I think related to this, adjudicator Carl Teper has gathered this together in a couple of recent decisions. One below and worth noting.
As he says, simply:
As explained in Susan Cook, the fact that a contravention has occurred cannot be a reason not to exercise discretion to cancel a penalty, on the contrary there must have been a contravention in the first place or else there is nothing for the Authority to consider at all.
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Case reference 2260333192
Appellant xxxxxx
Authority London Borough of Sutton
VRM LY25CYL
PCN Details
PCN SU75865093
Contravention date 07 Feb 2026
Contravention time 16:48:00
Contravention location Throwley Road
Penalty amount N/A
Contravention Parked wholly/partly in a suspended bay or space
Referral date -
Decision Date 27 Jul 2026
Adjudicator Carl Teper
Appeal decision Appeal allowed
Direction cancel the Penalty Charge Notice and the Notice to Owner.
Reasons The Authority's case is that the Appellant's vehicle was parked in a suspended bay when in Throwley Road on 7 February 2026 at 16:48.
The Appellant denies the contravention and has submitted substantial mitigation for the Authority to consider. Further, that the bay was not in actual use for the suspended purpose.
I have allowed this appeal because I find that the Authority has fettered its discretion by limiting it to “…emergency situations…” in the Notice of Rejection.
The parties are referred to my decision in case 2250689988, which I have copied below in full.
'In Susan Cook v Trafford Borough Council (TR05993K, 25 January 2013) Adjudicator Kennedy said as follows (all emphasis in the original):
'A council must in each case decide if it is appropriate that the penalty charge be waived either because:
(i) one of the statutory grounds applies and therefore no penalty is payable; or
(ii) although there was a contravention in the particular circumstances of the case no penalty should be payable.
It is this second point which reflects the discretion given to a council to waive any penalty charge at any time. Discretion is the power to act as one thinks appropriate in the circumstances, but it is relevant in this context only when a penalty would otherwise be due. Discretion is not necessary or relevant when no penalty is due.
If there was no contravention then the Council’s discretion would be irrelevant because if there was no contravention the penalty must be cancelled regardless of the surrounding circumstances. The case would end at the first of the two stages above.
It follows that discretion cannot be refused because a contravention has occurred; there must have been a contravention otherwise there is nothing for the Council to consider.
A council will not be criticised for refusing to exercise discretion favourably if it is clear that the individual considering the case has acted sensibly, reasonably, fairly and proportionately taking into account all the individual merits of the case.
A council is entitled to be shrewd in its analysis, but must avoid rigid or “blanket” policies. The words of the Operational Guidance express the approach clearly and with considerable wisdom:
"11.3 It is in the interests of the authority and the vehicle owner to resolve any dispute at the earliest possible stage. Authorities should take account of the CEO's actions in issuing the PCN, but should always give challenges and representations a fresh and impartial consideration.
11.4 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 for the public interest.
11.5 Enforcement authorities have a duty not to fetter their discretion, so should ensure that PCNs, NtOs, leaflets and any other advice they give do not mislead the public about what they may consider in the way of representations. They should approach the exercise of discretion objectively and without regard to any financial interest in the penalty or decisions that may have been taken at an earlier stage in proceedings. Authorities should formulate (with advice from their legal department) and then publish their policies on the exercise of discretion. They should apply these policies flexibly and judge each case on its merits. An enforcement authority should be ready to depart from its policies if the particular circumstances of the case warrant it."
[...]
There are a number of points the Council have failed to observe or practice in this case and, one suspects, this occurs also in their approach to other cases. This letter, dated 15 March 2012, epitomises their attitude to this Appellant:
"With respect to the above, your comments have been considered however the penalty charge will not be waived on this occasion as the vehicle was observed parked without a valid permit or visitor card on display. I have checked our records and | can confirm that a previous Penalty has been waived under Trafford Councils 15 waiver policy for vehicles parked in a permit holder's only as on that occasion the vehicle was also parked on Normans Place without a valid permit or visitor card clearly on display. When parking the onus does lie with the driver of the vehicle to ensure that they display a valid permit or visitor card clearly and securely to exempt from the restrictions in place."
The first failure appears in the first paragraph and is the refusal to waive the penalty because there was a contravention. The fact of contravention cannot be a reason for refusing to waive the penalty.
That case was decided under the 2007 Regulations but no substantive changes were made by the 2022 regulations under which this appeal is to be determined.
