Free Traffic Legal Advice
Live cases legal advice => Civil penalty charge notices (Councils, TFL and so on) => Topic started by: victor volt on October 23, 2023, 10:58:07 am
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My memory might be playing tricks, but I recall a Bristol case where a £9 cheque was sent ro pay the toll and they cancelled.
Yes we have seen a case like that. That being said if they miss the 56 day deadline, they don't really have a choice and they have to cancel whether they like it or not. I somehow doubt they'd bother going to the small claims court to recover the £9 toll.
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My memory might be playing tricks, but I recall a Bristol case where a £9 cheque was sent ro pay the toll and they cancelled.
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A recent DART case cancelled the PCN and asked the appellant to pay just the £2.50 toll.
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I assume that you had the 0870 number and the penalty plus toll in the challenge ?
It does seem as though they are very reluctant to see the penalty plus toll issue get in front of an adjudicator.
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As an eventual update, it won’t be going to tribunal as the local authority didn’t get round to dealing with it:
“ After reviewing the PCN including the facts surrounding the contravention, I have authorised its cancellation.
Although the PCN may have been issued correctly, Bristol City Council has not responded within the required time frame and therefore the PCN has been cancelled.”
Received today!
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@DancingDad I don't really disagree with anything you say, but it's another point to add to the 0870 ground.
I'm fine with adding it.
But we should be clear that it is not 100%.
After all, it is not our money we are risking and if an OP is to decide on whether or not to risk, we should be clear it is a gamble.
Sooner or later cases will go though adjudication and possibly HC and it will be clearer.
The 0870 is a different matter, you have been careful to work out which authorities are gaining from the charge and those where the charge is taken solely by the provider.
An important distinction, that there is a cost is not the issue, there is a cost in a postage stamp if someone chooses to pay by post.
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@DancingDad I don't really disagree with anything you say, but it's another point to add to the 0870 ground.
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.......
There doesn't need to be a prohibition: it's a statutory notice and to make a demand for money, there needs to be a positive statutory power. Otherwise councils could make up PCNs for sneezing and just say that there's no statute prohibiting them from doing so.
If there is nothing authorising the PCN to demand the outstanding toll, then a PCN that demands the outstanding toll is demanding an amount that exceeds the amount due by law.
If this is wrong, then any PCN for not paying in a pay and display bay could demand payment of the P&D fee on top of the penalty.
https://www.legislation.gov.uk/uksi/2013/1783/regulation/4/made
Reg 4(4)
Authorises the charging authority to claim the outstanding toll as well as the Penalty.
To compare road charging to a parking PCN is comparing apples to pears.
There is nothing within TMA 2004 or its regs that remotely allows an additional cost over and above the penalty. That was confirmed by the High Court years back.
There is within road charging.
We all know that an adjudication decision does not set precedent, yet one is being bandied about as gospel, pinning all on a single sentence and a single reg while ignoring the elephant in the room that within the case in question, the guy had paid, the authority were double charging.
And that they may not do.
Put in the challenge that it is a fee not allowed by all means.
The authority may drop the ball.
Take it to adjudication, an adjudicator may take the view that it cannot be on the PCN and that the authority should use other means to claim.
But we should be clear that it is not a silver bullet that cannot fail or point to alternative legislation to seek to justify.
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So, basically, you disagree with this sentence in Caroline Sheppard's adjudication verdict : -
"There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge."
I agree totally with the statement above.
But there is also nothing in Reg 7 to prohibit
There doesn't need to be a prohibition: it's a statutory notice and to make a demand for money, there needs to be a positive statutory power. Otherwise councils could make up PCNs for sneezing and just say that there's no statute prohibiting them from doing so.
If there is nothing authorising the PCN to demand the outstanding toll, then a PCN that demands the outstanding toll is demanding an amount that exceeds the amount due by law.
If this is wrong, then any PCN for not paying in a pay and display bay could demand payment of the P&D fee on top of the penalty.
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So, basically, you disagree with this sentence in Caroline Sheppard's adjudication verdict : -
"There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge."
I agree totally with the statement above.
