Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: tweener17 on August 01, 2024, 04:26:21 pm
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Ok thanks. Will do and get it submitted so that it goes to tribunal.
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You can add that your appeal grounds of 'contravention did not occur', because display is not a stated requirement of the Ts and Cs displayed at the site, have been bolstered by the traffic order which the council have produced in evidence because this does not reflect the payment options at the site and limits payment to purchasing and displaying a physical ticket.
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I plan to reply to the RingGo account to show I have paid and they've kept that money even though the car wasn't in the car park.
Why? IMO, it's distracting and is far less compelling than your main grounds. You would have to show that they misapplied their own policy.
But their policy appears to be discretionary on this point, so effectively you'd be asking the adjudicator to exercise that power which they cannot do.
That you paid the council is NOT your main grounds IMO.
Ok cool. I won't mention this. I wasn't sure if I needed to add anything against there evidence given that I've already called out my pertinent point in the letter to the independent adjudicator.
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Appeal submitted tonight...will let you know how I get on.
What was this 'appeal'? To whom was it submitted?
This appeal was to the Traffic Penalty Tribunal.
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I plan to reply to the RingGo account to show I have paid and they've kept that money even though the car wasn't in the car park.
Why? IMO, it's distracting and is far less compelling than your main grounds. You would have to show that they misapplied their own policy.
But their policy appears to be discretionary on this point, so effectively you'd be asking the adjudicator to exercise that power which they cannot do.
That you paid the council is NOT your main grounds IMO.
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Appeal submitted tonight...will let you know how I get on.
What was this 'appeal'? To whom was it submitted?
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Date of hearing?
Birmingham send the Evidence Pack to the tribunal with a copy to you.
In the pack there should be a 1-3 page summary of why they think the tribunal should reject your appeal: also a list of contents. Please post these docs here.
Can't see anything that stands out as that summary.
I've included links to certain evidence.
I've listed all of their evidence below:
- PCN
- Case Report https://jmp.sh/s/7tXGdjpG7yF2X3nqPNS6 (https://jmp.sh/s/7tXGdjpG7yF2X3nqPNS6)
- Driver details check
- First appeal - where I was unaware that I had paid for my car instead of my wife's
- RingGo receipt for payment for my car
- Their initial rejection
- Follow up RE: first time mistakes
- Their second rejection
- Notice to owner
- Response to NTO
- RingGo receipt for payment for my car (again)
- Rejection of representations
- Their search of my RingGo account to show I hadn't paid for the car https://jmp.sh/s/7tXGdjpG7yF2X3nqPNS6 (https://jmp.sh/s/7tXGdjpG7yF2X3nqPNS6)
- Images of the car
- Birmingham City Council Off Street Parking Order https://drive.google.com/file/d/1pA5QGCePrWH8z2-wbVQRiQNOlq-4GqCe/view (https://drive.google.com/file/d/1pA5QGCePrWH8z2-wbVQRiQNOlq-4GqCe/view)
Happy to upload more data if need, if need be.
I plan to reply to the RingGo account to show I have paid and they've kept that money even though the car wasn't in the car park.
I've got 3 days to reply to any of the above evidence. At that point it will then move to the adjudicator and hearing date will be given.
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Date of hearing?
Birmingham send the Evidence Pack to the tribunal with a copy to you.
In the pack there should be a 1-3 page summary of why they think the tribunal should reject your appeal: also a list of contents. Please post these docs here.
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So Birmingham City Council have submitted their evidence including all the appeal and rejections, photos etc.. do I need to comment on them or just push it through to the independent adjudicator?
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Appeal submitted tonight...will let you know how I get on.
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OK - so those are your words - I was hoping you'd picked up that exact sentence from their website somewhere.
Yeah. I looked back and couldn't see it called out in the policy.
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OK - so those are your words - I was hoping you'd picked up that exact sentence from their website somewhere.
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I would still cite their direction to consult their policy which says to me that a first time such mistake is forgivable.
And I asked you where you saw this as it's not in the policy doc I got:
"In cases of first-time contraventions where a mistake has been made, including incorrect Vehicle Registration Mark (VRM) or method of payment errors, we may cancel the PCN."
Also they seem to have taken down the policy doc they refer to in their rejection! This can also be mentioned and it's still online here:
http://bit.ly/2Wl1Spj
Thanks will add those points in.
