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Hippocrates
This concerns a live case in which the EA served their pack on the appellant not the representative against the PATAS Guidance and the Regulations.

I am grateful to Mr Mustard for providing me with the case cited below to be used in support.

My question is: surely it is unlawful for an adjudicator to direct an appellant to serve the council's evidence upon his own representative particularly as the correct details were entered on the Notice of Appeal form?

http://i31.tinypic.com/35crj2r.jpg

Guidance:

6.6 The EA must note from the NOA the address stated by the Appellant for correspondence. It is either the address, if any, entered under “Address for correspondence”, or if none is specified there, it is the address entered under “Address”. The address so specified by the Appellant, and only this, is the proper address for correspondence and service on the Appellant of the evidence. Any document sent by first class post to the Appellant at that address is regarded as having been sent. The EA must therefore ensure that its records are brought up to date so that this address is used for all future correspondence and service of evidence. The Appellant may at any time, by notice in writing to PATAS, change the proper address. Where correspondence or evidence is sent to any other address, the Adjudicator may conclude that service has not taken place and this may (in appropriate cases) result in an adjournment of an appeal or the appeal being allowed.

http://www.patas.gov.uk/London%20Councils/...ember2008v2.doc

9.3 It is the responsibility of the EA to serve evidence by first class post on the Appellant at their correspondence address, so that it would in the ordinary course of post arrive no later than 4 days before the hearing. Compliance with this requirement means that the Appellant will have advance notice of the EA’s case, and be in a position to decide what evidence to call and submissions to make. Failure to comply with the requirement may result in the appeal being adjourned or allowed on the basis that the Appellant’s right to a fair trial has been prejudiced.

The law: http://www.legislation.gov.uk/uksi/2007/3482/schedule/made

PROCEDURE RELATING TO APPEALS

Initiating an appeal

2. (1) An appeal shall be made by delivering a notice of appeal to the proper officer.
(2) A notice of appeal—
(a)must be in writing signed by the appellant or someone authorised by him to sign on his behalf;
(b)must state the name and address of the appellant;
©may specify some other address as being the address to which the appellant wishes documents to be sent to him in connection with the appeal;
(d)must state the date and any reference number of the disputed decision and the name of the enforcement authority; and
(e)may include any representations which the appellant desires to make in addition to the original representations.
Service of documents on the parties
17. (1) This paragraph has effect in relation to any notice or other document required or authorised by these Regulations to be sent to a party to an appeal.
(2) Any document shall be regarded as having been sent to that party if it is—
(a)delivered to him;
(b)left at his proper address;
©sent by first class post to him at that address; or
(d)transmitted to him by fax or other means of electronic data transmission in accordance with subparagraph (3).
(3) A document may be transmitted to a party by fax or by other means of electronic data transmission where—
(a)the party has indicated in writing to the party sending the notice or document that he is willing to regard a document as having been duly sent to him if it is transmitted to a specified fax telephone number or, as the case may be, a specified electronic address; and
(b)the document is transmitted to that number or address.
(4) In the case of an enforcement authority, an indication under subparagraph (3)(a) may be expressed to apply in relation to any appeal to which it is the respondent.
(5) Where the proper address includes a box number at a document exchange, the delivery of such a document may be effected by leaving the document addressed to that box number—
(a)at that document exchange; or

