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Onionsmum
Dear all – I’d value your opinion please.

I parked in Walker Street in Liverpool – council parking bays – on 7/12/2013. I displayed the blue badge that I have for my daughter (age 4 at the time) and went into the play place nearby with both her and my 3 year old son. When I came back I saw the PCN on the windscreen. It was a windy day and as I’d shut the doors of the car a small bit of paper had blown across the blue badge obscuring the expiry date. Blow me, what are the chances!

On 16/12/13 I wrote to them explaining what had happened and enclosed front and back copies of my daughters blue badge. I asked them to consider waiving the parking charge.

I had no response but have now received a letter dated 1/4/14 saying that they have rejected my informal representation and that I need to pay £25 within 2 weeks or it will go up to £50.

I’ll pay if I have to but it does seem rather heavy handed to me.
What do you think – do I have any grounds for appeal?

Many thanks in advance

Zara
DancingDad
If you could post the PCN your reps and the rejection letter, scrubbed of personal details, we will see.

Councils really should not pursue these sort of administrative errors once you prove that you had entitlement.
2cupsofcoffee
cross-posted with Dancing Dad
Incandescent
QUOTE (DancingDad @ Thu, 3 Apr 2014 - 21:22) *
If you could post the PCN your reps and the rejection letter, scrubbed of personal details, we will see.

Councils really should not pursue these sort of administrative errors once you prove that you had entitlement.

+1

This council is being really wicked in replying so late to your informal challenge. Whilst there is no statutory time limit for responding to informal challenges, it is a basic unfairness to respond so late after the event. Public bodies have to act fairly, proportionately, and in the public interest. Their late response is none of these.

If it were me, I'd stand my ground and wait for the NtO and appeal that. You can also put in grounds "the penalty exceeded the relevant amount in the circumstances of the case" to cover the very late response. OK, you will have to forego the discount, but I would consider this a clear-cut win at adjudication if you get that far. They are trying it on, basically.

However, as others have requested, please post up the PCN !
DancingDad
Tis a reasonable point on the late reply.
While there is no defined period for reply to informal challenges there is a period for formal challenges, 56 days.

This in effect defines what is reasonable and as said, they have taken twice as long. In that respect, it could be found, not within the regs but as a principle as common law that they have acted unreasonably... and I believe an adjudicator could find in your favour on that. Needs to be put in further reps anyway, if only to garner sympathy from an adjudicator should it go that far.

It does occur to me that if they take that long with replies, there is a deadline within the regs approaching. I wander if we can tempt them to overshoot it.
hcandersen
OP, please post the PCN, your challenge, their response and any pics, we are really getting ahead of ourselves without these basic facts.
Onionsmum
Thanks all for the replies. I've been rather naive (I now realise) and sent the PCN back to the council when I sent the copies of the Blue Badge and my note explaining the situation - see images. Here also is the letter of rejection of informal representations. Sorry, tried to do it this morning but didn't know what I was doing - and then spent half the day at the hospital for an appointment with my little one.
Thanks again
2cupsofcoffee
OP, from looking at the docs it's nothing to do with Blue Badge, it's not not paying and displaying. From the photos it looks like you were in the bays on Water Street just off the junction with Canada Blvd - is that right?

I'm puzzled by this one - Liverpool website http://liverpool.gov.uk/parking-travel-and...e-parking-bays/

Blue badge parking bays
Where can I park?
If you have a blue badge you can park in any on street Pay and Display bays and in most of the city's Pay and Display car parks free of charge, with no time limit. Badge holders must ensure that a valid blue badge is clearly on display in the windscreen, so the date of expiry and issuing council are clearly visible from outside the vehicle.

From their website though it seems that they play hardball even on Blue Badges, but wait for someone more knowledgeable to advise - I would have thought the fact that they don't even mention the Blue Badge in their reply is tantamount to "not properly considering".

orford
QUOTE (2cupsofcoffee @ Fri, 4 Apr 2014 - 16:37) *
OP, from looking at the docs it's nothing to do with Blue Badge, it's not not paying and displaying.
Because the BB was obscured, making it invalid and thus not displaying a ticket

I would have thought the fact that they don't even mention the Blue Badge in their reply is tantamount to "not properly considering".
They do, on page 2.
Neil B
QUOTE (2cupsofcoffee @ Fri, 4 Apr 2014 - 16:37) *
OP, from looking at the docs it's nothing to do with Blue Badge, it's not not paying and displaying.


No 2cups.
In the absence of a clearly displayed BB then whatever restrictions that are in place are what generate the contravention.
For instance, the same on a yellow line would have resulted in 'parked in a restricted street'.

