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PCN after parking bay changed from free to chargeable
MikeC31
post Tue, 25 Dec 2018 - 11:18
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[attachment=60390:EV1.jpg]I got a ticket after parking in an on street parking space in Northampton. The substance to my appeal is that they have only recently changed the bays from free to chargeable. When I parked it was at dusk and nothing seemed any different to the countless other times I've parked before. Only after returning to find the ticket affixed did I spot the subtle change to the signage. Does this sound like reasonable grounds for an appeal?

I've submitted an Informal Appeal stating that I hadn't realised the change etc, I've yet to receive a response. I'm on the last day of the 14 days for reduced charge, do I wait for a council response or do I suck it up and pay?


I've tried to upload some attachments but it doesn't seem to be working for me?

This post has been edited by MikeC31: Tue, 25 Dec 2018 - 17:50
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post Tue, 25 Dec 2018 - 11:18
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MikeC31
post Wed, 22 May 2019 - 22:34
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QUOTE (cp8759 @ Tue, 21 May 2019 - 15:51) *
Draft response below, but do not send this yet.

Are you saying the copy of your PCN, NtO etc have not been attached to the case?


Yes, all additional evidence submitted by the council relates to someone else's PCN

This post has been edited by MikeC31: Wed, 22 May 2019 - 22:34
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cp8759
post Thu, 23 May 2019 - 16:53
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Send what I've put in post 60, then add a message explaining that all the evidence submitted by the council relates to someone else's PCN. That being the case, your appeal will be allowed without any need for the tribunal to look at the merits of your case. You can ask for a postal decision because the council's error is so serious that the outcome is now a foregone conclusion.


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MikeC31
post Fri, 24 May 2019 - 19:15
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Note added to case at 10:52 this morning

Dear Mr Xxxxx & Northamptonshire County Council,

It has been noted that incorrect evidence documents have been added to this case by Northamptonshire County Council which are not relevant to this case or Mr Xxxxx's Vehicle. The tribunal has removed all of this evidence. The Adjudicator directs that the correct evidence should be uploaded to this case by 4pm on 24th May if it is the Council's intention to continue to pursue this appeal. It may also wish to consider any data protection issues with Mr Xxxxx potentially having viewed information not relevant to him.

Anjali Shah
Team Leader


Fresh additions of evidence added at 13:02

How do I maximise the Data Protection angle? I have the email address for the other PCN recipient might it be useful to make him aware of the incident?
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MikeC31
post Fri, 24 May 2019 - 20:04
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Whilst sifting through the additions I spotted the following:-

"Wording regarding telephone number - Northamptonshire County Council’s (NCC) understanding having briefly considered the first case referred to by the appellant is that the issue centered around the 1.3% credit card levy charged for payment of the PCN by credit card and the fact that this was not advertised on the PCN/documentation and therefore does not believe that the 4 pence per minute telephone charge levied to all callers to the NCC’s Permits and PCN telephone help/payment line can be considered the same and therefore does not accept that this renders the PCN invalid. On the 1st July 2015, Ofcom ruled that calls to telephone number starting 084 must advise customers how much they will be charged and NCC are fully compliant with this. NCC firmly believes that there is a difference in the 4 pence per minute telephone charge and the 1.3% credit card levy and having advised customers on every PCN/letter/email/statutory notice issued, customers are more than aware of the charge. The 4 pence charge cannot be considered any different to the appellants own phone company’s access charge, which again NCC advertise."

This seems to add further weight to the fact that they didn't understand the contention with the charge.
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cp8759
post Sat, 25 May 2019 - 11:15
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As I said, the outcome is now a foregone conclusion. Add this asap:

----------------

The tribunal's attention is drawn to paragraph 3 of the schedule to the Appeals regulations:

Upon receipt of a copy of the notice of appeal sent to it under subparagraph (2), the enforcement authority shall within 7 days deliver to the proper officer copies of—

(a) the original representations;
(b) the relevant penalty charge notice (if any); and
(с) the relevant notice of rejection.


Regulation 4(5) of the appeals regulations provides that:

In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—

(a) the taking of any step, whether or not involving the service of any document, otherwise than—
(i) in accordance with the conditions subject to which; or
(ii) at the time or during the period when,it is authorised or required by the General Regulations or these Regulations to be taken;


The enforcement authority has not taken the steps required by paragraph 3 of the schedule at the time or during the period specified in the regulations, it has therefore committed a procedural impropriety. It is trite law that where a procedural impropriety occurs, it is not open to the enforcement authority to rectify the mistake at a later stage.

I submit that even if the enforcement authority now complies with paragraph 3 of the schedule, it will have done so way beyond the end of the required 7 day period, this amounts to a procedural impropriety which means, in my respectful submission, that the appeal must be allowed.


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MikeC31
post Sat, 25 May 2019 - 14:10
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Done
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MikeC31
post Fri, 26 Jul 2019 - 19:50
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Sad to report that the Adjudicator has rejected the appeal!

Adjudicators response below

Mr Xxxxx does not dispute the contravention itself but raises 3 issues which I summarise as follows: -
That the penalty exceeds the amount due in the circumstances of the case, because the council offer payment via a premium rate telephone number, attracting a 4% service charge.
That there has been procedural impropriety on the part of the council, because they failed to understand the representations made and therefore could not be said properly to have considered them.
That there has been a further procedural impropriety on the part of the council in their refusal to deal with a second pre-notice to owner challenge.

