Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: UKdave on February 29, 2024, 06:05:32 pm
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When you get the notice of rejection please post it up on here and please do not file an appeal without seeking our guidance first.
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Sir, I am most grateful for this clarification
Should LCC reject the reply I authored to their NTO, I will indeed proceed to adjudication & would be most grateful for your insight & input at that time
Also grateful for the links to those precedents / decisions, which are as you say almost carbon copies of this case
Obliged to you Sir
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@UKdave I'd like to apologise for my previous absence from this thread, this is actually a really simple case and essentially a replica of Michelle Dhillon v Leicester City Council (LE00087-1812, 30 January 2019) (https://drive.google.com/file/d/1SWPQvyFnxTCIkzz4XHjTBhchA8i-hvKm) and William Watson v St Helens Metropolitan Borough Council (SZ00006-2002, 11 March 2020) (https://drive.google.com/file/d/1j3F5-usOqEk4ZeV4WH8vLjOsB6JaMN5G), I was the advocate in both cases.
I gather you have made formal representations, it's not too important what you said as long as you put something in. If the representations are rejected I'm reasonably confident I could win your appeal as well if you wanted to instruct me as your representative.
Whether you chose to instruct me or do a DIY appeal, please do not be tempted to pay just because the council tries to tempt you with the discount.
H C Andersen has been subject of complaints in the private parking forum and as a result he is now on a posting holiday till the end of next month, if I had any qualms about whether the posting holiday was warranted those concerns have been removed now that I've looked at this thread. This is a really straightforward case and there really shouldn't have been any debate around something that is reasonably clear-cut: the disabled badge was displayed as required by law and that really is the end of the matter.
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Gentlemen (forgive me for assuming your gender ;D ) ~ as this great resource often proves, challenging City Hall is not an exact science.
I live in Leeds, and "Leeds City Council" does not, in fact, exist ... it's but a collection of buildings staffed by an ever changing shuffling bolus of flawed humans, on any one day each may be having a bad one, all bristling with different human bias & quota pressures & agendas & extreme political affiliations & ages & experience levels & personal issues
Mistakes are made, of that there is no doubt, right?
Thank you, all contributors, for taking the time to look at my case & telling me how it looks thru your own individual lenses
I'll let y'all know what happens
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@UKdave. HCA makes a valid point. You can include a procedural impropriety angle because the code 40 contravention description on the PCN does not match the description as set out in Annex B to the Secretary of State's Statutory Guidance. If it were me I'd amend my second paragraph to read:
However, the incorrectly set parking disc clock did not invalidate the disabled person’s badge as alleged by the PCN. The parking place is for disabled badge holder use and therefore The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 are not applicable here because I was not claiming any exemption. I do not need exemption to park in a parking place that is specifically provided for my use as a disabled badge holder. A wrongly set parking disc clock does not invalidate the disabled person’s badge that was displayed. The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 under regulation 3 identifies a disabled person’s badge and parking disc clock as being independent items and no where do these regulations stipulate that any failing with setting the clock invalidates the disabled person’s badge. Consequently, the alleged contravention did not occur as my disabled person’s badge was not invalid. I must also point out that the code 40 description used by the Council fails to follow the code 40 description set out in Annex B to the Secretary of State's Statutory Guidance and this failing is a procedural impropriety as the Council must have regard to this guidance.
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@UKdave here are my points that you can copy and paste.
I concede that when I parked in the disabled badge holder’s only limited waiting parking place I failed to set the parking disc clock to show my correct time of arrival. I can advise that in reality I had not parked for longer than the permitted 4 hours when the PCN was issued. I apologise for this oversight and acknowledge that by displaying an incorrect time of arrival it gave ground for your CEO to issue a penalty charge. .....
Sent you a DM. Thank You
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@UKdave here are my points that you can copy and paste.
I concede that when I parked in the disabled badge holder’s only limited waiting parking place I failed to set the parking disc clock to show my correct time of arrival. I can advise that in reality I had not parked for longer than the permitted 4 hours when the PCN was issued. I apologise for this oversight and acknowledge that by displaying an incorrect time of arrival it gave ground for your CEO to issue a penalty charge.