It is an appalling response though and I think lots for people here to work with.
failure to consider - I agree but needs some discussion as to how to best demonstrate that.

The statement that the BB was "invalid" is entirely inaccurate for a start. The issue was that it was not properly displayed - so the reason in rejection, whilst recognising what happened, is wrong.

Yeah - they are nasty b******s. I have history with them over a BB case.
Hippocrates
Tis a 3(2)(b)(1) issue. What is a "re-course"?

http://www.legislation.gov.uk/uksi/2007/34...gulation/3/made

They will not respond again before NTO. So, test them.

Letter: they appear to give only "careful consideration" to an informal whereas "full and careful consideration" to reps. against a NTO.
2cupsofcoffee
Oops, sorry folks, my bad. I didn't realise that was how it worked and amidst the acres of rejection referring to pay and display I completely missed the miniscule reference to the badge.

Following cases may be of help further down the line in terms of failure to consider, as well as recent East Cheshire case:

TPT Case SQ05085G
Directions upon Application for Review of Adjudicator’s Decision

Glenys Geddes and Stockton-On-Tees Borough Council

Penalty Charge Notice SQ02075672
By a postal decision dated 17 November 2009 the Adjudicator James Richardson allowed the appeal on the ground that there was procedural impropriety on the part of the Council.
The Council makes application to review and revoke, or vary that decision.
This Application for review is rejected.
Reasons
The Council seeks a review of the Adjudicator’s decision on the basis that the decision document includes a number of factual errors and that the Adjudicator was wrong to conclude that there had been a procedural impropriety on the part of the Council sufficient for the appeal to be allowed.
Miss Geddes conducted the appeal on behalf of her elderly father and had made detailed submissions about the circumstances leading up to and following the issue of the PCN.
In summary Miss Geddes explained that her elderly father was driving the car and that he was unfamiliar with the operation of the disc parking system. He says that having spoken to a Civil Enforcement Officer he obtained the parking disc but set it to the time of departure rather than the time of arrival.
This was clearly a simple error and as there is no reason to doubt that Mr Geddes had the conversation with the CEO the time when he first parked the vehicle would be known.
Miss Geddes also made the point that after the PCN had been issued to the vehicle her father spoke with the CEO. It may be that there is some confusion about the terms of that conversation but it is submitted that Miss Geddes’ father was left with the impression that if he wrote in to explain the circumstances he would not have to pay the penalty charge. The CEO’s note records the conversation but says only that the driver was advised to write in or appeal.
The Adjudicator’s decision does include a number of factual or typographical errors. These include the fact that the PCN was issued by post and there is reference to the premature issue of the PCN rather than the Notice to Owner.
Whilst I accept the Council is correct about those points the actual reason for the decision to allow the appeal is that there was no evidence before the Adjudicator that the Council had properly considered either the informal or formal representations made by Miss Geddes.
The Council is under an obligation to consider representations made following the issue of the PCN and then following the issue of the Notice to Owner. Chapter 11 of the Guidance issued by the Department for Transport in March 2008 entitled “Parking Policy and Enforcement” emphasises the importance of the Council considering representations properly and in accordance with the general principles of public law. It is recommended that the exercise of discretion should be based on the particular facts of the case and that there should be a flexible approach to any policy that the Council may have adopted.
In the application for the review the Council says that it does properly consider all representations and that it did so in this case.
However the Adjudicator made the decision on the basis of the evidence that he had before him.
The Council’s approach to the exercise of discretion is referred to in the submissions made for the purposes of the appeal.

The starting point is that where a parking disc has been incorrectly set it is at least possible that the driver is attempting to gain extra time by setting the clock ahead of the actual arrival time. The Council says that it poses the question:
“Is a genuine mistake before us or have we found the motorist seeking an overlong stay by foul means? We do not know. So the aim is to be consistent, predictable and with the same outcome for all. This does not have to be to our liking. Parking enforcement by civil means is to often a reason to do away with honesty and integrity by motorists and a reason for battle to commence. We could set the rule at ‘let them all off if they speak out’ or at ‘contravention equals a PCN to defend by the Local Authority’. The middle ground is regrettably not there that along with the need to ever speak under oath.”

In my view this is an extraordinary approach to the exercise of discretion particularly in the light of the guidance given in Chapter 11.
Of course the Council does not “know” the truth of the motorist’s representations but the fact is that the system established by the relevant regulations is designed to be relatively simple and proportionate to the amount of the penalty charge in issue.
Clearly the middle ground does exist because the Council is expected to evaluate the evidence that it has and to consider each case on its own facts.
In this case there was no obvious reason to doubt Miss Geddes’ submissions but if the Council had considered otherwise it would reasonably be expected to explain the decision making process and why the decision had been made to enforce the penalty charge.
In fact the two Notices of Rejection gave no further explanation beyond that the contravention had occurred.
The letter of 29 June 2009 states:
“I have given consideration to your challenge including all the circumstances relating to the issue of the Penalty Charge Notice.

