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Camden PCN - online Pay-by-phone malfunctioning
NotFair
post Mon, 6 Aug 2018 - 14:00
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Hi all,

I've received a Camden (windscreen) PCN for 'parking without paying'.

The reason is - the RingGo website simply didn't work. I have taken screenshots of multiple attempts at paying, including one attempt where it seems to be processing a payment, but all ended in an error message.

I had to rush off to work hence couldn't move the vehicle or park it anywhere else.

I was wondering if anyone knows any examples/cases where a challenge has been made due to an IT error like this? Tried a forum search but didn't get very far.

I'll post up the PCN pics later on today, but any ideas in the interim would be very welcome.

Thank you

This post has been edited by NotFair: Mon, 6 Aug 2018 - 14:01
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NotFair
post Tue, 20 Nov 2018 - 22:51
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No more freelance thinking! Here are some pictures instead:

These are the signs from the bay in which the vehicle parked:




The nearest machine is on the other side of the road, not directly opposite, but a few 'doors' down. It looks like this:



I will make a submission with LT in line with DancingDad's guidance.
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NotFair
post Tue, 20 Nov 2018 - 23:53
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I have held off opening a London Tribunals appeal for now - I haven't done this before, and am not entirely sure how best to answer some of the questions.
E.g. should I tick more than one grounds for appeal, should I state non-electronic evidence (just in case), should I ensure I attend an appeal hearing etc.

In light of the above new evidence (machine very clearly not an option), I will make a submission first thing tomorrow after (hopefully) some further advice on here.

Thanks a lot for the help

This post has been edited by NotFair: Wed, 21 Nov 2018 - 00:15
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cp8759
post Wed, 21 Nov 2018 - 01:46
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Well the signage makes no allowance for pay&display, it's a pay by phone bay. If you'd used the p&d machine, they could have given you a PCN for not parking in compliance with the sign.


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hcandersen
post Wed, 21 Nov 2018 - 08:46
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+1.

Which leads to the reasoning in their NOR being unsound and, by extension, if they rejected your reps on this basis i.e. applying an improper legal test, then this is a procedural impropriety.

We'll help with drafting this part of your appeal!
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DancingDad
post Wed, 21 Nov 2018 - 09:51
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You have a winner.
While parking without paying may be questionable despite the issues and efforts that you made and have evidence of, there is a clear and blatant failure to consider within the NOR.
To me the outline of appeal is two fold.
Contravention did not Occur
This due to failure of the online system which despite my best efforts would not allow payment.
Evidence and details to follow.
Procedural Impropriety.
Authorities have a duty to consider all aspects of challenges made against a PCN or NTO and to act fairly.
Their rejection is strongly based on that payment should have been made by cash at a nearby Pay and Display machine.
This despite that the signage does not allow and the only visible machine is not longer in use with clear notices to that effect.
The rejection clearly shows that false logic has been applied by basing the rejection on a non existent facility, this fails to consider or to act fairly.
Photos and full details to follow.

Get something like that in so you do not miss deadlines.
I suspect that little more will be needed as when someone from council with a brain checks on the second part, they will cancel.
Don't rely on that, when appeal is registered you will have a new deadline for the hearing, full appeal, photos etc should be in good time for that.
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NotFair
post Wed, 21 Nov 2018 - 10:31
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Thank you for the replies.

Just one question before I submit to LT this morning:

Is it better to select the option to attend the hearing, or not?
If I select to attend, does it perhaps put some pressure on the Council to attend also?
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obwan1212
post Wed, 21 Nov 2018 - 12:05
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I'm not an expert, but I've read through lots of adjudicator decisions, and I get the impression the enforcement authority don't seem to attend either way, maybe because there are simply so many cases and so not practical to do so.

As for attending yourself, you would get the chance to give a good impression and the chance to discuss and clearly outline the points of your case to the adjudicator and then the chance for them to question you back. Not attending would mean they would have to guess the answer to anything not clear.

On the flip side, if the case is very strong, and has been outlined clearly in your representations, less need to be there in person.

Do others agree?
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cp8759
post Wed, 21 Nov 2018 - 14:35
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Personally I would always chose to attend, but for a reasonably cleat-cut case it is not essential and I think you could go for a decision on the papers. The council will almost never attend.

For what it's worth, I think their decision falls foul of the following regulation:

13.—(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to subparagraph (2) make such an order—

(a)against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b)against an enforcement authority where he considers that the disputed decision was wholly unreasonable.


