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Unfair Increased Penalty Charge
bupe
post Sun, 24 May 2020 - 11:07
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Hi folks,

First time poster in need of advice. I got recommended this website through the Money Saving Expert.

Earlier this year, I drove through a Bus/Taxi lane in the centre of Glasgow. This road is open to everyone throughout the day but closes to Bus and Taxis after a certain time. I committed the offence and have no issues there. Please bare in mind up that until being informed via letter, I was unaware of my actions.

My issue is that an original charge penalty letter was later sent from Glasgow City Council for the offence. However, this letter never arrived. Since the letter had not been sent using recorded mail, neither I nor Glasgow City Council can prove otherwise as no signature was required upon delivery. It was only on the 8th of February, a second charge notice letter arrived at my door. Within that letter, it stated that I was now having to pay an increased penalty charge of £90! This was an added £60 on top of the original £30 charge!

Now I must point out that if I had received the first letter, I would have payed up immediately. With that in mind, I contacted Glasgow City Council pleading my case. They responded a little while later referring to my Bus Lane contravention. They claim they were satisfied that the original Charge Notice was issued correctly and have no grounds to cancel the Notice on this occasion. They claim they have records to show that the original Charge Notice had been issued. Now I am not contesting that the original Charge Notice had not been issued. It's the fact that I or my girlfriend ever received this letter.

I have yet to respond as everything has been put on hold due to the Corona Virus. However, I would like to speak with yourselves first to see whether I have any grounds to appeal as I honestly feel Glasgow City Council are just looking to maximize as much as they can out of this penalty.

I'm happy to post the exact response to my appeal if anyone wishes to see it in full.

Your help would be greatly appreciated.



This post has been edited by bupe: Sun, 24 May 2020 - 11:08
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post Sun, 24 May 2020 - 11:07
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PASTMYBEST
post Sun, 24 May 2020 - 11:54
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Lets try and get things sorted so they can be easily understood

You entered a bus lane? you accept that.

A PCN was issued. You say you did not accept it? we accept that as true. but what is a bit suspect is you say Ha there is no proof it was sent. That does not matter The law provides that service of a letter sent by first class post is deemed served two working days after the date of posting., unless you can show that it was not.

The burden is on you.

You did not pay the discount of £30 within the 14 day period, nor the full penalty of £60 within the 28 day period nor did you make representations. The council are entitled in these circumstances to serve a Charge certificate increasing the penalty by 50% to £90.

Now this is where the problem lies. There is no reset button in the Scottish regulations if you do not pay the £90 the next step will be the authority concerned may recover the charge as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom.

I cannot believe that scots law is so arbitrary that this cannot be challenged but we have tried to find out how on many occasions with no luck


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stamfordman
post Sun, 24 May 2020 - 12:12
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Let's see all the docuements/letters to see if there is any info that can help. If you got a charge certificate on 8 Feb this is some time ago.

Put pics on https://imgbb.com or such like as space on forum is limited.

One thing to check - is the name and address on the charge certificate correct as per the registered address of car (and is the registered address correct). Does mail ever go missing?

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Incandescent
post Sun, 24 May 2020 - 12:37
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QUOTE
I cannot believe that scots law is so arbitrary that this cannot be challenged but we have tried to find out how on many occasions with no luck

I am not a lawyer, and certainly not up-to-speed on Scottish motoring law, but late last year when Boris J tried to prorogue Parliament, an application was made to a Scottish court under a little-known Scottish law procedure that allows people to request that an action be stayed. I don't know the legal aspect at all, but at the time, I thought it might apply to situations like this. The problem is I suspect it costs more to apply than just paying the CC !

Maybe CP8759 knows something, as it seems grossly unfair to insist on the CC being paid without an opportunity to get the matter reset due to postal problems.
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PASTMYBEST
post Sun, 24 May 2020 - 13:46
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This may have some hope, but it needs someone to follow through

https://www.scotcourts.gov.uk/taking-action...ion-and-appeals


https://www.scotcourts.gov.uk/rules-and-pra...procedure-rules



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Incandescent
post Sun, 24 May 2020 - 16:04
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QUOTE (PASTMYBEST @ Sun, 24 May 2020 - 14:46) *

This looks something like it, assuming a "sheriff decision" is what produces an Order for Recovery, (or Scottish equivalent) following issue of a Charge Certificate.
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DJ Lexy
post Sun, 24 May 2020 - 20:38
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QUOTE (Incandescent @ Sun, 24 May 2020 - 17:04) *
This looks something like it, assuming a "sheriff decision" is what produces an Order for Recovery, (or Scottish equivalent) following issue of a Charge Certificate.


It's not that simple. There isn't an equivalent of an Order for Recovery and there isn't an equivalent of the TEC.

