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Disabled resident bay used by blue badge holder PCN received, Disabled resident bay used by blue badge holder PCN received
mum25
post Sat, 30 Mar 2019 - 07:12
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Dear helpful community,


I would be grateful if I could get your opinion on my PCN, letter that I composed using information on the forum . and the subsequent rejection received from Brent Council. In my opinion they have not addressed all of the points raised which makes me think that they may be winging it. I would be grateful to anyone who can assist.

To summarise the event:

Took dad out for an outing, he is a blue badge holder which allows him to park in residents only areas, the spot we parked states disabled and 037 ONLY but to be fair the road marking are not perfectly clear, the street sign has a white patch taped over the P that is in a blue square. Honestly, I figured, if the blue badge allows him to park in residents only areas, then he would be allowed to park in a disabled bay in a residents only area. The badge was on display with the clock.

The contravention stipulated is code 165 Parked in a permit space without displaying a valid permit.

My letter was as follows:

RE: PCN ..........

On the 23rd March 2019, I took my father who has been unwell for an outing, the first in months for him.

As he is a Blue badge holder I looked for somewhere close to the retail park and noted a disabled bay near to the park that was free.

I parked in a bay and displayed my fathers Blue badge in the required manner and supported him to the retail park. Upon my return, I found the above-mentioned PCN attached to my car.

I had parked in what I believed was a lawful manner, not on a yellow line or in a paid parking bay, but in a bay apparently marked as for use by a disabled person in a residents parking area that allows blue badge holders to park.

I had no idea why this PCN was issued and thought it an error on your parking attendant’s part.

I would make the following observations:

My father holds a blue badge issued by a council

From my understanding a Blue badge entitles him, whilst being carried as a passenger, or if someone is collecting or dropping him off, to park in any disabled space, permit holders bay (resident, business or visitor’s), paid for parking space or yellow lines (where no loading restrictions are in place), and any disabled person's allocated parking bay that is not in a residential parking zone (RPZ) and does not have a maximum stay time.

The PCN states I was parked in a permit space without displaying a valid permit. Since it is a residents area and my father has a blue badge I parked in good faith that I had parked my car in a correct space.

If the signage had either not had the blue letter P (indicating disabled parking) or had explained that blue badge holders were not entitled to park there I would have parked either in one of the space further up or the parking spaces that are paid for or a space with yellow lines.

I would, therefore, ask you to use your discretion and cancel this PCN, as recognition that this was not a deliberate attempt to illegally park or flout the rules, but a genuine error bought on by my confusion over the signage.

I contend that the bay in which I parked is not enforceable and therefore the PCN is invalid. My rationale is as follows:-

1. Disabled Residents Permit --Not Valid.

By substituting an acceptable Blue Badge the Council has introduced a disabled permit, which is illegal. It does not have approval from the Secretary of State to use such a permit as per Sect 2(2)(a)(1) of The Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2013.

Therefore the contravention "Parked in a permit space or zone without clearly displaying a valid permit" can never apply if the only permit used is illegitimate.

2. The Sign is Not Valid

I would draw the Council's attention to the following case, which has similar characteristics to my own but also outline the duties of the Council ---- PATAS No. 2120294790. In particular the need for Secretary of State approval for signage is important.

The Council received this approval on 23 June 2004 under reference GT/46/2/139. However this approval is quite specific in that it applies only in respect of the parking place being reserved to a unique permit holder and not, as the authority believe or state, to a generic grouping of holders of a 'disabled resident parking permit'. Therefore the sign must exhibit the number of a specific permit which rather goes against the Mandatory and Advisory Bay policy which the Council outline in London Borough of Lewisham Parking Policy October 2014.

The sign has white paper taped over it it is unclear whether the council has applied this as beneath the sign the wording is still visible.

