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J_Edgar
First apologise to anyone that I have not replied to recently, life has got very busy, I should be back in anger at the weekend.

Another one for my employer. This one is at the NtO stage however the engineer concerned did not find the PCN on the vehicle, so we have below a photograph of a PCN that was removed by person or persons unknown.

I will post up the NtO at the weekend for record purposes but I am pretty confident that you all know that I know what the issues are with it. The date of notice is 15/12/2010 so there is plenty of time to submit an appeal.

We obviously have the suspension sign issue with this but I am toying with the idea of only using the ground provided on the NtO of, "The CEO was not prevented from serving the original PCN...", with a view to getting either a cancelation or adjudication on that point alone. To me this seems to be a stone clad point of appeal but before I go down that road I am after polling some opinion of how risky the strategy is.

Obviously an adjudication on that point is desirable but not at the risk of losing the case where other points could have been used.

Opinions please...



dave-o
I'd say it's a high risk strategy that could bring a big reward. Depends if you can afford to gamble £100/120/whatever on it!
J_Edgar
It is £120 dave-o but it is my employers money not mine so there is no financial risk to me. wink.gif

The only risk is my reputation in the company for being the PCN Guru if it goes badly...



J_Edgar
Ok, NtO now suitably washed. As is evident below CoW specifically offer the unqualified "CEO was not prevented..." ground on the representations form as a tick box option.











DancingDad
I'd reckon go with the one ground.
Notwithstanding that we and the adjudicator knows the ground should not be there it is nevertheless included, both on the explanatory listing of grounds and the checklist.
The recipient can be expected to read it, consider it and believe it to be correctly included.
And as it is evident that a PCN was served and the ground is proved, the recipient can be expected to rely solely on that ground even if others apply.
As such either the ground must be found valid or be declared prejudicial as it could cause appelants to appeal on incorrect grounds.

I know you'll phrase it better but another take doesn't hurt.
hcandersen
To go back to the regs, this is how I see the issue:

(3) A notice to owner served under regulation 19 of the General Regulations must, in addition to the matters required to be included in it under that regulation, include the following information—

(a) that representations on the basis specified in regulation 4 against payment of the penalty charge may be made to the enforcement authority, but that any representations made outside the period of 28 days beginning with the date on which the notice is served ( “the payment period”) may be disregarded;
(b) the nature of the representations which may be made under regulation 4;



4. — (1) The recipient may make representations against a notice to owner to the enforcement authority which served the notice on him.
(2) Any representations under this regulation must—
(a) be made in such form as may be specified by the enforcement authority;
(b) be to either or both of the following effects—
(i) that, in relation to the alleged contravention on account of which the notice to owner was served, one or more of the grounds specified in paragraph (4) applies; or


Step by step, a reg 19 NTO (which this is) must include information that the recipient any make representations, subject to time constraints, and the nature of the reps that may be made.

(In the case of Westminster whose NTO is not prescriptive and therefore would appear to be of the 4 (2) (b) variety), The recipient MAY make reps that MUST be to to one or more of the grounds specified IN RELATION TO THE ALLEGED CONTRAVENTION ON ACCOUNT OF WHICH THE NTO WAS SERVED.

I conclude from this that the grounds which must be specified are conditional upon the alleged contravention. Therefore, not only is (h) improper, because it is not a permissible ground in relation to a Reg 19 NTO, but I would also add that by the same logic (g) should not be included when either footway parking or double parking are alleged because the traffic order is irrelevant.

Is this a runner I wonder?

HCA
Bogsy
I like your thinking HCA and see merit in it. No harm in throwing it at them and see what they throw back.
J_Edgar
Nice thinking HCA, I like that very much.

I am considering the following lengthy and cutting appeal against the NtO:

QUOTE
Dear Sirs

I appeal on the ground as provided on the Notice to Owner served by City of Westminster Council that:

"A Civil Enforcement Officer was not prevented form serving the original PCN by affixing to the vehicle or handing it to the owner or person in charge of the vehicle."

I submit in support of this point the City of Westminster Council's own photographic evidence vis a vis photograph reference WMxxxxxxxxx-xxxxxxxxx-Ticketphotos-3.jpg as available on the Council's website. The said photograph clearly depicting the PCN affixed to the vehicle, demonstrating that it is indisputable fact that the PCN was served.

I look forward to your expedient acceptance of this point of appeal and cancellation of the PCN and NtO.

Kind regards.


If and when they reject all the regs etc. can be included for the adjudicator.

What you think peeps?

J_Edgar
Hi all, sorry not been about recently, I will try to catch up with a few threads over the weekend.

