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Multiple procedural improprieties -arguments made, Appeal DNC'd
spaceman
post Thu, 3 Oct 2019 - 14:54
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Hi All,

Just had an appeal against a L.B. of Bexley PCN DNC'd by the authority.

Basic details:

Stopped to buy a loaf of bread, in the bakers for less than a minute, when I emerged CEO was taking a photo of the vehicle from the payment.
Drove off and received a Reg.10 PCN
Appealed on the grounds that the CEO had not begun to issue the PCN in accordance with Reg 10(1)©.
Notice of Rejection received and appealed to tribunal on grounds above plus a number of procedural improprieties (see below);
Authority issued a premature charge certificate;
Authority DNC'd and appeal allowed.


I have set out my arguments to the adjudicator below, should they be of any use to other members (apologies for them being so long! Mods, please feel free to edit if necessary):

Original appeal:

"I wish to appeal to the Adjudicator against liability for the penalty charge arising from the above penalty charge notice (PCN) on the following grounds, as set out in Regulation 4(4) of 'The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007' (as amended) (‘appeals regulations’):

R4(4)(f) - That there has been a procedural impropriety on the part of the enforcement authority (‘EA’)

‘Procedural impropriety’ is defined in Regulation 4(5) of the appeals regulations as:

“…a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum…” (my emphasis).

Although I am beyond certain that the Adjudicator is aware of the meaning of the term, I have included the definition here only for completeness.

Procedural impropriety no.1

Regulation 6(1)(a) of the appeals regulations states:

Where representations are made under regulation 4 and the enforcement authority serves a notice of rejection under regulation 5(2)(b), that notice shall

(a) state that a charge certificate may be served unless before the end of the period of 28 days beginning with the date of service of the notice of rejection—

(i) the penalty charge is paid; or

(ii) the person on whom the notice is served appeals to an adjudicator against the penalty charge; …” (my emphasis)

I have received a Notice of Rejection of Representations ('NoR') from the Enforcement Authority ('EA') dated 19th August 2019 (copy enclosed). This notice consists of one sheet of paper with double-sided printing. The NoR was accompanied by a Notice of Appeal form ('NoA') which states on its front page that "This form has been issued by The Environment and Traffic Adjudicators". The form goes on to make clear that the Adjudicator is independent of the EA.

On the reverse side of the EA’s NoR and under the heading 'Act now', they have said:

“If, after 28 days, you have taken no action, we will send you a Charge Certificate increasing the charge to £165.00.” (my emphasis)

I would contend two things:

1. That “shall” and “state that a charge certificate may be issued” (again, my emphasis) are both requirements of the appeals regulations and that both have been disregarded by the EA in their NoR.

2. That the use of the word ‘will’ rather than ‘may’ in the EA's NoR clearly fetters their discretion to cancel the penalty charge at any time during the enforcement process.

Procedural improprieties nos. 2&3

Regulations 6(1)(b) and 6(1)© of the appeal regulations state that when an EA serves a NoR under Regulation 5(2)(b), that notice shall:

“(b) indicate the nature of an adjudicator’s power to award costs; and

© describe in general terms the form and manner in which an appeal to an adjudicator must be made.”

In my view, the EA’s NoR does not address either of these requirements.

What the NoR does say on its reverse side as its 2nd bullet point is:

"Alternatively, you can appeal to the Parking Adjudicator. Details on how to do so are at the end of this Notice."

Unfortunately, there are no details on how to appeal to the Adjudicator at the end of the notice I received, nor is there any mention of the Adjudicator's powers related to costs.

As explained earlier in this appeal, with the EA's NoR I received a NoA. It would appear to me that, in this case, the EA is attempting to rely on information contained within the NoA in order to discharge its responsibilities under Regulations 6(1)(b) and 6(1)© of the appeal regulations.

Assuming that to be true I would suggest that, as the Adjudicators form an independent tribunal, it is entirely inappropriate for the EA to put forward the NoA as a constituent part of their NoR under the appeal regulations. Nor can they suggest that this document in any way discharges their responsibilities under those regulations.

To further underscore this point, in the section titled 'Representations' on the EA's PCN, it states:

"...further guidance (on appealing to the adjudicator) will be contained on the Notice of Rejection" (my emphasis). This "further guidance" does not appear on the NoR I have received.