The Penalty Charge Notice was issued at 13:22 as no valid disc was on display … This is a contravention of the regulations and I am unable to cancel the penalty charge.”

The formal Notice of Rejection goes a little further because it deals with the question of whether the CEO had assured Miss Geddes’ father that the penalty charge would be cancelled.
The Notice goes on:
“… the Council are not making a judgment as to whether a genuine mistake was in place or an action to obtain some extra parking time was underway. The position is that we just do not know. It would be of considerable benefit if we could take everyone on face value but unfortunately that is not the way of it. We are left to examine the facts of the case to see if a parking regulation and its requirements have been met and to take it from there. We have the task of enforcing regulations and need to have in place the means of being consistent to all.”

Of course the Council are expected to evaluate the evidence and to decide whether on the facts of the case as known to them Mr Geddes had made an error.
The exercise of discretion must go beyond the fact that the contravention occurred because otherwise there would be no need to consider the discretion at all.
The factors that the Council might be expected to take into account would be that the driver was probably a stranger to the area. Disc parking is not used in every town. That the driver was elderly and that there was clearly some confusion as evidenced by the conversation with the CEO. These factors taken together might reasonably lead the Council to conclude that this was a case of an error rather than a deliberate attempt to obtain additional parking time.
A further illustration of the Council’s approach to discretion can be seen in the email from Mr Gibb sent on 07 August 2009. This referred to a telephone call with Miss Geddes and states:

“A contravention of parking regulations occurred. A Penalty Charge Notice was issued. We declined a challenge submitted to the issue of the Notice. That we uphold Council parking policy should not be counted as a complaint against the parking service. Put simply she wanted to be let off the fine and after due consideration we don’t let her off. Please take this one out of the complaints box and into the comments box.”
In my view Miss Geddes was not asking to be “let off”. She was presenting a reasoned argument as to why it was unnecessary on the particular facts of the case for the penalty charge to be cancelled.

Whilst I understand the difficulties that all Councils have in striking a balance when considering representations it cannot be sufficient for the decision to be made on the basis that “the contravention occurred” or that any driver is simply seeking to gain an advantage and to be “let off”.
This approach is contrary to the principles set out in Chapter 11 of the Guidance.
The concept of procedural impropriety was introduced by the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2008. It is one of the challenges which can be made following the issue of a PCN and therefore one of the reasons why the Adjudicator can allow an appeal. A procedural impropriety is defined in Regulation 4(5) as a failure by the Council to carry out any of the obligations imposed by the Regulations for the enforcement of a penalty charge which can in my view include the requirement to properly consider the representations made by the vehicle owner.

It is not sufficient for the Council simply to state that it has given proper consideration to the representations. It must demonstrate that it has done so and of course the submissions made by the Council in its request for a review were not before the Adjudicator.
It is not my task to consider the merits of the case again but only to decide whether there are grounds for review because the Adjudicator has made an error of law or the decision is so unreasonable on the facts that it amounts to an error.
Setting aside the question of the factual errors in the decision I conclude that the Adjudicator was quite entitled to find that there had been a procedural impropriety on the part of the Council because the evidence demonstrated that there had been no proper and fair consideration of the representations made by Miss Geddes.
I therefore conclude that there is no reason to interfere with the decision and the application for review is rejected.

Stephen Knapp
Adjudicator 6 December 2009


TPT Case TB 05657J
Adjudicator’s Decision
Lorraine Mitchell and Torbay Council
Penalty Charge Notice TB01065844 £70.00

Appeal allowed on the ground that there was procedural impropriety on the part of the council.

I direct the Council to cancel the Penalty Charge Notice and Notice to Owner.