(b)at a document exchange which transmits documents every working day to that exchange, and any such document so left shall, unless the contrary is proved, be taken to have been delivered on the second working day after the day on which it was left.
(6) For the purposes of this Schedule, and of section 7 (references to service by post) of the Interpretation Act 1978(3) (“the 1978 Act”) in its application to this paragraph—
(a)the proper address of the appellant is the address for service specified pursuant to paragraph 2(2)© or, if no address is so specified, the address specified pursuant to regulation 2(2)(b), and
(b)the proper address of an enforcement authority in proceedings in which it is the respondent is such address as the authority may from time to time specify in a notice delivered to the proper officer as being the authority’s address for service in all such proceedings.
(7) If no address for service has been specified, the proper address for the purposes of this Schedule, and section 7 of the 1978 Act, shall be—
(a)in the case of an individual, his usual or last known address;
(b)in the case of a partnership, the principal or last known place of business of the firm within the United Kingdom;
©in the case of an incorporated or unincorporated body, the registered or principal office of the body.
(8) A party may at any time, by notice in writing delivered to the proper officer, change his proper address for the purposes of this Schedule and section 7 of the 1978 Act.
(9) A party may, by notice in writing delivered to the other party and the proper officer, vary or revoke any indication given under subparagraph (3)(a).
(10) Unless the contrary is proved, a notice or document—
(a)left at the proper address of a party shall be taken to have been delivered on the second working day after the day on which it was left;
(b)sent by fax or other means of electronic data transmission shall be taken to have been delivered on the second working day after the day on which it was transmitted.

PART 3
SERVICE OF DOCUMENTS AND NOTICES

Service of documents on the parties

17. (1) This paragraph has effect in relation to any notice or other document required or authorised by these Regulations to be sent to a party to an appeal.

(2) Any document shall be regarded as having been sent to that party if it is—

(a)delivered to him;

(b)left at his proper address;

©sent by first class post to him at that address; or

(d)transmitted to him by fax or other means of electronic data transmission in accordance with subparagraph (3).

(3) A document may be transmitted to a party by fax or by other means of electronic data transmission where—

(a)the party has indicated in writing to the party sending the notice or document that he is willing to regard a document as having been duly sent to him if it is transmitted to a specified fax telephone number or, as the case may be, a specified electronic address; and

(b)the document is transmitted to that number or address.

(4) In the case of an enforcement authority, an indication under subparagraph (3)(a) may be expressed to apply in relation to any appeal to which it is the respondent.

(5) Where the proper address includes a box number at a document exchange, the delivery of such a document may be effected by leaving the document addressed to that box number—

(a)at that document exchange; or

(b)at a document exchange which transmits documents every working day to that exchange,

and any such document so left shall, unless the contrary is proved, be taken to have been delivered on the second working day after the day on which it was left.

(6) For the purposes of this Schedule, and of section 7 (references to service by post) of the Interpretation Act 1978(3) (“the 1978 Act”) in its application to this paragraph—

(a)the proper address of the appellant is the address for service specified pursuant to paragraph 2(2)© or, if no address is so specified, the address specified pursuant to regulation 2(2)(b), and

(b)the proper address of an enforcement authority in proceedings in which it is the respondent is such address as the authority may from time to time specify in a notice delivered to the proper officer as being the authority’s address for service in all such proceedings.

(7) If no address for service has been specified, the proper address for the purposes of this Schedule, and section 7 of the 1978 Act, shall be—

(a)in the case of an individual, his usual or last known address;

(b)in the case of a partnership, the principal or last known place of business of the firm within the United Kingdom;

©in the case of an incorporated or unincorporated body, the registered or principal office of the body.

(8) A party may at any time, by notice in writing delivered to the proper officer, change his proper address for the purposes of this Schedule and section 7 of the 1978 Act.

(9) A party may, by notice in writing delivered to the other party and the proper officer, vary or revoke any indication given under subparagraph (3)(a).

(10) Unless the contrary is proved, a notice or document—

(a)left at the proper address of a party shall be taken to have been delivered on the second working day after the day on which it was left;

(b)sent by fax or other means of electronic data transmission shall be taken to have been delivered on the second working day after the day on which it was transmitted.
Delivery of notices or documents to the proper officer

18. (1) This paragraph has effect in relation to any notice or other document required or authorised by or under this Schedule to be delivered to the proper officer.

(2) Any such notice or document may be delivered to the proper officer by being transmitted to the proper officer by fax or other means of electronic data transmission, but only to a telephone number or, as the case may be, electronic address for the time being published by the proper officer for the purpose of receiving such notices or documents.

(3) Any notice or document so transmitted shall, unless the contrary is proved, be taken to have been delivered on the second working day after the day on which it was transmitted.