3. Invalid Bay Markings

The approval above requires the bay to be marked to diagram 1028.3. You will note that its dimensions don't meet the minimum standard of 6.6m X 2.7m and therefore it does not conform to the TSRGD requirements.a

The contravention given is unenforceable in respect of this bay and since this means there is no legal restriction a Blue Badge is perfectly acceptable where the road marking denotes "Disabled".

The sign and road markings are not compatible.

The council should either have:
A sign with a white 'P' on a blue background and a 'type or types of user may be included and, where the user is a type of permit holder, a permit identifier may be included', but no road marking 'Disabled', or

A sign with 'P' as above, the blue wheelchair icon and the legend “Disabled badge holder” and a permit identifier'. The road marking 'Disabled' is required and 'where the bay is reserved for an individual disabled badge holder, an alphanumeric identifier, with or without the word “ONLY” may be added after “DISABLED”.' AND the bay must meet minimum dimensions - which from what I can see this one does not.

In short, a 'Disabled' road marking must be accompanied by a wheelchair icon, otherwise it's a simple permit parking place.

The council have placed the Disabled road marking which led me to believe that, as the marking MAY ONLY be used when the bay is for the use of disabled badge holders and as my mother holds such a badge I was permitted to park. The contravention of 'Parked in a permit ...' cannot be used in conjunction with the road markings which are in place. The council's misuse of the combination of road markings and traffic sign is not permitted and is confusing. Therefore I feel the PCN must be cancelled and I am prepared to go to appeal regarding the matter.

According to the applicable regs** the use of the road markings 'Disabled..etc' may only be used in conjunction with a wheelchair icon in the traffic sign. There is no such icon in this case, why have the council chosen to use a non-prescribed combination of traffic sign and road marking, have they obtained the Secretary of State's authorisation and, if so, please may you have a copy.

** The applicable regulations are found in the Schedules to the Traffic Signs Regulations and General Directions 2016 as follows:

1. Schedule 4, Part 4 Sign Table, Item 4; Part 5 Sign Table, Item 4;
http://www.legislation.gov.uk/uksi/2016/362/schedule/4/made

2. Schedule 7, Part 4 Sign Table, Item 6 and Part 5 Sign Table, Item 1.
http://www.legislation.gov.uk/uksi/2016/362/schedule/7/made

Yours faithfully
mum25

Their reply received 29/03/19 is copied below:

NOTICE OF REJECTION OF INFORMAL CHALLENGE
Thank you for writing to us regarding the above Penalty Charge Notice (PCN).
Your informal challenge has been considered by this office in accordance with the requirements of the Traffic Management Act 2004. After a careful consideration of the grounds you have made and all other related circumstances we have decided not to cancel your PCN.
The reason for the rejection may be summarised as follows:
There is a sign where you parked that explains that the bay you parked in is for Brent permit holder 037 only.
You were issued a PCN for parking without Brent permit number 037 that was both valid and clearly displayed. Even if you have the permit, you have to display it so that a civil enforcement officer can see all its details.
This rule applies to disabled badge holders too; it is not a situation where you may use your disabled badge.
I have enclosed the photographs taken at the time the contravention occurred for your information.

The letter then goes on to say if you pay within 14 days it will be a reduced amount, they will not consider any other informal challenge.

The photograph they provided shows the blue badge clearly displayed and the street sign with the white patch over it as per the goolemap image.

The street view is on google maps at:

https://www.google.com/maps/@51.556282,-0.2...6384!8i8192

The street view sign still remains the same , with the patch over the P, I would say the marking on the road is slightly more blurred but the same.

Thank you to anyone who is reading and can provide advice, I have 14 days or will have to pay £130. I would be grateful to you.

Best wishes
mum25
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post Sat, 30 Mar 2019 - 07:12
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mum25
post Sun, 8 Sep 2019 - 09:52
Post #141


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Oh yes please! I would be very grateful, I had indicated 2 reasons that I felt the council was wrong-that the contravention had not occurred and procedural impropriety (as per post 128), they do not refer to the latter whatsoever.