QUOTE
This Charge Certificate has the same status as an extract registered decree arbitral bearing a warrant for execution issued by the Sheriff Court of any sheriffdom in Scotland and contains authority for immediate enforcement by officers of the court.


In other words, "we bypass the court entirely and create our own warrants without even talking to the court".
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PASTMYBEST
post Sun, 24 May 2020 - 20:42
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QUOTE (DJ Lexy @ Sun, 24 May 2020 - 21:38) *
QUOTE (Incandescent @ Sun, 24 May 2020 - 17:04) *
This looks something like it, assuming a "sheriff decision" is what produces an Order for Recovery, (or Scottish equivalent) following issue of a Charge Certificate.


It's not that simple. There isn't an equivalent of an Order for Recovery and there isn't an equivalent of the TEC.

QUOTE
This Charge Certificate has the same status as an extract registered decree arbitral bearing a warrant for execution issued by the Sheriff Court of any sheriffdom in Scotland and contains authority for immediate enforcement by officers of the court.


In other words, "we bypass the court entirely and create our own warrants without even talking to the court".


It reads to me that the sheriffs decision to enter a decree can be challenged in the court 13. 5,6,7 of the simple procedures rules. But could do with some input from the legally proficient amongst us


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bupe
post Mon, 25 May 2020 - 06:59
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QUOTE (PASTMYBEST @ Sun, 24 May 2020 - 12:54) *
Lets try and get things sorted so they can be easily understood

You entered a bus lane? you accept that.

A PCN was issued. You say you did not accept it? we accept that as true. but what is a bit suspect is you say Ha there is no proof it was sent. That does not matter The law provides that service of a letter sent by first class post is deemed served two working days after the date of posting., unless you can show that it was not.

The burden is on you.

You did not pay the discount of £30 within the 14 day period, nor the full penalty of £60 within the 28 day period nor did you make representations. The council are entitled in these circumstances to serve a Charge certificate increasing the penalty by 50% to £90.

Now this is where the problem lies. There is no reset button in the Scottish regulations if you do not pay the £90 the next step will be the authority concerned may recover the charge as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom.

I cannot believe that scots law is so arbitrary that this cannot be challenged but we have tried to find out how on many occasions with no luck


Thanks for taking the time to respond.

You're right, I accept that I entered a bus lane.

It's not that I did not accept the letter. It's that the letter never arrived. If it had arrived the first time around, I would have payed the initial £30 charge. I was only made aware after the 28 period once the second letter arrived successfully.

From what you're telling me though, it sounds like I'm all out of luck with no leg to stand on. If that is the case, it seems I have no other choice but to cough up and pay the £90 penalty charge. I came here to see whether I had any grounds for appeal. Unfortunately, today is not my day.

I was unaware there was no "reset button" though here in Scotland. Funnily enough, as you say, the Council wrote back after my appeal stating they would look to progress by having a debt agency come to my door and collect the debt in person. It's pretty heavy stuff over a bus lane penalty, but what can you do? Not an awful lot by the sounds of things.

QUOTE (stamfordman @ Sun, 24 May 2020 - 13:12) *
Let's see all the docuements/letters to see if there is any info that can help. If you got a charge certificate on 8 Feb this is some time ago.

Put pics on https://imgbb.com or such like as space on forum is limited.

One thing to check - is the name and address on the charge certificate correct as per the registered address of car (and is the registered address correct). Does mail ever go missing?


I can confirm both the name and address matches up. I actually got the dates wrong but the same situation applies. Please click HERE for their response to my appeal.

QUOTE (Incandescent @ Sun, 24 May 2020 - 13:37) *
The problem is I suspect it costs more to apply than just paying the CC !

Maybe CP8759 knows something, as it seems grossly unfair to insist on the CC being paid without an opportunity to get the matter reset due to postal problems.


Ouch! It sounds like the Scottish Government know how to play the game. Like you said yourself, it does seem a little unfair that I'm having to pay an added charge due to postal problems in my area. sad.gif

QUOTE (DJ Lexy @ Sun, 24 May 2020 - 21:38) *
In other words, "we bypass the court entirely and create our own warrants without even talking to the court".


That's exactly it. If full payment of £90.00 is not received within 14 days from the date of the letter, the charge will be passed to the Council’s debt recovery agents for further action.

This post has been edited by bupe: Mon, 25 May 2020 - 07:02
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hcandersen
post Mon, 25 May 2020 - 09:48
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Will you please post your communication with the council and theirs with you.

Stop posting your precis.

I want to know, by reading the letters etc please, not you the following:

The time frame before matters progress;
Whether and how you told them you did not receive the first PCN - your comment that they said that the PCN would not be cancelled doesn't chime with you saying all you wanted to do was pay the initial discount...you didn't stray into 'therefore as I didn't you can't' territory' did you?