With regards to your question - I think i inferred it from this previous post (below) from yourself. Have I misunderstood and therefore remove anything relating to that?
They have referred you to their discretion policy, which while not well written or spelling this out in the 'may accept' column tells me that they would consider cancelling for a first time mistake with the car VRM as the 'may reject' column clearly says that such mistakes can give rise to cancellation where a PCN has been issued in 'similar circumstances' which include wrong VRM.
I would go back to them now pointing out that their 'unable to cancel' does not square with their policy on individual merits listed by them. Cancelling for a first time mistake with location/VRM is a common reason to cancel a PCN among councils as payment has been made.
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I would still cite their direction to consult their policy which says to me that a first time such mistake is forgivable.
And I asked you where you saw this as it's not in the policy doc I got:
"In cases of first-time contraventions where a mistake has been made, including incorrect Vehicle Registration Mark (VRM) or method of payment errors, we may cancel the PCN."
Also they seem to have taken down the policy doc they refer to in their rejection! This can also be mentioned and it's still online here:
http://bit.ly/2Wl1Spj
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So I've draft the following based on the above.
Thanks H C Andersen and Stamfordman.
Anything missing that I need to include?
I am writing to formally challenge the Penalty Charge Notice (PCN) issued to me by Birmingham City Council, on the grounds of both "Penalty exceeded the amount applicable in the circumstances of the case" and "Procedural impropriety."
1. Penalty Exceeded the Amount Applicable in the Circumstances of the Case
The terms and conditions of the car park in question do not require the display of a ticket. Therefore, it should be presumed that the traffic order governing this car park contains no such requirement. The penalty charge issued to me was based on the erroneous premise that I had failed to display a ticket, when no such requirement exists within the car park's advertised terms. As such, the contravention cited by Birmingham City Council is predicated on a non-existent restriction. I respectfully submit that this makes the penalty unenforceable under these circumstances.
2. Procedural Impropriety
a) In my formal representations to Birmingham City Council, I clearly stated the following points:
The contravention cited was incorrect, as the terms did not require ticket display.
I had paid the correct tariff, albeit against the registration number of my own vehicle, and therefore requested that the authority exercise discretion.
The council's Notice of Rejection (NOR) failed to address these substantive points. Instead, it simply reiterated the general responsibility of the motorist to ensure a valid purchase is made for the correct vehicle registration. This response disregards my specific representations, showing a failure on the council's part to properly consider my grounds for appeal, thereby constituting procedural impropriety.
b) Additionally, the NOR does not provide a complete explanation of my right to appeal. The regulations require that the Notice of Rejection describe how an appeal to the adjudicator should be made, including informing the recipient of their ability to submit a late appeal beyond the standard 28-day period. However, the NOR issued by Birmingham City Council only mentions the 28-day deadline for filing an appeal, with no mention of the possibility to request an extension in the event of a late submission. This omission is a failure to comply with statutory requirements and further constitutes procedural impropriety.
In light of these issues, I respectfully request that you the independent adjudicator allow my appeal and cancel the penalty charge.
Thank you for your time and consideration.
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Cancelling under their policy is discretionary, but still must form part of their consideration.
Citing the correct grounds is obligatory.
The time for a soft approach has gone IMO.
IMO, your focus should be 'penalty exceeded....circumstances of the case' and 'procedural impropriety'.
Penalty exceeded.....
The advertised terms and conditions of use of the car park do not require the display of a ticket and therefore it should be presumed that no such requirement exists in a traffic order. I therefore submit that the use of grounds which are predicated on a non-existent restriction must therefore render the penalty unenforceable.
Procedural impropriety
a. As regards my formal representations.
My representations were distinct and to the effect that:
i. the grounds were incorrect and;
ii.they should exercise their discretion because payment of the correct tariff was made.
The authority's response to these representations in the NOR is given below:
'With regard to the mitigating circumstances described, I would advise you that it remains the motorist's responsibility to ensure a valid purchase is made against the correct vehicle registration.'
I respectfully submit that they have not addressed either of my substantive points but instead repeated what was already common ground i.e. that I had made payment of the correct tariff but mistakenly input the wrong registration, in this case our family's other car.