Reasons
Mrs Mitchell attended the hearing of her appeal in Torquay on 2 November 2009. Unfortunately the council was not represented.
The Penalty Charge Notice (PCN) was issued on 14 August 2009 at 15:31 to vehicle WA02 JUC in Union Street for being parked in a designated disabled person's parking place without clearly displaying a valid disabled person's badge.
In fact Mrs Mitchell’s vehicle did have a Blue Badge displayed but it was out of date. It is Mrs Mitchell’s son, ‘J’, who is entitled to a Blue Badge. He is twelve but suffers from relatively severe disabilities. He likes to put his own Badge and clock on display, but without Mrs Mitchell realising it, ‘J’ had taken against the photograph of himself on his current badge, and decided he preferred the picture on the out-of-date badge. So ‘J’ took it into his head to use the badge he preferred.
On 14 August Mrs Mitchell was taking all three of their children to buy new PE kit for school. She was therefore sufficiently preoccupied with mustering them all for what was bound to be a stressful experience that she did not notice that ‘J’ had displayed his preferred (out-of-date) badge.
On finding the PCN Mrs Mitchell went straight to the town hall (21 minutes after the PCN was issued) and showed them the current badge as well as the expired one, and apologised. She also filled in an informal representations form explaining what had happened and why. She produced both badges and the images are date-stamped ‘14 August’, the day the PCN was issued.
This cut no ice with the officials in the parking department at Torbay, The rejection letter simply expressed the obvious and undisputed fact that the CEO noted an expired badge in the car. The letter goes on to say, “we have noted your comments however a correct badge must be displayed for this dispensation to be valid”.
This again is stating the obvious and clearly demonstrates that S. Hore, who apparently wrote the letter, could not have considered Mrs Mitchell’s representations, since they are far from “comments” (providing a detailed explanation as to why the wrong badge was displayed).and did not seek to suggest that the badge was valid.
Therefore the only ‘reason’ that can be gleaned from the letter is that since a current badge was not displayed S. Hore was not prepared to consider any further request, however justified, to waive the penalty.
In fact Mrs Mitchell did not receive this letter since it was sent to Number 89, whereas she lives at ‘84’. The council is not to be criticised for this since Mrs Mitchell’s writing could be interpreted as ‘89’ (although this did not excuse the mean-spirited remarks –see below).
The Council then sent Mrs Mitchell a Notice to Owner (NtO) to her address, No 84. She carefully filled in the form explaining clearly what had happened and about ‘J’’s preference for his old Badge. She also complained that she had not had a reply to her informal representations.
Looking at the copies of both Blue Badges I would have thought that any reasonable council officer seeing Mrs Mitchell’s explanation, and especially that ‘J’ has a current Blue Badge to enable his mother to cope with his needs, would recognise the special circumstances and immediately judge this to be a suitable case to accept the reasons as compelling.

The duties placed on an enforcement authority when dealing with representations against the imposition of a penalty charge are contained in The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
Regulation 3(2)(b) requires information to be printed on a PCN to the effect:
“(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;”
With regard to Mrs Mitchell’s informal representations made on the day the PCN was issued, in my view the letter sent to Mrs Mitchell at Number 89 clearly demonstrates that Torbay Council did not consider them. It conveyed the inflexible position that because a technical contravention had occurred they would not consider the matter further.
With regard to Mrs Mitchell’s representations against he Notice to Owner (NtO) Regulation 4(2)(b)(ii) makes it clear that the recipient of a NtO may make representations,
“(ii) that, whether or not any of (the statutory) grounds apply, there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should cancel the penalty charge and refund any sum paid to it on account of the penalty charge.”

Mrs Mitchell made representations in accordance with Regulation 4(2)(b)(ii).
Regulation 5(2)(a) requires the enforcement authority to consider any representation made in accordance with Regulation 4(2).
The enforcement authority’s Notice of Rejection states unequivocally that the position taken by S. Hore in the response to Mrs Mitchell’s informal representations stands without further reconsideration. Therefore the NOR is addressing a representation that the alleged parking contravention did not occur, notwithstanding that Mrs Mitchell did not make that representation. No reference is made to the compelling circumstances set out by Mrs Mitchell in accordance with Regulation 4(2)(b) and there is no reason as to why they were rejected. This is all the more worrying since the NoR does expressly blamed Mrs Mitchell for the fact she did not receive the previous letter.
Regulation 4(5) defines “procedural impropriety”:
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—
(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;

I have no hesitation in finding Torbay Council entirely failed to consider the representation made under Regulation 4(2)(b)(ii). This followed and aggravated the Council’s failure to consider the informal representation in accordance with Regulation 3(2)(b)(i).
Those failures constitute two incidences of procedural impropriety and on that ground I am allowing Mrs Mitchell’s appeal.
Caroline Sheppard
Chief Adjudicator 7 November 2009

qafqa
QUOTE
council parking bays – on 7/12/2013. I displayed the blue badge that I have for my daughter (age 4 at the time) and went into the play place nearby with both her and my 3 year old son.