I wasn't sure that you could ask for a review and I would be very grateful for your help.
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hcandersen
post Sun, 8 Sep 2019 - 14:33
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This has nothing to do with the council, this is purely an application to the tribunal to review the first adjudicator's decision because his reasoning was flawed by virtue of misapplying the law. A second adjudicator could either reject such an application, refer the matter back to the original adjudicator or substitute a decision of their own.

Dear Sir,
Application for a review of the adjudicator's decision: Case No**********2190262744

I hereby respectfully apply for a review of the above decision given on *****(date) on the following grounds:

vi)the interests of justice require such a review.

I apply for this review on the basis that the adjudicator's written decision makes it it clear that they misdirected themselves as regards a material aspect of the law and by doing so rendered their decision to not allow my appeal unsound.

I refer you to para. 6 of the decision which states:
The bay is a permit bay not a general disabled person’s parking bay. The sign complies with the Traffic Signs Regulations and General Directions 2016. There is no right for a vehicle other than one displaying a Brent Permit 037 to park there.


I also refer you to the Traffic Signs Regulations, in particular para. 1(4) of Part 5 to Schedule 7 which relates to the permissible road markings in respect of a parking place of the type in question here and which is referred to at Item 6 of the Part 4 Sign Table. Para. 1(4) states:

4) Where the bay is reserved for an individual disabled badge holder, an alphanumeric identifier, with or without the word “ONLY” may be added after “DISABLED”.

It is axiomatic that as the adjudicator found as a fact that this was a 'permit bay' then the provisions of para. 1(4) i.e. that the road marking could carry the variant 'Disabled Permit 037', may not apply in this instance because this variant is prescribed only for use in respect of 'an individual disabled badge holder'. It is also evident from the decision that this issue was one on which the adjudicator placed considerable weight in reaching their decision to refuse my appeal.

This issue i.e. the use of an unlawful road marking, lies at the centre of my grounds of appeal and therefore I respectfully submit that the decision is materially unsound and that the authority may not use in their defence the marking of the highway contrary to law. Perhaps both parties to this appeal made errors, but with respect the authority are charged with a higher burden in terms of standard of performance. I accept that 'It does remain the responsibility of the motorist to check carefully on each occasion before leaving their vehicle so as to ensure they do so only as permitted. This includes making sure that any permit required to be displayed' but such a responsibility is difficult to discharge without possible error when the authority deliberately place unlawful markings on the road(and fail to ensure that all symbols on traffic signs are visible).

For the reasons set out above I respectfully submit that the decision was unsound and wrong are ask that a decision to allow my appeal be substituted.

Yours

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mum25
post Sun, 8 Sep 2019 - 17:12
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Thank you so much hcandersen. Apologies, I am not sure that I understand fully. Particularly the following:

'It is axiomatic that as the adjudicator found as a fact that this was a 'permit bay' then the provisions of para. 1(4) i.e. that the road marking could carry the variant 'Disabled Permit 037', may not apply in this instance because this variant is prescribed only for use in respect of 'an individual disabled badge holder'.

Can a 'permit bay' not also be 'reserved for an individual disabled badge holder?' Is it that the adjudicator has used permit bay where he should have used reserved for an individual disabled badge holder?

I am worried that they may take away the reduced penalty payable. Realistically could they do that?

Apologies for the additional questions.
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cp8759
post Tue, 10 Sep 2019 - 09:24
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There is nothing I can see to stop you paying the reduced penalty, but also applying for a review, indeed we often advise this where a review is taking a while to get decided and the 28 day payment period is running out. If the review gets rejected, the discounted penalty has been paid in time so that's the end of that. If the review is upheld, the council will refund the £65.


--------------------
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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hcandersen
post Tue, 10 Sep 2019 - 09:32
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OP, ???

A disabled badge is issued under the provisions of the Chronically Sick etc.. Act.

A permit is issued under a council traffic order.

