Need advice desperately WON, congratulations! **WON**

[rapunzel]

I have a Blue Badge and parked behind the hospital where I had an appointment as there were no spaces in the disabled carpark and a huge queue to get in. I have parked on that same street before as do lots of other people and my badge was displayed correctly. When I came out I found a parking ticket (PCN) and after having had a diagnosis of cancer from the hospital this was an additional terrible blow as I’ve never had a ticket before, and I collapsed in the street.

 

There was a “no loading” restriction on the street for rush hour times but I was outside these times which is what I wrote in my letter of challenge to the council. I’ve had no reply from them and can’t get hold of anyone on the phone. However, when I looked at the ticket again it is a code 01 and not an 02 which I would have expected because of the “no loading” signs. How do I find out why this road is “restricted”; I did not see any signs and it’s a big wide road but only really busy at rush hour and it’s just outside the city centre. If it’s just restricted because of the yellow line then I was within my rights to park because of my badge.

 

I’m having an operation on 16 July and this extra stress is just not bearable. I’m retired and can’t afford to pay parking fines. If anyone can help with information on my chances of beating this ticket I’d be so grateful.

 

Thanks.

[nero12]

I have a Blue Badge and parked behind the hospital where I had an appointment as there were no spaces in the disabled carpark and a huge queue to get in. I have parked on that same street before as do lots of other people and my badge was displayed correctly. When I came out I found a parking ticket (PCN) and after having had a diagnosis of cancer from the hospital this was an additional terrible blow as I’ve never had a ticket before, and I collapsed in the street.

 

There was a “no loading” restriction on the street for rush hour times but I was outside these times which is what I wrote in my letter of challenge to the council. I’ve had no reply from them and can’t get hold of anyone on the phone. However, when I looked at the ticket again it is a code 01 and not an 02 which I would have expected because of the “no loading” signs. How do I find out why this road is “restricted”; I did not see any signs and it’s a big wide road but only really busy at rush hour and it’s just outside the city centre. If it’s just restricted because of the yellow line then I was within my rights to park because of my badge.

 

I’m having an operation on 16 July and this extra stress is just not bearable. I’m retired and can’t afford to pay parking fines. If anyone can help with information on my chances of beating this ticket I’d be so grateful.

 

Thanks.

 

 

Hello rapunzel

 

write to the LA again and state that they have not replied to your letter as per protocol when dealing with matters concerning members of the public.

 

Also it maybe worth explaining your recent diagnosis ( btw i am in no way trying to patronise or belittle your predicament)

State that as a matter of urgency that this matter be cleared up asap as you have an emergency op and will be in no fit state to deal with this after.

 

Remind them that the contravention did not occur, ask to send photos and pocket book notes from the attendant and copies of the traffic order from the street if they still wish to pursue the ticket ( hopefully some numpty will see sense)

Get a letter from your local doctor and put it in with your letter to the LA

 

 

Also write to the chief executive of the LA, place a copy of the letter from your doctor explain what is happening and ask that he/she step in and cancell as a discretionary measure if need be.

 

 

Hope this helps,

 

Hope you get better soon.

 

Best wishes.

[nero12]

Hello rapunzel

 

write to the LA again and state that they have not replied to your letter as per protocol when dealing with matters concerning members of the public.

 

Also it maybe worth explaining your recent diagnosis ( btw i am in no way trying to patronise or belittle your predicament)

State that as a matter of urgency that this matter be cleared up asap as you have an emergency op and will be in no fit state to deal with this after.

 

Remind them that the contravention did not occur, ask to send photos and pocket book notes from the attendant and copies of the traffic order from the street if they still wish to pursue the ticket ( hopefully some numpty will see sense)

Get a letter from your local doctor and put it in with your letter to the LA

 

 

Also write to the chief executive of the LA, place a copy of the letter from your doctor explain what is happening and ask that he/she step in and cancell as a discretionary measure if need be.

 

 

Hope this helps,

 

Hope you get better soon.

 

Best wishes.

 

 

Also me thinks there should be something in the discretionary rules about appealants being in hospitial or have serious problems inasmuch as they cannot conduct an appeal due to ill health.

 

Lamma , green, anymore suggestions with this.!!