(4) Where the address of the proper officer includes a box number at a document exchange the delivery of such a document may be effected by leaving the document addressed to that box number—

(a)at that document exchange; or

(b)at a document exchange which transmits documents every working day to that exchange,

and any such document so left shall be taken, unless the contrary is proved, to have been delivered on the second working day after the day on which it was left.

(5) Paragraphs 2(2)(a) and 4(4)—

(a)shall, in the case of a document transmitted by fax, be satisfied if a copy of the signature of the relevant person appears on the transmitted copy; and

(b)shall not apply in relation to a document transmitted by other means of electronic data transmission.


2130093365

Paragraph 17 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the appeals regulations) deals with the service of documents i.e. the service of any notice or other document required or authorised by the Regulations to be sent to a party to an appeal.
Paragraph 17 (2)(b) provides that any document shall be regarded as having been sent to that party if it is left at his proper address. Paragraph 17 (6) goes on to provide that the proper address of the appellant is the address for service specified pursuant to paragraph 2(2)© or, if no address is so specified, the address specified pursuant to regulation 2(2)(b).

Paragraph 2 (2)© provides that the proper address is a address which the Notice of Appeal may specify as being the address to which the appellant wishes documents to be sent to him in connection with the appeal. The Appellant has specified on the Notice of Appeal that the service of documents should be upon Mr Levy at Mr Levy's address. Mr Levy's address is therefore the proper address to which documents should be sent.
Sending the Authority's case summary to an address which is not the proper address is therefore a procedural impropriety.
Regulation 7 (2) of the appeals regulations provides that if, on an appeal under this regulation, the adjudicator concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal.
Regulation 4 (5) of the appeals regulations provides that a 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 and includes in particular the taking of any step, whether or not involving the service of any document, otherwise than in accordance with the conditions subject to which; or at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken.

The requirement is that service of the case summary must be at the proper address. The delivery of the papers to an address other than the proper address is therefore a procedural impropriety. The fact that prejudice can be avoided by Mr Levy giving an opportunity to read the papers does not cure the impropriety.



Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

This decision was corrected by the Proper Officer on the direction of the Adjudicator as per Paragraph 16 of Part 2 of the Schedule to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

Case Reference: 2130093365
Appellant: Mr Joseph Hackenbroch
Authority: Barnet
VRM: KX56TXE
PCN: AG19026290
Contravention Date: 25 Nov 2012
Contravention Time: 11:37
Contravention Location: West Heath Road
Penalty Amount: £110.00
Contravention: Parked in a residents or shared use pay without displaying a permit, voucher or Pay & display ticket
Decision Date: 09 Aug 2013
Adjudicator: Anthony Chan
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: This is an application for review of the decision of the original Adjudicator. Mr Levy represents the Appellant and attended on his behalf. The Authority did not attend and it was not represented.

Review of an Adjudicator's decision is provided for in Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the 'Appeal Regulations'). The adjudicator may, on the application of a party, review any decision to dismiss or allow an appeal on one or more of the following grounds:

(i) the decision was wrongly made as the result of an administrative error;
(ii) the adjudicator was wrong to reject the notice of appeal;
(iii) a party who failed to appear or be represented at a hearing had good and sufficient reason for his failure to appear;
(iv) where the decision was made after a hearing, new evidence has become available since the conclusion of the hearing, the existence of which could not reasonably have been known of or foreseen;
(v) where the decision was made without a hearing, new evidence has become available since the decision was made, the existence of which could not reasonably have been known of or foreseen; or
(vi) the interests of justice require such a review.

A review is not an opportunity for a party to attempt to get another decision when the first one is not as they wished. An Adjudicator considering such an application must do so within the provisions of Paragraph 12 of the Schedule and be mindful of the guidelines in Ross -v- London Borough of Enfield (PATAS 1950094429) where, in particular, it was held that: "Where one of the grounds set out in the Regulations is proved, that merely gives an adjudicator a discretion whether or not to review the decision. Even if a ground is proved, the adjudicator is not bound to exercise that discretion to review the decision.

