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Towed Away in Newham
ma8342
post Wed, 10 Jan 2018 - 20:31
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So, a long story but bear with me. After an Uber driver drove into the back of me I have had a hire car courtesy of my insurance company. Yesterday was the last day of the hire car as the repair company informed me that my car was ready. I had the call in the morning and was due to pick up my car in the afternoon but the call triggered something in my head and in a lapse of concentration i thought i was in my own car (with parking permit) and parked outside my place of work in the hire car (no permit). (approx 8;30am
So as I went to drive to a site at approx 2pm hours after parking up i found my car had been towed. I saw a warden and asked him and he confirmed it. After informing the hire company I drove to the pound this morning to see retrieve my personal belongings and after about half hour of signing forms and giving ID i was allowed to retrieve my stuff. As I approached the car I realised the car had NO PCN on the window. I asked my chaperone why and he didn't know. I pointed out that my car was one of the few that hadn't.
Back at the pound office I asked the charming young lady (read sarcasm) why there wasn't a ticket on the window and didn't know but showed me the ticket in the folder, i asked for a copy but she wouldn't give me it ( i asked if i could photograph it too) I said are you formally denying me access to this and she replied that she "was not allowed". I explained that I needed the PCN number to access photographic evidence on the Newham website but she refused to give it to me. Again I asked her to confirm that she was denying me access to evidence and she repeated that she was not allowed.

Please excuse me if I have not conformed to any site protocol but I would be grateful if any of the experts here could give me an opinion on my chances of disputing this case.

Pics and movie
https://photos.app.goo.gl/KSx7dgyJfLC30dRC2

Many thanks for your time
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post Wed, 10 Jan 2018 - 20:31
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PASTMYBEST
post Wed, 10 Jan 2018 - 20:54
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Well apart from my shock at the number of cars in the pound. No PCN has been served.

It can only legally be served by affixing to the vehicle or handing to the person who appears to be the driver. No PCN no legal removal
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stamfordman
post Wed, 10 Jan 2018 - 21:37
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QUOTE (PASTMYBEST @ Wed, 10 Jan 2018 - 20:54) *
Well apart from my shock at the number of cars in the pound. No PCN has been served.



You're surprised by the size of Newham's pound? Or was that irony.

I take it the OP has left the car there for the hire company to sort out - sounds like a messy situation.

This post has been edited by stamfordman: Wed, 10 Jan 2018 - 21:58
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ma8342
post Thu, 11 Jan 2018 - 05:31
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QUOTE (PASTMYBEST @ Wed, 10 Jan 2018 - 20:54) *
Well apart from my shock at the number of cars in the pound. No PCN has been served.

It can only legally be served by affixing to the vehicle or handing to the person who appears to be the driver. No PCN no legal removal



Thanks for the replies.

Well at this point (without being able to see the photographic evidence) I can't be certain that the PCN wasn't affixed to the car. It certainly wasn't whilst in the pound and the big "for removal" sticker was not filled in.

This post has been edited by ma8342: Thu, 11 Jan 2018 - 05:32
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ma8342
post Thu, 11 Jan 2018 - 06:05
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QUOTE (stamfordman @ Wed, 10 Jan 2018 - 21:37) *
QUOTE (PASTMYBEST @ Wed, 10 Jan 2018 - 20:54) *
Well apart from my shock at the number of cars in the pound. No PCN has been served.



You're surprised by the size of Newham's pound? Or was that irony.

I take it the OP has left the car there for the hire company to sort out - sounds like a messy situation.


The OP has agreed with the hire company that they will pick up the car and they will invoice me. I will pay the hire company and if appropriate, I will contest.
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hcandersen
post Thu, 11 Jan 2018 - 08:47
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That's not how it works, I'm afraid.

When the hire company recover the car they will pay all 'relevant charges'. They will be issued with a receipt, which will include the PCN number, and details about how they may make representations.

Only they may make representations, you have no standing in this matter and won't have.

With standard PCNs which do not involve removal, the hire company could transfer liability to you via representations to the authority. But there is no such provision with removals, I'm afraid.

You cannot make reps under your own name so you'd need to sort this out with the company. After all, you've got all the facts.
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4101
post Thu, 11 Jan 2018 - 11:31
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This proves Bogsy is correct.

Demanding payment for release is unlawful.
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spaceman
post Thu, 11 Jan 2018 - 11:39
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QUOTE (4101 @ Thu, 11 Jan 2018 - 11:31) *
This proves Bogsy is correct.