Reps now submitted to CoW as quoted below:

QUOTE
I formally appeal the above PCN and subsequent NtO on the ground as provided on the City of Westminster NtO that:

"A civil enforcement officer was not prevented from serving the original PCN by affixing it to the vehicle or handing it to the owner or person in charge of the vehicle."

This is clearly evidenced by your own photographs showing the PCN affixed to the vehicle, I attach one for your reference.

I look forward to your letter of acceptance of representations.


That must be the shortest appeal I have ever written wink.gif

Submitted by web form on day 28 and acknowledged as received by email the same day. I wonder if they will get it this time...

DancingDad
QUOTE (J_Edgar @ Fri, 14 Jan 2011 - 05:25) *
Hi all, sorry not been about recently, I will try to catch up with a few threads over the weekend.

Reps now submitted to CoW as quoted below:

QUOTE
I formally appeal the above PCN and subsequent NtO on the ground as provided on the City of Westminster NtO that:

"A civil enforcement officer was not prevented from serving the original PCN by affixing it to the vehicle or handing it to the owner or person in charge of the vehicle."

This is clearly evidenced by your own photographs showing the PCN affixed to the vehicle, I attach one for your reference.

I look forward to your letter of acceptance of representations.


That must be the shortest appeal I have ever written wink.gif

Submitted by web form on day 28 and acknowledged as received by email the same day. I wonder if they will get it this time...


I hope you've got a note for your absence laugh.gif

Short challenge...betcha the rejection gets complicated wink.gif
Leon G
Hi J_Edgar

Any updates on this case? I've got a very similar situation at NTO stage, going on since September!

I made an informal appeal and didn't hear back for months. The first thing I heard back was a letter from the bailiffs!

I rang the customer service line and was told that although they received my appeal, it had no address for them to respond to. It turns out they scan appeals and work from the scans. The kind person who scanned my appeal neglected to scan my signature or address at the bottom! Apparently they then have to contact the DVLA by putting it on the NTO stage.

I didn't receive the NTO either which makes me think they don't bother sending one.

I was then advised that I had to wait for the County Court Papers and send a witness statement. I did this and it is now back at the NTO stage. I've been reading a few threads and will post up the NTO soon. Can't locate my original thread for some reason though!

Thanks in advance.

Scaramouche
Please start your own thread and post up all the relevant information.
J_Edgar
UPDATE!

Hi all I should be back in anger at the weekend, been busy busy busy with life unfortunately.

In this case an appeal was made to the adjudicator on day 26 of the 28 day period by fax and has been acknowledged as received by PATAS, the hearing is set for some time in June iirc.

On day 29 CoW issued a Charge Certificate this was 28/02/11.

CoW then instructed Phillip's Specialist Bailiff and Debt Recovery to issue the unlawful reminder notice which is dated March 3rd.

I'll scan and post the documents at the weekend. CC and Bailiff letter are currently being ignored by my company under my instruction, I wonder if we get an OfR next wink.gif

So lots more ammunition that I did not really want lol.

WTF o7

Leon G
Thanks for the update. I got that letter from the Bailiffs too.
DancingDad
QUOTE (Leon G @ Wed, 9 Mar 2011 - 19:14) *
............... Can't locate my original thread for some reason though!

Thanks in advance.


http://forums.pepipoo.com/index.php?act=Se...ult_type=topics

Looks like two of them...you may want to ask the mods to merge them.
Leon G
Any updates to this Edgar?
J_Edgar
At PATAS today with this 9:30 hearing.

Main thrust of appeal is "CEO not prevented...", on NtO, the only ground used at NtO appeal.

Also have as backup:

1) CC served on day 29 after PATAS appeal made on day 26.
2) Phillips unlawful threat-o-gram following CC.
3) Unlawful suspension sign.
4) Anything else I can think up on the train wink.gif

Will report back later...
matttheladd
So what happened to CoW issuing a Notice of Rejection before the CC? I will be following this case closely as friends of mine are waiting for a NtO from CoW for an unpaid PCN which has already been challenged but rejected. We want to use the same appeal point and so it will be very interesting to see what happens today at PATAS.
J_Edgar
Case won on the Phillip's letter \o/

More when I return from the smoke.
J_Edgar
Full decision below and pdf uploaded for future use.

Balcomm Limited -v- City of Westminster pdf







A win is a win but I am seriously disappointed that I could not get a favourable decision on the "CEO not prevented issue...", I'll post more on this later when I have some time, we all know why decisions on such points are hard to get, but from discussions with the adjudicator the point has merit but as I said more on this later...

