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Blue Badge PCN
billyblue1
post Sun, 13 Oct 2019 - 18:41
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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
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post Sun, 13 Oct 2019 - 18:41
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cp8759
post Sat, 1 Feb 2020 - 14:13
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QUOTE (Carecomp @ Sat, 1 Feb 2020 - 13:44) *
When you need to use a parking clock
When you park on yellow lines or in other places where there is a time restriction, you need to display the blue parking clock to show your time of arrival. The clock should be sent to you together with the Blue Badge. If not, you can get a clock from the same council that issued the badge

Quoted from the bb handbook... I'm afraid you've no argument :-(

The BB handbook is not the law and it cannot create any legal obligations. The requirement to display a parking disc on yellow lines is created by regulation 8(4)(b) of The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 http://www.legislation.gov.uk/uksi/2000/68...gulation/8/made

a parking disc is displayed in the relevant position on the vehicle marked to show the quarter hour period during which the period of exempted waiting began.

There is no such regulation for time-limited bays.

This post has been edited by cp8759: Sat, 1 Feb 2020 - 14:14


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phantomcrusader
post Sat, 1 Feb 2020 - 14:48
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Fundamentally the bay is a limited waiting bay but for use by disabled badge holders only. The Equality Act could be brought into play if you can successfully argue that requiring the disabled to display a clock in a limited waiting bay is treating them less favourably compared to users of regular limited waiting bays (where a contravention is established by two timed CEO observations). Why are disabled limited waiting bays treated differently?

As it is a limited waiting parking place provided for disabled badge holders, holders are not relying on any exemption provided via statutory regulations. Therefore the requirements of the statutory regulations about displaying the badge and clock should not be regarded as relevant here.

It is the TRO that regulates the use of the disabled bay. The contravention is that the disabled person's badge was not displayed in the prescribed manner but it was in fact the parking disc that was not displayed in the prescribed manner as set out by the TRO under article 22. This article treats the badge and disc as separate from one another, as does the TRO definition section. The alleged contravention did not occur because the badge was displayed in the prescribed manner.

It is unfortunate for St. Helens that there is no suitable contravention code description for them to use in relation to an absent disc clock but this does not justify using a wrong and misleading description. Had they treated your car like they do the non disabled that park in limited waiting, the option might have been there for them to issue a PCN for parking for longer than permitted.

CP8759 will I’m sure draft a well argued appeal for you. There are no guarantees of success but TPT are usually more open to such arguments than the London Tribunal lot. TPT have long accepted badge holders parking up to 3 hours in loading only bays even though the guidance book says they cannot.

This post has been edited by phantomcrusader: Sat, 1 Feb 2020 - 14:51
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Carecomp
post Sat, 1 Feb 2020 - 16:58
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QUOTE (cp8759 @ Sat, 1 Feb 2020 - 14:13) *
QUOTE (Carecomp @ Sat, 1 Feb 2020 - 13:44) *
When you need to use a parking clock
When you park on yellow lines or in other places where there is a time restriction, you need to display the blue parking clock to show your time of arrival. The clock should be sent to you together with the Blue Badge. If not, you can get a clock from the same council that issued the badge

Quoted from the bb handbook... I'm afraid you've no argument :-(

The BB handbook is not the law and it cannot create any legal obligations. The requirement to display a parking disc on yellow lines is created by regulation 8(4)(b) of The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 http://www.legislation.gov.uk/uksi/2000/68...gulation/8/made

a parking disc is displayed in the relevant position on the vehicle marked to show the quarter hour period during which the period of exempted waiting began.

There is no such regulation for time-limited bays.



Surely the handbook is based on regulation..
and I cannot see anything in those regs that specify yellow lines...
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cp8759
post Sun, 2 Feb 2020 - 11:15
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QUOTE (Carecomp @ Sat, 1 Feb 2020 - 16:58) *
Surely the handbook is based on regulation..
and I cannot see anything in those regs that specify yellow lines...

That's because yellow lines indicate a waiting restriction, and the regulation says

a provision which–

(a) prohibits (except for the purposes of loading or unloading) the waiting of vehicles


The handbook should be based on the regulation, but where there is a discrepancy between the handbook and the law, the handbook cannot over-rule the law. Have a read of Michelle Dhillon v Leicester City Council http://bit.ly/2GAnMQh


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hcandersen
post Sun, 2 Feb 2020 - 11:34
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Which misunderstands the situation.

Were it not for the waiting exemption, BB holders would be subject to the same prohibition on yellow lines as every other driver. But there are exemptions, therefore BB holders are treated differently.

But if there are no exemptions, then they're not treated differently, and if a bay is reserved for their use then they are subject to whatever legal requirements are imposed by the order, and if these require the display, then display.
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cp8759
post Sun, 2 Feb 2020 - 11:38
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@hcandersen that's still subject to LATOR and I repeat for the millionth time, how does a Scottish BB holder learn about the parking disc requirement if the sign doesn't say so?