However, the incorrectly set parking disc clock did not invalidate the disabled person’s badge as alleged by the PCN. The parking place is for disabled badge holder use and therefore The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 are not applicable here because I was not claiming any exemption. I do not need exemption to park in a parking place that is specifically provided for my use as a disabled badge holder. A wrongly set parking disc clock does not invalidate the disabled person’s badge that was displayed. The Local Authorities' Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000 under regulation 3 identifies a disabled person’s badge and parking disc clock as being independent items and no where do these regulations stipulate that any failing with setting the clock invalidates the disabled person’s badge. Consequently, the alleged contravention did not occur as my disabled person’s badge was not invalid.
Furthermore, by issuing a code 40 PCN the penalty charge exceeds the amount applicable in the circumstances. The parking place is a limited waiting parking albeit that only disabled badge holders can park within it. Due to the parking disc clock displaying an incorrect time of arrival it would have been appropriate for your CEO to issue a code 30 PCN for being parked for longer than permitted. The parked for longer than permitted fact is acknowledged by your office in the rejection notice sent in response to my informal challenge. This contravention is a lower penalty charge of £50.00. The wrong contravention description was used and consequently the council is wrongly seeking £70.00 from me.
There is also an Equality Act 2010 issue that the Council has a duty to consider. Regular limited waiting bays don't require the display of a parking disc clock. By making disabled people set and display a clock is treating them different to able bodied people who park in a regular limited waiting bay and it creates a situation where disabled people have a higher chance of making an error such as the clock falling off or being set incorrectly. Timings should be based on CEO observations the same as a regular limited waiting bay. There is no need to give the disabled the extra burden of setting and displaying a clock. I believe that the Council is unlawfully treating disabled people differently from able bodied people and I ask you to reconsider your approach to disabled badge holders only limited waiting parking places.
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What tosh HCA. I recall you saying similar tosh to CP8759 and the case succeeded at adjudication.
A disc clock set to the wrong arrival time does not invalidate the disabled person's badge. Therefore a code 40 PCN is nonsense. If you disagree, state the regulation that says failure to set the clock correctly invalidates the displayed badge. Due to the clock indicating that the vehicle had been parked for longer than allowed, the correct conclusion for the CEO to draw is that the vehicle had been parked for longer than permitted. Consequently a lower penalty of £50 was applicable not a higher £70 penalty. Don't lose sight of the fact that it is a limited waiting parking place albeit for a specific user type. The badge showed that the driver was entitled to park but by the driver not setting the clock correctly it was reasonable for the CEO to issue a code 30 PCN not a code 40 one.This is not a case where the 2000 TRO regulations apply. No exemption is being claimed by the display of the badge and clock.
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It's important to note that the 2000 regulations do not apply in your case. The parking place is set aside specifically for disabled badge holders and therefore no exemption is being sought by the display of a disabled persons badge (you don't need an exemption if the parking place is provided for your use!). The 2000 regulations may have a part to play though if the applicable traffic regulation order that regulates the parking place refers to them for definition purposes.
I gave you in post 6, good reasons why the penalty charge should be cancelled. Chiefly that the penalty charge exceeds the applicable amount. This is a limited waiting parking place and therefore the contravention should be code 30 parked for longer than permitted which is a lower £50.00 penalty. The 2nd main reason is that the alleged contravention did not occur because your disabled person's badge was valid. Just because the clock indicated you overstayed does not invalidate your badge. This is not a case of relying upon an exemption (such as parking on a double yellow line) given where a badge and clock must be displayed.
If you need help putting these points into a coherent written argument just say and I'll assist.
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You can see the legislation below stating that a parking clock is required for parking on yellow lines.
https://www.legislation.gov.uk/uksi/2000/683/regulation/8/made
But this one do not require parking clock for parking in a parking place beyond waiting limit
https://www.legislation.gov.uk/uksi/2000/683/regulation/7/made
THANK YOU SIR
I really appreciate that
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The Blue Badge parking clock is only legally required for yellow lines only but not for time limit bay - disabled bay or not.