[green_and_mean]

Untill you get a reply from the Council it is anyones guess why you got a PCN. It could be anything from a problem with the badge (obscured, expired etc) to overstaying 3 hours or causing an obstruction.

[rapunzel]

Hello Nero 12 and thanks for your swift response and good wishes. I will do as you say and write to the Council again with the details you suggested. I did ring them just before I read your reply but could only speak to their call centre.(typical) The woman looked at my details and said my case was on hold, presumably because they are dealing with lots of cases. She made a note to say I had rung and was going into hospital and said I would just have to wait until they contacted me. Not easy with the op and up to 5 weeks of radiotherapy to look forward to!

 

I’ve been looking at Forum replies and it seems as if my PCN complies with the law so I can’t challenge it on those grounds but I did see that on the back it referred to serving a Notice to Owner but I’m not the owner as it’s a Motability car. As far as I know the owner and the registered keeper are the same in law but it’s just another example of these PCN’s being unclear.

 

But thanks again.

 

Rapunzel

[rapunzel]

Untill you get a reply from the Council it is anyones guess why you got a PCN. It could be anything from a problem with the badge (obscured, expired etc) to overstaying 3 hours or causing an obstruction.

 

Hello green and mean. Thanks for responding.

The Badge was correctly displayed, I’m sure of that and it doesn’t expire till December. The PCN says I was observed at 11.57 am and the notice issued at 12.03 so the officer couldn’t have known how long I was there for. I was parked well away from the entrance to the car park and not causing an obstruction but as you say, it’s anyone’s guess what the reasons were and I’ll just have to wait.

Rapunzel

[green_and_mean]

The PCN says I was observed at 11.57 am and the notice issued at 12.03 so the officer couldn’t have known how long I was there for.

 

Did you display the clock correctly set with the time of arrival?

[rapunzel]

Did you display the clock correctly set with the time of arrival?

 

I'm pretty certain I did but I was in a bit of a state as I was going for my test results.

[green_and_mean]

I'm pretty certain I did but I was in a bit of a state as I was going for my test results.

 

Not using the clock correctly would invalidate your badge if that was possibly the case.

[nero12]

Hello Nero 12 and thanks for your swift response and good wishes. I will do as you say and write to the Council again with the details you suggested. I did ring them just before I read your reply but could only speak to their call centre.(typical) The woman looked at my details and said my case was on hold, presumably because they are dealing with lots of cases. She made a note to say I had rung and was going into hospital and said I would just have to wait until they contacted me. Not easy with the op and up to 5 weeks of radiotherapy to look forward to!

 

I’ve been looking at Forum replies and it seems as if my PCN complies with the law so I can’t challenge it on those grounds but I did see that on the back it referred to serving a Notice to Owner but I’m not the owner as it’s a Motability car. As far as I know the owner and the registered keeper are the same in law but it’s just another example of these PCN’s being unclear.

 

But thanks again.

 

Rapunzel

 

 

Hello rapunzel

 

Send the letters as suggested, if they hastle you any further then PM me I know a few people who maybe able to help further.

You need to concentrate on getting better, never mind the stupid ticket im sure the silly LA can cope without the rotten penalty money.

[rapunzel]

Not using the clock correctly would invalidate your badge if that was possibly the case.

 

Hello Green and mean. I've now received a letter from the Council replying to my first letter and saying my informal representation has been rejected and giving me a further 14 days (actually less than 14 days because it's from date of letter which was 10th July) to pay the reduced charge of £35.00.

 

There was a photograph enclosed which shows no time clock on the dashboard but I have spoken to my partner and he remembers getting both badges out of my bag and setting the time clock for me. I have never parked without putting the time clock up at the same time as Badge. It's just habit. I can only assume that it fell off. It was an extremely windy day and because of my disability I have to have the car door wide open to get out, plus it takes me some time to do so, so it's quite possible that the badge slipped off and I didn't notice it. I normally check the car when I'm out to make sure everything's as it should be but that day my mind was on the cancer disgnosis.

 

The photo of my car just shows the windscreen so there's no proof that it really is my car, apart from the colour.

 

I've been reading up on as much as I can about the subject and some non-disabled people have had their appeals allowed because their car park tickets fell off the windscreen or got covered up.

 

The Disability Discrimination Act says:

 

" Every public authority shall in carrying out its functions have due regard to

 

......"(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons."

