancel both the Penalty Charge Notice deemed to have been served on 24 May 2018, and the Penalty Charge Notice dated 14 June 2018.
Fast cancellation or clueless response ?
Clueless response no doubt.
Good Morning. I should send this by email or use their website for challenge?
On their website now is this ( please note there is no "make representation" button which I can use):
The PCN explicitly says you can make representations by email so that's what I would do.
Hello,
News from Ealing
And your reps were submitted how and when?
Edited - so confused by the sequence of events, my brain’s hurting.
Draft appeal for the tribunal, keep all bold, italics and bold italics exactly as per the below (It might be best to copy this to word, export to PDF and then provide the grounds of appeal to the tribunal as a pdf attachment):
Ground 1: The amount demanded exceeds the amount due in the circumstances of the case: There has been an unconscionable delay:
I first became aware of this matter when I received the charge certificate dated 12 March 2017, I had no knowledge of the matter prior to this.
On 17 May 2018, some 14 months later, the council issue an Order for Recovery and this was served together with a copy of the original Penalty Charge Notice.
While previous adjudications are not binding they can be persuasive and I submit Philip James Masterson v City of London (case reference 2140188388) as persuasive authority:
“The Penalty Charge Notice was issued in this case on 8th March 2012 and the Charge Certificate was issued on 24th July 2012. However the Order for Recovery was , I believe, sealed only on 17th October 2013. The Council has not given any explanation for this somewhat unconscionable level of delay before obtaining registration of the debt at Court.
In my judgement there is a compromise of Article 6 of the Human Rights Convention here. It is a problem for the Adjudicator to give a fair hearing in the case if the delay has potentially affected the recollection of events by either the Appellant or the camera operator.
Also, for this enforcement to be lawful the Council has a duty to exercise its powers with reasonable expedition and fairness. I note the case of R-v- Secretary of State for Home Department ex p. Doody (1994) (House of Lords) per Lord Mustill : "Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances" . I have also considered Davis-v- Royal Borough of Kensington and Chelsea ( PAS 1970198981) where it was considered that a delay of more than 2/3 months in responding to an appellant's representations was prima facie evidence of unfairness in the absence of explanation.
I am not satisfied that the local authority has conducted the timetable of this enforcement with reasonable expedition and that, as a result, there is an unfairness.
For both of these reasons I find that the appropriate Direction here is that the Penalty Charge Notice must now be cancelled.”
I submit that the enforcement authority has not put forward any reasonable explanation for the 14 month delay in the progression of the Penalty Charge Notice, this has impacted my ability to contest the merits of the alleged contravention and in the circumstance it would be unfair to allow enforcement to continue.
Ground 2: The amount demanded exceeds the amount due in the circumstances of the case: The London Borough of Ealing has served a third PCN, thus purporting to amend the payment and appeal deadlines, when the PCN previously served was still extant:
When the order for recovery dated 17 May 2018 was served, the enforcement authority included a copy of the Penalty Charge Notice.
Paragraph 7(9) of Schedule 1 to the London Local Authorities and Transport for London Act 2003 provides that (my emphasis):
"Service of a declaration under sub-paragraph (2)(a) above shall not prevent the enforcing authority serving a fresh penalty charge notice but if, when it was served, the relevant order under paragraph 6 was accompanied by a copy of the penalty charge notice to which the charge certificate relates, a fresh penalty charge notice in the same terms shall be deemed to have been served on the person making the declaration on the same day as the declaration was served."
This means that there are two enforcement routes open to the authority: If the authority doesn’t serve a copy of the original PCN with the Order for Recovery, and a Statutory Declaration is made to the effect that the original PCN was never received, the authority can then serve a fresh PCN.
But if, as happened here, the authority does serve a copy of the original PCN with the Order for Recovery, and a Statutory Declaration is made to the effect that the original PCN was never received, then a fresh PCN is deemed to have been served on the day that the statutory declaration was filed with the court.