Hi there. I appreciate your input. Can you please copy & paste the exact traffic order you are quoting?
THANK YOU
You can see the legislation below stating that a parking clock is required for parking on yellow lines.
https://www.legislation.gov.uk/uksi/2000/683/regulation/8/made
But this one do not require parking clock for parking in a parking place beyond waiting limit
https://www.legislation.gov.uk/uksi/2000/683/regulation/7/made
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QUOTE: Exactly, CEO's CANT know individual circumstances, and therefore, mitigating personal circumstances are a valid retort
Nah, that would make the clock absolutely pointless in every case due to CEO's having to assume every driver struggled with the time. I can see that argument being given very short shrift indeed. Presumably if you were going for that argument then you would need proof, like medical records for example.
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If you have time, look at what seems to be a blizzard of loading bay/BB threads which are currently being processed.
I was taken by an adjudicator's comment in one of the cases cited in support that this is a complex area and NOT one where adjudicators' decisions form anything like a consensus. It's further complicated by the facts in each case:
24/7 restriction or not;
Traffic order requires display of disc or not;
Was BB displayed with or without a disc;
Was this set correctly?
I do not think that it's possible, nor do I think it's prudent, to take an absolutist view and be prepared to go to the barricades armed with nothing more than this argument.
Thank You. Would you be kind enough to drop a direct link to [or title & date of] the comment thread from which you conclude that adjudicators' decisions often indicate anything but a consensus
Thank You
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How do they expect CEO's to know every drivers personal circumstances?
And as far as I know CEO's aren't 'incentivized' at all. Makes no difference to them whether they issue one or fifty.
Exactly, CEO's CANT know individual circumstances, and therefore, mitigating personal circumstances are a valid retort
Oh, and the use of "rarely" as opposed to "never" in the [public-facing] information below, clearly indicates this absolutely DOES happen
(https://dixontechno.com/images/2024-03-17_13-47-03.jpg)
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Is that a joke rep?? How do they expect CEO's to know every drivers personal circumstances??
And as far as I know CEO's aren't 'incentivized' at all. Makes no difference to them whether they issue one or fifty.
Surely that rep can't end up being a winner.
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If you have time, look at what seems to be a blizzard of loading bay/BB threads which are currently being processed.
I was taken by an adjudicator's comment in one of the cases cited in support that this is a complex area and NOT one where adjudicators' decisions form anything like a consensus. It's further complicated by the facts in each case:
24/7 restriction or not;
Traffic order requires display of disc or not;
Was BB displayed with or without a disc;
Was this set correctly?
I do not think that it's possible, nor do I think it's prudent, to take an absolutist view and be prepared to go to the barricades armed with nothing more than this argument.
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You carry on as you will and make your reps as you want. I would still appreciate seeing the informal reps.
Sure no problem:
https://www.dropbox.com/scl/fi/qphof06gq8tmjrd2iir55/DCA.pdf?rlkey=7hlh11s9r49q4a847dv1hmstf&dl=0
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You carry on as you will and make your reps as you want. I would still appreciate seeing the informal reps.
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The Blue Badge parking clock is only legally required for yellow lines only but not for time limit bay - disabled bay or not.
Hi there. I appreciate your input. Can you please copy & paste the exact traffic order you are quoting?
THANK YOU
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{I don't know why I bother starting each retort with a courteous salutation & thanks. No one else seems to bother on here. Must be in my nature}
OK, you wrote ...
"... as regards the CEO a valid Blue Badge was not displayed. If it had been, then the 4-hour limit had been exceeded"
Nope
Even if the clock was set wrongly, and even if we accept the notion such an error 'invalidates' the BB ... the 4 hour limit had NOT been exceeded
Also, you pasted the following ...
