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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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DJ Lexy
post Thu, 28 May 2020 - 00:42
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I'm not a lawyer, but I've been working hard to try and find an answer to the 'Scottish enforcement question' because we've never had an answer on this forum. I wanted to add a bit of clarity to what I wrote earlier, and offer a suggestion.

The Scottish legal system isn't a slightly tweaked version of the English system. It's a completely different beast that operates in a totally different way. It predates the formation of the United Kingdom, and there are laws from the 1400s that are still in use today. They use different terminology for a lot of things, which makes it hard to find the Scottish equivalent of a particular English process - if there even is an equivalent to begin with. For example, in England, bailiffs take enforcement action to recover a debt. In Scotland, sheriffs officers perform summary diligence.

In England, councils have to take you to court for unpaid debts. In the case of penalty charge notices, it's a tick-box affair with the TEC. In the case of unpaid council tax, it's the local Magistrates Court, where you get to present your side of things in a hearing.

In Scotland, councils (and the HMRC) can register debts with the Sheriff Court, and send the bailiffs after you, all without a hearing. In the case of council tax debt or HMRC debt, they use a Summary Warrant. In the case of an unpaid PCN, it's with a decree arbitral. There's no option for you to dispute the debt or have your say - an administrative staff member receives a request from a council, registers it in a book, and you're on the hook for the debt.

There doesn't seem to be any easy recourse through the courts - no form to fill out like an OfR. Unlike the English system, the PCN process doesn't "feed into" the enforcement process. In England, there's a way back from enforcement to PCN - you tell the TEC the council didn't serve the paperwork properly (missing NTO or NoR) and the ball goes back to you and the council. In Scotland, once it's handed over to the sheriff's officers, it's a whole new process and you have a sheriff court debt registered with you for the full increased amount. The courts don't care about the original PCN that caused the debt - all they care about is whether the sheriffs properly served the Charge for Payment on you. That's the earliest part of the process as far as the Scottish courts are concerned, and you can get it reset to that by challenging the sheriff's officers, but there's no going back to the PCN.

I've stumbled across something called an Action of Interdict, which can be used to challenge the council. But it seems to be using a sledgehammer to crack a walnut. From what I've read, it's like a restraining order against the council and it's very fiddly and expensive to do. That was the process Scottish MPs used to challenge the proroguing of parliament - they tried to take out a weird type of restraining order against Boris.

Based on prior experience in these forums, and my own first-hand experience, the only practical way to stop enforcement is to convince the council to call the sheriffs officers off. Several people on this forum have had success in the past by phoning the council, clearly explaining the situation, and - most importantly - being incredibly nice and polite with whoever answers the phone. Since there isn't a TEC or an OfR equivalent in Scotland, councils do have a greater obligation to exercise common sense in their recovery process.

Someone a couple of years ago had success with Edinburgh, and managed to get them to accept the original £60 charge and call off the sheriffs officers. I've had to do the same in the past. Someone at my council cocked up, and registered everyone in every other flat in the building as living in my address. The council cancelled my single person discount, backdated it 5 years, and sent me a very large four-figure bill, followed by a Summary Warrant. It was a nightmare to resolve, but the only way was to keep phoning the council until I got someone polite and competent to help.

You should definitely try calling the council, being nice, and seeing if they'll accept the original PCN payment. If it doesn't work, try again - you might get through to a different person. But bear in mind your original Charge Certificate was issued a few months ago. The coronavirus is slowing things down, but you will eventually get a Charge for Payment from the sheriffs officers. Keep an eye out for any envelopes from Walker Love, Scott&Co, or Stirling Park - that's what they'll be. The later you leave it, the harder it'll be to convince the council to step down.
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Neil B
post Thu, 28 May 2020 - 04:06
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QUOTE (DJ Lexy @ Thu, 28 May 2020 - 01:42) *
Based on prior experience in these forums, and my own first-hand experience, the only practical way to stop enforcement is to convince the council to call the sheriffs officers off. Several people on this forum have had success in the past by phoning the council, clearly explaining the situation, and - most importantly - being incredibly nice and polite with whoever answers the phone. Since there isn't a TEC or an OfR equivalent in Scotland, councils do have a greater obligation to exercise common sense in their recovery process

Exactly.

And precisely why a couple of us have asked to see exactly what he sent the council, rather than what he thinks he sent or tells us he sent.
The council response doesn't seem to indicate it was anything like what you're suggesting. But of course fixable.
It isn't so difficult -- but the OP left the building some days ago.


