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Joe R
Hello, me again....

We've already sent an appeal and had it rejected. I've posted all the relevant photos and a copy of the appeal.

My Sister-in-law parked where she normally does when she goes to work and on this occasion her BB slipped off the dashboard. Apparently, this time she was with a work colleague and was running late for work. I'm guessing they just closed their doors and legged it to work without a thought for the BB.

I'd appreciate any help and advice and thanks in advance.
Joe







Dear Sir/Madam,

I am appealing against the above PCN received on 26th November 2011 for failing to clearly display a valid disabled badge in the prescribed manner. I have atttached a copy of my disabled badge.

I parked my car at the location specified on the PCN at approximately 10:00 on Saturday 26th November 2011 as I have done for the past 12 months as I work close by. I placed my diaabled ticket on my dashboard in the normal way making sure it was clearly visible as I always do, but unfortunately, on this occasion, upon closing my car door, my badge slipped onto the floor without me realising until I returned to my car.

As a minor and honest transgression has occurred, and there was no attempt to evade a parking charge or deprive a disabled person a parking place, I kindly ask you to consider cancelling this PCN with immediate effect.

Yours faithfully






SchoolRunMum
That's cruel, yours is the sort of mitigating circs case where you might have expected a cancellation.

'Josh Ben' sounds like a teenager (aren't 50% of boys called Josh nowadays?!!).

I would reply to Josh if it were me and take issue with his 'two options'. Your SIL should say she was very surprised that her mitigating circs were not taken into account, say that she fears the office may have overlooked the enclosure of the disabled badge (enclose a copy of both sides again!!) and the fact that she did display it upon parking there so did comply with the regulations. If it did slip off the dashboard she cannot be sure when but it WAS displayed, and she has never had a PCN before (if true) and hoped that the Council may be understanding and make a 'reasonable adjustment' on a first occasion for a disabled person. Say she believes the Equality Act provides for 'reasonable adjustments' to be made by Councils for disabled service-users and that provision of parking and consideration of appeals are services that clearly do fall within the scope of the Act. SIL feels disadvantaged by the stance taken by the Council and requires that he explain in his reply why the Equality Act does not apply to his decision here? (Difficult one to answer, the Act is huuuge!! In fact he may be able to reply but it would take time!!).

Finish by saying that if he still decides to reject her appeal then she would like a full copy of the CEO's notes and all photos taken, and a copy of the Traffic Order for that road plus maps and relevant amendments, and a copy of the Council's Code of Practice for considering PCN appeals from disabled people (or the general Code of Practice relating to PCNs if there is not a specific disabled person's version) so that she can make a more informed decision about adjudication in due course.

I think there is a general PCN appeals handling COP from London Councils which he should at least supply, but will Josh know that? Make Josh work at his reply next time and he may just roll over as he'll want to get home in time for his tea. smile.gif
Joe R
Many thanks SRM for your time and help, its much appreciated.

My SIL got the following reply to an email she sent giving me permission to discuss the case with Bromley Council.

Dear Mrs xxxx,

Thank you for your email communication. Your challenge has been responded to in our letter dated 4th January 2012. If you are unhappy with our decision and you wish to appeal further on receipt of the Notice to Owner.

Regards

Gill Wood
Senior Parking Officer
Parking Services
Customer and Support Services

Am I right in thinking that I'm allowed to appeal as many times as I want before receiving the NtO?

Joe


Enceladus
Who is the RK of the car? You or your sister.
Who is the BB holder?
And who parked the car in the disabled bay?

See also.
The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

QUOTE
Scope of Part 2 and duty to notify rights to make representations and to appeal

3.—(1) Regulations 4 to 7 have effect where a penalty charge which has become payable under the General Regulations has not been paid and either—

(a)a penalty charge notice has been served by a civil enforcement officer under regulation 9 of the General Regulations, and a notice to owner served by the enforcement authority under regulation 19 of those Regulations; or
(b)a penalty charge notice has been served under regulation 10 of the General Regulations.
(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a)that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b)that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;

(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.
Joe R
QUOTE (Enceladus @ Mon, 9 Jan 2012 - 18:58) *
Who is the RK of the car? You or your sister.
Who is the BB holder?
And who parked the car in the disabled bay?


Sister in law to all three...

Thanks for the link. I'll give that a once over and hope some of it sinks in!

Joe
Exiled Yorkshireman
The big one's already been said, but...

QUOTE
Failure to submit representations or pay the penalty charge in full before the end of the 28 days beginning with the date of service of the Notice to owner will result in an increased charge and recovery action.


Fettering discretion?

QUOTE
The Local Authority is obliged to issue penalties to vehicles where badges are not displayed, or are displayed incorrectly to ensure possible mis-use (sic) or fraudulent use is controlled


Are they really? I'd be pleased to see the statutory basis for this statement bearing in mind Lord Templeman's statement in Hazell v. Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1.:

QUOTE (Lord Templeman)
[L]ocal authorities are statutory creatures and can do nothing except that which is expressly or impliedly authorised by statute


Contact the council separately and ask for the traffic management order for the street concerned.
Joe R
Here is my intended reply....

Dear Mr Ben,

I acknowledge your recent letter dated 4th January 2012, the contents of which are duly noted.

I strongly urge you to review your decision regarding my recent Penalty Charge Notice. I am very surprised that my mitigating circumstances were not taken into account. I fear that your office may have overlooked the enclosure of the disabled badge and the fact that I did display my blue badge upon parking. Therefore I did comply with the regulations.