 

So if non-disabled people can be let off because of tickets falling from where they were placed surely they cannot treat a disabled person less favourably?

 

Other councils, such as Trafford Council say:

 

"We are not out to punish people who make genuine mistakes, to these people we issue advisory notices, which will hopefully help them to understand what is required in the future. We wish to catch people who risk spoiling the scheme for others by deliberately breaking the rules."

 

If Trafford can issue advisory notices for first offences why can't my authority (Liverpool) do so!

 

Sorry this is so long but I wanted to include everything as I'm going into hospital tomorrow, I don't know how long for, and this penalty charge is hanging over me when I should be just trying to be positive about my surgery. I don't know whether I should go ahead and pay this charge while it's £35 as if I leave it and appeal it will go up to £75which I can't afford as I've just retired.

 

Thanks to everyone who's helped me so far.

[nero12]

Hello Green and mean. I've now received a letter from the Council replying to my first letter and saying my informal representation has been rejected and giving me a further 14 days (actually less than 14 days because it's from date of letter which was 10th July) to pay the reduced charge of £35.00.

 

There was a photograph enclosed which shows no time clock on the dashboard but I have spoken to my partner and he remembers getting both badges out of my bag and setting the time clock for me. I have never parked without putting the time clock up at the same time as Badge. It's just habit. I can only assume that it fell off. It was an extremely windy day and because of my disability I have to have the car door wide open to get out, plus it takes me some time to do so, so it's quite possible that the badge slipped off and I didn't notice it. I normally check the car when I'm out to make sure everything's as it should be but that day my mind was on the cancer disgnosis.

 

The photo of my car just shows the windscreen so there's no proof that it really is my car, apart from the colour.

 

I've been reading up on as much as I can about the subject and some non-disabled people have had their appeals allowed because their car park tickets fell off the windscreen or got covered up.

 

The Disability Discrimination Act says:

 

" Every public authority shall in carrying out its functions have due regard to

 

......"(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons."

 

So if non-disabled people can be let off because of tickets falling from where they were placed surely they cannot treat a disabled person less favourably?

 

Other councils, such as Trafford Council say:

 

"We are not out to punish people who make genuine mistakes, to these people we issue advisory notices, which will hopefully help them to understand what is required in the future. We wish to catch people who risk spoiling the scheme for others by deliberately breaking the rules."

 

If Trafford can issue advisory notices for first offences why can't my authority (Liverpool) do so!

 

Sorry this is so long but I wanted to include everything as I'm going into hospital tomorrow, I don't know how long for, and this penalty charge is hanging over me when I should be just trying to be positive about my surgery. I don't know whether I should go ahead and pay this charge while it's £35 as if I leave it and appeal it will go up to £75which I can't afford as I've just retired.

 

Thanks to everyone who's helped me so far.

Send this ,post it signed for.

 

(your address) ...............................

 

 

...........................

 

...................

 

(postcode ) ...............

 

 

 

.......................................... (name and address of local authority)

 

..........................................

 

..........................................

 

..........................................

 

 

.......................................... (Date)

 

 

PCN No. ……………………..

 

Vehicle Reg.No. ……………………..

 

Date of Issue of PCN ……………………..

 

 

 

Dear Sir / Madam,

It appears that you have not considered my informal appeal.

I have already explained that ( whatever may have happened)

I understand that under the RTA 1991 and the TMA 2004 the secretary of state has given local authorities powers of discretion. I believe this is such a case where discretion should be used. If however you continue to refuse your powers of discretion in this matter, could you please explain why.

 

 

If it is the case that discretion is arbitrary and dependent on the whim of the Appeals Officer on the day then this could clearly constitute discrimination pursuant to the Disability Discrimination Act 1995.

 

 

Therefore could you please enclose a copy of the ( name of La)

Policy document regarding your Decriminalised Parking Enforcement regime, and in particular any references to the application of discretion. If you do not have such a policy document then please provide an explanation as to why not, and please therefore provide copies of any Policy Documents which deal with Disability Discrimination.

 

 

Also under the freedom of information could you please provide the following

 

 

1 the number of PCNs cancelled where discretion has been applied at the informal appeal stage;

2 the number of PCNs issued for Blue Badge contraventions;

3 the number of PCNs cancelled after informal representations regarding matters arising from Blue Badge contraventions;

4copies of any adjudication decisions where the failure to correctly display / set clock Blue Badge issue has been an issue.