Demanding payment for release is unlawful.


Under what law?
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Guest_Bogsy_*
post Thu, 11 Jan 2018 - 11:49
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QUOTE (spaceman @ Thu, 11 Jan 2018 - 11:39) *
QUOTE (4101 @ Thu, 11 Jan 2018 - 11:31) *
This proves Bogsy is correct.

Demanding payment for release is unlawful.


Under what law?


It's complex but under section 102 RTRA 1984 and under the TMA 2004. There is also the recent supreme court case concerning access to a fair hearing being made conditional upon upfront payments. The case of R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent).

Think about this case. We have a PCN that due to the hire agreement the hiree is legally liable under the TMA 2004 for payment but the hire company will be forced to pay the PCN if they want to recover their hire vehicle. The imposed removal appeal process is disengaged from the TMA 2004 since it is pursuant to the RTRA 1984.

This post has been edited by Bogsy: Thu, 11 Jan 2018 - 12:00
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4101
post Thu, 11 Jan 2018 - 11:59
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If the hirer does not pay - then what?

The car stays in the pound so the hire firm has to pay. This means that they have to use the grounds in 11(5) of the Appeal Regs:

(5) The grounds referred to in paragraph (4)(a) are—

(a)that the vehicle had not been permitted to remain at rest in a civil enforcement area for parking contraventions in circumstances in which a penalty charge was payable by virtue of regulation 4 of the General Regulations;
(b)that a civil enforcement officer had not, in accordance with regulation 9 of the General Regulations, fixed a penalty charge notice to the vehicle or handed such a notice to the person appearing to him to be in charge of the vehicle, before the vehicle was removed;
©that, at the time the vehicle was removed, the power to remove the vehicle conferred by paragraph (2) of regulation 5C of the Removal and Disposal of Vehicles Regulations 1986(1) was, by virtue of paragraph (3) of that regulation, not exercisable;
(d)that the vehicle had been permitted to remain at rest in the place where it was by a person who was in control of the vehicle without the consent of the owner;
(e)that the place where the vehicle was at rest was not in a civil enforcement area for parking contraventions;
(f)that the penalty charge or other charge paid to secure the release of the vehicle exceeded the amount applicable in the circumstances of the case; or
(g)that there has been a procedural impropriety on the part of the enforcement authority


There is no ground for hire firms, unlike grounds against NtO under Reg 4(4):

4) The grounds referred to in paragraph (2)(b)(i) are—

(a)that the alleged contravention did not occur;
(b)that the recipient—
(i)never was the owner of the vehicle in question;
(ii)had ceased to be its owner before the date on which the alleged contravention occurred; or
(iii)became its owner after that date;
©that the vehicle had been permitted to remain at rest in the place in question by a person who was in control of the vehicle without the consent of the owner;
(d)that the recipient is a vehicle-hire firm and—
(i)the vehicle in question was at the material time hired from that firm under a hiring agreement; and
(ii)the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement;

(e)that the penalty charge exceeded the amount applicable in the circumstances of the case;
(f)that there has been a procedural impropriety on the part of the enforcement authority;
(g)that the order which is alleged to have been contravened in relation to the vehicle concerned, except where it is an order to which Part VI of Schedule 9 to the 1984 Act(1) applies, is invalid;
(h)in a case where a penalty charge notice was served by post on the basis that a civil enforcement officer was prevented by some person from fixing it to the vehicle concerned or handing it to the owner or person in charge of the vehicle, that no civil enforcement officer was so prevented;
(i)that the notice to owner should not have been served because—
(i)the penalty charge had already been paid in full;
(ii)the penalty charge had been paid, reduced by the amount of any discount set in accordance with Schedule 9 to the 2004 Act, within the period specified in paragraph 1(h) of the Schedule to the General Regulations.
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Guest_Bogsy_*
post Thu, 11 Jan 2018 - 12:07
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@ma8342

Can we take a peek at the hire agreement paperwork you signed? Blank out any personal details.

This post has been edited by Bogsy: Thu, 11 Jan 2018 - 12:07
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hcandersen
post Thu, 11 Jan 2018 - 12:41
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I've looked again at the Act and regs and the legal position appears different to the practical one in this case i.e. the hire company have stated they will collect the vehicle.