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Slapdash
post Sun, 2 Feb 2020 - 11:47
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QUOTE (cp8759 @ Sun, 2 Feb 2020 - 11:38) *
@hcandersen that's still subject to LATOR and I repeat for the millionth time, how does a Scottish BB holder learn about the parking disc requirement if the sign doesn't say so?


It is mentioned in the leaflet sent out. A bit like Westminster etc mentioned in the one I received.


https://www.mygov.scot/blue-badge-scheme/
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Wretched Rectum
post Sun, 2 Feb 2020 - 11:50
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This seems so straightforward to me. The allegation is “Parked in a designated disabled person’s parking place without displaying a valid disabled person’s badge in the prescribed manner”.

The adjudicator need only ask 1 question. Was a valid disabled persons badge displayed in the prescribed manner?

The answer is “yes” because one was displayed in the manner required by the TRO. It’s true, a clock was not displayed in the manner required by the TRO but that is not the allegation on the PCN.

The council in their minds (as do some posters) appear to combine the badge and clock as one, but the order does not do so.

This post has been edited by Wretched Rectum: Sun, 2 Feb 2020 - 12:10
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billyblue1
post Sun, 2 Feb 2020 - 13:56
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https://imgur.com/a/yu4SiAn

cp 8759

Thanks for your offer.

I've spit the Notice of Rejection into smaller segments which, hopefully, will make it easier to read.

This post has been edited by billyblue1: Sun, 2 Feb 2020 - 13:57
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hcandersen
post Sun, 2 Feb 2020 - 15:48
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The answer is “yes” because one was displayed in the manner required by the TRO. It’s true, a clock was not displayed in the manner required by the TRO but that is not the allegation on the PCN.

This sort of narrow and forensic view is, I'm afraid, unlikely to succeed. A purposive interpretation of the order is that it is a concomitant of a timed restriction that a means of determining time is applies. And IMO it is open to an adjudicator, should they feel it necessary, to import into the order the clear requirements of the Act and regs that the display of a clock is required.

I may be wrong in this case.
You may be wrong in this case.

As the OP is carrying on we'll find out.
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Carecomp
post Sun, 2 Feb 2020 - 15:59
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QUOTE (cp8759 @ Sun, 2 Feb 2020 - 11:15) *
QUOTE (Carecomp @ Sat, 1 Feb 2020 - 16:58) *
Surely the handbook is based on regulation..
and I cannot see anything in those regs that specify yellow lines...

That's because yellow lines indicate a waiting restriction, and the regulation says

a provision which–

(a) prohibits (except for the purposes of loading or unloading) the waiting of vehicles


The handbook should be based on the regulation, but where there is a discrepancy between the handbook and the law, the handbook cannot over-rule the law. Have a read of Michelle Dhillon v Leicester City Council http://bit.ly/2GAnMQh


Interesting read, thanks for that 👍
However, as each council issues their own TRO, I'd suggest it can't be relied on in every case.. so I shall continue to use my clock ! (would love to argue this in court though - as regular parkers don't need to evidence time or arrival - hence decriminalisation)
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Wretched Rectum
post Sun, 2 Feb 2020 - 16:11
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QUOTE (hcandersen @ Sun, 2 Feb 2020 - 15:48) *
IMO it is open to an adjudicator, should they feel it necessary, to import into the order the clear requirements of the Act and regs that the display of a clock is required.


The display of a clock was required. That's not in dispute. Does not displaying the clock though, equate to being “Parked in a designated disabled person’s parking place without displaying a valid disabled person’s badge in the prescribed manner”? This is wholly dependent on the TRO and not any guidance booklet or exemption regulations. I don't see anywhere in the TRO that says the clock is a part of the disabled badge or that failing to display the clock invalidates the badge.

Personally I would argue that the failure to display the clock should be regarded as de minimis because the badge showed the OP was entitled to park there and the CEO could still establish if the car was parked for longer than the permitted period by applying the 2 customary observations that are routinely applied to limited waiting bays. I think phantom has a point about the disabled being treated less favourably here. If able bodied people don't have to display a clock when they park in limited waiting, why do the disabled have to? There is no need for it to establish the contravention. The clock requirement just increases a disabled person's chances of getting a PCN as this case demonstrates.

You are right though, it can swing either way.

This post has been edited by Wretched Rectum: Sun, 2 Feb 2020 - 16:40
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Longtime Lurker
post Sun, 2 Feb 2020 - 19:35
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My guess is that the adjudicator will take the easy way out and hand you a win on bay size or 'failure to consider', neatly sidestepping the whole badge/clock thing. We've been wading through this for many hours, and heading off into non-parking legislation about disabilities. I doubt the adjudicator will relish doing the same. Presenting your evidence in a manner that clearly offers this easy way out or a choice to do the wading into heavy legal stuff about badges might be a useful piece of gamesmanship.