 

Pleas treat this letter as part of my informal representations with the relevant discount.

 

 

Alternatively you may wish to consider cancelling the ticket on this occasion

 

 

I look forward to your response in accordance with guidelines on responding to communications from members of the public.

 

 

 

Yours sincerely,

 

 

 

...................................................

 

 

Green please side with me on this mate, this is a money making exercise on the part of the LA. No need aye.

 

 

PS if anyone can improve this letter then please do.

 

many thanx

Edited July 14, 2008 by nero12

[green_and_mean]

Dear Sir / Madam,

It appears that you have not considered my informal appeal.

I have already explained that ( whatever may have happened)

I understand that under the RTA 1991 and the TMA 2004 the secretary of state has given local authorities powers of discretion. I believe this is such a case where discretion should be used. If however you continue to refuse your powers of discretion in this matter, could you please explain why.

 

 

If it is the case that discretion is arbitrary and dependent on the whim of the Appeals Officer on the day then this could clearly constitute discrimination pursuant to the Disability Discrimination Act 1995.

 

 

Therefore could you please enclose a copy of the ( name of La)

Policy document regarding your Decriminalised Parking Enforcement regime, and in particular any references to the application of discretion. If you do not have such a policy document then please provide an explanation as to why not, and please therefore provide copies of any Policy Documents which deal with Disability Discrimination.

 

 

Also under the freedom of information could you please provide the following

 

 

1 the number of PCNs cancelled where discretion has been applied at the informal appeal stage;

2 the number of PCNs issued for Blue Badge contraventions;

3 the number of PCNs cancelled after informal representations regarding matters arising from Blue Badge contraventions;

4copies of any adjudication decisions where the failure to correctly display / set clock Blue Badge issue has been an issue.

 

Pleas treat this letter as part of my informal representations with the relevant discount.

 

 

Alternatively you may wish to consider cancelling the ticket on this occasion

 

 

I look forward to your response in accordance with guidelines on responding to communications from members of the public.

 

 

 

Yours sincerely,

 

 

 

...................................................

 

 

Green please side with me on this mate, this is a money making exercise on the part of the LA. No need aye.

 

 

PS if anyone can improve this letter then please do.

 

many thanx

 

You cannot usually make repeated informal represenations.

[nero12]

You cannot usually make repeated informal represenations.

I have.

[nero12]

I have.

Hello rapunzel

try sending this letter back to the LA( green your probably right about the repeat letter but I have done it)

 

rapunzel also report them to your local gouvernment ombudsmen And send a letter to the chief executive of your Local authority to see if you can get them jobsworths off your back.

 

Post what happens.

 

good luck

[rapunzel]

Many thanks Nero and Green, brilliant letter. If I have time tomorrow I'll get it typed before I go in to hospital. My letter from Council say they won't enter into any further correspondence before NTO but no harm in me writing to them again.

 

I'll be in touch later. Time for bed now.

 

Cheers,

Rapunzel

[nero12]

Many thanks Nero and Green, brilliant letter. If I have time tomorrow I'll get it typed before I go in to hospital. My letter from Council say they won't enter into any further correspondence before NTO but no harm in me writing to them again.

 

I'll be in touch later. Time for bed now.

 

Cheers,

Rapunzel

Dont forget, report them to the Local gouvernment ombudsmen and the chief exec for sure.

[green_and_mean]

Dont forget, report them to the Local gouvernment ombudsmen and the chief exec for sure.

 

Totally pointless in my opinion the Council is acting within the Law so the ombudsmen will not get involved and the CEO will just quote Council policy.

[lamma]

Council policy ? who cares ?

See the NPAS 2004 report

 

The Council’s discretion

 

Councils have discretion to decide at any stage in the proceedings not to enforce a PCN

even if, technically, it was correctly issued. Many Councils need no reminding about this

and give real thought to exercising their discretion in cases involving disabled drivers.

Indeed most (though not all) have a policy of cancelling at least the first PCN issued for

displaying a valid badge upside down or in other circumstances where the Blue Badge

holder has contravened inadvertently and it is obvious that no abuse of the scheme has

taken place.