Please describe this event in more detail, was the purpose of visiting the play place
to drop off your daughter and/or son followed by a prompt return to the vehicle,
in which case assisted alighting and boarding is a consideration.
DancingDad
At the moment I'm not even sure we have a failure to consider...so I reckon we need to change that.

First Liverpool TRO I looked at states in exemptions. Not certain it's the right TRO but I suspect the same wording will be on all.

QUOTE
(h) the vehicle which, for a period not exceeding three hours, being a disabled person’s which displays a valid disabled person’s badge and parking disc/clock and that same vehicle is to be used by a disabled person whose badge and parking disc/clock is correctly on display in accordance with the Department for Transport’s guidebook, “The Blue Badge Scheme: Rights And Responsibilities In England”.


I've highlighted the relevant bits in bold. Note they do not specify which DFT guidebook

Now according to DFT guidebook at https://www.gov.uk/government/uploads/syste...nsibilities.pdf

QUOTE
How to display
the badge
When using the parking concessions you
must display the badge on the dashboard
or facia panel, where it can be clearly read
through the front windscreen. If there is no
dashboard or facia panel in your vehicle,
you must still display the badge in a place
where it can be clearly read from outside the
vehicle. The front of the badge should face
upwards, showing the wheelchair symbol.
The side showing the photograph should
not be visible through the windscreen.
You must also ensure that the details on
the front of the badge remain legible. If they
become unreadable through fading or wear
and tear, you must return the badge to your
local authority so they can issue you with a
new one. Displaying a badge that is illegible
may result in a parking fine.
Blind people need to ensure that people
displaying the badge or clock on their behalf
understand how to display them correctly.
Incorrect display of the badge may result
in a parking fine.


So, Q & A's

From TRO
Was the duration longer then three hours? No
Was the Badge Valid ? Yes and proven through the informal reps which included copy.
Was the display according to the guidelines from the DFT booklet? Lets explore :-))

Was the badge displayed on the dashboard or facia so it could be read ? Yes, at the time of placement.
Was it face upwards ? Yes
Was it worn or illegible? No

Final Question.
Does either the TRO or the BB guidelines require continuous display? No

TRaffic Penalty Tribunial example cases deal with this issue.
QUOTE
Failure to display and a badly worded bylaw (BW05003F)
The appellant purchased a pay-and-display ticket and displayed it on the windscreen at the time they left the vehicle but, for reasons unknown, it subsequently fell of into the footwell. A Parking Attendant issued a PCN for failing to display a valid ticket, which the appellant appealed against on the ground that they had in fact displayed a valid ticket at the time they parked the vehicle. The Adjudicator found that the wording of the relevant bylaw was ambiguous as to whether the obligation to display a ticket applied only at the time the vehicle was parked or continued throughout its stay in the car park. She said that the correct approach where such an ambiguity existed was to construe the words in question in favour of the person who would otherwise be penalised. Thus, no contravention had occurred. (The Adjudicator pointed out that it was perfectly possible to draft a TRO in such a way that the continuing nature of the obligation to display a ticket was clear and unambiguous and that many councils had done so.)
The appeal was allowed.
Onionsmum
Thanks everyone.
Neil B - It's good to know that Liverpool are nasty - I know what I'm up against at least!
2cups - that's really interesting to read what the adjudicator said in both those cases and I can see what you and others mean by failure to consider.
Hippocrates - forgive my ignorance, but when you mentioned about the timeframe, I'm confused what happens next. Do they wait for the two week discount period to end on the 19th of April before sending me an NTO? Is there a guideline for the total time this all takes that they are likely to cross over due to the delays already?
Thanks again for your time.
hcandersen
Getting a bit over complicated IMO.
OP claimed exemption from the requirement to display a P & D ticket by virtue of displaying a BB. They also added that this was partly obscured but by implication part of it would have been visible to a CEO. It therefore follows that the response of the authority is nonsense as it only rehearses a matter NOT in dispute i.e. the non-display of a P&D, while ignoring totally the issue of the BB, a copy of which was provided to the authority. Non-consideration hardly describes it.
OP, IMO you should continue to dispute.
Hippocrates
QUOTE (Onionsmum @ Fri, 4 Apr 2014 - 20:38) *
Thanks everyone.
Neil B - It's good to know that Liverpool are nasty - I know what I'm up against at least!
2cups - that's really interesting to read what the adjudicator said in both those cases and I can see what you and others mean by failure to consider.
Hippocrates - forgive my ignorance, but when you mentioned about the timeframe, I'm confused what happens next. Do they wait for the two week discount period to end on the 19th of April before sending me an NTO? Is there a guideline for the total time this all takes that they are likely to cross over due to the delays already?
Thanks again for your time.