Procedural impropriety no. 4

The NoR issued by the EA is clearly dated 19 August 2019 (see enclosed copy). However, the date the EA have entered for this in the official use box on the final page of the NoA is "16/08/19". Were this latter date to be applied by the EA in any succeeding enforcement, this would clearly breach their responsibilities under Regulation 6(1)(a) of the appeal regulations.

Procedural impropriety no. 5

Regulation 22 of 'The Civil Enforcement of Parking Contraventions (England) General Regulations 2007' (as amended) ('general regulations') states:

"Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the enforcement authority may, if a county court so orders, recover the increased charge as if it were payable under a county court order." (my emphasis)

On the reverse side of the EA’s NoR and under the heading 'Act now', they have said:

“If, after 28 days, you have taken no action, we will send you a Charge Certificate increasing the charge to £165.00. You will then have 14 days to pay the increased charge. If, after the 14 days, you have not paid the increased charge, we will apply to the County Court to recover the penalty charge plus court costs from you"” (my emphasis).

I would contend that, in addition to the "may/will" procedural impropriety outlined above, this is a further procedural impropriety as the EA have mis-stated the period during which the penalty charge can be paid following the issue of a charge certificate.

In my view the EA have committed procedural improprieties in respect of Regulations 6(1)(a), 6(1)(b) and 6(1)© of the appeal regulations and Regulation 22 of the general regulations and would invite the Adjudicator to rule the penalty charge as unenforceable as a consequence of these errors and omissions in the EA's NoR"


The authority then proceeded to issue a charge certificate one day prematurely.


Further submission to adjudicator following premature issue of CC:


"I have today received from the Enforcement Authority ('EA') the appended charge certificate dated 17 September 2019 and would like to submit this as further evidence in the above case.

For the following reason(s), I would assert that the EA have committed an additional procedural impropriety in this case, as defined by Regulation 4(5) of 'The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007' (as amended) ('appeals regulations')

Regulation 21 of '[i]The Civil Enforcement of Parking Contraventions (England) General Regulations 2007' (as amended)
('Regulation 21') states:

"21.—(1) Where a notice to owner is served on any person and the penalty charge to which it relates is not paid before the end of the relevant period, the authority serving the notice may serve on that person a statement (a “charge certificate”) to the effect that the penalty charge in question is increased by the amount of the applicable surcharge. [/size][/i]

The relevant period, in relation to a notice to owner, is the period of 28 days beginning

(a) where no representations are made under regulation 4 of the Representations and Appeals Regulations, with the date on which the notice to owner is served;

(b) where

(i) such representations are made;

(ii) a notice of rejection is served by the authority concerned; and

(iii) no appeal against the notice of rejection is made, [/size]

with the date on which the notice of rejection is served[/size];..."(my emphasis)

If my understanding of Regulation 21 is correct, then the EA may not serve a charge certificate before the end of the period of 28 days beginning with the date on which their NoR was served.[/size]

The EA's NoR was dated 19th August 2019 and presumed served on 21st August 2019. This means that the relevant period ends at midnight on 17th September 2019 (day 28). Regulation 21 does not permit the issue of such a charge certificate earlier than this, i.e. the earliest the EA could issue a charge certificate under Regulation 21 is any time from 00:00 on 18th September 2019 onwards.

I would contend that the EA has issued the charge certificate outside of the period allowed under Regulation 21. I appreciate this is one day but, in my view, this is sufficient to render the notice premature and a procedural impropriety in terms of Regulation 4(5) of the appeals regulations.

I have already referred in my appeal to the discrepancy over the date of the EA's NoR itself (19/8/19) and the date the EA entered in the official use box on the Notice of Appeal form (16/8/19). On this issue I speculated that, should the EA apply this incorrect date, they may breach their responsibilities under regulations should they enforce further. I would further speculate that this what may have occurred here. [/size]

Out of courtesy to the EA I have sent a copy of this letter to them. However, as the charge certificate may have 'crossed in the post' with notification of my appeal to them, I should be grateful if the tribunal would inform the EA and request that they cancel the charge certificate pending the outcome of the appeal.

I note this case is due to enter the tribunal's postal list on 14th October 2019 and look forward to receiving the Adjudicator's decision in due course."

I added the further evidence 2 days later:

"I would request that the Adjudicator consider this as an addendum to my letter dated 18th September 2019 regarding what I consider to be the premature issue of a charge certificate by the Enforcement Authority ('EA') and therefore a procedural impropriety as defined by Regulation 4(5) of the '[i]The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007' (as amended)
('appeals regulations').