Evidence of contravention
7.—(1) A penalty charge may only be imposed in respect of a parking contravention on the basis of—
(a)a record produced by an approved device, or
(b)information given by a civil enforcement officer as to conduct observed by that officer
In this case, the information that was 'given' by the civil enforcement officer was contradicted by an appeals officer
You said:
CEO was entitled to consider that the driver was trying to pinch an extra hour by setting the clock at a time later than when they parked
The appeals officer said:
"... In this case the clock card indicated that the vehicle was parked at 13:30 or 01:30 which indicates that the vehicle was parked for longer than 4 hours at 12:21 when the PCN was issued"
The CEO & the appeals officer are contradicting each other, & simply can't have it both ways
Anyway, I am [still] seeking solid constructive ADVICE please
{deep breath} Thanks for your ongoing attention, I appreciate it
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The Blue Badge parking clock is only legally required for yellow lines only but not for time limit bay - disabled bay or not.
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Thanks for your input again, I appreciate it
OK, so what IS your advice?
IF you read the entire thread you will see that 'Phantomcrusader' made the following observation:
Your badge is valid therefore the alleged contravention did not occur. The badge and parking disc (clock) are separate entities. I can find no regulation that says an error with the clock does by default invalidate the badge. Most councils refer to these regs for interpretation and as you can see a disabled badge and parking disc have their own meanings. Ergo a badge is not a parking disc and vice versa.
This contradicts your position that "objective facts i.e. the clock showed 01.30/13.30, and the car was in contravention, as indeed it was!"
I'm just looking for a consensus I can move forward with
In my humble uneducated opinion, a 100% legally parked car, clearly showing a disabled badge, parked in a disabled bay, on a Sunday ... is not 'in contravention' of anything. It is a FACT that, had the car been parked in a non-disabled bay, there would have been no contravention as the clock setting would have been immaterial
LCC are attempting to fine a person because they correctly parked in a disabled bay. Had they taken up a non disabled regular bay, no action would have been taken. This is IMO clearly punishing a disabled person for nothing more than seeking out a disabled bay
Anyway, back to my lead question HC ...
What is your advice?
Thanks
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That's not a code 40, its a code 30 ... and there's my PI
IMO no it's not, this would be the 'contravention did not occur'.
FYI one of the questions was: "IF the PCN was issued ONLY on an incorrectly set time clock, please explain how the CEO knew the drivers disabilities do not include dyscalculia & thus they would struggle to tell the time?"
A perfectly reasonable question, but unanswered because in attempting to address & reply that issue they would scupper their own case.
IMO, it's a nonsense question. The CEO issued the PCN on the basis of what they observed and was perfectly entitled to do so. The issue of for how long arises from the authority's response, you have no idea whether this is supported by the CEO's notes or whether these simply recorded the objective facts i.e. the clock showed 01.30/13.30, and the car was in contravention, as indeed it was! If the driver suffered from the condition referred to, then this should have been asserted in the reps in the context of exercising discretion: however, it would not be a statutory defence.
*- assuming of course the traffic order requires the display of a clock and it wouldn't be the first time we've seen traffic signs out of sync with traffic orders.
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Hi HC
I appreciate your input
I now have MUCH stronger grounds than mere fettered discretion
The appeals officer went on record as saying the PCN was issued because the car had been parked too long
That's not a code 40, its a code 30 ... and there's my PI
A second but related PI is the charge was {therefore also} wrong
But you're right, questions are not representations
FYI one of the questions was: "IF the PCN was issued ONLY on an incorrectly set time clock, please explain how the CEO knew the drivers disabilities do not include dyscalculia & thus they would struggle to tell the time?"
A perfectly reasonable question, but unanswered because in attempting to address & reply that issue they would scupper their own case. In the end, the appeals officer did exactly that anyway by stating the time clock indicated the car had overstayed, a code 30, not a 40 as issued
I shall stick to the obvious TWO PI's
Thank You
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I am in receipt of your NTO and note the contents
In her rebuttal letter to my advocate, your appeals officer Elaine Lowe stated:
A tad pompous!
I refer to your NTO dated **** and the authority's letter dated rejecting the driver's informal representations.
Would do IMO.
But before going further, where are the initial reps? You refer to four questions but questions are not grounds of representation.