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

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Incandescent
post Thu, 28 May 2020 - 23:18
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So it seems, (correct me if I'm wrong), that if a Scottish council makes a complete pig's ear of their admin such that a person never received the statutory documents, and the matter ends up a the sheriff, there is no redress possible. What if they transcribe the name and address from DVLA incorrectly so all the mail goes astray ? What if the V5 is in course of update at the time of the alleged contravention and DVLA send the old address ? All decent legal systems have processes to correct errors; does Scotland have none at all ? If so it is an indictment of their legal system
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cp8759
post Fri, 29 May 2020 - 10:59
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QUOTE (Incandescent @ Fri, 29 May 2020 - 00:18) *
So it seems, (correct me if I'm wrong), that if a Scottish council makes a complete pig's ear of their admin such that a person never received the statutory documents, and the matter ends up a the sheriff, there is no redress possible. What if they transcribe the name and address from DVLA incorrectly so all the mail goes astray ? What if the V5 is in course of update at the time of the alleged contravention and DVLA send the old address ? All decent legal systems have processes to correct errors; does Scotland have none at all ? If so it is an indictment of their legal system

Long and the short of it is that the Scottish legal system is sh*t, but then this is the legal system where the courts held that you had no right at all to speak to a lawyer before or during police questioning, at least until the European Court of Human Rights over-ruled them.

In practice, in any of the scenarios you outline the only route open is to ask the council to exercise discretion to accept out of time reps and if it refuses, challenge that refusal by means of a judicial review in the Court of Session. Alternatively, as this is a blatant breach of Article 6 of the European Convention on Human Rights, you could take action in the European Court.

Fun fact: The English legal system also pre-dates the United Kingdom and has laws in force today that date back to 1267.


--------------------
If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Incandescent
post Fri, 29 May 2020 - 12:06
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QUOTE (cp8759 @ Fri, 29 May 2020 - 11:59) *
QUOTE (Incandescent @ Fri, 29 May 2020 - 00:18) *
So it seems, (correct me if I'm wrong), that if a Scottish council makes a complete pig's ear of their admin such that a person never received the statutory documents, and the matter ends up a the sheriff, there is no redress possible. What if they transcribe the name and address from DVLA incorrectly so all the mail goes astray ? What if the V5 is in course of update at the time of the alleged contravention and DVLA send the old address ? All decent legal systems have processes to correct errors; does Scotland have none at all ? If so it is an indictment of their legal system

Long and the short of it is that the Scottish legal system is sh*t, but then this is the legal system where the courts held that you had no right at all to speak to a lawyer before or during police questioning, at least until the European Court of Human Rights over-ruled them.

In practice, in any of the scenarios you outline the only route open is to ask the council to exercise discretion to accept out of time reps and if it refuses, challenge that refusal by means of a judicial review in the Court of Session. Alternatively, as this is a blatant breach of Article 6 of the European Convention on Human Rights, you could take action in the European Court.

Fun fact: The English legal system also pre-dates the United Kingdom and has laws in force today that date back to 1267.

If there are no mechanisms to correct simple errors other than what you describe, then for me it IS sh*t.
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cp8759
post Mon, 1 Jun 2020 - 21:09
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Well if anyone who lives in Scotland wants to try and sort this out please let me know. I've not given up yet but if someone with an MSP were willing to help I might be able to get some traction.


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bupe
post Fri, 5 Jun 2020 - 21:39
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Sorry for the delayed response. I've been self isolating after coming down with what was believed to be the Corona Virus. I'm only back on my two feet in the past couple of days.

So my initial response to the appeal as as follows below. I should have contacted yourselves originally before my original appeal but I was only made aware of you guys (and girls) here at a later date.

QUOTE
Good afternoon,

After contacting a helpful Glasgow City Council Staff Member over the phone regarding an issue with my Bus Lane Charge, she recommended that I go ahead and appeal this charge by emailing yourselves.

On the 8th of Febuary, a second Charge Notice letter was sent out to my home address. This was received on the 11th detailing that the charge had not been paid in full and I was now required to pay £90. However, the issue lies with the fact that I never received the first letter from yourselves. If the first letter had been received, I would have paid the £30 charge immediately with no questions asked.

Can you please reverse this charge to the initial £30 as this is the first time I have been notified of this matter. I do not feel that this is fair that I should have to pay the additional £60.

I would be grateful, if I could get the response at the earliest; So that I can take the next steps/actions accordingly.

Kind regards,


QUOTE (stamfordman @ Mon, 25 May 2020 - 15:47) *
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?


Like you said, this has been dragging on since before all the of the Corona Virus exploded. Nothing has been done as I'm guessing the Council are currently closed or at limited staff.

I wrote my appeal on the following date: 13 Feb 2020

Glasgow council responded two days later.

QUOTE (cp8759 @ Tue, 26 May 2020 - 15:36) *
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.


I'm beginning to feel like this is my only option. I was totally unaware until now how the laws between England and Scotland differed so much.

QUOTE (cp8759 @ Tue, 26 May 2020 - 15:43) *
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.


Thank you for this. I plan on going ahead and writing to my MSP within the next day or so. When I do, I'll gladly send you all the case information! Hopefully something can be done to solve this ongoing matter, not just for me, but for everyone else involved going forward.