We could then see whether even at this stage you could write - we'd draft - a letter whose upshot is would they allow you to pay the discount.

I don't want or need to know about the contravention or the complexities of Scots law; this is simply the universal principle of exercising discretion.
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stamfordman
post Mon, 25 May 2020 - 09:59
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The OP has posted the response from the council. They just say that as they sent the PCN they consider it served. We've had a fair few threads on this before and it seems that the only way to proceed is to engage with the enforcement process in some way but how no one seems to know how.

A previous thread indicated that it's best to pay the £90 now and follow up but how?

I would say that it could be worth writing to senior council officials to see if they agree that a PCN going missing in the post is reasonable to ignore from their standpoint.

I note that you did not receive the charge notice, however the records held at this office show that a
Charge Notice was issued on 27 December 2019 informing that representation or payment should be
made within 28 days. The Charge Notice stated that in order to qualify for the discounted rate of £30.00
payment had to be received by 17 January 2020.

As no payment or representation was received the initial charge increased by 50% and a Charge
Certificate was then issued on 07 February 2020 informing that if full payment of £90.00 was not made
within a further 14 days from the date of the Charge Certificate, the charge would be passed to the
Council's debt recovery agents for further action.

The opportunity to pay the above charge at the discounted rate expired on 17 January 2020 and the
Notice then reverted to its original amount of £60.00. Since the charge was not paid in full, the initial
charge increased by 50%. Whilst I note your comments, I find no grounds to reduce the amount owed on
this occasion.


This post has been edited by stamfordman: Mon, 25 May 2020 - 10:01
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hcandersen
post Mon, 25 May 2020 - 10:03
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???

With that in mind, I contacted Glasgow City Council pleading my case. They responded a little while later referring to my Bus Lane contravention. They claim they were satisfied that the original Charge Notice was issued correctly and have no grounds to cancel the Notice on this occasion. They claim they have records to show that the original Charge Notice had been issued

A conclusion, a precis.

2 separate references to issuing and one to no grounds for cancelling.

Either a particularly stupid response as regards the OP's claimed correspondence or this wasn't what it was claimed to be.

Seeing both docs would at least resolve what's what.

This post has been edited by hcandersen: Mon, 25 May 2020 - 10:41
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PASTMYBEST
post Mon, 25 May 2020 - 13:43
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Finding a scots equivalent of an OfR is what is needed here. I think 13.5 of the simple procedure rules ( linked earlier) might be it. Otherwise we would be advising stepping out of process not knowing the risks


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stamfordman
post Mon, 25 May 2020 - 14:47
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The charge certificate was issued on 7 Feb so this has been dragging on rather - when did you write to them and when did they reply?
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Neil B
post Mon, 25 May 2020 - 15:08
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I agree with HCA for now; we need to SEE what was submitted to the council.

The OP isn't getting this. It might seem obvious but, well, it didn't work did it. Let's SEE it and that gives us a clue if it's worth
chasing further; perhaps in the way Stamf has just suggested.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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PASTMYBEST
post Mon, 25 May 2020 - 16:01
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QUOTE
I don't want or need to know about the contravention or the complexities of Scots law; this is simply the universal principle of exercising discretion.


I do because at present all you are suggesting is that the OP does again what they say they have done already. The OP told the council they had not recieved the PCN and the council said tough the CC is extant.

So what can the OP do to have that set aside We know how in England but to date do not in Scotland


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cp8759
post Tue, 26 May 2020 - 14:36
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I have investigated this at length and there is no way to set a CC aside in Scotland, short of challenging the council's refusal by means of a judicial review in the Court of Session. bupe's only recourse is to pay the CC and then lobby his MSP to get the law changed.

This post has been edited by cp8759: Tue, 26 May 2020 - 14:37


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stamfordman
post Tue, 26 May 2020 - 14:39
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My take - pay the CC but write to the best person at the council (probably the CEO) copied to any relevant parties concerning the blatant unaffairness they are party to.
Edit - as CP says an MSP being one but I would address the council primarily.

This post has been edited by stamfordman: Tue, 26 May 2020 - 14:40
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cp8759
post Tue, 26 May 2020 - 14:43
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If you do write to your MSP, let me know as I have correspondence from the Scottish government confirming the system is not unfair at all and fully complies with the requirements of Article 6 of the European Convention on Human Rights i.e. right to a hearing etc...

If you could also PM me the details of the case, I will take it up with the Scottish government as well.


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Neil B
post Tue, 26 May 2020 - 21:43
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edit.

Soz, bad mood.

This post has been edited by Neil B: Wed, 27 May 2020 - 09:57


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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