I therefore ask the adjudicator to allow my appeal under this heading because there has been a failure on the authority's part to consider my substantive representation grounds.
ii. As regards the Notice of Rejection of Representations
The regulations require that a NoR must:
(iii)describe the form and manner in which an appeal to an adjudicator must be made.
This is explained in Para.2 of Part 2 of Schedule 1 to the regulations as follows:
(4) If the notice of appeal is delivered to the proper officer after the end of the period specified in regulation 7(2)(a), 10(2)(a) or 13(2)(a) (as the case may be) (“the appeal period”)—
(a)the appellant must include in the notice a statement of the reasons which are relied upon for justifying the delay, and
(b)the adjudicator must treat any such statement of reasons for delay as a request to extend that period.
I submit that it is as important to state clearly that the adjudicator has discretion to extend the period for making an appeal after the 28-day period has elapsed as the 28-day period itself.
Part 4 of The NOR refers to 'How to appeal your decision'. The only reference to the time period for making an appeal is given in parenthesis at the bottom of the page as follows:
'(You should appeal before the end of the 28 days beginning with the delivery of this notice of rejection....')
This makes no reference to the owner being able to submit an appeal 'late' and therefore I submit that this constitutes a procedural impropriety and further grounds for my appeal being allowed.
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Draft something that draws the adjudicator's attention to the two points, noting Birmingham's apparent disregard of policy, and also the point about the contravention being wrong (should be not paying).
Where did you see this:
"In cases of first-time contraventions where a mistake has been made, including incorrect Vehicle Registration Mark (VRM) or method of payment errors, we may cancel the PCN."
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Any suggestions of what I could add to the tribunal? Or re-emphasise the points made previously?
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No discount now so no brainer to lodge a tribunal appeal. Frankly they just bullying you on this one.
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There is absolutely NO POSSIBILITY of a CCJ in the enforcement process, so put this out of your mind now.
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So I received the following NOTICE OF REJECTION OF REPRESENTATIONS in the email last week:
https://freeimage.host/i/2HLt8Nf (https://freeimage.host/i/2HLt8Nf)
https://freeimage.host/i/2HLtvAG (https://freeimage.host/i/2HLtvAG)
https://freeimage.host/i/2HLtSt4 (https://freeimage.host/i/2HLtSt4)
https://freeimage.host/i/2HLtk9s (https://freeimage.host/i/2HLtk9s)
https://freeimage.host/i/2HLtrV2 (https://freeimage.host/i/2HLtrV2)
I think it's worth trying one more time but I'm not sure what I can add that I haven't said already. Looking at previous case to the tribunal that was similar to mine it was rejected.
Welcome your thoughts.
Looking to get something back this week as I don't want a CCJ.
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It's rather long-winded and would be better if you consolidated the first-time cancellation stuff and shortened it.
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I suggest these minor amendments. I have brought into the reps the language used in their prior rejection.
The alleged contravention is cited as: "Parked in a car park without clearly displaying a valid pay and display ticket or voucher or parking clock". However, as your initial rejection makes clear, I was parked in your 'Park and Pay by phone facility'and paid for my parking using the Pay by Phone service. which does not require a physical ticket to be displayed. Given that there was no requirement to display a ticket, the correct contravention code should have been: "Parked without payment of the parking charge." As I complied with the parking terms by paying via phone, this penalty appears unjustified. I respectfully ask that you reconsider this error.
Thanks for the feedback.
Will make the necessary tweaks.
I would go with both - draft something and we'll tweak it.
If there is anything else you can think of mate, I'm looking to get the appeal submitted tomorrow.
:)
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Any thoughts on the above draft?
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I suggest these minor amendments. I have brought into the reps the language used in their prior rejection.
The alleged contravention is cited as: "Parked in a car park without clearly displaying a valid pay and display ticket or voucher or parking clock". However, as your initial rejection makes clear, I was parked in your 'Park and Pay by phone facility'and paid for my parking using the Pay by Phone service. which does not require a physical ticket to be displayed. Given that there was no requirement to display a ticket, the correct contravention code should have been: "Parked without payment of the parking charge." As I complied with the parking terms by paying via phone, this penalty appears unjustified. I respectfully ask that you reconsider this error.
