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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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PASTMYBEST
post Mon, 24 Jun 2019 - 17:52
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The clock is ticking, but more slowly than that. If you are to appeal you have until the 15th of July to register your appeal


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mum25
post Mon, 24 Jun 2019 - 18:49
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I know, but to pay the reduced fine my time limit is 28/06/19, so I need them to clarify and thought I'd ask as soon as possible.
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Mad Mick V
post Mon, 24 Jun 2019 - 19:46
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I think going forward depends on the OP's attitude to risking the full amount at adjudication.

IMO the grounds which might be put forward are technical and not without risk.

Whilst I have some sympathy with the signage issues noted by hca they might not be robust enough because the Order is titled (my bold) THE BRENT (FREE PERMIT PARKING PLACES) (DISABLED PERSONS) (NO. 1) ORDER 2008. Therefore I think an adjudicator might rule the lines and signs as substantially compliant.

I believe they have made a mistake with the consideration point which is IMO a procedural impropriety which might be a winner in itself.

Anyhow here's the original Notice:-

Road Traffic Acts
London Borough of Brent
THE BRENT (FREE PERMIT PARKING PLACES) (DISABLED PERSONS) (NO. 1) ORDER 2008 THE BRENT (FREE PARKING PLACES) (DISABLED PERSONS) (REVOCATION NO. 1) ORDER 2008THE BRENT (PARKING PLACES) (NO. 5, 2001) (AMENDMENT NO. 1) ORDER 2008 1. NOTICE IS HEREBY GIVEN that the Council of the London Borough of Brent on 25 February 2008 made the above mentioned Orders under sections 6 and 124 of and Part IV of Schedule 9 to the Road Traffic Regulation Act 1984(a), as amended by section 8 of and Part 1 of Schedule 5 to the Local Government Act 1985.
2. The general effect of the above ‘Free Permit Parking Places’ Order will be to:

(a) re-designate existing free parking places for vehicles displaying a disabled person’s badge (commonly referred to as “the Blue Badge” in the streets specified in the Schedule to this Notice to free personalised parking places for vehicles displaying a Brent issued personalised disabled persons parking places permit issued under the Order;

(b) provide that the parking places will operate “at any time”,

© provide that a permit may be issued by the Council on application being made by a disabled person in possession of a Brent issued blue badge and:

(i) in receipt of the Disability Living Allowance with the higher rate of mobility component for an indefinite period; or

(ii) in receipt of the higher rate of Attendance Allowance for applicants aged 65 or over; or

(iii) where the applicant does not drive and has appointed a nominated carer to drive for them, the carer is in receipt of the Carer’s Allowance award.

3. The general effect of the ‘Revocation’ Order will be to revoke the existing disabled persons parking places specified in the Schedule to this Notice provided by the Brent (Free Parking Places) (Disabled Persons) (No. 2) Order 1994 and the Brent (Free Parking Places) (Disabled Persons) (No. 1) Order 2001.

4. The general effect of the ‘Parking Places Amendment’ Order will be to reduce in length and redefine existing resident parking places in association with the provision of disabled persons parking place in Burton Road.

5. A copy of each of the Orders, which will come into operation for the purposes of the placing of traffic signs on 7 March 2008 and for all other purposes on 10 March 2008 and of maps which indicate each length of road to which the Order relates can be inspected during normal office hours on Mondays to Fridays inclusive until the end of six weeks from the date on which the Orders were made at:-

(a) The One Stop Local Office, Brent Town Hall, Forty Lane, Wembley, Middx, HA9 9HX; and

(b) The One Stop Local Office, Brent House, 349-357 High Road, Wembley, Middx, HA9 6BZ.

6. Copies of the Orders may be purchased from the address mentioned in paragraph 5(b) above.

7. Any person desiring to question the validity of any of the Orders or of any provision contained therein on the grounds that it is not within the relevant powers of the Road Traffic Regulation Act 1984 or that any of the relevant requirements thereof or of any relevant regulations made thereunder has not been complied with in relation to any of the Orders may, within six weeks of the date on which the Orders were made, make application for the purpose to the High Court.

Dated 25 February 2008

Phil Rankmore, Director of Transportation (Acting)

(The officer appointed for this purpose).

Schedule

Adjacent:—

No. 5 Acacia Avenue, HA9 7JF

No. 17A Burton Road, NW6 7LL

No. 56A Chalkhill Road, HA9 9FN

No. 9 Dagmar Avenue, HA9 8DG

No. 112 Deacon Road, NW2 5QJ

No. 52A Harlesden Gardens, NW10 4EX

No. 20A Holland Road, NW10 5AU

No. 44A Linden Avenue, NW10 5RA

No. 29 Magnolia Court, HA3 9UB

No. 14 Oxford Road, NW6 5SL

No. 6B Rucklidge Avenue, NW10 4PS




Mick

This post has been edited by Mad Mick V: Mon, 24 Jun 2019 - 19:49
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mum25
post Mon, 24 Jun 2019 - 21:01
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Thanks Mick for taking the trouble to look up the relevant legislation. From this it would seem the council have covered themselves but for a person from another borough, it is not clear or expected that a BBH would not be permitted to park in these special spaces.