Use of premium rate telephone number
Mr Xxxxx relies on the case of Camden v The Parking Adjudicator & Ors [2011] EWHC 295 (Admin) where the court held that the imposition of an additional 1.3% charge for payment by credit card resulted in the council demanding payment at a rate which exceeded the amount applicable, a ground of appeal under regulation 4(4)(e) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
The council in this case offered payment by phone, using a telephone number beginning 0845. This is a premium rate number where, in addition to the access charge paid to the caller’s phone company a service charge between 0p and 7p per minute is payable to the organisation called. The penalty charge notice and the notice to owner both indicate that the additional service charge payable will be 4p per minute.
Mr Xxxxx submitted that this additional service charge was akin to the credit card charge made by Camden Council in the case referred to above and as such the amount demanded exceeded the appropriate penalty charge payable.
The council have said that they in fact receive no additional sums; the phone line is provided by a third party and that it is that third party which receives the service charge.
The council have not provided evidence to confirm this, but there is no evidence to the contrary and I see no reason to doubt that this is the case.
In paragraph 29 of the Camden case The Hon. Mr. Justice Burnett said (my emphasis) ‘It is clear, in my judgment, that a Parking Adjudicator is obliged to allow an appeal if the sum required to be paid to an enforcing authority by the motorist exceeds the amount set by the statutory scheme, however the enforcing authority seeks to characterise the additional charge.’
An important distinction in this case is that the additional 4p per minute was payable to the third party via the caller’s own phone provider and not to the council. Anyone making a payment by phone would anticipate that a charge would be made for the making of the call, in the same way that there would be a cost for payment by post.
Mr Xxxxx further submits that, even if the council do not directly receive the service charge, the fact that the providers of the phone line receive such charges would be reflected in the charge made to the council for the use of the line.
Whilst I accept that this is likely, there is still no direct payment to the council of any charge other than the penalty charge itself.
For this reason I find that the offer of a payment method using the premium rate number, with its additional service charge, does not result in the penalty charge exceeding the amount applicable.

Procedural impropriety - representations
Mr Xxxxx submits that the council officer who sent the notice of rejection did not understand the representations made and therefore could not be said to have properly considered them.
Mr Xxxxx raised the issue referred to above in his formal representations and referred to the Camden case.
In reply the council said that the issue in the Camden case centred on a 1.3% credit card levy and the fact that this was not advertised and that they considered that the phone service charge was not the same. They said that they complied with Ofcom’s rules with regard to setting out the charges and went on to say that ‘The 4 pence charge cannot be considered any different to the appellants own Phone Company’s access charge, which again NCC advertise.’
The council officer has put the emphasis on the advertising of the levy, which may not have been the most important factor in the decision reached but the Camden judgment does in fact refer to the fact that the levy was mentioned in some of the Camden paperwork and not in others and it appears to have been relevant.
The words from the notice of rejection quoted above demonstrate that the council officer reached the same conclusion that I have done on the point raised and, although the explanation given was brief, I am satisfied that due consideration and understanding of the point made were given.

Procedural impropriety - refusal to deal with further representations
Mr Xxxxx did not raise the Camden issue in his first informal challenge. After he received a letter of rejection of the challenge he had made, he then made further submissions on the Camden point. The council replied saying that a notice to owner would be served on the registered keeper and that the keeper would then have the opportunity to make formal representations.
The council went on to say ‘Please note that no further letters of appeal will be considered until the Notice to Owner has been signed and returned’.
Mr Xxxxx submits that this is in breach of Regulation 3(2)(b) of The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 which he quotes as saying: ‘if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—(i)those representations will be considered;’
In fact this obligation is not imposed directly on the council, but they are required to indicate in the penalty charge notice that such representations will be considered. The implication is, of course, that the council will consider them, but there is no formal procedure set down as to when they must do so or how they must deal with them, unlike the post notice to owner representations which must be considered and responded to within 56 days.
The Secretary of State’s Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions says that informal challenges should be responded to, whereas for formal representations the word must is used.
At paragraph 10.12 the guidance says (my emphasis) ‘If a challenge is received within the discount period and subsequently rejected, the Secretary of State recommends that the enforcement authority should consider re-offering the discount for a further 14 days to incentivise payment. Authorities should always make it clear that an owner who has an informal challenge rejected may still make a formal challenge if a Notice to Owner is served.’ The implication being that there should be only one bite at the cherry at the informal stage.
The procedure for the enforcement of parking contraventions must be proportionate to the sums involved and, in the absence of any specific requirement that councils deal with unlimited challenges raised during the process, I find that the refusal of the council in this case to deal with the second or any further challenges is not a breach of the regulations and is not therefore a procedural impropriety.

For all the reasons set out above I dismiss the appeal. Mr Xxxxx is liable to pay the penalty charge to the council within 28 days.

This post has been edited by MikeC31: Fri, 26 Jul 2019 - 19:51
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PASTMYBEST
post Fri, 26 Jul 2019 - 20:05
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CP is preparing to attend a hearing on the premium rate issue, lets hope he is persuasive. The tribunal IMO are complicit in a deceit perpetrated by the councils in this matter


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cp8759
post Sat, 27 Jul 2019 - 16:52
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I think there's grounds to ask for a review - though not on the 0845 issue. I've sent you a PM.


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