And IMO (and PastmyBest as I understand it) the PI is their statement that because the PCN was issued correctly - in the context of what the CEO observed and believed - that this fetters the authority's discretion 'I have no alternative etc.' Tosh.
And as the driver was wholly in the wrong* by not setting their clock correctly, something which their informal reps apparently rather glossed over, then observing this and accepting that a mistake was made would not go amiss because it doesn't alter the fundamentals.
I am making representations on the grounds of PI and that the 'penalty exceeded ...circumstances of the case', the circumstances being as follows.
..but where are the initial reps?
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Hi Folks, thanks for your great advice so far, I really appreciate it
As requested, below is a draft of my representation based on your advice:
I am in receipt of your NTO and note the contents
In her rebuttal letter to my advocate, your appeals officer Elaine Lowe stated:
"... In this case the clock card indicated that the vehicle was parked at 13:30 or 01:30 which indicates that the vehicle was parked for longer than 4 hours at 12:21 when the PCN was issued"
As this is now the stated position of LCC in this case, the contravention code is clearly incorrect
The contravention code for over staying is Code 30, which carries a penalty of £50 ... not code 40, which carries a penalty of £70
For these reasons the PCN was incorrectly issued on TWO of your "specified grounds":
1) "The penalty charge exceeded the amount applicable in the circumstances of the case" ~ £70 charged instead of £50
2) "There has been a procedural impropriety by the enforcement authority" ~ PCN was issued under Code 40, instead of overstay code 30, which Elaine Lowe clearly stated was the contravention
If anyone has any suggestions or observations I would be most appreciative. If what is written above will be good enough, please say so & I will fill the representations form accordingly
THANK YOU
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Excellent Thank You ... I will
Any other observations?
These were other points made by my advocate, which were not addressed in LCC's response
List any & all steps currently taken by Leeds City Council to ensure images uploaded as ‘evidence’ in ALL fine-bearing traffic violation cases are not AI generated / altered. CEO’s are incentivized based on PCN volume, thus we hold it is LCC’s duty in 2024 & beyond, to ensure ANY photographic evidence supporting a fine-bearing penalty, like a PCN, is not AI generated, including time stamps. If no such steps are [yet] in place, please admit that in writing
IF the PCN was issued ONLY on an incorrectly set time clock, please explain how the CEO knew the drivers disabilities do not include dyscalculia & thus they would struggle to tell the time
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The code/contravention description matters here because had code 30 been used the penalty would be £50.00 and not the code 40 £70.00. the statutory ground of appeal you tick for your represenations is "the penalty charge exceeded the amount applicable in the circumstances of the case".
Post a draft of your representations here before sending so we can give feedback.
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Ahhh, thank you
So let me understand this
There are several angles here but the one most likely to get a result is a PI (the CEO put code 40 when they are now saying the contravention was a code 30)
LCC response states:
In this case the clock card indicated that the vehicle was parked at 13:30 or 01:30 which indicates that the vehicle was parked for longer than 4 hours at 12:21 when the PCN was issued
Is an incorrect contravention code sufficient grounds for an Procedural Impropriety appeal?
Thanks again ... I really appreciate your insight
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If the CEO believed you had parked for more than 4 hours the pcn should be a code 30 "parked for longer than permitted". The bay is a limited waiting bay albeit restricted to disabled badge holders only. Your badge is valid therefore the alleged contravention did not occur. The badge and parking disc (clock) are separate entities. I can find no regulation that says an error with the clock does by default invalidate the badge. Most councils refer to these regs (https://www.legislation.gov.uk/uksi/2000/683/regulation/3/made) for interpretation and as you can see a disabled badge and parking disc have their own meanings. Ergo a badge is not a parking disc and vice versa.
There is also an equality issue. Regular limited waiting bays don't require the display of a clock. By making disabled people set and display a clock is treating them different to able bodied people who park in a regular limited waiting bay and it creates a situation where disabled people have a higher chance of making an error such as the clock falling off or being set incorrectly. Timings should be based on CEO observations the same as a regular limited waiting bay. There is no need to give the disabled the extra burden of setting and displaying a clock.