Mr Levy, who had appeared before the previous Adjudicator, was essentially seeking to re-argue his case. This is not a reason for a review. I can only review the decision if I find that the adjudicator was not entitled to come to the decision that he reached.

I have read Mr Levy's written submission and listened to his oral arguments. The first point that he took was that there had been a procedural impropriety because the Authority's evidential bundle had been sent to the Appellant rather than Mr Levy. This is not disputed as a matter of fact. The issue is whether this amounted to a procedural impropriety.

Paragraph 17 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the appeals regulations) deals with the service of documents i.e. the service of any notice or other document required or authorised by the Regulations to be sent to a party to an appeal. The Authority's submissions lies in the case summary so the case summary is required to the Appellant. Its service is therefore covered by Regulation 17.

Paragraph 17 (2)(b) provides that any document shall be regarded as having been sent to that party if it is left at his proper address. Paragraph 17 (6) goes on to provide that the proper address of the appellant is the address for service specified pursuant to paragraph 2(2)© or, if no address is so specified, the address specified pursuant to regulation 2(2)(b).

Paragraph 2 (2)© provides that the proper address is a address which the Notice of Appeal may specify as being the address to which the appellant wishes documents to be sent to him in connection with the appeal. The Appellant has specified on the Notice of Appeal that the service of documents should be upon Mr Levy at Mr Levy's address. Mr Levy's address is therefore the proper address to which documents should be sent.

Sending the Authority's case summary to an address which is not the proper address is therefore a procedural impropriety. The previous Adjudicator indicated to Mr Levy that he would allow an adjournment so that Mr Levy can look at the evidence bundle and as Mr Levy had chosen to continue with the hearing, no prejudice was caused.

It seems to me, and it is not clear whether the point has been pressed on the previous Adjudicator, that once he found that the evidence bundle was served on the Appellant rather than Mr Levy, the first question that must be asked is whether there was a procedural impropriety, not whether there was prejudice. Regulation 7 (2) of the appeals regulations provides that if, on an appeal under this regulation, the adjudicator concludes that a ground specified in regulation 4(4) applies, he shall allow the appeal. I hold that this means that once the Adjudicator finds that there had been a procedural impropriety, he must allow the appeal irrespective of whether prejudice had been caused.

Having read the previous decision I am not satisfied that this approach had been taken.

Regulation 4 (5) of the appeals regulations provides that a 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 and includes in particular the taking of any step, whether or not involving the service of any document, otherwise than in accordance with the conditions subject to which; or at the time or during the period when, it is authorised or required by the General Regulations or these Regulations to be taken.

The requirement is that service of the case summary must be at the proper address. The delivery of the papers to an address other than the proper address is therefore a procedural impropriety. The fact that prejudice can be avoided by Mr Levy giving an opportunity to read the papers does not cure the impropriety.

The previous Adjudicator had taken a route that was pragmatic and which could not be said to be unfair. However, it would appear that he had not directed himself to the relevant regulations and in particular the need firstly to make a finding as to whether there had been a procedural impropriety and then the implication of this finding.

Considering carefully everything before me in this case, I cannot find any ground under the Regulations for review and thus the appeal is allowed.




Original Decision Subsequently Reviewed Under Paragraph 12 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007

