Merton PCN - 2 years after alleged offence Options

[John J Cash]

Hi,

I received an Order for recovery of unpaid penalty charge at the beginning of May 2019, which is the first I knew about the alleged offence that supposedly occured in March 2017. I did not find a PCN on the vehicle at the time and had no subsequent correspondence in the interim period relating to the PCN. I filed a witness statement online stating that I did not receive the notice to owner / penalty charge notice.

I then received a revocation of the order a week later

Followed by a letter from the council a week after that



along with a new Notice to Owner

I responded to the council with this letter

and received the following letter from the council on the 29th of July (letter dated 19th, no post mark or franking date on the envelope) which gave me 14 days to respond.



Aside from the obvious delay from them between dating the last letter and actually receiving it, can this be right? The various dates they give in the last letter about an NTO, enforcement agents etc has me puzzled as absolutely no correspondence was received at any time from the date of the alleged offence to the Order for recovery.

Any advice gratefully received on this.

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[Incandescent]

All the original documents would have been sent to the name and address on the V5C for the vehicle at the time of the original allegation. So was the V5C up-to-date at the time the original Notice to Owner was produced 28 days or more from the original PCN date ?

Other thing is - was the car hired or leased at the date of the original PCN ?

[John J Cash]

V5C was up to date and in my name at my current address at the time of the PCN. Vehicle was disposed of in August 2017.

[Incandescent]

I can't help thinking that issuing an Order for Recovery so long after the original Notice to Owner and Charge Certificates would have been issued is an abuse of process, but see what the others say.

[PASTMYBEST]

You need to stop and think. You recieved a notice to owner, You made representations to the council that it was out of time. The only options open to the council are to accept this and cancel or reject and serve a proper notice of rejection. Their letter is neither.


If I were you I would contact the council tell them that you want to appeal to the independent tribunal and would they please forward a web code and or correct documents to enable you to do so

[hcandersen]

I'm in 2 minds on this.

On the one hand, PMB is absolutely correct in that you submitted reps which they were obliged to accept or reject. If the latter, to issue a correct NOR.

They've done neither.

The only defences open to them are:
We haven't rejected representations because we did not recognise them as such, we have therefore offered you the opportunity to make 'reps' within the specified period, the original period having expired;
We do accept them as reps but feel that as your argument is flawed, which it is, we are offering you an extended period to make any other 'reps' which you feel might be appropriate.

Neither holds water IMO, and I really could not see an adjudicator buying either.

But how to play this?

I would not contact them. The authority have until 27 August (being the end of the period of 56 days beginning on 3 July, 2 days after your letter was dated and presumably posted, please confirm) to serve you with a properly formatted NOR. On balance, I would wait until then...the procedure is then another CC and OfR and WS, but under different grounds which require the authority to refer the matter to the adj, followed by a Do Not Contest and you can put it all behind you.

That's the procedure. However, once the 56-day period has passed then the die is cast, the rest is merely process. Therefore on 28th you could write to them and invite them to cancel the PCN without going through a process at taxpayers' expense to an inevitable outcome.

[cp8759]

I would also go with hcandersen's approach and wait for the 56 days to elapse.

[PASTMYBEST]

I would also go with hcandersen's approach and wait for the 56 days to elapse.

I was only thinking of avoiding another CC but have no issue at all with HCA's suggestion. Indeed I think it fair to say that all three of us and other regulars here would take this route

Keep us informed of what you do and we will guide you through

[Neil B]

Well I'm a +1 but a little unsure how this will play out.

It's interesting that they've registered the debt a second time -- can they?

I'm not convinced their understanding of warrant expiry is correct. I'd argue it is still live.

So why didn't the bailiff find you?

V5C was up to date and in my name at my current address at the time of the PCN. Vehicle was disposed of in August 2017.

Which actually means, as you don't have it, you don't know.

[hcandersen]

So why didn't the bailiff find you?

What an interesting question. Their livelihoods depend on it and, as you knew nothing about the PCN, you weren't hiding.

Maybe enforcement agent standards are slipping?

[John J Cash]

Many thanks for the informed and detailed replies. As I live within spitting distance of the council offices, I hand deliver the correspondence, take a timestamped photograph of the recipient at the front desk and also take their name. I'm thinking of going the 56 day route as per hcanderson's suggestion. It does seem all rather vague and chaotic from their end.

I'll keep you posted as to the course this takes and again, many thanks for the advice and support.

[Mad Mick V]

Neil's point is interesting----- can they?
I am not sure whether the following will help or confuse but it relates to the issue of a 2nd NTO:-

Case reference 2160078688

REVIEW

Decision date 11 Oct 2016
Adjudicator Alastair Mc Farlane
Previous decision PCN appeal refused
Review decision PCN appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons
Mr Frost, the Appellant, appeared before me in relation to 2 penalty charge notices issued in September 2014, that were determined by Mr Adjudicator Edie in March 2016.