Regulation 4(5) of these regulations states:

"In these Regulations “procedural impropriety” means a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sum and includes in particular—



(a) the taking of any step, whether or not involving the service of any document, otherwise than—



(i) in accordance with the conditions subject to which; or

(ii) at the time or during the period when,

it is authorised or required by the General Regulations or these Regulations to be taken; and

[i](b) in a case where an enforcement authority is seeking to recover an unpaid charge, the purported service of a charge certificate under regulation 21 of the General Regulations before the enforcement authority is authorised to serve it by those Regulations
."(my emphasis).

The EA are prevented by Regulation 21 of the General Regulations from issuing a charge certificate before the end of the period of 28 days beginning with date of service of the Notice of Rejection of Representations ('NoR'). The EA issued their NoR on 19 August 2019 making the deemed date of service 21st August 2019. This is Day 1 and the end of Day 28 is therefore midnight on 17th September 2019.

This effectively means that the EA were estopped from issuing a compliant charge certificate until 18th September 2019.

My contention is that issuing the charge certificate on 17 September 2019 constitutes a procedural impropriety by the EA under Regulation 4(5)(b) of the appeal regulations and Regulation 21 of the general regulations.

I look forward to receiving the Adjudicator's decision in due course."

If you have successed in reading this far, well done. You really are up for the fight!

Feel free to use...and always, always check the authority's documents!


This post has been edited by spaceman: Thu, 3 Oct 2019 - 15:10
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post Thu, 3 Oct 2019 - 14:54
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The Rookie
post Fri, 4 Oct 2019 - 07:12
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So its likely that until they fix it no PCN will be enforceable in Bexley due to the defective NoR's!


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spaceman
post Sat, 5 Oct 2019 - 09:19
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If Bexley are using standard templates for NoRs, then yes!

This was one of the most poorly constructed NoRs I have ever seen and I've seen a few.

Shame they DNC'd, I would have liked to see what the adjudicator made of them using the NoA as a constituent part of their NoR!

This post has been edited by spaceman: Sat, 5 Oct 2019 - 09:20
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cp8759
post Sat, 5 Oct 2019 - 18:09
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They don't use a standard template, they use a piece of software called Response Master, see https://www.youtube.com/watch?v=KBWvEC5kVqo

All the councils we know of that use Response Master have a corresponding note in column B here http://bit.ly/2ALghSS


--------------------
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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spaceman
post Tue, 8 Oct 2019 - 12:04
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QUOTE (cp8759 @ Sat, 5 Oct 2019 - 19:09) *
They don't use a standard template, they use a piece of software called Response Master, see https://www.youtube.com/watch?v=KBWvEC5kVqo


This doesn't explain how the authority got the contents of their NoR so hopelessly non-compliant.

Nor can I believe that Barbour Logic would write a piece of software where 'editable' letters do not limit such editing to what the legislation actually says.

Nor does it explain the inexplicable - the authority's attempt to use the NoA, issued by an independent tribunal, to discharge their responsibility to provide specific information within their NoR.

I don't believe Response Master was used in this case. If it was then, as the NoR was so woeful, Barbour Logic should no longer permit them use their product.

This post has been edited by spaceman: Tue, 8 Oct 2019 - 12:05
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cp8759
post Tue, 8 Oct 2019 - 18:55
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QUOTE (spaceman @ Tue, 8 Oct 2019 - 13:04) *
QUOTE (cp8759 @ Sat, 5 Oct 2019 - 19:09) *
They don't use a standard template, they use a piece of software called Response Master, see https://www.youtube.com/watch?v=KBWvEC5kVqo


This doesn't explain how the authority got the contents of their NoR so hopelessly non-compliant.

Nor can I believe that Barbour Logic would write a piece of software where 'editable' letters do not limit such editing to what the legislation actually says.

Nor does it explain the inexplicable - the authority's attempt to use the NoA, issued by an independent tribunal, to discharge their responsibility to provide specific information within their NoR.

I don't believe Response Master was used in this case. If it was then, as the NoR was so woeful, Barbour Logic should no longer permit them use their product.

Or maybe Response Master isn't actually that good, or the person operating the system is a bit of a muppet, or both?

I don't see why Barbour Logic would care, on the contrary they have every incentive to continue pedalling their product as infallible in the hope that more and more councils will buy pay the licencing fee.


--------------------
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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