This post has been edited by Longtime Lurker: Sun, 2 Feb 2020 - 19:46
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cp8759
post Sun, 2 Feb 2020 - 19:46
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I agree it is not a slam dunk but, in essence, it comes down to how restrictions are created. Generally speaking parking restrictions must be laid out in statute, parking restrictions do not come about under common law, or because of custom or practice. There is no authoritative case law, regulation or statute that creates a legally binding requirement to display a parking disc with a blue badge in a time-limited bay, and the Department for Transport cannot create a requirement simply by putting it in the blue badge booklet.

Ultimately if the Secretary of State for Transport withes to create such a requirement, he can lay a statutory instrument before the Lords and Commons in Parliament assembled, we live in a democratic society and that is the way we make laws in this country. The idea that the blue badge booklet could be determinative is frankly ridiculous.

In the absence of any legislation on the matter, the only way such a requirement to display a clock can be imposed would be for the requirement to be included in the TRO, but then the effect of the TRO would need to be communicated to motorists by appropriate signage or else the effect of the order is not properly conveyed as required by LATOR. The fact that no appropriate signage exists is the TSRGD is not the motorist's problem, it would be for the council to persuade the DfT to authorise an appropriate sign.

Also, everybody seems to have forgotten that there's an unlawful fettering of discretion, the council policy states that where a BB is displayed incorrectly the council will never cancel the PCN, no matter what. This cannot be lawful as the council always has a discretion not to enforce.

billyblue1, I've started a draft but it's often better to force the council to reveal its hand first. For now I would register the appeal with the tribunal and state that you rely on your representations in the first instance but full grounds of appeal will follow in due course. I can also represent you at a telephone hearing if you want, which I like to think would improve your chances, if you want to arrange this send me a PM with your email address and we'll arrange it.


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Wretched Rectum
post Sun, 2 Feb 2020 - 21:57
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QUOTE (Longtime Lurker @ Sun, 2 Feb 2020 - 19:35) *
Presenting your evidence in a manner that clearly offers this easy way out or a choice to do the wading into heavy legal stuff about badges might be a useful piece of gamesmanship.


Yep. Include all the valid legal stuff about TRO/badge/clock display, bay size and regard to the Equality Act but lead with the less controversial elements. Not everyone here is in favour of mentioning the Equality Act but TPT is known to use it in an appellant's favour when they feel the council has been harsh. No harm in giving a sympathetic adjudicator opportunity to grasp onto it if all else fails.

I'd take up the telephone offer from CP. Direct contact with an adjudicator has better results. Can a conference call to include the OP, CP & the adjudicator be done?

This post has been edited by Wretched Rectum: Sun, 2 Feb 2020 - 22:19
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cp8759
post Sun, 2 Feb 2020 - 22:01
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QUOTE (Wretched Rectum @ Sun, 2 Feb 2020 - 21:57) *
Can a conference call to include the OP, CP & the adjudicator be done?

Yes, the TPT do it by conference call and they can call as many parties as required.


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billyblue1
post Tue, 18 Feb 2020 - 00:22
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Hello cp8759,

I've emailed you a few times but had no response so I hope everything is OK.
Are you still submitting the grounds for appeal as the 28 days is up this Wednesday 19th with a posiible extra 2 days to allow for me receiving the Notice of Rejection.

Regards,

billyblue1

This post has been edited by billyblue1: Tue, 18 Feb 2020 - 08:58
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billyblue1
post Tue, 18 Feb 2020 - 21:23
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I've drafted an appeal which is more, or less, ready to go subject to any further suggestions

I've divided it into five headings;

the PCN being for failure to display a BB when one was clearly displayed

fettering.....appeals not considered 'In Any Circumstances'.

bay dimensions

signage......failure to indicate a timeclock is required and a link to the relevant Traffic Regs

Equality Act.....St Helens' BB policy contravenes the EA several times by treating disabled people LESS favourably (I'm fully trained in H&S )

I've included a link to the identical Croyden case (thanks Past my Best) but was undecided about the Leicester Dhillon case.

Many thanks to all those whose contributions have been a huge help and which have been assimilated into the appeal


What I'd really appreciate is advice on which order to list them in ie which carry greater weight.

It must be in by tomorrow or Friday if you count the two extra days allowed for postage.

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cp8759
post Fri, 21 Feb 2020 - 09:04
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I've not received any email from you? You might be better off sending me a PM on here if you need to get in touch quickly.

Anyway, as I explained the best way to do it is to just register the appeal and state "detailed grounds to follow" rather than submitting the full appeal wording up front. Have you registered the appeal online? If so, you'll also need to let the TPT know I'm representing you if you want to go down that route.


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billyblue1
post Fri, 21 Feb 2020 - 09:21
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cp8759

Yes, on the 3rd, 12th and 15th and the 18th on this thread.

I thought you may have been ill or otherwise occupied when I didn't get any response.

I actually submitted the appeal late last night but, if you're willing, would you be in a telephone conference?

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