Process - same as in London: http://www.patas.gov.uk/tmaadjudicators/tm...enforcement.htm
2cupsofcoffee
from their Appeals Process document at http://liverpool.gov.uk/media/104694/parki...-v1320dec13.pdf

BAD motorists for "increasing the cost to the public purse"........... Would this in itself count as fettering their discretion?

Blue Badge
As with Pay & Display, it is important to appreciate that this involves two elements, with
related purposes. The first element is that there must be a valid blue badge being used
properly, in order to ensure the underlying purpose of the adopted scheme. The second is
that the badge must be properly displayed in order to facilitate proper management and
enforcement of the system of control.
Valid use
 Use by someone other than holder
In relation to a valid blue badge being used properly, there are clear
rules, such as it being improper for someone else to use the blue
badge to go to collect shopping, prescriptions etc for the holder of the
badge who remains at home, even if it is another family member.
Without further mitigating circumstances, the Council is unlikely to
cancel a PCN for use by another person in these circumstances.
 Badge being invalid/out of date
It is essential to the operation of the blue badge system that the
badge is properly issued and valid. Use of invalid badges will not
normally be condoned by the Council. However, it will accept some
mitigating circumstances such as when the appellant was given
wrong advice by the Council’s one-stop shop to continue using an old
badge.
Display
 Failure to display at all
An appellant may claim that a valid blue badge had been issued but it
was simply not displayed, and in support provide a copy of a valid
blue badge. While the Council can understand that it may appear to
such appellants that the primary purpose of the scheme has been
met by their having a valid badge, the Council takes the view that it
must be displayed since otherwise the cost of enforcement to the
public purse increases significantly. Without a further explanation for
why it was not displayed the Council will not normally cancel a PCN.
 Badge wrong way up
An appellant may claim that a valid blue badge had been issued but it
was simply displayed incorrectly, and in support provide a copy of a
valid blue badge. While the Council can understand that it may
appear to such appellants that the primary purpose of the scheme
has been met by their having a valid badge, the Council takes the- 13 -
view that it must be displayed correctly since otherwise the cost of
enforcement to the public purse increases significantly. The Council is
also aware that without the old style badge being displayed correctly
it is impossible to check whether the one displayed incorrectly was in
fact the valid badge submitted with the appeal. The Council is also
aware of the widespread misuse of the blue badge system and it
seeks to enforce this stringently to protect those for whom the
scheme was created. Without a further explanation for why it was not
displayed properly the Council will not normally cancel a PCN.
However, with the introduction of a new style Blue Badge (as from
1/1/12) the expiry date is displayed on each side of the badge and so
whilst a badge could technically be displayed the ‘wrong way up’ its
validity can still be checked regardless and so a PCN would not
normally be issued, provided the expiry date can be seen.
 Forgetfulness/old age
A common ground of appeal is that the badge was not displayed
because the holder is of old age and/or has become forgetful. The
Council takes the view that if a person retains the faculties sufficient
to still have a driving licence and be driving, then (s)he can be
expected to be able to display a badge properly. This in itself will not
usually be accepted as a reason to cancel the notice, but if there is
additional evidence such as medical evidence, eg to show why
medication may have affected memory, then the Council may cancel
the PCN.
DancingDad
QUOTE (Onionsmum @ Fri, 4 Apr 2014 - 20:38) *
Thanks everyone.
Neil B - It's good to know that Liverpool are nasty - I know what I'm up against at least!
2cups - that's really interesting to read what the adjudicator said in both those cases and I can see what you and others mean by failure to consider.
Hippocrates - forgive my ignorance, but when you mentioned about the timeframe, I'm confused what happens next. Do they wait for the two week discount period to end on the 19th of April before sending me an NTO? Is there a guideline for the total time this all takes that they are likely to cross over due to the delays already?Thanks again for your time.



Yup. And it's a regulation not a simple guidleline.
They have to issue a Notice to Owner within 6 months of the PCN date else like Cinderalla at midnight, the whole enforcement process turns into a pumpkin.

And yes to others suggestions that we need to send in new reps, if only to tempt them into ignoring or failing to meet the deadline while they think on them...still can't believe 4 months for a cut and paste job. But although it only covered the BB in one line, they did cover it, therefore considered. Although not in any depth. Coverage of the failure to P&D, it is the contravention so has relevance.

What do poeple think of:-

Dear Sirs
Rf PCN ???? Vehicle Reg ?????
Your letter dated ?????