Because the Statutory Declaration was filed with the court on 24 May 2018, paragraph 7(9) above means that a fresh penalty charge notice was deemed to have been served on 24 May 2018. If a PCN is deemed to have been served on 24 May 2018, it is not open to the enforcement authority to issue additional PCNs at a time of its choosing, as this is outwith the statutory scheme.
However rather than pursuing the PCN that, by virtue of the legislation, was deemed to have been served with the Order for Recovery, the enforcement authority acted outside of the statutory scheme by purporting to serve another PCN dated 14 June 2018.
The process laid out by Parliament is clear: Given the authority served a copy of the original PCN with the order for recovery, a fresh PCN was deemed served on 24 May 2018 and that is the PCN the enforcement authority should have pursued. The statutory time-frame within which that Penalty Charge Notice had to be paid or challenged was set to expire on 20 June 2018, it was not open to the authority to extend that period to 15 July 2018, as the PCN dated 14 June 2018 purported to do.
The unauthorised service of a further Penalty Charge Notice, when the Penalty Charge Notice deemed to have been served on 24 May 2018 was still extant, means that the penalty charge now exceeds the amount applicable in the circumstances of the case. As the authority purported to serve an additional Penalty Charge Notices when the deemed "fresh" PCN was outstanding and was deemed to have been validly served, the only amount that may be lawfully demanded is zero.
Ground 3: The amount demanded exceeds the amount due in the circumstances of the case: London Borough of Ealing has failed to consider the formal representations properly or at all:
Upon receipt of the Penalty Charge Notice dated 14 June 2018, I made formal representations on the same basis as ground 2 above. The council’s Notice of Rejection boldly asserts that “Please be advised that the Council has three months to re-serve the PCN”, however the period of three months is not mentioned anywhere at all in the London Local Authorities and Transport for London Act 2003. This appears to be a time-frame the council has plucked out of the air.
Furthermore, as my formal representations explained, where the enforcement authority has served a copy of the PCN with the Order for Recovery, there is no power to re-serve anything as a PCN is deemed to have been served on the date that the statutory declaration is filed with the County Court. However the existence of the deemed “fresh” PCN is not mentioned at all in the Notice of Rejection and it appears the enforcement authority has simply failed to understand the point, it has effectively dealt with the matter as if Paragraph 7(9) of Schedule 1 to the London Local Authorities and Transport for London Act 2003 had never been enacted.
The situation appears to be tantalisingly simple: The enforcement authority seems to be oblivious to the fact that a fresh PCN was deemed to have been served on 24 May 2018. Despite my attempts to provide a clear explanation of the legal position, the enforcement authority has been unable to grasp the fact that a PCN was deemed to have been served with the OfR, and that the relevant 28 day period for that deemed PCN was due to expire on 20 June 2018.
I aver that an enforcement authority that shows such a misunderstanding of the relevant legal framework cannot be taken to have properly considered the representations submitted, and such a failure to consider means that the only amount that may be properly demanded is nil.
Thank You very much for your help. I
Do I need to write something above this on the PDF document? For example my name, address, ref number?
I just found now one important page isn't attached ( 1st page) from Ealing, I don't know how this is happen
Sorry. It's ok now. Few times I saw only 3 photos, now 4. I hope you have seen all of them.
Assuming you've attached everything correctly through the tribunal portal, they will know which case it relates to.
Have you asked for a postal or a personal hearing? If it's a personal hearing, you can just tell the adjudicator that page 1 of the NoR is missing from the council's evidence pack and this is a procedural impropriety, however if you've asked for a postal decision it would be worth making a short additional submission on this point.
Hi Cp8759
I didn't see photo of 1st page from the council here on the forum on my previous post and I though I didn't attach it but after few refreshing is ok and showing all 4 photos. I will do with Tribunal soon ( busy time for me with work) but definitely will do this soon. I'm preparing PDF document now. I will ask for postal decision.
Big big thank you for everyone a specially for CP8759 for help in here.
I will pay some donation on this website.
Brilliant job. :-)
Thank You again!
Excellent result, obviously the council realised they couldn't win. Credit to Neil B who first drew my attention to the relevant provisions.
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