While such practices are sensible and commendable, each case must nevertheless be

considered on its own merits, including the particular facts of the original incident

compared to the one now being considered. As the Chief Adjudicator emphasised in

NG 254:

■ The purpose of the Blue Badge Scheme is to provide exemptions from parking

restrictions and some payments for those with severe mobility problems.

■ There is a general public duty to be sensitive towards those with disabilities and to

recognise that it may take some people longer to adapt to new procedures than

others. For the same reason it may be more difficult for some drivers to check how

their badge is displayed.

■ While it is recognised that there is considerable abuse of the scheme, Councils must

nevertheless always examine the evidence in the particular case to see whether, had

it not been for the minor transgression, the appellant would otherwise have been

entitled to the benefit of the exemption.

Some Councils have put in place a more formal system of issuing a warning notice

rather than a PCN the first time such a contravention occurs. In TR 191 the Council

decided not to contest the appeal when it realised that it had, in error, issued a PCN

which had not been preceded by a warning notice. The appellant’s subsequent

application for costs was refused.

Badge holders must be prepared to comply with the Council’s reasonable investigations

when the exercise of discretion is being considered. In SN 169, the vehicle was parked

with no badge on display. The Council said it would consider exercising its discretion if

the appellant produced a copy of his badge but, despite being a genuine badge holder,

the appellant did not do so. The appeal was dismissed.

With many Councils handling issues of discretion involving disabled drivers so sensibly

and sensitively, it is disappointing that a minority continue to take an extremely hard

line with Blue Badge holders, which many Adjudicators consider to be wholly

unjustified in the context of decriminalised parking.

In CF 242 (an appeal which was allowed following consideration of the evidence

because the contravention had not been properly established), the Adjudicator said:

"Whilst a Parking Attendant cannot ascertain whether the badge is valid when only the photograph

side is showing such that a PCN can reasonably be issued, it is nevertheless surprising when a

Council refuses to cancel the PCN once they are satisfied that the badge is indeed valid and that it

was the badge on display at the time of the incident."

In PL 1189 (appeal dismissed) and PL 1515 (appeal allowed) the Adjudicators found it

necessary to remind Plymouth Council of its power to exercise discretion. Similarly, in

BP 90, where the evidence showed that although the badge had been displayed the clock

had fallen down, the Adjudicator dismissed the appeal but said: "Some Councils have a

policy of exercising their discretion favourably towards disabled motorists for a first contravention

where (as here) the error was unintentional – on the basis that a second similar contravention would

be less likely to receive sympathetic consideration. I do not know whether Blackpool Council have

such a policy, or whether the Appellant would on this occasion be covered by it – but I remind the

Council that, having established that the PCN was correctly issued, they retain a discretion to waive

the penalty charge in appropriate cases."

In PL 1205 the Adjudicator (having allowed the appeal for other reasons) said that "the

Council should not be seeking to issue PCNs to holders of valid disabled permits where it is clear that

some confusion or error has occurred and that no abuse of the scheme has occurred. This is clearly

not what the decriminalised parking enforcement powers were intended for."

NPAS hopes that the minority of Councils who follow such unrelenting policies in

relation to Blue Badge holders will in due course see fit to revise them.

The Adjudicators recognise that Councils have a difficult task in dealing with abuse

of the Blue Badge Scheme. However the complex problems involved in parking

control and enforcement should not have the effect of frustrating the purpose of

the scheme. An open and structured system for the consideration of

representations relating to disability will ensure that Local Authorities are seen to

be actively promoting equal treatment.

 

In order that challenges in relation

to contraventions of the Blue Badge

Scheme can be responded to by

Local Authorities in a robust

manner, Adjudicators recommend

that all Local Authorities ;

1. Ensure that all staff involved in

the parking enforcement process

receive relevant and regular

training in relation to the

operation of the Blue Badge

Scheme and that such training

encourages and supports a

sound understanding of

disability issues.

2. Formulate clear and concise

protocols and guidance for

dealing with representations

based on disability, and ensure

that they are implemented,

monitored and reviewed at

operational level within parking

departments.

[nero12]

Council policy ? who cares ?