Your rejection letter spent a great deal of time explaining the Pay and Display system while almost totally disregarding the fact that I did not need to use it.
I was displaying a valid Blue Badge, displayed in accordance with Department of Transport Guidelines, for a legitimate purpose as the journey and parking was for the benifit of the badge holder, my daughter.
My initial informal representations included a copy of the badge to show it's validity and I hoped that by explaining the circumstances and proving that it was a valid badge, you would exercise your discretion and cancel the PCN. On compassionate grounds if nothing else.

As it seems I was mistaken, I must therefore challenge the PCN on more solid grounds.
I parked and displayed a valid and lawfully used Blue Badge. You state your CEO noted the badge on display so there is common ground. I assume that they recorded the information on the badge and that you have confirmed that the copy, which I sent previously, matched that information.
With that confirmation we can agree that the badge was valid at the time of the alleged contravention.

With that established I request that you apply the exemption that is lawfully required for BB holders and cancel the PCN.
If you choose not to do so I require a full explanation with detailed reference to the relevant Traffic Regulation Order and how I have failed to meet the exemption within that order.

Yours
Hugs and Kisses
Hippocrates
QUOTE (DancingDad @ Fri, 4 Apr 2014 - 22:22) *
QUOTE (Onionsmum @ Fri, 4 Apr 2014 - 20:38) *
Thanks everyone.
Neil B - It's good to know that Liverpool are nasty - I know what I'm up against at least!
2cups - that's really interesting to read what the adjudicator said in both those cases and I can see what you and others mean by failure to consider.
Hippocrates - forgive my ignorance, but when you mentioned about the timeframe, I'm confused what happens next. Do they wait for the two week discount period to end on the 19th of April before sending me an NTO? Is there a guideline for the total time this all takes that they are likely to cross over due to the delays already?Thanks again for your time.



Yup. And it's a regulation not a simple guidleline.
They have to issue a Notice to Owner within 6 months of the PCN date else like Cinderalla at midnight, the whole enforcement process turns into a pumpkin.

And yes to others suggestions that we need to send in new reps, if only to tempt them into ignoring or failing to meet the deadline while they think on them...still can't believe 4 months for a cut and paste job. But although it only covered the BB in one line, they did cover it, therefore considered. Although not in any depth. Coverage of the failure to P&D, it is the contravention so has relevance.

What do poeple think of:-

Dear Sirs
Rf PCN ???? Vehicle Reg ?????
Your letter dated ?????

Your rejection letter spent a great deal of time explaining the Pay and Display system while almost totally disregarding the fact that I did not need to use it.
I was displaying a valid Blue Badge, displayed in accordance with Department of Transport Guidelines, for a legitimate purpose as the journey and parking was for the benifit of the badge holder, my daughter.
My initial informal representations included a copy of the badge to show it's validity and I hoped that by explaining the circumstances and proving that it was a valid badge, you would exercise your discretion and cancel the PCN. On compassionate grounds if nothing else.

As it seems I was mistaken, I must therefore challenge the PCN on more solid grounds.
I parked and displayed a valid and lawfully used Blue Badge. You state your CEO noted the badge on display so there is common ground. I assume that they recorded the information on the badge and that you have confirmed that the copy, which I sent previously, matched that information.
With that confirmation we can agree that the badge was valid at the time of the alleged contravention.

With that established I request that you apply the exemption that is lawfully required for BB holders and cancel the PCN.
If you choose not to do so I require a full explanation with detailed reference to the relevant Traffic Regulation Order and how I have failed to meet the exemption within that order.

Yours
Hugs and Kisses


Bew tee ful. I would, at the risk of incurring criticisms of over-complicating matters, add the issue re 3(2)(b)(i) i.e. the number of representations and cite the passage from the letter of rejection.

Also, ask them for the PCN back as you sent it in error.
DancingDad
QUOTE (Hippocrates @ Fri, 4 Apr 2014 - 22:28) *
Bew tee ful. I would, at the risk of incurring criticisms of over-complicating matters, add the issue re 3(2)(b)(i) i.e. the number of representations and cite the passage from the letter of rejection.
Also, ask them for the PCN back as you sent it in error.


Nah...tis overcomplicating.
I'm trying to establish in the mind of a future adjudicator the failure to consider...which IMO at the moment is weak.
And to tempt them into ignoring or glossing over the challenge...which I have already shown is very valid. Either course would firmly establish the failure to consider and give ample reason to fully explore each and every point of failure if an NTO turns up.
At the moment I'd rather avoid anything that looks like scattergun.