I cannot be sure when my blue badge slipped off the dashboard but it WAS displayed, and as I’ve never had a PCN before, I hoped that the Council may be more understanding and make a 'reasonable adjustment' on a first occasion for a disabled person. I believe the Equality Act provides for 'reasonable adjustments' to be made by Councils for disabled service-users and that provision of parking and consideration of appeals are services that clearly do fall within the scope of the Act. I feel disadvantaged by the stance taken by the Council and I require you to explain in your reply why the Equality Act does not apply to your decision here.

Should you still decide to reject my appeal then I would like a full copy of the CEO's notes and all photos taken, and a copy of the Traffic Order for that road plus maps and relevant amendments, and a copy of the Council's Code of Practice for considering PCN appeals from disabled people or the general Code of Practice relating to PCNs if there is not a specific disabled person's version, so that I can make a more informed decision about adjudication in due course.

Therefore, in view of the above, I require you to consider and take the most sensible course of action and cancel this PCN forthwith, and with immediate effect, otherwise I shall not hesitate to pursue my challenge as far as PATAS, which would be the Council's responsibility, and claiming costs in view of the Council's pursuit of such a trivial matter.

I await your reply with interest.

Yours faithfully

Bogsy
I suggest your sister in law include the following text in any further appeal.

I find it necessary to bring to your attention the provisions of regulation 18(1)(a) of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996.

18. — (1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;


As a blue badge holder I am entitled to park in designated disabled badge holder's only parking bay. The necessity to display my blue badge is an effect of the traffic order and yet no signage was placed that indicated this effect. There is a clear distinction between holding a badge as conveyed by the traffic sign and the further need to actually display it. The Council has a clear statutory duty to ensure that a traffic sign that adequately conveys the effect of the order is placed on or near the road to assist motorists so that they can park in accordance with the traffic order but this duty was not fulfilled. It is unreasonable for the council to penalise a person for failing to park in accordance with the traffic order when there is no traffic sign indicating what is required of the motorist and it cannot be morally correct that I am penalised while the council financially benefit from their statutory failure.
hcandersen
I'm incensed and I will work with you to see if we can get these wrongs righted. Of course there's the PCN, but also who the hell spells compelling compeling?

People called Josh perhaps?

PCN fails to comply in at least one area, but I'll wait for the NTO.


HCA
Joe R
QUOTE (Bogsy @ Tue, 10 Jan 2012 - 18:10) *
I suggest your sister in law include the following text in any further appeal.

I find it necessary to bring to your attention the provisions of regulation 18(1)(a) of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996.

18. — (1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;


As a blue badge holder I am entitled to park in designated disabled badge holder's only parking bay. The necessity to display my blue badge is an effect of the traffic order and yet no signage was placed that indicated this effect. There is a clear distinction between holding a badge as conveyed by the traffic sign and the further need to actually display it. The Council has a clear statutory duty to ensure that a traffic sign that adequately conveys the effect of the order is placed on or near the road to assist motorists so that they can park in accordance with the traffic order but this duty was not fulfilled. It is unreasonable for the council to penalise a person for failing to park in accordance with the traffic order when there is no traffic sign indicating what is required of the motorist and it cannot be morally correct that I am penalised while the council financially benefit from their statutory failure.

WOW! I'm impressed and thank you! Twas so good, I read it twice biggrin.gif


QUOTE (hcandersen @ Tue, 10 Jan 2012 - 19:22) *
I'm incensed and I will work with you to see if we can get these wrongs righted. Of course there's the PCN, but also who the hell spells compelling compeling?

People called Josh perhaps?

PCN fails to comply in at least one area, but I'll wait for the NTO.


HCA

Thanks HCA, I value your advice too and await your input. I'm not sure Josh will though!
Joe R
Its been over a month now since we emailed Bromley Council. I know we've given Josh enough work to do, but is it normal to wait this long for an NtO?

Thanks
Joe
bama
they have six months from the date of service of the PCN
Joe R
Today, my sister-in-law got the NtO

Should we reply with the same letter we sent back in January?



Bogsy
If you want you can use the text below which was originally was put together to appeal fallen Pay & Display tickets but I've adapted it to fit a blue badge. You can of course include other text as you see fit should you want to use it. It has always been successful for P&D tickets.

Dear Sirs

I would like to appeal the penalty charge served upon me.

Enclosed is a copy of the blue badge that was correctly displayed when vacating the vehicle. It can clearly be seen that the badge was valid when the officer inspected my vehicle. Unfortunately, at some point during my absence from the vehicle, the badge somehow became dislodged from where it had been clearly displayed and fell into the foot well. I accept that your officer could not have known this and acted accordingly.

However, now that the badge has been presented for inspection it is clear that I did not park where I had no right to. The badge produced clearly shows that had your officer seen my badge at the time of inspection that there would have been no need to serve a penalty charge notice.

The only remaining issue is whether the fact that the badge was not clearly displayed at the time of inspection warrants the council taking a hard line and upholding the penalty charge. I believe that for the council to take such a stance would be contrary to the advice of the DfT and the Secretary of State.

Paragraph 85 from the Secretary of State’s Statutory Guidance to Local Authorities advises;

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest


This statutory guidance is given legal authority by section 87 of the Traffic Management Act 2004 whereby statute instructs that the council must have regard to this guidance. Any failure to have regard to this guidance is a procedural impropriety as defined by regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007;

4(5) 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

As a valid badge has been presented for inspection it is clear to any reasonable person that it would not be in the public interest to penalise a person who had a lawful right to park in the bay and did nothing to the detriment of the public interest. I cannot think of a more appropriate situation where paragraph 85 applies than this. I therefore politely request that the council act fairly and proportionately in this matter and exercise their discretion sensibly and reasonably by cancelling this penalty charge. It would be best for all if we can resolve this without the need to seek independent adjudication.