But there is also nothing in Reg 7 to prohibit
And I do think it needs to be taken in context and when read as a whole, along with the Regulations and the Bristol CAZ Order.
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So, basically, you disagree with this sentence in Caroline Sheppard's adjudication verdict : -
"There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge."
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Being fixated on Reg 7 doesn't make sense when all that says is the mandatory content.
Especially when Reg 4 specifically allows the authority to claim the charge as well as the penalty if they choose.
The mandatory content is the bits that must be on a PCN.
Unless specified it does not prohibit other bits being added, if it did you could probably damn each and every parking PCN as there will be bits that are not in the regs.
Added charges are a no no in most cases but these are sanctioned, they cannot be unlawful.
They were deemed to be in Moran as they were levied despite him having paid them and didn't give him the option to pay the penalty alone.
Simply put, you can demand the charge but not if it has been paid.
It does make you wonder on what would happen should a lorry owner pay the penalty bun not the charge.
Likely Bristol would allocate the £60 to the charges, regard the penalty as unpaid and issue a CC for the 150% plus the outstanding charge.
I can see that being a right dog's breakfast
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I think the drafters of the regulations cocked it up.
If a council has a choice in the RUC regulations between the PCN penalty on its own subsuming the toll fee, and the fee remaining payable when a PCN is issued, one would think Regulation 7 would contain a clause or clauses that say how a council collects an unpaid toll fee. From what I see, Reg 7 is a straight cut-and-paste from other regulations, probably the London ones. There the toll fee is cancelled if the PCN is paid. For the London LEZ which affects commercial vehicles, the PCN penalties are very large so no money is lost. With these RUC 2013-based schemes there is only a single PCN penalty to cover the much larger charge for lorries, and the fee for others, so, as you have said, a lorry operator could just pay the PCN at the discounted rate, and pay less than the £100 fee for Bristol. The Birmingham fee for lorries is half that of Bristol at £50.
It is a real dog's breakfast IMHO.
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Your view is that any PCN issued which includes the underlying charge is unlawful. Presumably all Bristol CAZ charges (and Dart and Bath too).
If they want the charge paying they should ask for it seperately and provide a means to pay it - this doesn't appear to exist since the payment service only allows a few days either side.
That would be an odd state of affairs - but entirely plausible.
If the authority accepted representations they could then, presumably, issue a fresh PCN in the sum of the penalty only under regulation 9 (2).
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No, sorry, you're wrong. The toll fee remains payable at whatever amount it is set at, but regulation 7 defines the content of the PCN. The penalty charge is nothing to do with the toll fee, being payable if the fee (called "licence in the Order), has not been paid, or has been paid late. It is a penalty, pure and simple.
The toll fee is a separate debt, and is not recoverable via the PCN. There is, of course, nothing to stop the council from pointing out that the toll fee must be paid when serving a PCN, but it is not permitted on the PCN. If the council have difficulty collecting the fee there is an established legal process for its recovery.
So a non-compliant lorry would still be liable for the £100; payment of the PCN does not discharge that debt.
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The regulations:-
https://www.legislation.gov.uk/uksi/2013/1783/made
(4) A charging scheme is to specify whether a penalty charge referred to in paragraph (1) or (2) is payable in addition to the road user charge or instead of such charge.
My bold.
Were this not the case I could take a non compliant lorry, get a £120 penalty and pay it at £60 rather than paying the £100 caz charge.
So, for me anyway, the CAZ fee can be demanded with the penalty as set out in the charging order.
Now therefore the Council, in exercise of the powers conferred on it by Part III and Schedule
12 of the Transport Act 2000, Parts 2 and 6 of The Road User Charging Schemes (Penalty
Charges, Adjudication and Enforcement) (England) Regulations 2013, and all other powers
enabling it in that behalf, hereby makes the following Order
Unless it is a different piece of legislation that enables penalty charges.
Edit: just realised the same observation had already been made.
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Indeed. The lawfulness of a PCN also demanding the toll fee will only be determined at an adjudication. Birmingham PCNs have the same penalty charge as all the others, but they have decided payment of the PCN discharges any requirement to pay the toll fee.