See the NPAS 2004 report

 

The Council’s discretion

 

Councils have discretion to decide at any stage in the proceedings not to enforce a PCN

even if, technically, it was correctly issued. Many Councils need no reminding about this

and give real thought to exercising their discretion in cases involving disabled drivers.

Indeed most (though not all) have a policy of cancelling at least the first PCN issued for

displaying a valid badge upside down or in other circumstances where the Blue Badge

holder has contravened inadvertently and it is obvious that no abuse of the scheme has

taken place.

While such practices are sensible and commendable, each case must nevertheless be

considered on its own merits, including the particular facts of the original incident

compared to the one now being considered. As the Chief Adjudicator emphasised in

NG 254:

■ The purpose of the Blue Badge Scheme is to provide exemptions from parking

restrictions and some payments for those with severe mobility problems.

■ There is a general public duty to be sensitive towards those with disabilities and to

recognise that it may take some people longer to adapt to new procedures than

others. For the same reason it may be more difficult for some drivers to check how

their badge is displayed.

■ While it is recognised that there is considerable abuse of the scheme, Councils must

nevertheless always examine the evidence in the particular case to see whether, had

it not been for the minor transgression, the appellant would otherwise have been

entitled to the benefit of the exemption.

Some Councils have put in place a more formal system of issuing a warning notice

rather than a PCN the first time such a contravention occurs. In TR 191 the Council

decided not to contest the appeal when it realised that it had, in error, issued a PCN

which had not been preceded by a warning notice. The appellant’s subsequent

application for costs was refused.

Badge holders must be prepared to comply with the Council’s reasonable investigations

when the exercise of discretion is being considered. In SN 169, the vehicle was parked

with no badge on display. The Council said it would consider exercising its discretion if

the appellant produced a copy of his badge but, despite being a genuine badge holder,

the appellant did not do so. The appeal was dismissed.

With many Councils handling issues of discretion involving disabled drivers so sensibly

and sensitively, it is disappointing that a minority continue to take an extremely hard

line with Blue Badge holders, which many Adjudicators consider to be wholly

unjustified in the context of decriminalised parking.

In CF 242 (an appeal which was allowed following consideration of the evidence

because the contravention had not been properly established), the Adjudicator said:

"Whilst a Parking Attendant cannot ascertain whether the badge is valid when only the photograph

side is showing such that a PCN can reasonably be issued, it is nevertheless surprising when a

Council refuses to cancel the PCN once they are satisfied that the badge is indeed valid and that it

was the badge on display at the time of the incident."

In PL 1189 (appeal dismissed) and PL 1515 (appeal allowed) the Adjudicators found it

necessary to remind Plymouth Council of its power to exercise discretion. Similarly, in

BP 90, where the evidence showed that although the badge had been displayed the clock

had fallen down, the Adjudicator dismissed the appeal but said: "Some Councils have a

policy of exercising their discretion favourably towards disabled motorists for a first contravention

where (as here) the error was unintentional – on the basis that a second similar contravention would

be less likely to receive sympathetic consideration. I do not know whether Blackpool Council have

such a policy, or whether the Appellant would on this occasion be covered by it – but I remind the

Council that, having established that the PCN was correctly issued, they retain a discretion to waive

the penalty charge in appropriate cases."

In PL 1205 the Adjudicator (having allowed the appeal for other reasons) said that "the

Council should not be seeking to issue PCNs to holders of valid disabled permits where it is clear that

some confusion or error has occurred and that no abuse of the scheme has occurred. This is clearly

not what the decriminalised parking enforcement powers were intended for."

NPAS hopes that the minority of Councils who follow such unrelenting policies in

relation to Blue Badge holders will in due course see fit to revise them.

The Adjudicators recognise that Councils have a difficult task in dealing with abuse

of the Blue Badge Scheme. However the complex problems involved in parking

control and enforcement should not have the effect of frustrating the purpose of

the scheme. An open and structured system for the consideration of

representations relating to disability will ensure that Local Authorities are seen to

be actively promoting equal treatment.

 

In order that challenges in relation

to contraventions of the Blue Badge

Scheme can be responded to by

Local Authorities in a robust

manner, Adjudicators recommend

that all Local Authorities ;

1. Ensure that all staff involved in

the parking enforcement process

receive relevant and regular

training in relation to the

operation of the Blue Badge

Scheme and that such training

encourages and supports a

sound understanding of

disability issues.