Yours with love, hugs and kisses
Hippocrates
They have clearly failed to consider the informal challenge properly. These are not exact matches re your circumstances but may be useful:-

http://forums.pepipoo.com/index.php?showto...t=0#entry690592
Enceladus
The deadline that cannot missed is Monday the 21st May. You must get your "formal representations" against the Notice to Owner delivered to the Council before close of business on that day. So make sure you don't loose sight of the deadline.

Unlike some folks on here you have some time to make sure that these reps are as compelling as possible. Did you ever get a copy of the Civil Enforcement Officer's notes? And any and all photos? Is there any facility on the Bromley site to view evidence? Anything there?
hcandersen
The OP has acknowledged that the BB was not displayed as required which is candid and is not to be faulted. What we do not know, however, is exactly where the badge was. IMO this is important.

Bogsy's well constructed argument inadvertently concedes the point that the BB could not have been in view to the CEO, but I suggest you do not concede this.

IMO, if the badge was in view or should have been in view to a conscientious CEO but not displayed as required e.g. in the footwell and possibly with the wrong side showing or all details not visible, then you must make this point. Also, are there any other adaptations in your car which would convey to an objective observer that it was used by a disabled driver?

If a BB was visible in the footwell then IMO the council is required to consider exercising its discretion when presented with a valid BB and a signed letter from the owner. The council did not consider exercising its discretion in respect of your informals and this is incorrect. You must put the same arguments (Bogsy's is a useful form) but if you can add (to your advantage) where the BB was and whether it could or should have been visible as a BB you should do.

HCA
Enceladus
QUOTE (hcandersen @ Sun, 22 Apr 2012 - 08:09) *
Also, are there any other adaptations in your car which would convey to an objective observer that it was used by a disabled driver?

To that end is this a Motability lease vehicle? Or does the vehicle have a disabled tax disc?

Here we have a case of a genuine Blue Badge holder that makes a minor mistake and is penalised for it. The penalty being way out of proportion to the alleged contravention.

On the other hand the Enforcement Authorities continue to do nothing about and tacitly tolerate the rampant abuse of Blue Badges.
Joe R
QUOTE (Enceladus @ Mon, 23 Apr 2012 - 17:24) *
QUOTE (hcandersen @ Sun, 22 Apr 2012 - 08:09) *
Also, are there any other adaptations in your car which would convey to an objective observer that it was used by a disabled driver?

To that end is this a Motability lease vehicle? Or does the vehicle have a disabled tax disc?

Here we have a case of a genuine Blue Badge holder that makes a minor mistake and is penalised for it. The penalty being way out of proportion to the alleged contravention.

On the other hand the Enforcement Authorities continue to do nothing about and tacitly tolerate the rampant abuse of Blue Badges.


Quick reply as I'm off to work...

Its a Motability lease vehicle.
Enceladus
Good!

It is routine for the CEOs to inspect and note the VED expiry and serial. And also to photograph the disc. The VED for a Motability vehicle would be in the "Disabled" class and this is normally printed on the disc. So I would argue that the CEO must have known that either the driver or it's passenger was a disabled person and a BB holder. So an extra "duty of care" was now required to thoroughly inspect the vehicle for any evidence of the BB. And naturally this will be reflected in the photos and the notes.

So in any reps, you demand:
A copy of the CEO's notes,
Copies of any and all photos that the CEO took of the vehicle,
A copy of the traffic order and any applicable amendments, plans, diagrams or schematics that relate to the Disabled Bay you are alleged to have contravened.
hcandersen
+1, I feel a plan coming together here.

Also, where exactly was the BB and how was it orientated when you found it?


HCA
Joe R
SchoolRunMum
QUOTE (hcandersen @ Mon, 23 Apr 2012 - 18:54) *
+1, I feel a plan coming together here.

Also, where exactly was the BB and how was it orientated when you found it?


HCA





Nice pic of the tax disc showing 0.00 payment and 'disabled' (although in slightly faded writing). But what about the above question, JoeR?
Joe R
QUOTE (SchoolRunMum @ Tue, 24 Apr 2012 - 20:47) *
QUOTE (hcandersen @ Mon, 23 Apr 2012 - 18:54) *
+1, I feel a plan coming together here.

Also, where exactly was the BB and how was it orientated when you found it?


HCA





Nice pic of the tax disc showing 0.00 payment and 'disabled' (although in slightly faded writing). But what about the above question, JoeR?

Have spoken to my Sister-in-Law and she informs me that the BB was in the footwell on the passenger side and the badge was showing face up.
SchoolRunMum
Face up meaning photo up - or the right way up?
Joe R
QUOTE (SchoolRunMum @ Wed, 25 Apr 2012 - 22:56) *
Face up meaning photo up - or the right way up?

The way my SIS spoke, she meant the right way up...
Enceladus
QUOTE (Joe R @ Wed, 25 Apr 2012 - 23:15) *
QUOTE (SchoolRunMum @ Wed, 25 Apr 2012 - 22:56) *
Face up meaning photo up - or the right way up?

The way my SIS spoke, she meant the right way up...

SRM is quite rightly trying to establish all of the detail to all of the facts. So do we correctly understand the the BB that had fallen into the passenger foot-well of the car and landed display side up and photo side down?

A matter of opinion I know, but would the BB have been visible to anyone who had a good look through the passenger window? Or indeed the driver's window?
hcandersen
It seems clear that you cannot argue correct display, but that's not your line. This is that the CEO was obligated to record all relevant information i.e. disabled vehicle, BB visible in the footwell, as this would enable the council to make an informed decision regarding the exercise of discretion on presentation of the BB.