Under the RTRA and the Removal and Disposal etc. Regs and the Appeals Regs the hiree is entitled to be considered to be the owner and therefore secure the vehicle's release. The Appeals regs do not specify 'owner' as being the person who is to be informed of the right to make reps or who is entitled to make reps, the Appeals regs - which are the only relevant regs for this purpose - refer to 'a person'.

IMO, the hiree could be that person PROVIDED that the hire agreement was still in effect when the vehicle was collected. If it wasn't, and I'm not clear on this point, then only the hirer could recover the vehicle.
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ma8342
post Thu, 11 Jan 2018 - 12:54
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Thanks again for the replies.
At the time of the removal I was still under the hire agreement. I will get this uploaded when I get home.
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4101
post Thu, 11 Jan 2018 - 13:12
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QUOTE (hcandersen @ Thu, 11 Jan 2018 - 12:41) *
I've looked again at the Act and regs and the legal position appears different to the practical one in this case i.e. the hire company have stated they will collect the vehicle.

Under the RTRA and the Removal and Disposal etc. Regs and the Appeals Regs the hiree is entitled to be considered to be the owner and therefore secure the vehicle's release. The Appeals regs do not specify 'owner' as being the person who is to be informed of the right to make reps or who is entitled to make reps, the Appeals regs - which are the only relevant regs for this purpose - refer to 'a person'.

IMO, the hiree could be that person PROVIDED that the hire agreement was still in effect when the vehicle was collected. If it wasn't, and I'm not clear on this point, then only the hirer could recover the vehicle.



If the hire firm does not pay - then what? Can the council dispose of the vehicle for being abandoned? Obviously not - so stalemate.

This is what is supposed to happen, - either the hire firm or the hirer goes to the pound, collects the car, pays nothing and the council then serves a NtO
if the PCN is not paid.

The removal and storage charges are collected via the county court using 102(2A). Show me the flaw in that argument.
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Neil B
post Thu, 11 Jan 2018 - 13:24
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QUOTE (4101 @ Thu, 11 Jan 2018 - 13:12) *
QUOTE (hcandersen @ Thu, 11 Jan 2018 - 12:41) *
I've looked again at the Act and regs and the legal position appears different to the practical one in this case i.e. the hire company have stated they will collect the vehicle.

Under the RTRA and the Removal and Disposal etc. Regs and the Appeals Regs the hiree is entitled to be considered to be the owner and therefore secure the vehicle's release. The Appeals regs do not specify 'owner' as being the person who is to be informed of the right to make reps or who is entitled to make reps, the Appeals regs - which are the only relevant regs for this purpose - refer to 'a person'.

IMO, the hiree could be that person PROVIDED that the hire agreement was still in effect when the vehicle was collected. If it wasn't, and I'm not clear on this point, then only the hirer could recover the vehicle.



If the hire firm does not pay - then what? Can the council dispose of the vehicle for being abandoned? Obviously not - so stalemate.

This is what is supposed to happen, - either the hire firm or the hirer goes to the pound, collects the car, pays nothing and the council then serves a NtO
if the PCN is not paid.

The removal and storage charges are collected via the county court using 102(2A). Show me the flaw in that argument.

I think you might have confused by HCA' 'hirer' and 'hiree', the former being the hire Co.

Perhaps his point, reinforced by OP's response, is that irrespective of the 101/2 argument, there may have been a substantial
P.I. here, in the Council failing to recognise the rights of the OP and advise them accordingly?


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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Guest_Bogsy_*
post Thu, 11 Jan 2018 - 13:28
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QUOTE (hcandersen @ Thu, 11 Jan 2018 - 12:41) *
the hiree could be that person PROVIDED that the hire agreement was still in effect when the vehicle was collected. If it wasn't, and I'm not clear on this point, then only the hirer could recover the vehicle.


I agree. If the hire agreement has expired while the car is in the pound this complicates things if relying upon section 101A RTRA 1984. This exposes s.101A's weakness. Whereas if section 102 is applied it is the "person responsible" (the hiree) that would be liable for the removal and storage charges imposed pursuant to the RTRA 1984 and for the PCN imposed pursuant to the TMA 2004. The application of s.102 fits perfectly with all scenarios and with the application of the TMA 2004 which is probably why the TMA 2004 inserted section 102(2A) into the RTRA 1984.

Another weakness/flaw in applying s.101A and the currently applied removal process:

if after vehicle recovery a person makes formal representations within the 28 day period but no rejection notice is received by that person or if an appeal to the adjudicator is posted but no response is heard, then in either scenario the person would not be able to wait for the service of an Order of Recovery in order to make a witness statement that would enable them to re-engage with their right to have access to a fair trial. This is because no Order for Recovery will ever be served due to the penalty charge having already been paid up front.