Decision Date 21 Jun 2013
Previous Decision Refused
Adjudicator Michael Burke
Direction None
Reasons The allegation in this case is that the vehicle was parked in a residents or shared-use parking place or zone without clearly displaying either a permit or voucher or pay and display ticket issued for that place. On behalf of Mr. Hackenbroch his representative Mr. Levy states that he did not receive any evidence bundle. The Enforcement Authority have stated that the evidence bundle was sent to the Appellant on 07.03.13 and I am satisfied that this is the case. In the circumstances I indicated to Mr. Levy that I would allow him an adjournment to consider the evidence should he wish it. He chose to proceed with the hearing.
Mr. Levy advances a number of technical arguments. He asserts that the PCN fails to comply with Paragraph 1. (g) and (h) of the Schedule to the General Regulations in the manner in which it sets out the 14 and 28 day periods for payment of the penalty charge. However, when asked he was unable to identify any material difference between the periods as described on the PCN in this case and as set out in paragraph1. above.
The PCN in this case sets out the periods for payment as 'before the end of the period of 28 days (or 14 days) beginning with the date on which the penalty charge notice was served'. I am not satisfied that there is any material difference between the words used on the PCN and those in Paragraph 1. I am satisfied that the PCN was substantially compliant.
Mr. Levy asserts a procedural impropriety in the failure by the Enforcement Authority to honour the indication given on the PCN that if informal representations were refused the Enforcement Authority would offer a further opportunity to pay the reduced amount of £55.
'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 the Appeals Regulations in relation to the imposition or recovery of a penalty charge or other sum. Mr. Levy was unable to identify the requirement of the Act or Regulations which the Enforcement Authority had failed to observe. He relies on 3 decisions of Adjudicators to allow an appeal in these circumstances. None of these decisions identifies a procedural impropriety and I am not satisfied that there has been any procedural impropriety.
Mr. Levy asserts that the Notice to Owner is defective in that it fails to comply with Regulation 4 and 5(2)(b)(i) and (ii). However, neither of these provisions sets out formal requirements for a Notice to Owner. Again he relies on 3 decisions of other Adjudicators but PATAS case reference 2080351250 relates to a defective PCN, 211061246A a defective Notice of Rejection and 2120342259 was concerned with a Regulation 10 PCN, whereas the case I have to consider involves a Notice to Owner issued following a Regulation 9 PCN.
Mr. Levy complains that the Enforcement Authority did not provide him with a copy of the Traffic Management Order at his request. They have as required provided a copy extract with their evidence bundle. As indicated above I would have allowed Mr. Levy an adjournment but he chose to proceed with the hearing. He has not therefore established any prejudice.
As to the allegation in this case Mr. Hackenbroch has provided evidence of 3 attempts made to pay for parking of the vehicle, none of which were successful.
Anyone who has used automated payment facilities with any regularity will be familiar with intermittent malfunctions. Where this happens the motorist must find a way to park legally, whether this be to keep trying or to find an alternative method of payment, or an alternative parking place. There would come a stage when I could properly say that the motorist had taken all reasonable steps to pay for his parking but I do not feel able to say it was reached in this case.
Mr. Hackenbroch's account amounts only to mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion. The Law does not give Adjudicators the power to allow an appeal which establishes mitigating circumstances only.
Having considered all the evidence, I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies and there is no proper basis on which I could allow the appeal. Nevertheless, on 07.07.13 I wrote to the Enforcement Authority in the following terms:
'The PCN in this case indicated that if informal representations received within 14 days of the day of issue were refused a further opportunity would be given to pay the reduced amount. The letter of 31.12.12 did not allow a further opportunity to pay the reduced amount. The email representations are stamped 'Date Received: 13 December 2012' which would have been outside the 14 day period. However, the email header shows 'Sent: 06 December 2012 14.22'. On the face of this evidence it appears the email was received within the 14 days and that when the representations were refused a further opportunity to pay the reduced amount ought to have been afforded. The Adjudicator will assume this is the case and allow the appeal to the extent of a further opportunity to pay the reduced amount unless you send full written reasons as to why you pursue the full penalty charge.'
In the meantime Mr. Levy has written indicating that he wishes to attend 'the hearing'. Mr. Levy had nearly an hour and a half at the personal hearing to advance the arguments he wished to advance. This is exceedingly generous for an appeal against a PCN. There is no further hearing for him to attend.
I am grateful to the Enforcement Authority for the indication that they are prepared to accept the reduced amount of £55 in full and final settlement. This must be paid within 21 days of today or the full penalty charge will fall due.
DancingDad
I think I got brain fade.

Is my understanding right?