If the CEO did not record these details, then they're at fault. In combination, I cannot imagine any adjudicator not finding in your favour because although an adj cannot exercise discretion which is the prerogative of the authority he can and IMO would find that there had been a procedural impropriety because so far there is no evidence that the council have considered your compelling reasons as set out in your challenge.

All you have to do is to set them up for the knock-out blow with the reps.

Going out now but the reps need to be worded with this aim in mind.


HCA
Joe R
Update...

I can now confirm that the BB was facing upwards with the details showing and it was in the passenger footwell. My SIL said the BB couldn't have been seen by a passer-by but would have been visible to someone having a look into the car.

This morning, I have been emailed the CEO notes (good luck reading what it says). I have also been emailed a TMO schedule and a TMO for where my SIL parked.

hcandersen
So they didn't note that the tax disc, whose details they're effectively obliged to record to demonstrate that they were in the vicinity and have not just made up a story (heaven forbid), identified the car as being owned by a disabled driver.

And what type of meters do the council use to identify a location, I wonder?

This only confirms what we thought and changes nothing.

HCA
Hippocrates
Sorry if I am wrong, but I believe it is recommended that Tax Disc details are noted, with an explanation if not, i.e. according to the Operational Guidance.

8.41 It is recommended that the PCN also gives:
vehicle make and colour (if evident);
detailed location of vehicle (full street name);
the contravention code;
observation start and finish times (where appropriate);
PCN number (all PCNs should be uniquely identifiable);
CEO’s identification number;
the vehicle’s tax disc number and expiry date (give reason if not recorded);
Joe R
I've been putting together a possible reply. I've been delayed due to not being sure how to flow my appeal, but I will post up my draft tomorrow.
Joe R
Here's my draft. No laughing laugh.gif

Any help/advice would be appreciated.

Thanks


Dear Sir/Madam,

With regard to PCN xxxxxxxx. There are a number of grounds for this PCN to be cancelled with immediate effect.

As mentioned in previous correspondence, I am very surprised that my mitigating circumstances were not taken into account. I fear that your office may have overlooked the enclosure of the disabled badge at the time and the fact that I did display my blue badge upon parking. Therefore I did comply with the regulations.

I believe the Equality Act provides for 'reasonable adjustments' to be made by Councils for disabled service-users and that provision of parking and consideration of appeals are services that clearly do fall within the scope of the Act. I feel disadvantaged by the stance taken by the Council and I still require you to explain in your reply why the Equality Act does not apply to your decision here.

I also find it necessary to bring to your attention the provisions of regulation 18(1)(a) of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996.

18. — (1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;

As a blue badge holder I am entitled to park in designated disabled badge holder's only parking bay. The necessity to display my blue badge is an effect of the traffic order and yet no signage was placed that indicated this effect. There is a clear distinction between holding a badge as conveyed by the traffic sign and the further need to actually display it. The Council has a clear statutory duty to ensure that a traffic sign that adequately conveys the effect of the order is placed on or near the road to assist motorists so that they can park in accordance with the traffic order but this duty was not fulfilled. It is unreasonable for the council to penalise a person for failing to park in accordance with the traffic order when there is no traffic sign indicating what is required of the motorist and it cannot be morally correct that I am penalised while the council financially benefit from their statutory failure.

Procedural Impropriety
Informal appeal The council have not considered my compelling reasons set out in my informal appeal.

Procedural Impropriety
CEO notes

Although your CEO notes record some of the details required, your CEO fails to make note of the following details:

CEO’s identification number.
The vehicle’s tax disc number and expiry date.

Your CEO is obligated to take notes of my tax disc to record and demonstrate that they were in the vicinity. Your CEO would have identified the car as being owned by a disabled driver, had they done so.


The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

Scope of Part 2 and duty to notify rights to make representations and to appeal

3.—(1) Regulations 4 to 7 have effect where a penalty charge which has become payable under the General Regulations has not been paid and either—

(a)a penalty charge notice has been served by a civil enforcement officer under regulation 9 of the General Regulations, and a notice to owner served by the enforcement authority under regulation 19 of those Regulations; or
(b)a penalty charge notice has been served under regulation 10 of the General Regulations.
(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a)that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b)that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;
(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.

Once again, in view of the above, I require you to consider and take the most sensible course of action and cancel this PCN forthwith, and with immediate effect, otherwise I shall not hesitate to pursue my challenge as far as PATAS, which would be the Council's responsibility, and claiming costs in view of the Council's pursuit of such a trivial matter.

Yours faithfully
SchoolRunMum
No I didn't laugh, there's lots of good info there.

I saw the relevance of the first part of the appeal - but the quoting of the regs seems to be unexplained? Are you saying that there are omissions in the PCN, if so then state exactly what is missing and highlight in bold the omissions.
Joe R
What a plonker I am! I didn't include Bogsys letter.

Here is my 'proper' draft. That has to be in by Friday. I'm not sure if I've rambled or doubled up?

Thanks SRM for your comments, I hope I've addressed them?


Dear Sir/Madam,

With regard to PCN xxxxxxxxx. There are a number of grounds for this PCN to be cancelled with immediate effect.

Enclosed is a copy of the blue badge that was correctly displayed when vacating the vehicle. It can clearly be seen that the badge was valid when the officer inspected my vehicle. Unfortunately, at some point during my absence from the vehicle, the badge somehow became dislodged from where it had been clearly displayed and fell into the foot well. I accept that your officer could not have known this and acted accordingly.