I would argue their decision to reject your representations is wholly unreasonable, and on that basis an order for costs should be made against the enforcement authority. The authority knows it has disabled the parking machine, and it knows that the signage only allowed pay by phone parking, so saying you should have used the pay and display machine can only be wholly unreasonable.


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NotFair
post Wed, 21 Nov 2018 - 23:17
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Thanks all for the assistance.

I have submitted an LT appeal on the two grounds suggested by DancingDad, and have stated more evidence and information to follow.

Hoping this results in a cancellation, but I will start compiling evidence and uploading now on the LT website anyway.
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cp8759
post Wed, 21 Nov 2018 - 23:20
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Have a read of this http://forums.pepipoo.com/index.php?showto...p;#entry1436066 and start thinking about your own costs order application.


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NotFair
post Mon, 10 Dec 2018 - 18:00
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The council have decided to contest, and I've been sent an evidence pack.

It's quite big. The main points/evidence are as follows:
  • There is 'compliant' signage which states controlled hours and the requirement to pay to park. Attached is the TMO.
  • RingGo logs which show my multiple attempts to pay via the mobile website and the desktop website. An argument that this wasn't enough, and I could have phoned or used the smartphone app.
  • RingGo logs from two other vehicles, whose sessions were paid for by phone, and smartphone app. The state the latter part (method of payment), but no specific evidence for this.
  • The reject any suggestion of PI - either in the initial issue (fine), but also in enforcement (hmm...)


They haven't commented on the fact that their rejection tells me quite directly that I should have used a machine. I think whoever has responded read the initial comment I made which was simply "contravention not occurred, and EA procedural impropriety, details to follow", but not the follow up submission stating failure to consider and reasons why.

I am thinking of submitting:
  • I used two ways to access RingGo, neither worked, as the EA has confirmed
  • Procedural impropriety- failure to consider, with pictures of the machine and signs
  • Any TMO problem, if I can find one


Would this be a suitable response?

This post has been edited by NotFair: Mon, 10 Dec 2018 - 18:01
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cp8759
post Tue, 11 Dec 2018 - 08:42
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Upload their case summary


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NotFair
post Tue, 11 Dec 2018 - 11:38
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Here it is:


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Mad Mick V
post Tue, 11 Dec 2018 - 11:56
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According to Camden's website (accessed today) the TMO still quotes the location as Pay and Display:-

https://www.camden.gov.uk/documents/20142/4...27-303a2f4a6945

The crux of this case IMO is the inability of this Council to provide satisfactory means to pay for parking, either by an extant TMO which indicates you can pay by coin/CC or a fit for purpose PBP system.

There was a successful case on the ETA site in the last couple of weeks which accepted the appellants ground that he had the means to pay but was prevented from doing so. (of course I never kept the case reference) huh.gif

Mick
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NotFair
post Sun, 23 Dec 2018 - 12:57
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Unfortunately, the appeal has been refused.

Frustratingly, the adjudicator notes and agrees that pay and display was not an option, despite the Council's suggestion that I should have used it. The decision to reject is based on the fact that the vehicle should have been moved.

QUOTE
This appeal was listed for hearing today.

Neither party to the proceedings attended the appellant informing the tribunal that he would be unable to do so.

I now determine the appeal on the papers before me.

The contravention alleged in these proceedings is that this vehicle was parked without payment of the parking charge.

The basis of the appellant's case is that he sought to pay the charge on the Ring Go mobile website he being unable to do so due to a system failure.

The council accepts that there were technical issues with the website but state that alternative payment methods were open to the appellant.

That is denied by the appellant.

On the assumption that the appellant was unable to purchase parking time using any other payment method he should have moved his vehicle.

There is no exemption that allowed him to leave it parked in this bay without payment.

I agree with the appellant that motorists who pay and display may not use this bay. The council's suggestion in its rejection notice that that payment method was available to the appellant was incorrect. That does not mean however that the appellant's representations were not properly considered by the council and I am satisfied that they were.

I am satisfied that the contravention occurred in this case and that there has been no procedural impropriety on the council's part in these proceedings.

The appeal is refused.