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To quote Ms Sheppard
"There is no power in Regulation 7 for the PCN to require the road user charge to be paid in
addition to the penalty charge. Nor is there a power for the charging authority to refuse to
allocate a payment made for a crossing to that crossing, and hold it, possibly indefinitely, for
future use."
To me the second part is the key part, they were adding the crossing charge even though he had paid it (late).
I read that as two separate points, and the first part stands on its own.
11. (1) A penalty charge will be payable, in addition to the charge imposed under article
7, for each charging day as respects which—
(a) a relevant vehicle has been used on a designated road in circumstances in which a
charge is imposed by article 7; and
(b) that charge has not been paid in full in the manner in which and within the time by
which it is required to be paid by article 9.
Is stated in the charging order. Whether that makes any difference I don't know.
I guess that would need to be tested at a tribunal. I'll keep you posted.
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11. (1) A penalty charge will be payable, in addition to the charge imposed under article
7, for each charging day as respects which—
(a) a relevant vehicle has been used on a designated road in circumstances in which a
charge is imposed by article 7; and
(b) that charge has not been paid in full in the manner in which and within the time by
which it is required to be paid by article 9.
Is stated in the charging order. Whether that makes any difference I don't know.
Bath CAZ also demands the fee in addition.
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..... I note that neither the London ULEZ, or the Birmingham schemes insist the toll fee be paid in addition to the penalty charge. So why don't councils add on any unpaid parking charges to their PCNs ?
Anyway, we'll have to agree to disagree until an adjudication has taken place.
ULEZ legislation does not come from the Road Users REgs, it is under section 295 and Schedule 23 of the Greater London Authority Act 1999, as amended
It would seem that Birmingham didn't avail themselves of the option allowed in Reg 4.
As for PCNs, there isn't the option within TMA 2004 or the regs pertaining to it
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It seems you have also misunderstood the regulations.
Yes, the Order can state that the toll fee is payable in addition to a penalty charge. However, the two are separate. As Caroline Sheppard said, there are no powers in Regulation 7 (PCNs) to collect the toll fee as well as the penalty charge, they are separate debts. So asking for more than the penalty charge on the PCN is a procedural impropriety. I note that neither the London ULEZ, or the Birmingham schemes insist the toll fee be paid in addition to the penalty charge. So why don't councils add on any unpaid parking charges to their PCNs ?
Anyway, we'll have to agree to disagree until an adjudication has taken place.
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If the Charging Regulations and the Bristol Order did not explicitly allow the charge to be required, I would agree wholeheartedly.
If not sanctioned it would be no different to adding a credit card surcharge which we all know was damned years ago as exceeding the penalty due.
But it is sanctioned, the error with Moran is that Dart required him to pay it again when he had already paid.
That is similar to a case my mate had... parked unlawfully in Walsal, copped a PCN, paid at discount.
Then Walsall sent him an NTO..... that was clear payment demanded exceeded what was due and they were challenged on it.
Had no option but to accept and refund the PCN payment already made.
Actually they did have an option but if they had of rejected, it would have been in front of TPT fast enough to make your eues spin...and would have won.
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So this sentence only applies if the toll fee is paid then ?
"There is no power in Regulation 7 for the PCN to require the road user charge to be paid in
addition to the penalty charge."
And also
"
Regulations 7(3)(g) and (f) require the penalty charge notice to state:
(f) the amount of penalty charge that is payable if the penalty charge is paid in full—
(i) within 14 days of the day on which the penalty charge notice is served;
(ii) after the expiry of such 14 day period but within 28 days of the day on which the penalty charge notice is
served;
(iii) after the service of a charge certificate;
(g) the manner in which the penalty charge must be paid and the address to which payment of the penalty charge
must be sent.
The clear intention is to set out clearly the amount of the penalty charge to be paid, and give
equally clear instructions as to how to pay the relevant amount.
While the PCN in this case dealt with the amounts of the penalty charge, according to when
they would be paid, it also stipulated that:
“In addition to the penalty charge you must also pay the applicable road user charge of £3.”