However, now that the badge has been presented for inspection it is clear that I did not park where I had no right to. The badge produced clearly shows that had your officer seen my badge at the time of inspection that there would have been no need to serve a penalty charge notice.

As mentioned in my informal appeal, I placed my disabled ticket on my dashboard in the normal way making sure it was clearly visible as I always do, but unfortunately, on this occasion, upon closing my car door, my badge slipped onto the floor without me realising until I returned to my car. My Blue Badge was visible in the footwell showing display side upwards.

Although my Blue Badge wasn’t displayed as the regulations indicate (but clearly on view), it doesn’t warrant the council taking a hard line and upholding the penalty charge. I believe that for the council to take such a stance would be contrary to the advice of the DfT and the Secretary of State.

Paragraph 85 from the Secretary of State’s Statutory Guidance to Local Authorities advises;

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest


This statutory guidance is given legal authority by section 87 of the Traffic Management Act 2004 whereby statute instructs that the council must have regard to this guidance. Any failure to have regard to this guidance is a procedural impropriety as defined by regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007;

4(5) 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

As a valid badge has been presented for inspection it is clear to any reasonable person that it would not be in the public interest to penalise a person who had a lawful right to park in the bay and did nothing to the detriment of the public interest. I cannot think of a more appropriate situation where paragraph 85 applies than this. I therefore politely request that the council act fairly and proportionately in this matter and exercise their discretion sensibly and reasonably by cancelling this penalty charge. It would be best for all if we can resolve this without the need to seek independent adjudication.

As also mentioned in my previous correspondence, I am surprised that my earlier mitigating circumstances were not taken into account. I fear that your office may have overlooked the enclosure of the disabled badge at the time and the fact that I did display my blue badge upon parking. Therefore I did comply with the regulations.

I believe the Equality Act provides for 'reasonable adjustments' to be made by Councils for disabled service-users and that provision of parking and consideration of appeals are services that clearly do fall within the scope of the Act. I feel disadvantaged by the stance taken by the Council and I still require you to explain in your reply why the Equality Act does not apply to your decision here.

I also find it necessary to bring to your attention the provisions of regulation 18(1)(a) of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996.

18. — (1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;

As a blue badge holder I am entitled to park in designated disabled badge holder's only parking bay. The necessity to display my blue badge is an effect of the traffic order and yet no signage was placed that indicated this effect. There is a clear distinction between holding a badge as conveyed by the traffic sign and the further need to actually display it. The Council has a clear statutory duty to ensure that a traffic sign that adequately conveys the effect of the order is placed on or near the road to assist motorists so that they can park in accordance with the traffic order but this duty was not fulfilled. It is unreasonable for the council to penalise a person for failing to park in accordance with the traffic order when there is no traffic sign indicating what is required of the motorist and it cannot be morally correct that I am penalised while the council financially benefit from their statutory failure.

Procedural Impropriety
Informal appeal

The council has not considered my compelling reasons set out in my informal appeal.

Procedural Impropriety
CEO notes

Although your CEO notes record some of the details required, your CEO fails to make note of the following details:

CEO’s identification number.
The vehicle’s tax disc number and expiry date.

Your CEO is obligated to take notes of my tax disc to record and demonstrate that they were in the vicinity. Your CEO would have identified the car as being owned by a disabled driver, had they done so.

The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007
Scope of Part 2 and duty to notify rights to make representations and to appeal

3.—(1) Regulations 4 to 7 have effect where a penalty charge which has become payable under the General Regulations has not been paid and either—

(a)a penalty charge notice has been served by a civil enforcement officer under regulation 9 of the General Regulations, and a notice to owner served by the enforcement authority under regulation 19 of those Regulations; or
(b)a penalty charge notice has been served under regulation 10 of the General Regulations.
(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a)that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b)that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;

(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.

Once again, in view of the above, I require you to consider and take the most sensible course of action and cancel this PCN forthwith, and with immediate effect, otherwise I shall not hesitate to pursue my challenge as far as PATAS, which would be the Council's responsibility, and claiming costs in view of the Council's pursuit of such a trivial matter.

Yours faithfully

hcandersen
Too late tonight, but will give a considered post tomorrow.

For the moment, don't send: it's overblown and incorrect - "if we receive a challenge.. we will consider it" is a direct quote from the PCN. So where this aspect of your reps comes from, I've no idea.

HCA

Joe R
QUOTE (hcandersen @ Tue, 15 May 2012 - 20:07) *
Too late tonight, but will give a considered post tomorrow.

For the moment, don't send: it's overblown and incorrect - "if we receive a challenge.. we will consider it" is a direct quote from the PCN. So where this aspect of your reps comes from, I've no idea.

HCA


Thanks, HCA.

I need to have this to Bromley Council by Friday...

I really sound cheeky reading this post back, but I do appreciate your help and advice.
SchoolRunMum
No you have until Mondayfor them to receive this, so wait a bit and see what others say first.

If the NTO was posted 1st class on the same date as the notice (a Friday) then the date of service is assumed to be the following Tuesday. So that's day one, and day 28 is next Monday 21st.
Joe R
QUOTE (SchoolRunMum @ Wed, 16 May 2012 - 21:55) *
No you have until Mondayfor them to receive this, so wait a bit and see what others say first.

If the NTO was posted 1st class on the same date as the notice (a Friday) then the date of service is assumed to be the following Tuesday. So that's day one, and day 28 is next Monday 21st.


Ah thanks!