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First Draft - Let me know what you think:
To whom this way concern,
I am writing to formally challenge Penalty Charge Notice BM40248575 issued on 22nd July 2024.
I request the PCN’s cancellation based on the following:
Compelling or Other Mitigating Reasons
Birmingham City Council’s discretion policy includes a section titled “compelling or other mitigating reasons,” which outlines that cases requiring individual consideration may warrant cancellation. I do not believe that the response provided by the Council sufficiently considered the circumstances or the mitigating factors in my case. There was no clear explanation as to why my first-time mistake did not justify cancellation, indicating a potential failure to consider the individual merits of my situation.
Incorrect Contravention Code
The alleged contravention cited as: "Parked in a car park without clearly displaying a valid pay and display ticket or voucher or parking clock". However, I paid for my parking using the Pay by Phone service, which does not require a physical ticket to be displayed. Given that there was no requirement to display a ticket, the correct contravention code should have been: "Parked without payment of the parking charge." As I complied with the parking terms by paying via phone, this penalty appears unjustified. I respectfully ask that you reconsider this error.
Birmingham City Council's Policy on First-Time Mistakes
In my appeal, I wish to reference Birmingham City Council’s own policy regarding the handling of Penalty Charge Notices.
The policy clearly states that for first-time mistakes, such as issues with vehicle registration or payment, there is a provision for cancelling the charge. Specifically, at the Notice to Owner (NTO) stage, it is stated that:
"In cases of first-time contraventions where a mistake has been made, including incorrect Vehicle Registration Mark (VRM) or method of payment errors, we may cancel the PCN."
Birmingham City Council’s policy also refers to the consideration of "similar circumstances" where mistakes such as incorrect VRM can lead to cancellation. It is clear that my case falls within these guidelines, as this is the first time such an error has occurred. Therefore, in line with your discretion policy, I urge you to cancel this PCN.
Given the above points and the lack of evidence showing that my case was considered under the "compelling or other mitigating reasons" category, I believe I have grounds for cancellation of this PCN. Should this matter proceed to adjudication, I am confident that the adjudicator will recognise the failure to appropriately apply your own discretion policy and the fact I have made a payment for time spent in the car park and cancel the PCN on that basis.
I look forward to your favourable response and the cancellation of this Penalty Charge Notice.
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I would go with both - draft something and we'll tweak it.
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Thanks for the feedback.
The NtO has now arrived. Links below:
https://freeimage.host/i/1000069037.d4XVgDX (https://freeimage.host/i/1000069037.d4XVgDX)
https://freeimage.host/i/1000069038.d4XVQUl (https://freeimage.host/i/1000069038.d4XVQUl)
https://freeimage.host/i/1000069040.d4XVSRI (https://freeimage.host/i/1000069040.d4XVSRI)
https://freeimage.host/i/1000069041.d4XVtJ2 (https://freeimage.host/i/1000069041.d4XVtJ2)
Is there a template I can use to respond or would I just include the advice listed below in my response:
1)Alleged contravention:
Parked in a car park without displaying ........
You cannot display if you pay by phone. The correct contravention is:
'parked without payment of the parking charge
2)
- quote their policy to them verbatim at NTO stage and point out the obvious reference to the first time cancellation for such mistakes. If they rely on their policy they must live or die by it.
- referred you to their discretion policy, which while not well written or spelling this out in the 'may accept' column tells me that they would consider cancelling for a first time mistake with the car VRM as the 'may reject' column clearly says that such mistakes can give rise to cancellation where a PCN has been issued in 'similar circumstances' which include wrong VRM.
- "compelling or other mitigating reasons " section. This does say it is for cases which require individual consideration, but there is no evidence of this in their reply explaining wny your mistake does not warrant cancellation of the PCN. So could you win at adjudication under "failure to consider" ?
Happy to take on board any other advice 8)
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My initial letter was very much you've made a mistake cancel it and stop wasting my time.
Pl post. I wonder if the tone p****d them off!
Anyway, IMO contravention did not occur.
Alleged contravention:
Parked in a car park without displaying ........
You cannot display if you pay by phone. The correct contravention is:
'parked without payment of the parking charge'
I definitely p****d them off :D
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My initial letter was very much you've made a mistake cancel it and stop wasting my time.
