Up until around November, if an Out of Time Application was rejected by TEC, the motorist would receive a letter from the Traffic Enforcement Centre stating the date of rejection and that NO REASON IS GIVEN and supposedly, NO REASON IS ON THE COURT FILE. This will now change.
TEC are proposing that the TEC Court Officer should include REASONS and that this can include the following:
1. That the motorist had provided no explanation why he was submitting his Witness Statement late.
2. That the motorist had provided no explanation as to why he failed to notify DVLA of the change of address.
3. That the motorist failed to provide evidence or proof as to why they had been absent from his home when the Order for Recovery had been issued.
Response
Item 5.3 of the Practice Directions supporting CPR 75.7, states clearly that TEC will serve a copy of the Out of Time forms on the local authority (that issued the Penalty) seeking their representation.
The original TEC Applicant User Guide (which local authorities had to adhere to) stated that if the authority were not willing to give their permission (for the motorist to submit a Witness Statement late), that they needed to respond to TEC with a ‘Statement of Case containing a Statement of Truth or an affidavit’ (outlining the reason why).
Unfortunately, under the updated User Guide (version 5.0), TEC removed this requirement. Instead, when responding back to TEC, the authority merely has to tick a box to confirm that they have provided a letter to the motorist or to provide TEC with 2 copies.
With the exception of Transport for London and a few other authorities, it is rare for a statement of truth or letter of any kind to be provided to the motorist. Worse still, requesting a copy from the local authority is usually met with refusal (with some authorities even stating that the document is private between the authority and TEC!!).
From the many statements that I have seen, it is sadly the case that the vast majority, do not address the ‘reason’ provided on the form by the motorist. Instead; they merely provide a timetable of the dates that notices had been sent out (usually to a previous address) and stating that the authority had sent all notices to the address provided to them by DVLA. Most statements appear to have the very same template wording.
To avoid this injustice to motorists, the Traffic Enforcement Centre should amend their User Guide to once again provide that if the authority were not willing to give their permission for the motorist to file his witness statement late that they needed to respond to TEC with a ‘Statement of Case containing a Statement of Truth or an affidavit’ (outlining the reason why). TEC should insist that 2 copies be provided.....one to be by TEC to the motorist and the 2nd one to be retained by TEC.
And most importantly, the Traffic Enforcement Centre should be informing local authorities of their obligation to ensure when making a decision on the Out of Time Application, that they abide by the Secretary of State’s Operational Guidance (under the heading of: Considering challenges, representations and appeals as follows:
‘The process of considering challenges, representations and defence of appeals is a legal process’ and that:
‘Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest. Failure to act in accordance with the general principles of public law may lead to a claim for a decision to be judicially reviewed.
Enforcement authorities have a duty not to fetter their discretion, so should ensure that PNCs, 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’
TEC should inform local authorities that they should no longer provide a ‘template’ rejection letter providing the dates that notices had been sent (usually to a previous address) and stating that the council had therefore abided by the obligation to provide notices to the address provided by DVLA. Instead, they should be instructed that they must address the reason why the motorist had been unable to submit his Witness Statement within 21 days (of the Order for Recovery being issued).