And the PCN further required Mr Moran to pay £38 or £73 (the relevant penalty charge with
£3 added), without an option to pay just the penalty charge.
There is no power in Regulation 7 for the PCN to require the road user charge to be paid in
addition to the penalty charge. Nor is there a power for the charging authority to refuse to
allocate a payment made for a crossing to that crossing, and hold it, possibly indefinitely, for
future use.
It is not in dispute that Mr Moran had paid the £3 crossing charge, as evidenced by his receipt
dated 14 January 2018 for the £3 payment, and accepted by Dart Charge.
It is all very well to set out the amounts of the penalty charge, but the impact and effect of the
PCN is to demand an amount that is in excess of the penalty charge, and it implies that
payment of £38 or £73 is the only amount that will be accepted.
Of course until somebody tests the argument at adjudication we are in the dark, but for me, the intent of the regulations is clear. The PCN is for collecting the PCN penalty not any unpaid toll fee. By adding it in the authority is requesting more than the PCN penalty, which is unlawful.
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To quote Ms Sheppard
"There is no power in Regulation 7 for the PCN to require the road user charge to be paid in
addition to the penalty charge. Nor is there a power for the charging authority to refuse to
allocate a payment made for a crossing to that crossing, and hold it, possibly indefinitely, for
future use."
To me the second part is the key part, they were adding the crossing charge even though he had paid it (late).
Reg 7 says what must be on the PCN, it does not say what cannot be on it.
The PCN says that the penalty is £120 discounted to £60 within the appropriate period.
It says that the penalty plus the CAZ charge must be paid
Reg 4(4) allows the authority to claim the charge if it desires
Bristol CAZ charging order so specifies.
I honestly cannot see owt wrong with respect to the added charge or how it is shown.
Challenge using it by all means, Bristol may flub the reply.
But I would expect an adjudicator to reject it.
TBH I would expect an adjudicator to reject a similar challenge on Dart if the crossing charge was still outstanding
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Indeed it does say that, but the PCN is defined in Regulation 7 and this does not permit the toll charge to be added to it. If you read the DART case, you'll find that Caroline Sheppard points this out. If they want to collect the toll charge, they can go to the small claims court. Obviously Birmingham read the regulations correctly.
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Hmmm
The road user charging scheme allows the charge to be levied as well as the penalty.
Though whether Bristol charging scheme specifies I need to check on.
The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013
4(4) A charging scheme is to specify whether a penalty charge referred to in paragraph (1) or (2) is payable in addition to the road user charge or instead of such charge.
The Luke Moran case turned not on that the charge was levied but that it had been paid and Dart had not allocated it to the PCN (kept it "on account")
Edit
Bristol charging order says this:-
"Penalty charge for non-payment of charge
11. (1) A penalty charge will be payable, in addition to the charge imposed under article
7, for each charging day as respects which....
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Delete Item 3. I have now found the Charge Certificate increase, (50%), and amount. It is in the box at the top of page 3.
The rest is good to go.
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OK, how about this:
I am challenging this PCN due to multiple procedural improprieties on the part of the charging authority:
1 The PCN references the Bristol City Council Clean Air Zone Charging Order 2022, legislation that does not exist. The PCN should in fact refer to the Bristol Clean Air Zone Charging Order 2022
2 The PCN is seeking to claim the CAZ charge in addition to a penalty. There is no provision for this in The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 which means that the PCN amount is greater than the amount that may legitimately be claimed. This was clarified by the Traffic Penalty Tribunal Chief Adjudicator in Mr Luke Moran - v - Secretary of State for Transport, case number IA01249-1803, on 13 June 2018 when she stated "There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge"
3 The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013 7(3)(f) requires that a PCN states the amount of penalty charge that is payable if the penalty charge is paid in full:
(i)within 14 days of the day on which the penalty charge notice is served;
(ii)after the expiry of such 14 day period but within 28 days of the day on which the penalty charge notice is served;
(iii)after the service of a charge certificate
Only (i) and (ii) are included in the PCN, the amount for (iii) has been omitted therefore the PCN is invalid
4 The PCN includes an 0870 premium rate telephone number for payment. In Paul Bateman v Derbyshire County Council, case number DJ00037-2209, on 10 November 2022) the Traffic Penalty Tribunal Adjudicator found that this amounts to a demand that exceeds the amount due in the circumstances of the case making the PCN invalid.