I've never been this far with an appeal (usually my PCNs are quashed at reps stage, because they are so obviously incorrectly issued), so I don't really know if I should just pay up now and be done with it, or if any further option is available to me. Obviously, I disagree with the decision. If the vehicle could easily have been moved, it obviously would have! Despite the adjudicator agreeing the council failed to provide adequate means to pay, suggesting I should have paid using a defunct machine in their argument, it's still my fault for not moving the vehicle rolleyes.gif

Edit:
I can post my arguments and evidence if it would help form an opinion on here on whether I have any options available.

This post has been edited by NotFair: Sun, 23 Dec 2018 - 13:02
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DancingDad
post Sun, 23 Dec 2018 - 13:23
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QUOTE
gree with the appellant that motorists who pay and display may not use this bay. The council's suggestion in its rejection notice that that payment method was available to the appellant was incorrect. That does not mean however that the appellant's representations were not properly considered by the council and I am satisfied that they were.


How can the council have properly considered when they base their consideration and rejection on an incorrect premise ?

There is an option for review but limited grounds, "in the interests of justice" is perhaps the only one open.
But assuming that the adjudicator is correct that moving the vehicle was the only option, the lack of PI is a finding they are entitled to make.
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cp8759
post Sun, 23 Dec 2018 - 19:17
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NotFair, as a general tip for the future post your draft appeal here before sending it to the tribunal. It's the third time this month that I've seen a winnable case go wrong where the OP decides to go it alone. However, what the adjudicator is saying is that if the council's payment systems breaks down, parking is effectively prohibited. This is self-evidently absurd, we have had countless cases where it's been decided that if it's impossible to pay, no payment is required. I'm never very hopeful with requests for a review, but at this point there's nothing to lose so you might as well try. Send this to the tribunal and see what comes back:
--------------

I apply for a review under paragraph 12(b)(vi) of the The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 because the interest of justice require a review, specifically because the adjudicator made an error of law.

The findings of fact from the original decision, none of which are disputed, are as follows:

1) The vehicle had been parked without payment of the parking charge.
2) The charge had not been paid due to a technical failure within the council's pay by phone system.
3) There was no option to use pay & display at this location.

The corollary of points 2 & 3 above is that at the material time there were no means by which a motorist could pay the parking charge, this is not disputed.

The adjudicator however fell into error in finding that as a matter of law, where due to technical failures with the council's payment system, payment of the parking charge is impossible, a contravention of failure to pay the parking charge can occur. This would have the effect of making parking prohibited at any time when the relevant payment system, be it pay by phone or pay & display, is for whatever reason not functioning correctly.

I draw the tribunal's attention to Antonio Prendi v London Borough of Camden (case reference 2100346960) where it was held as follows:

"A contravention occurs if a vehicle is parked in an on-street pay and display bay during controlled hours, without clearly displaying a valid pay and display voucher.

There is no dispute that Mr Prendi's vehicle was at this location in Linden Gardens or that the Penalty Charge Notice was issued to it, as shown in the photographs/digital images produced by the Enforcement Authority.

Mr Prendi says that he went to the pay and display machine but it was not working out of order and so he went to look for another machine but there was no other one near. Mr Prendi adds that the next one is over a mile away.

Mr Prendi says that he left a note to this effect in the vehicle. The civil enforcement officer has not recorded details of any note but the images appear to confirm one may have been there.

The Enforcement Authority do not appear to dispute that the pay and display was not working and have produced no maintenance records in this regard. The Enforcement Authority do refer to the signage on the machine, advising the motorist that if 'not working use another machine'.

Whether there is another machine within a reasonable distance will depend on the circumstances and each case will turn on its own facts. However, the Enforcement Authority cannot expect motorists to tramp the streets of their borough trying to find a machine in working order. Going too far away from the parking place may indeed involving entering a different parking zone where, restrictions and charges could differ. 

Considering carefully all the evidence before me, I cannot find as a fact that, on this particular occasion, a contravention did occur.

Accordingly, this appeal must be allowed.
"

In this decision, which was never challenged, the tribunal held that where for technical reasons there has been a breakdown of the payment infrastructure, the motorist who fails to pay does not commit a contravention. Respectfully, I submit that the adjudicator in my case fell into error when he departed from the decision in Prendi. Where the council wishes to prohibit parking, whether due to a failure of the payment system or for any other reason, the council has a power to suspend the parking space and install appropriate suspension signage. A failure of the payment system does not, as a matter of law, equate to an automatic suspension of the parking space. A motorist cannot be at fault if, through no fault of his own, it has become impossible to pay the parking charge for a parking space where it would otherwise be lawful to park.