The CC issue was going to go nowhere with the adjudicator I had, she just did not accept my interpretation of the law, this point needs either a very brave adjudicator or a decision in the High Court.

The Phillip's ruling, the winning point is useful as it confirms that there is no debt to be enforced at this point and merits late appeals against CoW on or just before the end of the 28 day period, against both NtOs and at the PATAS stage to goad the issue of the CC and subsequent Phillip's letter. It is a shame that the PI aspect is slightly watered down in the last sentence of the paragraph.

She would have no truck with the signage issue as it was not used in the formal appeal and also by this time I had already won.

Much more to say later, I was in with the adjudicator for the best part of an hour and a half arguing all of the above although the last 20 minutes was pretty much just waiting for the decision to be written up. However this is by far the longest time I have been allowed at a hearing.



Bogsy
Mmmm......not convinced by her rejections but adjudicators are inconsistent and peculiar in their decisions. One of my favourites is PATAS case 2110047547

http://www.patasregistersofappeals.org.uk/...eref=2110047547

The appeal was won simply because the appellant in their NtO representation submitted some colour photos that were reproduced in black & white in the evidence bundle sent to PATAS. I advocate sending colour photos in any NtO appeal in the hope the council will fail to reproduce them in colour.

bama
we need to dig into council access to the appeal register.
appeals are registered on day of receipt and once registered there is no valid reason for sending a CC IF the council checks the register.
0n-line (automated) checking would prevent this so why don't councils do it (to prevent themselves from acting unlawfully) ? does the tribunal provide such an automated interface ?
even if its just an html interface it could still be automated by the council....

emanresu
Is there clarification on the timings.

In b) she says it was cancelled on the 3rd. In c) she says 2nd.

If it is all done by computer, how does it link up? Was there a CC run during the 28th and does that data go over at midnight of 28th /etc.

Just wondering if it can give a bit more insight into the systems/timings being used.
J_Edgar
The CC was cancelled on the 2nd, she has cocked the date up in b), c) is correct.
Bogsy
QUOTE (emanresu @ Sun, 12 Jun 2011 - 10:23) *
If it is all done by computer, how does it link up? Was there a CC run during the 28th and does that data go over at midnight of 28th /etc.

Just wondering if it can give a bit more insight into the systems/timings being used.


Most PCN processing systems are configured to automatically progress. For example, if a council officer decides to reject an NtO representation then that officer will generate a Formal Representation rejection letter. This letter generation then starts the clock ticking.

When setting their configurations a council will take into account that a Charge Certficate cannot be served before 28 days from receipt of the NtO rejection letter and that 2 working days must be allowed for receipt to be assumed. To account for the possibility of weekends, most councils configure the system so that automatic progression to "send Charge Certificate" only occurs following a minimum of 32 days from the date of the NtO rejection letter. This will only be interrupted if the system detects that payment has been made in full or if a council officer puts the case on hold when logging receipt of the Notice of Appeal received from PATAS or TPT.

PATAS/TPT may only receive an appeal in the latter stages of the 28 day period available to submit an appeal. It may take them a day or two to register it and then it may take another couple of days for notification of the appeal to be received by post by the council who then may take a day or 2 to log its receipt on the system. It is often this scenario where a Charge Certificate is generated due to PATAS/TPT notifications arriving and being logged on the system outside the configured trigger date for the generation of a Charge Certificate.

A council can reduce the risk of this occuring by configuring the sytem not to generate a Charge Certificate to say 35 or more days from the Formal Representation rejection letter.
Glacier2
Does the receipt of the appeal notice from PATAS/TPT stop the OFR from issuing?

It is good to get a ruling on the bailiff letter at last.
emanresu
Just to be pedantic. PATAS appeal sent by fax on day 26 (Friday 25th Feb).

CC issued on day 29 (Monday 28th Feb)

CC cancelled on day 31 (Wednesday 2nd March)

So CoW are within the rules in sending it out on day 29 but the delay seems to be the PATAS-CoW link (point to note for future as J Edgar says) but there must be an automatic link from CoW to Phillips on day 29 too. So there seem to be 2 dodgy links in the system as why did Phillips not wait the 14 days?

My thinking here is that there could be a nod-and-a-wink from CoW to Philips to get the threatening letters out quickly. The uninformed who have sent to PATAS late have now way of knowing it got there / was accepted. Very few will know about Reg 22 (the 14 days.)

If they fold by paying before the PATAS date then AFAIK its a DNC from the Owner.