Mr Frost is seeking permission to have those decisions reviewed. For me to be able to conduct a review of this decision, I must be satisfied that one of the grounds set out in Paragraph 12 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, applies.

Mr Frost in detailed and eloquent written and oral submissions has contended that the Adjudicator was wrong to reject the notice of appeal that new evidence has become available since the decision was made, the existence of which could not reasonably have been known foreseen and that the interests of justice required such a review. In essence, his submissions boil down to this: Mr Adjudicator Edie having correctly stated that the Appellant had made a witness statement on the grounds that he did not receive a notice to rejection, wrongly stated that "the case was then referred to the Adjudicator listed as an appeal". In fact, rather than an adjudicator having directed that the matter should be relisted as an appeal, the Council had chosen to issue a new notice to owner. Mr Frost did make representations to this, which were rejected in a notice of rejection. Having received the notice of rejection, he then made an appeal to this tribunal. He contended that this new notice to owner should never been issued and was, in effect, not valid as the correct route for the Council to take having received the order of the County court, was to have referred the matter to an adjudicator for a direction.

I am satisfied that Mr Adjudicator Edie's statement that the case was referred "to the adjudicator and listed as an appeal" is an error that entitles me to review his decision.

It is clear from his witness statement that Mr Frost relies upon the ground that he had made representations and not received a notice of rejection. The order of the County Court cancel the charge certificate and the debt registration. The purpose of the witness statement procedure is to put the owner of the vehicle back in the same position as if he had received the notice of rejection.

In this case instead of serving a copy of the notice of rejection that Mr Frost had not received, the Council took the matter back one stage further and issued a second notice to owner. They did not need to do this was the first notice to owner was still valid. The notice to owner was dated 5 January 2016 and sought payment of the full penalty of £130. In a letter of 23 December 2015 the Council had informed Mr Frost that they had been informed that the County Court had directed them to revoke the order recovery and cancel the charge certificate and that they would be sending out "a fresh NTO/EN shortly". They re-offered the discounted penalty at £65 if it was paid by Thursday, 7 January 2016.

The Council did not need to re-serve a notice to owner – as non-receipt of the notice to owner was not Mr Frost's ground in his witness statement, and because the first notice to owner remained valid. I can see no clear explanation as to why the Council issued a second notice to owner. Further, I note that this was sent demanding full penalty of £130 a time when Mr Frost was still being offered the discounted penalty by the Council.

I note that in the Council's representations to the request for a review, dated 23 June 2016, the Council correctly state that Mr Frost's witness statement ground was that he did not receive a notice of rejection, but then go on to state:

"Therefore, we re-issued a new NTO in order to give Mr Frost, the opportunity to make another formal representation so that another notice of rejection letter could be sent to him – which would enable him to appeal to the Parking Adjudicator".

I do not see the logic of this assertion. I do not consider it proportionate to adjourn this case further for the Council to address this further. The circumstances I am satisfied that the Council has committed a procedural impropriety and the appeal must be allowed
Mick

[PASTMYBEST]

I don't think we should delve to deep.

The council served a CC and OfR

The OP filed a WS that was accepted

The CC OfR and NTO were revoked.

Put aside for the moment the time frame the council were obliged to cancel or serve a fresh PCN (Op they have 6 months from the date of revocation to do this) They did so.

The OP then has the option pay or made reps, they chose to make reps.

The council then only have two options, serve a notice of acceptance or serve a notice of rejection. They have done neither. but still have time.

If this plods on as it is likely to the next action will be a new CC and OfR followed by a WS to the effect that you made reps but did not receive a notice of rejection. This then only allows the council to refer to the adjudicators. Who in all likelihood will order an appeal.

They may require that you send a copy of your representations. I would go further if this happens and submit a skeleton appeal but we can work on that if it comes to it

[John J Cash]

Hi folks,

Have now received a Charge Certificate from the council (dated 9th, received 16th).






Thoughts on how to proceed?

Thanks in advance.

[PASTMYBEST]

Hi folks,

Have now received a Charge Certificate from the council (dated 9th, received 16th).






Thoughts on how to proceed?

Thanks in advance.

So its waiting for the OFR

[cp8759]

This seems fairly straightforward, as they admit they have received your representation in their letter of 19 July. I very much doubt the council will contest this when it gets to the tribunal. Just make sure not to miss the OfR.

[hcandersen]

+1

[John J Cash]

Thanks again, will keep an eye for the Recovery Order and WS.

[John J Cash]

Received the RO and subsequently filed a WS that a Notice of Regection was not received.
Merton Council replied with the following which finally puts this debarcle to bed. Thanks to the wise souls here for the sage advice and the successful outcome.
Cheers.

[DancingDad]

"The case is now showing as closed."

Okay but why not use simpler and more precise English.... The case is now closed, we have closed the case, we have cancelled the PCN......not a phrase that reads more as though they've just looked at a screen and thought "Oh, it's now showing closed"

Sorry, just tickled my sense of the ridiculous.

Well done OP, good result even if the wording offends me.