I cannot make it clearer. A disabled badge holder is a disabled badge holder; a permit holder ain't.
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mum25
post Tue, 10 Sep 2019 - 17:42
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Thank you hcandersen, apologies for my question -it was a long day and I can be slow on the uptake, you have clarified perfectly I just thought that a permit bay maybe could also be reserved for a DBH.

That sounds like a plan! I will pay the fine and continue with the review cp8759. The letter however mentions that paying the reduced fine will be taken as full and final settlement, I hope that doesn't mean they will not look at the case/appeal again.

Could anyone please tell me where does the request for review go? My case is sealed on the portal now so I'm not sure they will look at anything through that route. Can I just reply to the email from London Tribunals?


Thanks
mum25

This post has been edited by mum25: Tue, 10 Sep 2019 - 17:50
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cp8759
post Tue, 10 Sep 2019 - 21:16
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An application for review goes to London Tribunals, paying the penalty has no impact whatsoever on your ability to seek a review.


--------------------
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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mum25
post Wed, 11 Sep 2019 - 17:58
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Thanks cp8759 I'm on it! Just going to pay the fine and submit my request for a review of the decision using hcandersen's template. Very grateful for all your help.
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mum25
post Wed, 11 Sep 2019 - 18:15
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Fine paid, request for review sent by email. I will keep you informed.
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mum25
post Yesterday, 17:05
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Hello forumites,

I regret to inform you that the Tribunals people have decided that there is no grounds for review and rejected the request...sigh.

I have copied below their reply. I don't suppose there is anything further that can be done?


Further to your correspondence, the adjudicator, Mr X, has directed that there are no grounds for there to be a review of this case.
Your correspondence has been considered as an application for review by the Adjudicator, Mr. X He has set out the reasons below:
Reasons
1. The general principles of review are that findings of fact and law are generally final. One Adjudicator will not overturn the findings of fact or law of another unless there are compelling reasons for doing so, such as where the findings are not compatible with the evidence before the original Adjudicator or the law.
2. I conclude that the original Adjudicator was entitled to reach the decision on the basis of the evidence submitted. The original Adjudicator found as a fact that the applicant's vehicle was in contravention as alleged. The decision was based on cogent evidence including the observations of the applicant's vehicle. Therefore the original Adjudicator was entitled to make this finding.
3. The original Adjudicator also made findings that the signage relating to the restriction met the applicable legal test by being substantially compliant with the relevant regulations as well as being clear and adequate. The original Adjudicator was entitled to come to this conclusion on the evidence for the reasons given.
4. The applicant's latest representations are essentially no more than a disagreement with the original Adjudicator's findings and a repetition of the submissions made before. There is no reason to conclude that the original Adjudicator did not consider all the evidence submitted and all matters raised in the applicant's original representations."
An independent tribunal for environment, parking and traffic penalty appeals
Environment and Traffic Adjudicators are supported by London Tribunals, a service provided by London Councils Calls to London Tribunals may be recorded
Your application for review is therefore rejected.
The Enforcement Authority has been notified of this decision, and is entitled to continue with its enforcement procedures. You are liable for the penalty, which you should pay without delay if you have not already done so.
Do not wait for the Enforcement Authority to contact you. If you do not pay the penalty promptly, the Enforcement Authority may issue a Charge Certificate increasing the penalty by 50%.
Case Management Team
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hcandersen
post Yesterday, 18:29
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An adjudicator is entitled to conclude that a sign which does not comply with the explicit variant conditions in the regs is substantially compliant.

What hope is there?
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Incandescent
post Yesterday, 20:42
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QUOTE (hcandersen @ Tue, 17 Sep 2019 - 19:29) *
An adjudicator is entitled to conclude that a sign which does not comply with the explicit variant conditions in the regs is substantially compliant.

What hope is there?

None, I'm afraid, they have "gone native". A sad commentary on official bodies in this once-great country of ours.
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