This post has been edited by bupe: Fri, 5 Jun 2020 - 21:32
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bupe
post Fri, 5 Jun 2020 - 22:41
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QUOTE (DJ Lexy @ Thu, 28 May 2020 - 01:42) *
I'm not a lawyer, but I've been working hard to try and find an answer to the 'Scottish enforcement question' because we've never had an answer on this forum. I wanted to add a bit of clarity to what I wrote earlier, and offer a suggestion.

The Scottish legal system isn't a slightly tweaked version of the English system. It's a completely different beast that operates in a totally different way. It predates the formation of the United Kingdom, and there are laws from the 1400s that are still in use today. They use different terminology for a lot of things, which makes it hard to find the Scottish equivalent of a particular English process - if there even is an equivalent to begin with. For example, in England, bailiffs take enforcement action to recover a debt. In Scotland, sheriffs officers perform summary diligence.

In England, councils have to take you to court for unpaid debts. In the case of penalty charge notices, it's a tick-box affair with the TEC. In the case of unpaid council tax, it's the local Magistrates Court, where you get to present your side of things in a hearing.

In Scotland, councils (and the HMRC) can register debts with the Sheriff Court, and send the bailiffs after you, all without a hearing. In the case of council tax debt or HMRC debt, they use a Summary Warrant. In the case of an unpaid PCN, it's with a decree arbitral. There's no option for you to dispute the debt or have your say - an administrative staff member receives a request from a council, registers it in a book, and you're on the hook for the debt.

There doesn't seem to be any easy recourse through the courts - no form to fill out like an OfR. Unlike the English system, the PCN process doesn't "feed into" the enforcement process. In England, there's a way back from enforcement to PCN - you tell the TEC the council didn't serve the paperwork properly (missing NTO or NoR) and the ball goes back to you and the council. In Scotland, once it's handed over to the sheriff's officers, it's a whole new process and you have a sheriff court debt registered with you for the full increased amount. The courts don't care about the original PCN that caused the debt - all they care about is whether the sheriffs properly served the Charge for Payment on you. That's the earliest part of the process as far as the Scottish courts are concerned, and you can get it reset to that by challenging the sheriff's officers, but there's no going back to the PCN.

I've stumbled across something called an Action of Interdict, which can be used to challenge the council. But it seems to be using a sledgehammer to crack a walnut. From what I've read, it's like a restraining order against the council and it's very fiddly and expensive to do. That was the process Scottish MPs used to challenge the proroguing of parliament - they tried to take out a weird type of restraining order against Boris.

Based on prior experience in these forums, and my own first-hand experience, the only practical way to stop enforcement is to convince the council to call the sheriffs officers off. Several people on this forum have had success in the past by phoning the council, clearly explaining the situation, and - most importantly - being incredibly nice and polite with whoever answers the phone. Since there isn't a TEC or an OfR equivalent in Scotland, councils do have a greater obligation to exercise common sense in their recovery process.

Someone a couple of years ago had success with Edinburgh, and managed to get them to accept the original £60 charge and call off the sheriffs officers. I've had to do the same in the past. Someone at my council cocked up, and registered everyone in every other flat in the building as living in my address. The council cancelled my single person discount, backdated it 5 years, and sent me a very large four-figure bill, followed by a Summary Warrant. It was a nightmare to resolve, but the only way was to keep phoning the council until I got someone polite and competent to help.

You should definitely try calling the council, being nice, and seeing if they'll accept the original PCN payment. If it doesn't work, try again - you might get through to a different person. But bear in mind your original Charge Certificate was issued a few months ago. The coronavirus is slowing things down, but you will eventually get a Charge for Payment from the sheriffs officers. Keep an eye out for any envelopes from Walker Love, Scott&Co, or Stirling Park - that's what they'll be. The later you leave it, the harder it'll be to convince the council to step down.


Wow! Thanks for taking the time out of your day to share such great insight. You've explained a lot here that I was completely unaware of, most especially, when it comes to the differences between both English and Scottish law. I never realised things differed so much. From what you're telling me, it's best to give the Council a call as soon as possible. With that being said, I'll try giving them a call on Monday and see what they say. I'll do my best to remain calm and polite in the hope I get someone nice on the phone that is willing to help. Fingers crossed all goes well. Either way, I'll be sure to report back with the overall outcome!
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cp8759
post Sun, 7 Jun 2020 - 12:57
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QUOTE (bupe @ Fri, 5 Jun 2020 - 22:39) *
Thank you for this. I plan on going ahead and writing to my MSP within the next day or so. When I do, I'll gladly send you all the case information! Hopefully something can be done to solve this ongoing matter, not just for me, but for everyone else involved going forward.

If you could share the details before you write to your MSP, I can include a lot of useful information you can give them, including the fob-off responses from the Scottish government.


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If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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cp8759
post Mon, 7 Nov 2022 - 15:20
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Dear bupe,

As per this email chain https://bit.ly/3tegbxz the official position of the Scottish Government is that, in essence, you can get stuffed.

Sorry but it is what it is. Your only redress is to lobby your MSP.

Kind regards,

cp8759


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