Surely it cannot be correct that such a situation has no resolution. Of course no such situation would occur if councils charged undder section 102 as the TMA directs them to

http://www.legislation.gov.uk/ukpga/2004/18/schedule/9

This post has been edited by Bogsy: Thu, 11 Jan 2018 - 13:34
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ma8342
post Thu, 11 Jan 2018 - 13:47
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See attached hire agreement.
Attached File(s)
Attached File  Vehicle_Hire_Agreement_Flattened_Reduced.pdf ( 1.22MB ) Number of downloads: 51
 
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4101
post Thu, 11 Jan 2018 - 13:49
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QUOTE (Neil B @ Thu, 11 Jan 2018 - 13:24) *
QUOTE (4101 @ Thu, 11 Jan 2018 - 13:12) *
QUOTE (hcandersen @ Thu, 11 Jan 2018 - 12:41) *
I've looked again at the Act and regs and the legal position appears different to the practical one in this case i.e. the hire company have stated they will collect the vehicle.

Under the RTRA and the Removal and Disposal etc. Regs and the Appeals Regs the hiree is entitled to be considered to be the owner and therefore secure the vehicle's release. The Appeals regs do not specify 'owner' as being the person who is to be informed of the right to make reps or who is entitled to make reps, the Appeals regs - which are the only relevant regs for this purpose - refer to 'a person'.

IMO, the hiree could be that person PROVIDED that the hire agreement was still in effect when the vehicle was collected. If it wasn't, and I'm not clear on this point, then only the hirer could recover the vehicle.



If the hire firm does not pay - then what? Can the council dispose of the vehicle for being abandoned? Obviously not - so stalemate.

This is what is supposed to happen, - either the hire firm or the hirer goes to the pound, collects the car, pays nothing and the council then serves a NtO
if the PCN is not paid.

The removal and storage charges are collected via the county court using 102(2A). Show me the flaw in that argument.

I think you might have confused by HCA' 'hirer' and 'hiree', the former being the hire Co.

Perhaps his point, reinforced by OP's response, is that irrespective of the 101/2 argument, there may have been a substantial
P.I. here, in the Council failing to recognise the rights of the OP and advise them accordingly?



To clarify: the council only has to make inform keeper of appeal rights if release fee is paid.

Right to make representations about a removed vehicle
11.—(1) This regulation applies to a person where, as respects a vehicle which has been found in a civil enforcement area for parking contraventions and removed under regulations made under section 99 of the 1984 Act—

(a)he is required to pay an amount on recovery of the vehicle under section 101A of that Act;
(b)he receives a sum in respect of the vehicle under section 101A(2) of that Act;
©he is informed that the proceeds of sale of the vehicle did not exceed the aggregate amount mentioned in that provision; or
(d)he is informed that the vehicle was disposed of without there being any proceeds of sale.
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4101
post Thu, 11 Jan 2018 - 17:00
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QUOTE (ma8342 @ Thu, 11 Jan 2018 - 12:54) *
Thanks again for the replies.
At the time of the removal I was still under the hire agreement. I will get this uploaded when I get home.



you have opened a can of worms bigger than you might imagine, there is a long-running argument that the council can only demand a release fee
(pcn, removal charge and £40 per day storage charge) if the vehicle appears to be abandoned. Your (hire) car is clearly not abandoned.


You are entitled to pay the release fee and recover the vehicle during the period of the hire agreement.


The law for recovering vehicles is reg. 11 attached.

This post has been edited by 4101: Thu, 11 Jan 2018 - 17:01
 
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ma8342
post Thu, 11 Jan 2018 - 19:08
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QUOTE (4101 @ Thu, 11 Jan 2018 - 17:00) *
QUOTE (ma8342 @ Thu, 11 Jan 2018 - 12:54) *
Thanks again for the replies.
At the time of the removal I was still under the hire agreement. I will get this uploaded when I get home.



you have opened a can of worms bigger than you might imagine, there is a long-running argument that the council can only demand a release fee
(pcn, removal charge and £40 per day storage charge) if the vehicle appears to be abandoned. Your (hire) car is clearly not abandoned.


You are entitled to pay the release fee and recover the vehicle during the period of the hire agreement.


The law for recovering vehicles is reg. 11 attached.


Apologies but can this be translated into simple terms?

Thanks!
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