How about this?
I removed the line about "metaphorically between 2 stools" as i didnt understand it and added a line about the council failing to consider the exemption at informal/formal appeal stages.
The other thing i was wondering is what about unloading - if you recall there were 2 trips, one to assist dad into the house and the other to unload the shopping. the latter is missing here though i dont know how much it matters. i did include it at formal appeal though.
Thanks
I refer the adjudicator to the council's evidence, in particular this statement:
'In order for the boarding/alighting exemption to apply, activity must be seen taking place. The Civil Enforcement Officer noted the vehicle parked and unattended.'
I also refer to the council's references to previous PCNs which, although gratuitous as regards this PCN, give ample supporting evidence that I have a disabled father whom I transport regularly and who holds a Blue Badge which, between the two of us, manages on very rare occasions to dislodge on to the seat/footwell because the demands placed upon me when assisting my father can give rise to mistakes.
On this occasion, between us we didn’t display the badge correctly and were this to be the basis of my appeal then I could not take issue with being deemed to be in technical breach of conditions.
But in this case my appeal (as regards the contravention) is based upon the exemption under the Traffic Management Order of alighting, in this case assisted alighting, which brings the council's statement above into focus. As I understand it, an exemption is an exemption. It is not mitigation or a request to exercise discretion but an exemption. I respectfully suggest that this may be exercised as and when the conditions are met. I ask the adjudicator to infer from the council's statement that they are seeking to modify its application, by misstating the position in law, rather than examining a claim to satisfy themselves that it applies. I respectfully suggest that dismissing a defence of assisted alighting without proper scrutiny of the owner's assertion is improper and would be a procedural impropriety in itself as well as, in this case, rejection of a legitimate exemption based upon a false legal premise. I find it difficult to believe that the council have applied their framework against me alone and therefore had they checked their records and other adjudication decisions I believe that it could be stated that, to use their words, 'they have been advised on a number of occasions of the necessity and importance and assessing representations against the correct legal framework'. To reiterate, the council also failed to consider the exemption both at informal and formal appeal stages.
I also suggest that this applies in respect of the procedural improprieties within the Notice of Rejection. As I understand it, the basic mandatory wording regarding the 'Duties of an Enforcement Authority as regards representations made' have remained unaltered since the Regulations were first issued in 2008, since when adjudicators have stressed to authorities the necessity and importance of conveying the meaning of these duties correctly. In my case the NOR states:
'You have 28 days from the date of this letter being served to..'
It then refers to the owner's statutory right to appeal and their power to issue a Charge Certificate under this umbrella condition.
However, the regulations stipulate that the applicable period is no later than the end of the period of 28 days beginning on the date of service, not from. I understand that adjudicators have consistently found that whether the effects of the 'extra day' are beneficial to the driver or not (and they cannot be as regards the adjudicator's power to not register appeals made late, even by one day) misstating these mandatory provisions is grounds for allowing appeals for procedural impropriety.
I respectfully ask the adjudicator to find that the contravention did not occur and that there have been procedural improprieties by the authority and therefore allow my appeal.