Council sends evidence pack to wrong person even though proper address clear.
Adjudicator at original hearing treats this as minor and offers delay/adjournment
Hearing goes ahead with odd decision (IMO) to re offer discount.
Application for review
Hearing on review.
Adj decides a PI did happen and original Adj was wrong but no grounds for review but allows appeal and cancels the pcn???
Hippocrates
Will mail you.
DancingDad
QUOTE (Hippocrates @ Thu, 1 May 2014 - 23:11) *
Will mail you.


Fair enough but could you repeat the original question?

To me there is no doubt that both patas and council can only use the "proper address" as notified on the appeals form or possibly if later changed by appellant, a revised proper address.
So patas can direct a council to use an alternative, new proper address if instigated by the appellant but no other reason IMO.

I use appellant but include representative.

So what ate they trying to swing in the live case? Or is it hush hush?
Hippocrates
QUOTE (DancingDad @ Thu, 1 May 2014 - 23:23) *
QUOTE (Hippocrates @ Thu, 1 May 2014 - 23:11) *
Will mail you.


Fair enough but could you repeat the original question?

To me there is no doubt that both patas and council can only use the "proper address" as notified on the appeals form or possibly if later changed by appellant, a revised proper address.
So patas can direct a council to use an alternative, new proper address if instigated by the appellant but no other reason IMO.

I use appellant but include representative.

So what ate they trying to swing in the live case? Or is it hush hush?


My question is: surely it is unlawful for an adjudicator to direct an appellant to serve the council's evidence upon his own representative particularly as the correct details were entered on the Notice of Appeal form?

IMO Adjudicator should direct the council to serve the pack on the representative, not the OP to serve it! Why should the OP be put to further inconvenience and expense? This causes further prejudice and can be interpreted as being unfair and partial towards the council. They did not follow the regulations, the Guidance etc so why should the appellant be made to correct their error?

The address for the representative must be placed in the last box in section 2:

http://i31.tinypic.com/35crj2r.jpg

And it was! And this is the only address to which the Council and PATAS must serve their correspondence.
Bogsy
Regs require the EA to send the following only to the proper officer, no one else.

copies of—

(a)the original representations.

(b)the relevant penalty charge notice (if any); and.

©the relevant notice of rejection.

Anything sent further to this is labelled as "further representations" and the regs stipulate;

(6) Where the enforcement authority delivers representations to the proper officer under this paragraph, it shall at the same time send a copy of the representations to the appellant.


So the law requires the "evidence pack" to be sent to the appellant. This begs the question, who is the appellant?

the answer is given here

(2) A notice of appeal—
(a)must be in writing signed by the appellant or someone authorised by him to sign on his behalf;


Obviously the "appellant" must be the person liable for the charge since only the person liable for the charge can authorise someone to sign on his behalf. The person liable is the person considered to be the vehicle owner.

Regs advise that the proper address for the appellant is;

(a)the proper address of the appellant is the address for service specified pursuant to paragraph 2(2)© or, if no address is so specified, the address specified pursuant to regulation 2(2)(b), by the ap

2(2)© is relevant here;

[i]©may specify some other address as being the address to which the appellant wishes documents to be sent to him in connection with the appeal;[/]

It seems that the evidence pack must be addressed in name to the appellant but the postal address must be that specified by the appellant pursuant to 2(2)© which may not be the appellants address but that of a person acting on their behalf.

It's not unlawful for an adjudicator to direct that an appellant serve all docs on their representative but it is a "procedural impropriety" for an EA to post docs to anything other than the specified address.
DancingDad
QUOTE (Hippocrates @ Thu, 1 May 2014 - 23:29) *
..............
My question is: surely it is unlawful for an adjudicator to direct an appellant to serve the council's evidence upon his own representative particularly as the correct details were entered on the Notice of Appeal form?
IMO Adjudicator should direct the council to serve the pack on the representative, not the OP! Why should the OP be put to further inconvenience and expense? This causes further prejudice and can be interpreted as being unfair and partial towards the council. They did not follow the regulations, the Guidance etc so why should the appellant be made to correct their error?

.................


Seems a shame at times that adjudicators cannot be challenged on their own procedural, only if they take a step that the law doesn't allow.

And it's that last bit that is open to question.