I will go, with support, to adjudication if necessary but need to understand fully the intricacies of my own case and also depending on my own health and recovery.

Could you please clarify when you said:

'I believe they have made a mistake with the consideration point which is IMO a procedural impropriety which might be a winner in itself'.

Thank you for your time
mum25
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Mad Mick V
post Mon, 24 Jun 2019 - 21:15
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Post 18 states the PI.

Mick
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mum25
post Mon, 24 Jun 2019 - 21:29
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Thanks Mick, can the fact that they say they have nothing more to add (in the second reply) ever be thought of as them reconsidering? In that they have looked at it and replied albeit given no further information or am I overthinking?
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cp8759
post Tue, 25 Jun 2019 - 10:18
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QUOTE (mum25 @ Mon, 24 Jun 2019 - 22:29) *
Thanks Mick, can the fact that they say they have nothing more to add (in the second reply)

Sorry I might have missed it but where do they say this?

In any event in the formal rejection they state again that further informal representations cannot be considered, this is untrue. The council is required to consider all and any informal representations that are served upon it prior to a Notice to Owner being served. We can only conclude that M Morrison has either not read the legislation, or he or she hasn't understood it.


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mum25
post Tue, 25 Jun 2019 - 10:25
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Thanks cp8759

Post 27, in their second reply letter dated 05/04/19, although they do state further representation cannot be considered they mention in paragraph 4, that they have reviewed my letter feel they have responded to my points and have nothing further to add-so in a way they may appear to have considered it?

Thank you
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cp8759
post Tue, 25 Jun 2019 - 13:01
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They don't have to re-consider points they have already covered and I don't think an adjudicator would say they've committed a procedural impropriety.


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hcandersen
post Tue, 25 Jun 2019 - 13:09
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I would go to adjudication.

The letter to the council is to line them up for your counterpunch at the hearing.

I do not think the TMO is relevant as regards your primary argument but it, along with several other post-facto matters, can be drawn to the adjudicator's attention.

The bay is improperly marked. Applying the 'but-for' test, had the word DISABLED not been emblazoned on the carriageway none of what transpired would have occurred.

When you parked you saw the road marking DISABLED. You took this to mean that the bay is one in which holders of a BB may park providing a valid BB is displayed. You saw that there was a white on blue icon on the time plate - see the photographic evidence in authority's Notice of Rejection- however it was unclear what icon was represented because it was covered by what appeared to be a label. You assumed this was the wheelchair icon, noticed that there were no times included in the sign and therefore displayed your father's blue badge, as required.

After the fact you can see that the icon is only a 'P'; that the bay carries an improper road marking(the word DISABLED not being a permitted marking with the traffic sign, and vice-versa); and that the bay is improperly sized when reserved to disabled users.

But despite all of these improprieties on the part of the council, the authority pooh-poohed any wrong-doing on their part and simply stated that the sign contains the word 'permit', therefore it is a permit bay, whatever other contra-indications clearly exist, and that therefore the motorist is wholly at fault.

On this substantive part of my appeal - that the contravention did not occur - I hope that the adjudicator would accept my argument that the restriction is improperly, unclearly and misleadingly signed and therefore the contravention did not occur.

I would also add that during the enforcement process other improprieties have arisen, in particular regarding the NOR.

Firstly, it is unclear what actually comprises the NOR in this case i.e. is it the authority's written letter which culminates in a signature or is it the letter plus the adjudicator's appeal form and notes? I am unclear because certain matters which are required to be contained within a NOR are referred to only in the appeal form i.e. that an appeal may be submitted late after the end of the 28-day period. If would therefore appear to follow that if the form does not constitute part of the NOR, then the NOR is deficient in that the mandatory inclusion of this element is missing. It is also noteworthy that the written NOR makes no mention of or cross-refers the reader to this point in the form. However, more similar problems arise if the form is to be considered as being an equal part of the NOR in that it contradicts mandatory elements which are included in the e.g. the 28-day periods etc.... (OP. you would elaborate upon this in your final submission).

And, fanfare of trumpets......the letter misstates the council's powers as regards increasing the penalty, a matter which takes on even greater significance than normal because of the confusion created by contradictory references to the start and end parameters of 28-day periods.

In short, I would carry on.
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mum25
post Tue, 25 Jun 2019 - 18:00
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Wow! Thank you for that, had to read it a few times and it sounds fantastic, I'm not sure I could eloquently present this in person. The label over the sign appears to have been there fore some time as Googlemaps shows the white label on pictures taken some time ago so I'm sure other BBH will have been caught out by this.

Apologies, not sure what TMO is and please could you help with the last paragraph about the 28 day period?

Can the whole thing be done on paper rather than in person?

Many thanks
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mum25
post Wed, 26 Jun 2019 - 13:01
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'And, fanfare of trumpets......the letter misstates the council's powers as regards increasing the penalty, a matter which takes on even greater significance than normal because of the confusion created by contradictory references to the start and end parameters of 28-day periods'.