However, adding a PS, can I have the original PCN back please is okay :-))
Hippocrates
QUOTE (DancingDad @ Fri, 4 Apr 2014 - 23:11) *
QUOTE (Hippocrates @ Fri, 4 Apr 2014 - 22:28) *
Bew tee ful. I would, at the risk of incurring criticisms of over-complicating matters, add the issue re 3(2)(b)(i) i.e. the number of representations and cite the passage from the letter of rejection.
Also, ask them for the PCN back as you sent it in error.


Nah...tis overcomplicating.
I'm trying to establish in the mind of a future adjudicator the failure to consider...which IMO at the moment is weak.
And to tempt them into ignoring or glossing over the challenge...which I have already shown is very valid. Either course would firmly establish the failure to consider and give ample reason to fully explore each and every point of failure if an NTO turns up.
At the moment I'd rather avoid anything that looks like scattergun.

However, adding a PS, can I have the original PCN back please is okay :-))

The known unknown as expected. biggrin.gif
Onionsmum
Wow, you guys are awesome!! I didn't see all the responses when I posted last night so sorry for not acknowledging everyone. It's been fascinating reading all the docs and the legal cases, and your discussion on the best way forward. What the heck is going on out there!!! Just so I'm clear, dancing dad, should I send that letter now before the NTO comes through? Thanks all for the education and advice
Zara
DancingDad
That's it Onions.... cut paste add the PCN number and your address and email it
Their email address is on the bottom of the rejection letter.

Post any reply here pls
Onionsmum
Thanks dancing dad, I will really enjoy sending your letter!! I'll keep you posted. Thanks again all
Onionsmum
Hi all
I sent in the letter as advised. Had a confirmation email back which stated that they had recieved my formal representation letter and that my case would be put on hold while they investigate, and that I would recieve a response in writing usually within 3 months (that was on 8/4/14)
Timelines:
07/12/2013 PCN served
16/12/13 I sent copies of my daughters blue badge to them with covering note explaining that a small piece of paper had flown across the car and landed on the blue badge without my knowledge.
01/04/14 they rejected my informal representation
08/04/14 I sent letter as advised by you guys

I've still not heard anything! Should I ring them to find out what is going on or just keep waiting!
Thanks
Zara
hcandersen
Look on their website and see what the current outstanding penalty is.
DancingDad
Onionsmum

Absolute from regulations is that they have 6 months starting with date of service of the PCN to serve a Notice to Owner. Time has long gone so unless they have sent one and it's gone astray, all is well, they cannot enforce.

But as HCA says, a check on their website or even a phone call may calm nerves a little.
I doubt you will hear anything more on this one but if anything does appear, no panic, just come straight back to us and we will help sort it.
Mad Mick V
The issue is undue delay causing unfairness.

Via Mr Mustard:-

There has been a great deal of unexplained delay in this case. The Notice to Owner was issued on 24th August 2011. However the Charge Certificate was only issued on 22nd March 2013. The Council has not given any explanation for the level of delay before issuing the Charge Certificate and obtaining registration of the debt at Court. In my judgement there is a compromise of Article 6 of the Human Rights Convention here. It is a problem for the Adjudicator to give a fair hearing in the case if the delay has potentially affected the recollection of events by either the Appellant or the parking attendant. Also, for this enforcement to be lawful the Council has a duty to exercise its powers with reasonable expedition and fairness. I note the case of R-v- Secretary of State for Home Department ex p. Doody (1994) (House of Lords) per Lord Mustill : "Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances" . I have also considered Davis-v- Royal Borough of Kensington and Chelsea ( PAS 1970198981) where it was considered that a delay of more than 2/3 months in responding to an appellant's representations was prima facie evidence of unfairness in the absence of explanation . I am not satisfied that the local authority has conducted the timetable of this enforcement with reasonable expedition and that, as a result, there is an unfairness. For both of these reasons I find that the appropriate Direction here is that the Penalty Charge Notice must now be cancelled

Mick
DancingDad
MMV
Valid but no NTO in 6 months and it isn't fairness it is barred, specifically by regs
Onionsmum
biggrin.gif biggrin.gif biggrin.gif I just rang them and essentially it looks like it got lost in the system (or maybe ignored) and they have just confirmed that due to the time passed it will be cancelled and I will get a confirmation email.
It might have been the case that as my initial note with the copy of the BB was taken as an informal representation, and then I sent a more formal 'informal representation' via the website, that it just messed up their system.
Either way it's cancelled, yipee!!!

Thanks again for all you work on this, it was a real eye opener.
Best wishes
Zara
DancingDad
That'll do it lass.
Nice to get confirmation.

And yes, I suspect the second informal messed with their system.
Their system being that they get a challenge and reject with little consideration but struggle to deal with a solid challenge directly calling them on what they should be considering.

Well done, come and see us again if the need arises.
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