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Heree is the mandatory content of a PCN under the The Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013
(there is a later amendment of 2014, but no in the section I am posting here)
Penalty charge notice
7.—(1) Where a road user charge with respect to a motor vehicle under a charging scheme has not been paid by the time by which it is required by the charging scheme to be paid and, in those circumstances, the charging scheme provides for the payment of a penalty charge, the charging authority may serve a notice (a “penalty charge notice”).
(2) A penalty charge notice must be served on the registered keeper of the motor vehicle unless, in accordance with regulation 6, the penalty charge to which it relates is payable by another person, in which case the penalty charge notice must be served on that other person.
(3) A penalty charge notice must state—
(a)the date of the notice, which must be the date on which it is posted or sent by electronic transmission;
(b)the name of the charging authority;
(c)the registration mark of the motor vehicle to which it relates;
(d)the date and time at which the charging authority claims that the motor vehicle was used or kept on the designated road in circumstances in which, by virtue of a charging scheme, a road user charge was payable in respect of the motor vehicle;
(e)the grounds on which the charging authority believes that the penalty charge is payable with respect to the motor vehicle;
(f)the amount of penalty charge that is payable if the penalty charge is paid in full—
(i)within 14 days of the day on which the penalty charge notice is served;
(ii)after the expiry of such 14 day period but within 28 days of the day on which the penalty charge notice is
served;
(iii)after the service of a charge certificate;
(g)the manner in which the penalty charge must be paid and the address to which payment of the penalty charge must be sent;
(h)that the recipient of the penalty charge notice is entitled to make representations to the charging authority against the imposition of the penalty charge on any of the grounds specified in regulation 8(3);
(i)the address (including if appropriate any email address or fax telephone number, as well as the postal
address) to which such representations must be sent and the form in which they must be made;
(j)that the charging authority may disregard any such representations received by it more than 28 days after the
penalty charge notice was served; and
(k)in general terms, the form and manner in which an appeal to an adjudicator may be made.
I don't see anywhere on the pages of the PCN that has been posted, the amount as per 2 (f)(iii), the amount after a Charge Certificate is served.
It also seems inlawful to me to add in the amount of the road user charge to the penalty charge, because the charge is not collectable within the penalty charge amount. As put succinctly by Caroline Sheppard in the Luke MOran case:-
" There is no power in Regulation 7 for the PCN to require the road user charge to be paid in addition to the penalty charge."
and
"It is all very well to set out the amounts of the penalty charge, but the impact and effect of the
PCN is to demand an amount that is in excess of the penalty charge, and it implies that
payment of £38 or £73 is the only amount that will be accepted."
So adding on the road user charge to the penalty charge is a procedural impropriety.
There is also, of course, the 0870 phone number issue.
So, in summary, there are three things that are procedural improprieties on the PCN
1. Failure to show the amount after a CC is served
2. Asking for more than the penalty charge defined in Regulation 7
3. Using an o870 number meaning the council receive more money than allowed by law
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I've had a search and it looks like the 0870 number for payment may be a failing, and also charging the fee plus the penalty (does the Dart Crossing adjudication apply here?).
If you're talking about [i]Luke Moran v Secretary of State for Transport[/i] (IA01249-1803, 13 June 2018) (https://drive.google.com/uc?id=196wgUERzYDuZjwM9IEFYQwN0jD_jlcDD), that depends on whether you paid the daily fee before the PCN was issued.
If the fee was not paid you can still challenge based on the other issues you have identified. It's always best to post a draft challenge on here first.
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Visiting Bristol, didn't realise I had gone into the CAZ and got this a month later which came as a bit of a surprise!
I've had a search and it looks like the 0870 number for payment may be a failing, and also charging the fee plus the penalty (does the Dart Crossing adjudication apply here?).
Any thoughts would be welcome.
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