Please could you help me understand this as its not clear to me. Also, can the appeal to adjudicators all be done on paper?

Thank you
mum25
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mum25
post Thu, 27 Jun 2019 - 09:23
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Thank you forumites for all of the advice that you have provided. I must make a decision as to whether to pay the reduced fine or continue, I think today is the last day. I do not fully understand the points made at post 50 and would be extremely grateful if anybody could help me.

I now know that you do not have to attend the adjudication bit so that is a relief but I need to fully understand the reasoning to continue, please could someone help me understand?

Thank you
mum25

This post has been edited by mum25: Thu, 27 Jun 2019 - 10:19
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PASTMYBEST
post Thu, 27 Jun 2019 - 12:21
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as per NOR 13th of july regs the 15th


The notice of rejection tells you you must appeal or pay within 28 days from date of the letter. This would be the 12th of July. The law however states this time as 28 days beginning with the date of service of the notice Date of service is two working days after date of posting so would be the 15th of July

Two errors The Nor used the term within rather than beginning with this by legal convention means the start of counting is the day after service so you start counting one day later than the law allows But because the state date of notice you stop counting 2 days early


the adjudicator also has power to allow an extended period to appeal and this has not been notified this has won on its own


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mum25
post Thu, 27 Jun 2019 - 17:27
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Thanks for clarifying PASTMYBEST, from my understanding now I think the arguments to include in my appeal to adjudicators are:

A. The contravention did not occur.

1.The bay is improperly marked, had the word DISABLED not been emblazoned on the carriageway none of what transpired would have occurred.
2. I saw that there was a white on blue icon on the time plate - see the photographic evidence in authority's Notice of Rejection- however it was unclear what icon was represented because it was covered by what appeared to be a label. I assumed this was the wheelchair icon, noticed that there were no times included in the sign and therefore displayed my father's blue badge, as required.
3.The bay carries an improper road marking(the word DISABLED not being a permitted marking with the traffic sign, and vice-versa); and the the bay is improperly sized when reserved to disabled users.

B. Procedural impropriety.
1. The NOR is assumed to be the letter from the council that culminates in a signature, the NOR is deficient as it does not contain all of the mandatory information i.e. that an appeal may be submitted late after the end of the 28-day period. The NOR does not cross-reference to the part in the appeal form for a late submission. The adjudicator also has power to allow an extended period to appeal and this has not been notified. If the form is to be considered as being an equal part of the NOR in that it contradicts mandatory elements which are included in the e.g. the 28-day periods.
3.The notice of rejection tells you you must appeal or pay within 28 days from date of the letter. This would be the 12th of July. The law however states this time as 28 days beginning with the date of service of the notice Date of service is two working days after date of posting so would be the 15th of July.The NOR used the term within rather than beginning with this by legal convention means the start of counting is the day after service so you start counting one day later than the law allows.
4.The NOR misstates the council's powers as regards increasing the penalty because of the confusion created by contradictory references to the start and end parameters of 28-day periods.

I would be so grateful if anybody could check my work, to make sure that I have covered everything adequately. I am also wondering if it might be worth requesting details of the number of PCN's issued to BBH parked in this same spot over the year under the Freedom of Information Act. Thank you so much.

This post has been edited by mum25: Thu, 27 Jun 2019 - 18:33
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cp8759
post Fri, 28 Jun 2019 - 11:28
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I think you've identified all the grounds, but I would suggest it needs vamping up a bit. What we normally advise is to simply register the appeal on the tribunal website and put "detailed grounds to follow" in the reasons box, this forces the council to disclose their evidence first. Then one of us will probably type up the appeal wording for you.


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mum25
post Fri, 28 Jun 2019 - 13:23
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Fantastic! Thank you cp8759. I will check the website and see how I get on, I didn't realise you could do it all on line.

Thanks
mum25
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mum25
post Fri, 28 Jun 2019 - 13:36
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I have registered the appeal now and stated that detailed grounds are to follow, I have also not uploaded any documents and will await further advice/instructions. Thank you for helping me in this process.
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mum25
post Fri, 5 Jul 2019 - 14:15
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Hi all,

I was wondering how the next step works. I registered my appeal to adjudicators on line to say that 'detailed grounds are to follow.'

Will I now receive notification of the date of appeal with the councils paperwork or do I just get given a date? Do the adjudicators allow sufficient time for me to counter argue, what if the council do not submit their paperwork until the very last day? When does the council have to disclose their evidence by?

My NOR was dated 14/06/19 so I think I must submit my full appeal by 14/7/19. Can anybody confirm this and advise? i would be grateful.

Thank you
mum25

This post has been edited by mum25: Fri, 5 Jul 2019 - 14:26
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cp8759
post Fri, 5 Jul 2019 - 15:06
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You will be allowed sufficient time, the council will upload its evidence to the tribunal website and you will then have an opportunity to respond. Once you have registered your appeal, the date of the NoR becomes somewhat irrelevant, you must submit your full appeal when the tribunal tells you to, rather than by 14 July.


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