I wasn't going to send anything until I got the green light wink.gif
Joe R
Sorry to have to bump this along, and I appreciate others need your expertise too, but I've only got a few days left to reply.
hcandersen
Can't follow your points I'm afraid.

You parked and did not display your permit. You are required to do this by virtue of the traffic order and this requirement was conveyed to the holder of the BB when it was issued and is a condition of use. IMO, a traffic sign for a disabled bay is not required to state "BB must be displayed" (similar to "permit holders" because display is a condition of use).

Surely your line is to refer to their letter and enclosed CEO's notes.

State that you can understand the council's position in this matter at that stage because the council could not be certain that the vehicle was parked by a person entitled to use the bay because post-PCN presentation of a BB does not address this issue. However, having read the CEO's notes, it is now clear to you that the council were not in possession of all the facts because the CEO's notes are deficient.

The tax disc that was displayed (copy enclosed) clearly states that it was issued under the tax class "Disabled" and therefore the CEO was put on notice that this was a vehicle that was entitled to park in the bay. A close inspection by the CEO would have confirmed this. Also, had the CEO carried out their checks more diligently they would have seen that a BB was visible in the footwell, with the correct side uppermost.

I accept that the BB was not displayed correctly, however, it was present in the vehicle and the vehicle was issued to a disabled person.

I would therefore ask you to consider again exercising your discretion in light of the full facts as opposed to the partial picture which is conveyed by the CEO's notes.

You would also draw to the council's attention the fact that the NTO does not comply fully with the applicable regulations in that >>>>>>>>> (please don't recite anything here that's not necessary. The regs require a NTO to state....................... but this information is not included within the NTO)



HCA
Joe R
QUOTE (hcandersen @ Fri, 18 May 2012 - 14:10) *
You would also draw to the council's attention the fact that the NTO does not comply fully with the applicable regulations in that >>>>>>>>> (please don't recite anything here that's not necessary. The regs require a NTO to state....................... but this information is not included within the NTO)



HCA


Are there problems with the NtO?

I'm hoping I've flowed my letter more accurately and have added some more info after a bit of research.

Should I leave out the Procedural Improprieties and save these for PATAS?

My draft....deep breath...

Dear Sir/Madam,



With regard to PCN xxxxxxxxxx. There are a number of grounds for this PCN to be cancelled with immediate effect.



I understand the council's position in rejecting my appeal because the council could not be certain that the vehicle was parked by a person entitled to use the bay because post-PCN presentation of a Blue Badge does not address this issue. However, having read the CEO's notes, it is now clear to me that the council were not in possession of all the facts because the CEO's notes are deficient.



The tax disc that was displayed (copy enclosed) clearly states that it was issued under the tax class "Disabled" and therefore the CEO was put on notice that this was a vehicle that was entitled to park in the bay. A close inspection by the CEO would have confirmed this. Also, had the CEO carried out their checks more diligently they would have seen that a Blue Badge was visible in the footwell, with the correct side uppermost.

I accept that the Blue Badge was not displayed correctly, however, it was present in the vehicle and the vehicle was issued to a disabled person.

I would therefore ask you to consider again exercising your discretion in light of the full facts as opposed to the partial picture which is conveyed by the CEO's notes.

I would like to draw to the council's attention regarding The Civil Enforcement of Parking Contraventions (England) General Regulations 2007

Scope of Part 2 and duty to notify rights to make representations and to appeal

3.—(1) Regulations 4 to 7 have effect where a penalty charge which has become payable under the General Regulations has not been paid and either—

(a)a penalty charge notice has been served by a civil enforcement officer under regulation 9 of the General Regulations, and a notice to owner served by the enforcement authority under regulation 19 of those Regulations; or
(b)a penalty charge notice has been served under regulation 10 of the General Regulations.
(2) A penalty charge notice served under regulation 9 of the General Regulations must, in addition to the matters required to be included in it under paragraph 1 of the Schedule to the General Regulations, include the following information—

(a)that a person on whom a notice to owner is served will be entitled to make representations to the enforcement authority against the penalty charge and may appeal to an adjudicator if those representations are rejected; and
(b)that, if representations against the penalty charge are received at such address as may be specified for the purpose before a notice to owner is served—
(i)those representations will be considered;

(ii)but that, if a notice to owner is served notwithstanding those representations, representations against the penalty charge must be made in the form and manner and at the time specified in the notice to owner.



I would also draw to the council's attention the fact that the
PCN is defective under the section headed - NOTICE TO OWNER

If this Penalty Charge Notice remains unchallenged and unpaid after the expiry of the 28 day period beginning with the date this notice was served, a Notice to Owner may be served...

The above wording mis-states the following regulation (j) which can be found within:

The Civil Enforcement of Parking Contraventions (England) General Regulations 2007



This clearly states:


SCHEDULE



PENALTY CHARGES NOTICES


Contents of a penalty charge notice served under regulation 9

1. A penalty charge notice served under regulation 9 must, in addition to the matters required to be included in it by regulation 3(2) of the Representations and Appeals Regulations, state—

(j)that if the penalty charge is not paid before the end of the period of 28 days referred to in subparagraph (g), a notice to owner may be served by the enforcement authority on the owner of the vehicle.



I have also enclosed a copy of the blue badge that was correctly displayed when vacating my vehicle. It can clearly be seen that the badge was valid when the officer inspected my vehicle. Now that the badge has been presented for inspection it is clear that I did not park where I had no right to.

Although my Blue Badge wasn’t displayed as the regulations indicate, it doesn’t warrant the council taking a hard line and upholding the penalty charge. I believe that for the council to take such a stance would be contrary to the advice of the DfT and the Secretary of State.

