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Discretion in decision making, What does the law say?
Gert
post Mon, 10 Jun 2019 - 17:45
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Apologies in advance if this is not the appropriate forum for this query.

Looking at the wide range of quality and robotic responses from LA decision makers and privatised contractors dealing with PCNs it seems that there are limited or no means to get a proper answer. Is this down to councils riding roughshod over what SHOULD be decided in order to grab cash or mask how badly they do things, both or something else? When they screw up why don't they admit it, cancel and put it right?

Is there anything in whatever law empowers LAs to enforce PCNs that specifically provides for or directs LAs to consider discretionary allowances equivalent to " LA or individual Decision Maker, you may cancel this PCN or four because you don't have to simply uphold it and every one issued?"
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post Mon, 10 Jun 2019 - 17:45
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DancingDad
post Tue, 11 Jun 2019 - 10:13
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Not too sure what you are getting at?

Basics are any enforcement authority has full discretion to cancel any PCN..... even if the contravention is bang to rights and they just feel like it.

There is nothing in law to force them to use discretion except the duty to act fairly and to consider fully.
Which are subjective arguments to use, nothing solid to grab but can win if someone can persuade an adjudicator that the authority failed in their duty.
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The Rookie
post Tue, 11 Jun 2019 - 12:26
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The most common discretion is for 'first time offenders' with a blue badge in my (fairly limited) experience. other than that very little discretion is shown.

They MUST consider your representations properly though and a common failing is using the wrong template letter and not addressing the rep's properly.


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Gert
post Tue, 11 Jun 2019 - 17:34
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My query comes from seeing how some LAs state in their correspondence "we will issue" but the legislation actually says "an authority may issue". An overstatement of the action that must be taken. In that same vein, I was wondering if there was a similar slant on enforcement, does the law suggest LAs may enforce as opposed to will enforce?
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DancingDad
post Wed, 12 Jun 2019 - 19:09
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QUOTE (Gert @ Tue, 11 Jun 2019 - 18:34) *
My query comes from seeing how some LAs state in their correspondence "we will issue" but the legislation actually says "an authority may issue". An overstatement of the action that must be taken. In that same vein, I was wondering if there was a similar slant on enforcement, does the law suggest LAs may enforce as opposed to will enforce?


The will/may issue is, IMO, playing with words.
TBH the authorities that use will instead of may probably don't understand it anyway.
As far as they are concerned, they will issue an NTO or CC as appropriate once the deadline allows the computers to generate one.
No may about it !
But it does win at adjudication... sometimes.

Bugs me more when there is no discretion shown for obvious errors such as a VRM digit wrong on entering an online payment for parking.
No argument on a PCN being served, the CEO cannot find the vehicle in question but once challenged and it is obvious a simple finger error with no intent to avoid paying, why do so many not show discretion?

It is possible, the Dart charge people manage it and are applauded for it within the council parking forum community at least.
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cp8759
post Thu, 13 Jun 2019 - 19:30
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QUOTE (DancingDad @ Wed, 12 Jun 2019 - 20:09) *
QUOTE (Gert @ Tue, 11 Jun 2019 - 18:34) *
My query comes from seeing how some LAs state in their correspondence "we will issue" but the legislation actually says "an authority may issue". An overstatement of the action that must be taken. In that same vein, I was wondering if there was a similar slant on enforcement, does the law suggest LAs may enforce as opposed to will enforce?


The will/may issue is, IMO, playing with words.
TBH the authorities that use will instead of may probably don't understand it anyway.
As far as they are concerned, they will issue an NTO or CC as appropriate once the deadline allows the computers to generate one.

As Mr Chan put it in James Demery v London Borough of Bexley (2180251300, 25 July 2018), "The PCN cannot give the impression that there is no such discretion even if the reality is that such a discretion will not be exercised in the motorists' favour.".

It may well be true that the authority will always issue a Notice to Owner or CC, but the regulations mandate that the PCN must convey that there is a discretion to issue or not to issue.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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