I aver that in finding that a motorist, parked in an otherwise lawful manner in a designated parking space, but faced with a non-functioning payment facility, has no choice but to park elsewhere or be in contravention, the original adjudicator made an error of law and the interests of justice now require a review of that decision.


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NotFair
post Sun, 23 Dec 2018 - 19:17
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QUOTE (DancingDad @ Sun, 23 Dec 2018 - 13:23) *
How can the council have properly considered when they base their consideration and rejection on an incorrect premise ?

There is an option for review but limited grounds, "in the interests of justice" is perhaps the only one open.
But assuming that the adjudicator is correct that moving the vehicle was the only option, the lack of PI is a finding they are entitled to make.


Thanks for your comments.

The crux of my disagreement is the council assert there are multiple ways to pay, but I think there were - in actual fact - none. The ways are:
  1. Machine - which is defunct
  2. Phone/SMS - has never ever worked on my account, proof for which I sent a screenshot of an attempt from a couple of months ago which stated that my car wasn't recognised on their system! Therefore, I never use phone/SMS
  3. Mobile/desktop website - I always use this, as it always seems to work reliably. Except on this occasion - and the council don't dispute this
  4. iPhone/Android app - my view is that this cannot be relied upon by the council to prove there was a method of payment, as it assumes every motorist in the World possesses an iPhone or Android smartphone, and can download the RingGo app to pay for parking


In my opinion, therefore, there was simply no way to pay. At all.

The council and adjudicator's view is that I should have moved the vehicle. But this doesn't take mitigating circumstanced into account - I had to go to work, and I couldn't just leave work to move the car to another bay, where (I expect) RingGo probably wouldn't have worked yet again.

I only drove in to work (as opposed to public transport, which I take on weekdays) on the reasonable assumption that the council would provide me with a means to pay. Given I've never suffered this issue before, I think it's a reasonable assumption to make. As the contravention was on a Saturday morning, I think the adjudicator has not realised that I was at work and really had no other option whatsoever.

In my mind, I am being unjustly penalised for the council's failure to provide a functioning means to pay, and then stating by way of response that I should have used a machine that doesn't even exist.

Would the above be a suitable submission "in the interests of justice"? I've never had to take a PCN this far so I really don't know how the process works. I note the LT website states I can't appeal just because I don't agree with the outcome...which is the case here.

Thanks for the advice.

Edit: I have just seen your post cp8759. Thank you very much for the assistance.

This post has been edited by NotFair: Sun, 23 Dec 2018 - 19:20
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cp8759
post Sun, 23 Dec 2018 - 19:19
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QUOTE (NotFair @ Sun, 23 Dec 2018 - 19:17) *
Would the above be a suitable submission "in the interests of justice"? I've never had to take a PCN this far so I really don't know how the process works. I note the LT website states I can't appeal just because I don't agree with the outcome...which is the case here.

You can challenge on an error of law, see post 37 above.


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NotFair
post Sat, 29 Dec 2018 - 12:59
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QUOTE (cp8759 @ Sun, 23 Dec 2018 - 19:19) *
QUOTE (NotFair @ Sun, 23 Dec 2018 - 19:17) *
Would the above be a suitable submission "in the interests of justice"? I've never had to take a PCN this far so I really don't know how the process works. I note the LT website states I can't appeal just because I don't agree with the outcome...which is the case here.

You can challenge on an error of law, see post 37 above.


Many thanks for this - extremely helpful!

I would like to add one paragraph to try and deal with the Council's argument that other functioning methods of payment were available to me:

The council assert that multiple methods of payment are available to motorists, and rely heavily on pay & display as the method I should have used. The methods of payment are as follows:

1. Pay & Display - defunct, despite the council's assertion, and for which evidence has been supplied
2. Phone/SMS - this has never ever worked on my account, evidence of which I supplied as a screenshot of a previous failed attempt. The vehicle is not recognised by their system.
3. Mobile/desktop website - This is the only option that has worked reliably in the past. It failed on this occasion, and this is not disputed by the council
4. iPhone/Android app - this cannot be relied upon by the council; it assumes that all motorists possess a mobile phone which can download and use a smartphone app


Would adding this be helpful, or just complicate the appeal? My concern is that the appeal will be refused on the grounds that I could have paid using another method. I strongly dispute this.
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