Paragraph 85 from the Secretary of State’s Statutory Guidance to Local Authorities advises;

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE process. It can do this even when an undoubted
contravention has occurred if the authority deems it to be appropriate in the
circumstances of the case. Under general principles of public law, authorities
have a duty to act fairly and proportionately and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest


This statutory guidance is given legal authority by section 87 of the Traffic Management Act 2004 whereby statute instructs that the council must have regard to this guidance. Any failure to have regard to this guidance is a procedural impropriety as defined by regulation 4(5) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007;

4(5) 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


As a valid badge has been presented for inspection it is clear to any reasonable person that it would not be in the public interest to penalise a person who had a lawful right to park in the bay and did nothing to the detriment of the public interest. I cannot think of a more appropriate situation where paragraph 85 applies than this. I therefore politely request that the council act fairly and proportionately in this matter and exercise their discretion sensibly and reasonably by cancelling this penalty charge. It would be best for all if we can resolve this without the need to seek independent adjudication.



As also mentioned in my previous correspondence, I am surprised that my earlier mitigating circumstances were not taken into account. I fear that your office may have overlooked the enclosure of the disabled badge at the time and the fact that I did display my blue badge upon parking. Therefore I did comply with the regulations.



I believe the Equality Act provides for 'reasonable adjustments' to be made by Councils for disabled service-users and that provision of parking and consideration of appeals are services that clearly do fall within the scope of the Act. I feel disadvantaged by the stance taken by the Council and I still require you to explain in your reply why the Equality Act does not apply to your decision here.



I also find it necessary to bring to your attention the provisions of regulation 18(1)(a) of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996.

18. — (1) Where an order relating to any road has been made, the order making authority shall take such steps as are necessary to secure—
(a)before the order comes into force, the placing on or near the road of such traffic signs in such positions as the order making authority may consider requisite for securing that adequate information as to the effect of the order is made available to persons using the road;

As a blue badge holder I am entitled to park in designated disabled badge holder's only parking bay. The necessity to display my blue badge is an effect of the traffic order and yet no signage was placed that indicated this effect. There is a clear distinction between holding a badge as conveyed by the traffic sign and the further need to actually display it. The Council has a clear statutory duty to ensure that a traffic sign that adequately conveys the effect of the order is placed on or near the road to assist motorists so that they can park in accordance with the traffic order but this duty was not fulfilled. It is unreasonable for the council to penalise a person for failing to park in accordance with the traffic order when there is no traffic sign indicating what is required of the motorist and it cannot be morally correct that I am penalised while the council financially benefit from their statutory failure.



Procedural Impropriety


Failure to consider my informal appeal

Bromley Council has not explained to me why they were unwilling to exercise their discretion in my favour due to the compelling circumstances.


Procedural Impropriety


CEO notes

Although your CEO notes record some of the details required, your CEO fails to make note of the following details:

CEO’s identification number.
The vehicle’s tax disc number and expiry date.

Your CEO is obligated to take notes of my tax disc to record and demonstrate that they were in the vicinity. Your CEO would have identified the car as being owned by a disabled driver, had they done so.

Once again, in view of the above, I require you to consider and take the most sensible course of action and cancel this PCN forthwith, and with immediate effect, otherwise I shall not hesitate to pursue my challenge as far as PATAS, which would be the Council's responsibility, and claiming costs in view of the Council's pursuit of such a trivial matter.
hcandersen
You've lost me, I'm afraid.

I thought you referred to the NTO in your draft, but it seems that it's the PCN; I therefore assumed that it was defective. But you go on in such detail that frankly the point you're trying to make is obscured. I cannot understand why you need to list the whole schedule, surely if the PCN's defective, then this is in a specific area and that's all you need to state.

HCA
Bogsy
QUOTE (hcandersen @ Fri, 18 May 2012 - 14:10) *
You parked and did not display your permit. You are required to do this by virtue of the traffic order and this requirement was conveyed to the holder of the BB when it was issued and is a condition of use. IMO, a traffic sign for a disabled bay is not required to state "BB must be displayed" (similar to "permit holders" because display is a condition of use).


I don't follow your logic on this HCA. The bay is a designated blue badge holder's only bay so it's not pursuant to the exemptions for disabled persons regulations 2000 which under regulation 6 makes specific reference to the need to display. A designated blue badge holder's only bay is created by order and therefore is subject to regulation 18 as the OP identifies. As such a traffic sign must be placed that adequately conveys the effect of the order. All the sign says is that the bay is for blue badge holders only there is no further conveyed requirement to display the badge. To draw a parallel. If a traffic sign adjacent to a Pay & Display bay simply said "pay" it would be unreasonable to penalise a person who paid but did not display even though it is a T&C of using the bay. It is reasonable to say the same about a residents permit holders only bay as that sign also fails to convey the effect of the order that requires the actual display of the permit. I got an adjudicator to agree on this once but they did not put it in writing as the appeal was allowed on another point. There is a clear difference between holding a disabled badge/permit and a further requirement to display it. So it is worth making this point in any appeal in my opinion. There is nothing to lose by doing so. Ultimately an adjudicator needs to decide on whether the signage adequately conveyed the "display" effect of the order. It's 50/50.
Joe R
Just when I thought it was coming together, I seem to be getting further away.

HCA, thanks for your comments, but as all the points/details are relevant (unless I'm told otherwise), I thought should include them. I've done so much research and copy/pasting, I may have lost my way. I'm torn with all the good advice (hence the length of my letter), maybe I should just use Bogsy's letter with a few additions?

What I don't use, can I take it with me to PATAS, if my appeal gets rejected.