Wondering if this is another of the tricks errors that surround the CoW methodology. Does it need publicising in and around Westminster. Would not be surprised if it a more widespread practice than just Westminster.
J_Edgar
QUOTE (emanresu @ Sun, 12 Jun 2011 - 14:41) *
...snip

So CoW are within the rules in sending it out on day 29...


I disagree here as the regs do not permit issue of a CC if an appeal has been "made".

My appeal was "made" by fax on day 26 (Friday), it was however not acknowledged by PATAS until the following Monday.

My argument is that the appeal was made at the point in time that it was faxed to PATAS and the entitlement to issue the CC thus ended. Further to this I argue that the EA should have such systems in place to prevent issue of the CC if the appellant choses to make full use of the 28 day period.

The final sentence of s.10.61 of the OG states: "Authorities should ensure that their systems are not programmed to send out Charge Certificates regardless of circumstances."

I believe that to lawfully issue a CC the EA must take all reasonably practicable steps to ensure that an appeal has not been made.

All of this could easily be fixed if the software was set up with a 7 day buffer starting at day 29 to allow time for PATAS and EA processing of just in time appeals. CoW chose to issue on day 29 and should suffer the consequences of this action if a just in time appeal has been made.
bama
I agree, the register is there to be queried. failing to prevent their own unlawful action (in issuing a CC after the appeal has been lodged) is a breach of their public duty.

IMO many of the 'should's in the Guidance are there as they support principles of law - as opposed to explicit clauses in the regs (which then get the 'must's). DfT and and Sec of State cannot and will not give 'legal advice'. But they do go as far as they can in giving the LA's pointers and they do this with the 'should's.
emanresu
Sorry. I'm sending you off on the wrong track here.

I'm looking at it simply from the issue of timings and whether the links between PATAS, the LA, and the DCA are in real-time or is it a batch update system.

The appeal was sent on a Friday (day 26). Days 27/28 were PATAS non-working days. Day 29 PATAS knew there was an appeal but CoW appear not too, so this infers batch updating overnight.

Day 30 PATAS /CoW(?) are now both aware of the appeal. Day 31 action. Again seems to point to batch updating. Does the DCA know about the CC on Day 30 or Day 31.

Look at it a different way. Supposing Day 26 - the appeal day - was a Monday. Suggests no CC would have been raised and no Philips letter sent. How would the appeal look then, since it was the Philips letter that clinched it.

Go back to the CoW/DCA link - there should be a 14 day gap there but there wasn't.

Had it not been for Day 26 being a Friday, would we have had any inkling of CoW/Philips chasing well before they should?

I'm simply looking at the timings, the method of updating all the parties in the chain and whether there are (unlawful) timings going on here.

Edit: Thinking about the Reg 22 a bit more. Its only a PI if the appeal is within the 28 days. It suggests to me that if there is no appeal within the 28 days, then the DCA are sending out early letters (i.e. before the 14 days required by Reg 22). This seems to be a hidden and unlawful process. Its not part of the PATAS brief (unless there are circumstances like this one) so its a unregulated part of the debt collection process.
J_Edgar
I'll just address 2 points on the above quickly:

1) Had day 28 been a working day then my appeal would have been made to PATAS on day 28. I was deliberately angling for the CC and the Phillips letter smile.gif

2) With regards to your edit, it is my opinion that the Phillips letter is de facto unlawful at any stage of the enforcement process, however the adjudicator did not seem to want to swallow this, once I cottoned on that the rulling of de facto unlawful was not likely to be aceivable I then went down the road of, no debt to chace until after the CC 14 day period had expired. At this point the adjudicators eyes lit up and I knew I had found a winner. I then pointed out that the correct and lawful action would be an OfR. Another adjudicator may at another time be more inclined towards the de facto unlawful argument, so this needs to be refined. But for now what we have in this adjudication is perfectly useable against any Phillips letter issued before the end of the CC 14 day period.
emanresu
QUOTE
I was deliberately angling for the CC and the Phillips letter


Catch up a the back there, I hear you say. wink.gif

So there are processing (time-based) gaps between all the parties which suggests access to a fax machine / 28th day appeal may yield a few c*ck-ups - or finesse a few more tricks errors at other EA's
bama
in the dash for cash busy lives of our public servants who only strive to act lawfully and adhere to the regulations and laws that bind them jumping the gun is frequent

I like to submit reps to NTOs in the late afternoon of the 28th day by hand at the 'parking shop' and get a stamped dated and timed receipt for them.
have seen next day CC's pop out and of course there was no possibility of anything crossing in the post smile.gif

always give them enough rope to play with.
cream70
Another example of the dumbing down of the statutory regulations at the expense of the motorist.
Well at least PATAS are "independent"
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