If an EA does not serve the evidence pack to the proper address. That is a Procedural Impropriety. That is to me, cast iron and set in stone.
Given it is a solid procedural, the adjudicator should allow the appeal.

In the case you posted above. The adjudicator, to use Mr Chan's words, chose to deal with it pragmatically and allow a delay for the representative (Mr Mustard) to review the evidence pack. And as Mr Mustard accepted that, no prejudice was caused.
While I would question anyone being able to review an evidence pack in a few minutes or even hours, I can see the logic in that. I can also see why Mr Chan said the decision to deal with it pragmatically wasn't unfair.
I think that "Unfair" in this case was referring to unfair in law. As he allowed the appeal (I think) that wasn't challenged.
I think it could have been.
The representative was denied proper time to review important evidence. He was, maybe bullied is too strong but certainly pursuaded to accept the pragmatic approach. In my mind that is and was Unfair in a legal sense and as such, unlawful.
Alot does depend on circumstances and without being there it is difficult to know and all too easy to second guess.

Now take your question.
If appellant and representative are both there, with an evidence pack (even though incorrectly served) and the adjudicator says hand the pack over to your rep and they can bu%%er off to review it. Come back next week. That is a pragmatic approach and as long as no party has real objections and revised hearing times are suitable, not Unfair in law. Hence not IMO unlawful.
If appellant has to start packing and posting evidence pack or representative has to go looking for it...totally different and IMO Unfair. Thus Unlawful.

However, note what Mr Chan said. The pragmatic approach to allowing the representative time to review the evidence pack is all well and good but it does not remove or unwind the Procedural Impropriety that led to that position.

If it were me, I would go to the new hearing, prepared to argue all the points already on the table but with this Procedural now heading the list.
And be arguing that all the pragmatic approach and postponement did was to allow time to review the evidence pack in light of the original submissions while it did nothing to unwind the PI and this MUST still be considered and dealt with.
To me there are TWO issues.
One is the need to review the evidence pack to be able to present the case with all the evidence on the table and considered.
Two is the procedural of the evidence pack not being served as required under the regulations. That can only be considered against the regs and the details submitted on the appeal form and whether PATAS notified the council correctly. It cannot be part of the pragmatic approach, that only deals with time to review, not with whether or not a document was served as the regs require.

Seperate the issues. Don't challenge on the lawfullness of his decision to postpone, make the challenge on what the regulations require.
I'd even thank him for the opportunity to review the documentation and quite happy to carry on with all the points if needed. Now can we deal with the EA's failure to serve the evidence pack.
Hippocrates
It's not unlawful for an adjudicator to direct that an appellant serve all docs on their representative but it is a "procedural impropriety" for an EA to post docs to anything other than the specified address.


Sorry, Bogsy, I do not follow the part in bold. How can it be right for the appellant to be directed to act in such a manner as to correct the EA's procedural impropriety? My thinking is this is legally wrong, particularly as the law is silent re such an eventuality.

Will mail you.
Bogsy
To put it simply what law would the adjudicator be breaking to make such a request? As far as I can see none. The law requires the EA to serve on the appellant "further reps" and to serve them at the "proper address" given by the appellant (which may be their representatives address). The regs in respect of sending copies, regulate the EA not the adjudicator. I think it less helpful to focus on whether the adjudicator acted lawfully and more helpful to focus on whether the EA is guilty of a P.I.
Hippocrates
QUOTE (Bogsy @ Fri, 2 May 2014 - 00:46) *
To put it simply what law would the adjudicator be breaking to make such a request? As far as I can see none. The law requires the EA to serve on the appellant "further reps" and to serve them at the "proper address" given by the appellant (which may be their representatives address). The regs in respect of sending copies, regulate the EA not the adjudicator. I think it less helpful to focus on whether the adjudicator acted lawfully and more helpful to focus on whether the EA is guilty of a P.I.

Leaving aside "further reps" as these do not apply in this case, IMO the adjudicator has directed the appellant to do the job the EA should have done in the first place. The "proper address" is the representative's address.