Regarding the point I'm trying to make, I'll do an edit...
Enceladus
You (or rather your Sister in Law) need to get your formal representations against the Notice to Owner delivered to the Council on or before Monday. It is now too late to post so you will need to submit on-line.

http://www.bromley.gov.uk/info/471/street_...representations

I suggest that you try to keep this simple.

Your SiL is disabled and possessed a valid Blue Badge on the relevant date.
She parked her Motability supplied vehicle in a bay where she was fully entitled to park by virtue of the BB.
An honest, but unfortunate, mistake occurred and at some point the BB fell into the footwell.
However it was still the right way up.
There was no attempt to evade a parking charge.
The BB was being used by the BB holder.
The BB holder was entitled to park where she did.
So the contravention, to the extent that it occurred, is purely technical. Due to an accident, the BB was not displayed in as visible a manner as is desirable.
Now that the circumstances have been explained, it is not in the interests of justice for the Council to continue to enforce the penalty. This is not the sort of situation that the law was intended to deal with.
Terribly sorry.
No harm done.
I won't do it again.
First offence.
Etc.
Please use your discretion to cancel the PCN.

Since it was self-evident from the VED disc that the car belonged to a disabled person the Council's Civil Enforcement Officer also had an increased duty of care to properly examine the vehicle for the presence of the expected BB.

Had the vehicle been thoroughly examined the BB would have been spotted in the footwell. The failure to record the details of the VED disc suggests that the CEO was less than thorough in examining the vehicle.

And why has the Council failed to follow their own published policy concerning the use of discretion and Blue Badges? The policy here says:

QUOTE
If a Blue Badge is incorrectly displayed but we can establish that it is a valid badge, the PCN may be waived.
If a Blue Badge holder fails to display their Blue Badge correctly, the PCN will be cancelled on no more than one occasion in any rolling 12 month period.
If a clock has been (1) incorrectly set or (2) not displayed when required or (3) they have overstayed their allotted time, the PCN will be waived on not more than one occasion in any rolling 12 month period.




Ideally you want the Council to exercise discretion and cancel the PCN. The Adjudicator has no such discretion. The Adjudicator is bound by the application of the law and the facts insofar as they are known and the balance of probability failing that.

The admitted fact is that your SiL failed to properly display the BB.

So anything technical about the PCN or NTO save for the Adjudicator unless you can express it simply.
hcandersen
If you're happy with what you've got, go with it. I don't want to confuse you.

Timings are critical, so don't miss the deadline trying to create the perfect representations - they don't exist.

And as regards Bogsy's point - you might be right, but AIUI that's not the requirement of the TSRGD. I didn't write them and if you're correct they'll have to be re-written (or re re-written as I believe they're under review now).

HCA
Joe R
Thanks guys, its simple when you know how wink.gif

Encleadus, the simplifier was a great help

Once approved, I'll whack it over online.

Here goes...



Dear Sir/Madam,

With regard to PCN BY87542719. I am very surprised that my mitigating circumstances were not taken into account. In summary, I was in possession of a current Blue Badge, it was visible in the vehicle, I was allowed to park where I did and my car is registered as a Motability vehicle.

I fear that your office has overlooked the enclosure of my disabled badge and the fact that I did display my blue badge upon parking. Therefore I did comply with the regulations and there was no attempt to evade a parking charge.

I cannot be sure when my blue badge slipped off the dashboard but it was displayed, and as I’ve never had a PCN before, I expect that the Council should be more understanding and make a 'reasonable adjustment' on a first occasion for a disabled person. An honest, but unfortunate, mistake occurred and at some point my blue badge fell into the footwell. However it was still the right way up.

Having read the CEO's notes, it is now clear to me that the council were not in possession of all the facts because the CEO's notes are deficient. Your CEO is obligated to take notes of my tax disc to record and demonstrate that they were in the vicinity. Your CEO would have identified the car as being owned by a disabled driver, had they done so.

The tax disc that was displayed (copy attached) clearly states that it was issued under the tax class "Disabled" and therefore the CEO was put on notice that this was a vehicle that was entitled to park in the bay. I also believe that the CEO had an increased duty of care to properly examine the vehicle for the presence of the expected Blue Badge. A close inspection by the CEO would have confirmed this. Also, had the CEO carried out their checks more diligently they would have seen that a Blue Badge was visible in the footwell, with the correct side uppermost.
I would therefore ask you to consider again exercising your discretion in light of the full facts as opposed to the partial picture which is conveyed by the CEO's notes.

Now that the circumstances have been explained, it is not in the interests of justice for the Council to continue to enforce the penalty. This is not the sort of situation that the law was intended to deal with. I really do not see how Bromley Council could possibly consider taking this any further.

Should you decide not to cancel my PCN, I would like the Council to explain why you have failed to follow your own published policy concerning the use of discretion of Blue Badges.

If a Blue Badge is incorrectly displayed but we can establish that it is a valid badge, the PCN may be waived.

If a Blue Badge holder fails to display their Blue Badge correctly, the PCN will be cancelled on no more than one occasion in any rolling 12 month period.

Yours faithfully

Joe R
Quick update, as I'm about to leave for work.

My SIL received a NoR today which I'll scan and upload later this evening.

PATAS here I come...
Enceladus
QUOTE (Joe R @ Fri, 22 Jun 2012 - 16:55) *
Quick update, as I'm about to leave for work.

My SIL received a NoR today which I'll scan and upload later this evening.

PATAS here I come...

OK. I am disappointed. Let's have a look at all pages of the NOR. I am very curious how they can justify not applying their own published policy. Whatever about anything else.
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