In Stanmore Quality Services Ltd v London Borough of Lambeth (2220882479, 7 January 2023) Adjudicator Jack Walsh (as he then was) held in similar circumstances that (my emphasis):
The response from the EA did not engage with the points made by the appellant company or the evidence it had provided. It did not refer to any applicable exemptions, or the lack of them. The response said: "We have noted the circumstances explained in your correspondence to us. It is unfortunate that you were unfamiliar with the rules that were in force. However, it is still up to drivers to be aware of signs and road markings and obey them." The responsibility of the EA is not merely to 'note' the representations, as the first sentence tends to suggest, but to consider them. I find that the second sentence is presumptuous and patronising. The third sentence is irrelevant and is simply a statement of the obvious. The notice of rejection did not provide a meaningful response to the representations made by the appellant company, to which it had clearly devoted some time and care. I am driven to the conclusion, and find on the balance of probabilities, that the EA, contrary to the bald assertion earlier in the notice of rejection that it had 'carefully considered' what the appellant company had said, had in fact done no such thing. I find that the EA had indeed merely 'noted' the representations and failed to consider them. This is a serious departure from the requirements of the statutory scheme, as I explained in Jones v. LB Havering (2190374806, 9 October 2019) a case cited by Mr. Murray-Smith. The PCN is thereby rendered unenforceable.
I find that the Notice of Rejection does not address the Appellant's representations at all. And can properly be distinguished from the case of Halton
In this case the Appellant made detailed representations based on compelling mitigation, the Notice of Rejection states that:
After carefully considering your Representations and any mitigating circumstances, I am satisfied that the PCN was correctly issued and that there is no reason for it to be cancelled.
The fact that the PCN was correctly issued was not in dispute and is besides the point: as explained in Susan Cook there must be a correctly issued PCN or else there is no discretion for the Authority to consider. This means that the only reason provided by the Authority for why the PCN was not cancelled is that "there is no reason for it to be cancelled".
Like Adjudicator Walsh in the case above, I am driven to the conclusion that despite the assertion that the Authority has "carefully considered" the representations, it has done no such thing. I find as a fact that the Authority never considered at all whether, notwithstanding the fact that a penalty was correctly issued by the CEO, it should nonetheless exercise its statutory power under regulation to accept representations made under regulation 5(2)(b)(ii) of The Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022, which entitle an Authority to cancel a penalty where, even when a penalty has been correctly issued, "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.".
In its case summary the Authority states that:
"While the Authority acknowledges the appellant’s need to attend a court hearing, this does not exempt a motorist from complying with parking restrictions. It remains the responsibility of the driver to ensure that their vehicle is parked in accordance with the prevailing terms and conditions, regardless of the purpose of their journey. The availability of parking, or lack thereof, does not override the restrictions in force.
The fact that the availability of parking, or lack thereof, does not override the restriction in force, is completely besides the point. The case summary confirms that the Authority never contemplated with an open mind the question of whether, despite a contravention of the restrictions in force, nonetheless the penalty should be cancelled. As explained in Susan Cook, the fact that a contravention has occurred cannot be a reason not to exercise discretion to cancel a penalty, on the contrary there must have been a contravention in the first place or else there is nothing for the Authority to consider at all.
The case summary also states that:
"In light of the above, the Authority is satisfied that the contravention occurred and that the Penalty Charge Notice was issued correctly. Accordingly, the appeal is refused."
I take it that in the passage above the Authority means that the representations are refused, as the determination of the appeal is a matter for me. However this paragraph helpfully confirms that the representations were refused because a contravention had occurred and the PCN was issued correctly, which cannot be a reason to refuse to exercise discretion, it is a pre-requisite for the power of discretion to arise in the first place. As far as failures to consider go, the Authority's case summary is tantamount to a confession.
Like Adjudicator Kennedy, I find that an Authority cannot be criticised for refusing to exercise discretion favourably if it is clear that the individual considering the case has acted sensibly, reasonably, fairly and proportionately taking into account all the individual merits of the case. However, I find as a fact that in this case the Authority has done no such thing and has instead decided that because the contravention had occurred no further consideration was required and that would be the end of the matter.
I find that I am dealing with a complete failure to consider within the meaning of Halton Borough Council, R (On the Application Of) v Road User Charging Adjudicators [2023] EWHC 303 (Admin). I therefore find as a fact that the Authority failed to consider whether to exercise its discretion to cancel the penalty and because this is a mandatory duty under the regulations, I find that service of the Notice of Rejection occurred otherwise than as authorised by the Regulations, which is a procedural impropriety.
Regulation 7(5)(a) of the 2022 Appeals Regulations provides that if the Adjudicator concludes that a ground specified in the Regulations above applies, the Adjudicator must allow the appeal. There is no discretion about this."
I find that the Authority in this case has fettered its discretion by limiting its consideration of mitigation to emergency situations only.
Finally, for the same reasons as stated in the case of Melanie Green 2250689988 this appeal must be allowed.