Practical scenario: appellant is in Crimea on holiday, but defers to representative to deal with the PCN. So latter knows feck all about the case.

I am dealing with the P.I. Just seems to me the adjudicator wishes to dilute that aspect. See mail. DD has it too.

Adjudicator is interpreting the law in favour of the council despite their error. cf with decision supplied by Mr M.

Off to bed. Thanks for views...............
Bogsy
If on the PATAS form the "proper address" was that of the representative then the EA was required to send "further reps" (this is just a fancy name for the evidence pack which due to wholesale ignorance of the 7 day rule will include the PCN, Formal Reps and NoR as well as photos etc) to the "proper address" but the name on it would be the name of the appellant not the representative.
Hippocrates
I will confirm tomorrow/today! Don't get me started on the bloody 7 day rule! Which don't exist!
DancingDad
QUOTE (Hippocrates @ Fri, 2 May 2014 - 00:53) *
........
I am dealing with the P.I. Just seems to me the adjudicator wishes to dilute that aspect. ...........



That is precisely the point.

Argue unlawfullness IMO you lose.

Take the route the adjudicator forced, accept it, embrace it, thank him for it as you needed the time to review the pack in case you have to detail all points.

But before we get to them, can the adjudicator rule on the gross and improper PI that the EA created when they sent the evidence pack to the wrong address.

Appeals Regs, S4(5) defines a PI. How does sending a document that is required as part of the process to Aunty Maud comply with the the regulations and as it doesn't PI
Hippocrates
QUOTE (DancingDad @ Fri, 2 May 2014 - 01:12) *
QUOTE (Hippocrates @ Fri, 2 May 2014 - 00:53) *
........
I am dealing with the P.I. Just seems to me the adjudicator wishes to dilute that aspect. ...........



That is precisely the point.

Argue unlawfullness IMO you lose.

Take the route the adjudicator forced, accept it, embrace it, thank him for it as you needed the time to review the pack in case you have to detail all points.

But before we get to them, can the adjudicator rule on the gross and improper PI that the EA created when they sent the evidence pack to the wrong address.

Appeals Regs, S4(5) defines a PI. How does sending a document that is required as part of the process to Aunty Maud comply with the the regulations and as it doesn't PI

But this is my point: this should have been allowed to have been argued on the day!
DancingDad
QUOTE (Hippocrates @ Fri, 2 May 2014 - 10:46) *
................
But this is my point: this should have been allowed to have been argued on the day!


Why?

It is one point amongst many within the case..... Not seen it but I would be very surprised if you hadn't got two or three in play.

Look at it from the adjudicator's point of view.

If the hearing goes ahead, representative who we know is a stubborn cus, will say hearing was unfair in law as he hadn't had chance to study the evidence pack, scream for a review and most likely get one and win on the Unfairness of the procedure during the hearing. Unfair in the legal sense.

If the adjudicator looks at just that one point, he may or may not decide it is valid. After all, council may have a good reason to have sent the pack to the wrong address. It could for example be PATAS at fault. I'm not sure where that would leave the challenge but EA would NOT have committed a PI if they followed instructions from PATAS.
If the point is valid, all well and good and PCN cancelled, adjourn for pint in the Angel and handshakes all round.
If he decides point is not valid, he then has to adjourn else you scream blue murder and rightly so.

He took a view that it is better to adjourn and then have a hearing with all evidence considered. May have been abrupt or even rude in doing so but is entitled in law, in fact almost required under common law to do so.
What he is not entitled to do is unwind the PI by the adjournment.
That must still be considered.
hcandersen
Can we get back to facts which in this grossly overlong and complicated post are b****y difficult to determine.
But it would appear that, put simply, there are procedures which govern:
How an appeal is made by an appellant and how this is registered by the ad;
On whom and to where the adj is required to serve all notices and send communications;
On whom and to where the EA are required to do the same.
Would the OP clearly, simply and with brevity please let us know what has actually happened under each of these headings. I don't want legal argument because until I understand the actual issue(s) in dispute argument is unnecessary.
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