Pl post. I wonder if the tone p****d them off!
Anyway, IMO contravention did not occur.
Alleged contravention:
Parked in a car park without displaying ........
You cannot display if you pay by phone. The correct contravention is:
'parked without payment of the parking charge'
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Well it boils down to whether you are cross enough about this to punt £25. If it were me I'd do it and quote their policy to them verbatim at NTO stage and point out the obvious reference to the first time cancellation for such mistakes. If they rely on their policy they must live or die by it.
If they still reject and you appeal (no brainer if they withdraw the discount) they will have to prepare an evidence pack for the tribunal with this policy which will cost them more than £25. You can then see if an adjudicator reads it as I have and if you lose it's still just £25.
I think they won't contest it or if they do won't include the policy in the pack.
See what others say.
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Today is the deadline for the discounted payment and I got a response from going back to the council RE: it doesn't square with their policy:
https://freeimage.host/i/dVWtvCN
https://freeimage.host/i/dVWteQp
https://freeimage.host/i/dVWtOjR
I was bloody dreaming about getting parking tickets last night ;D
FYI - My initial letter was very much you've made a mistake cancel it and stop wasting my time. Even that proved that I wasn't aware I had selected my other car.
Thoughts on the response? Just a default...what sort of information would I include in the response to the notice to owner? What are my chances of getting this overturned?
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I'm happy to forgo the discount.
I've gone back to them RE: it doesn't square with their policy. Not expecting a response. Will wait for the notice to owner to arrive.
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They have referred you to their discretion policy, which while not well written or spelling this out in the 'may accept' column tells me that they would consider cancelling for a first time mistake with the car VRM as the 'may reject' column clearly says that such mistakes can give rise to cancellation where a PCN has been issued in 'similar circumstances' which include wrong VRM.
I would go back to them now pointing out that their 'unable to cancel' does not square with their policy on individual merits listed by them. Cancelling for a first time mistake with location/VRM is a common reason to cancel a PCN among councils as payment has been made.
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A Notice to Owner cannot be issued until 28 days after the date of the PCN in the absence of a response to the PCN, but the council have up to 6 months to serve it. I doubt it would be issued until their discount reoffer date expires. The bottom line is that if you want to fight them, you must accept that you will forego the discount.
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Does the Notice to Owner come after the discounted deadline appears?
Not adverse to taking the gamble - have we seen previous where tickets have been cancelled?
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Their rejection letter looks to be the usual Fob-Off letter we see so often. All it tells you is that you have to pay for the right vehicle reg number. Well, I think we all know that when using PbP apps !!
Your case would come under the "compelling or other mitigating reasons " section. This does say it is for cases which require individual consideration, but there is no evidence of this in their reply explaining wny your mistake does not warrant cancellation of the PCN. So could you win at adjudication under "failure to consider" ? Well, it would be something of a gamble, I think, and first you would have to forego the discount and wait for the Notice to Owner and present this argument to the council.
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I've uploaded the following:
Original PCN
Rejection letter
Proof of payment under the wrong registration/car (my car)
https://freeimage.host/i/d5ESXgs (https://freeimage.host/i/d5ESXgs)
https://freeimage.host/i/d5ESVqX (https://freeimage.host/i/d5ESVqX)
https://freeimage.host/i/d5ESGst (https://freeimage.host/i/d5ESGst)
https://freeimage.host/i/d5ESEXI (https://freeimage.host/i/d5ESEXI)
I blanked out personal details as I didn't know what the rules were on that here.
I don't have a copy of my original appeal as it was submitted on line. The premise was "I've paid for parking so cancel the ticket", whilst I was blissfully unaware that I picked the wrong registration.
I've never done it before...no.
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post the PCN, your challenge and their rejection.
Their policy suggests that this one is an individual merit that should be considered first time - have you done it before.
(https://i.ibb.co/k0LR1bD/Screenshot-2024-08-01-at-17-08-47.png)
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Hi all,
Looking for some advice. I parked at Snow Hill Multi Storey Car Park and didn't have any cash so used the RingGo app.
Came back to the car and had a PCN for parking without a pay and display ticket. Submitted an appeal with the evidence that I paid from the app.
Fast forward to today and my appeal was rejected as I picked the number plate for my other car.
Anything I can kick back on?