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Ah, OK thank you
Please forgive my ignorance
Since Google took the street view scans in March 2021, this location has been designated as Disabled bays, as per the OP photos, so there was / is little point in linking thru to the 'old' Google Street View, but here it is anyway:
https://maps.app.goo.gl/MVndY12tdq9iqFc39
When you say "Then if the Traffic Regulation Order requires the display of the clock then the sign must make that clear" do you have any examples / photos of signs that make it clear a clock is required. I suspect LCC will simply say a clock is required any time there is a 'time restriction' on a parking bay, as in this case. Where can I read the TRO to the contrary?
THANK YOU
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The council always have the option to cancel the PCN for any reason or just goodwill, as it is absurd that the vehicle be left for 23 hours then a simple mistake was made and they could accept that
so to say the PCN was issued correctly so they have no alternative other than to enforce fetters the discretion they have
The sign says disabled only and requires a BB but unless the TRO (traffic regulation order requires this) and also the display of the clock then the clock is irrelevant
Then if the TRO requires the display of the clock then the sign must make that clear
none of the arguments are strong on there own but cumulatively they might swing it.
They have won in the past and if an adjudicator is sympathetic to the mistake it gives them a reason to allow an appeal
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What is a PI?
Procedural Impropriety - serious mistake or omission by the Council durinmg the process of enforcement.
What is a GSV?
Google Street View - see https://www.ftla.uk/civil-penalty-charge-notices-(councils-tfl-and-so-on)/read-this-first-before-posting-your-case!-this-section-is-for-council-tfl-dartme/
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Hi, and thanks for your help, I really appreciate it
What is a PI?
What is a GSV?
What does "the rejection fetters their discretion" mean?
Link to PCN: https://www.dropbox.com/scl/fi/u6ddgendjdmy95uscskhu/PCN-Jan-2024.pdf?rlkey=6tto1ku586amgjlgh7rl2ht49&dl=0
Link to NTO: https://imgur.com/a/6t14TIz
The linked-to photos in the OP ARE the councils photos (except the street sign indicating the time restriction, that was mine)
Thanks so much
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At the end of the day the clock was wrong, but the rejection fetters their discretion a PI that can win, and is there a need to display a clock we need a GSV and the council photos also the PCN and NTO i think there should be enough to win this but Leeds are stubborn
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Hi Folks ~
Any advice / case precedents most welcome ~
Alleged contravention date: SUNDAY 14 Jan 2024 ~
Alleged TIME of contravention: 12:21 ~
Code 40 "Parked in a designated disabled persons parking place without clearly displaying a valid disabled persons badge" ~
Leeds City Council PCN ~
The vehicle was parked in a disabled bay, with badge & clock showing ~
The CEO issued the PCN on the grounds the clock was wrong (It was set to 13:30) and thus, the entire badge was "Invalid" ~
My consumer advocate made an initial representation with 4 questions (NONE of which were addressed) the final observation the advocate made was that the bay is a dedicated disabled space, and had the driver parked in a regular bay, the clocks setting would have been achedemic, as the Leeds.gov website clearly states ... ~
“With a blue badge you can park on-street for free and without time limit at both metered and 'pay and display' sites” ~
... and thus was being punished for parking in a disabled bay ~
https://imgur.com/a/QgOtmU0
~ So this is a valid badge, displayed correctly, in a disabled bay, on a Sunday ... but because there exists a time restriction element, the badge clock being incorrectly set renders the contract in breech ~
Attached & linked to here, their reply to my advocate: ~
https://www.dropbox.com/scl/fi/4ji0p9m5gibm94dwprh9u/2938B7D6CD3A.PDF?rlkey=n1r8w1q3huinyonnsd6simxb7&dl=0
As you can see, LCC appear to be implying that rather than the clock being set 1hr 10 mins later than ticket issue time, that the vehicle had been parked there for 23 hours !!
NTO has now been received (Owner is not the driver)
Any advice gratefully accepted, or for further info please just ask ~
THANK YOU
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