2. Formulate clear and concise

protocols and guidance for

dealing with representations

based on disability, and ensure

that they are implemented,

monitored and reviewed at

operational level within parking

departments.

Thanx lamma, green I thought you may atleast conceed on this one mate.

This is precisely what brings DPE into total disrepute. It makes a mokery of the discretionary rules and makes the Local authorities appear to be incompetent at best, unkind, vivdictive , abusive and money grabbing at worst.

I feel very disapointed somtimes that this occurs, especialy as it appears to be only a damn stamp to them!!! Very inkind.

[nero12]

Thanx lamma, green I thought you may atleast conceed on this one mate.

This is precisely what brings DPE into total disrepute. It makes a mokery of the discretionary rules and makes the Local authorities appear to be incompetent at best, unkind, vivdictive , abusive and money grabbing at worst.

I feel very disapointed somtimes that this occurs, especialy as it appears to be only a damn stamp to them!!! Very inkind.

 

 

Read this, an adjudication overturned and the lack of discretion deemed as Unlawfull..

 

 

Penalty Charge Notice BC3003710A

The Appellant’s application for a Review of the Decision of the Adjudicator is hereby granted.

The Appellant’s appeal is now allowed on the ground that, on the facts of this case, the Council’s exercise of their discretion to pursue payment of this penalty charge was not a proper and lawful exercise of discretion.

I now direct the Council to cancel the Penalty Charge Notice and Notice to Owner.

Reasons

I refer the parties to the Adjournment Directions of the Adjudicator, Mr David Binns, dated 24 October 2006, the Decision of Mr Binns, dated 11 December 2006 and my Directions dated 25 January 2007.

In his Decision dated 11 December 2006, although Mr Binns dismissed the Appellant’s appeal (because he was satisfied that the contravention occurred) he stated as follows:

“The information supplied by the Council in relation to the exercise of discretion in cases

of incorrectly displayed disabled persons parking permits, has the effect of fettering the

Council’s discretion. This is likely to give rise to injustice and in the case of Mr

XXXXXXX I am satisfied that it will do so if the PCN is further enforced”.

In the light of that, the Appellant applied for a Review of Mr Binns’ Decision and, despite my Directions dated 25 January 2007, the Council have now stated that they still wish to pursue payment of this penalty charge.

In the circumstances, I will now deal with the Appellant’s application for a Review, which is made on the basis that he did not receive a copy of the Council’s letter of 2 November 2006, which was before Mr Binns, when he made his decision to dismiss the appeal. The Council accept that they did not copy their letter of 2 November 2006 to the Appellant and, consequently, the

Appellant feels aggrieved that the information in this letter should have been taken into

consideration by Mr Binns in reaching his Decision.

The facts of the matter are not in dispute. In that respect, the contravention alleged against the Appellant is that his vehicle was parked in a designated disabled person’s parking place without

Page 2 of 3

National Parking Adjudication Service Case No: BC 05063H

clearly displaying a valid disabled person’s badge. The Appellant is in fact the holder of a valid disabled badge, which was valid at the time, and, as can be seen from the Parking Attendant’s photographs, the disabled badge was on display on the dashboard of the Appellant’s vehicle.

However, a substantial proportion of it was covered by the Appellant’s personal papers, as a result of which the details on it (ie date and serial number) could not be read from outside of the vehicle. Furthermore, it is also agreed and accepted that the Council cancelled a previous Penalty Charge Notice (PCN) of their own volition in September 2005 because the Appellant had omitted to display his badge properly on that occasion.The Council have a policy that, although a disabled driver will be given one chance, he is not given any further chances and, consequently, the Council decided to pursue payment from him

in this case. In that respect, in the Council’s email dated 5 March 2007, the Council state:

“However I disagree that The Council fetters it’s decision in relation to motorists who are

holders of disabled badges who receive PCNs. Each case is still viewed on its individual

merits prior to considering whether the production of a disabled badge has resulted in a

previous PCN being cancelled”.

The Council always have a discretion whether or not to pursue payment of a penalty charge, even if a contravention occurs. However, that discretion must be exercised properly and fairly in each individual case and any policy, formulated to assist in the exercise of that discretion, must

be flexible and should not fetter the discretion in any way. I have no doubt that the Council would agree with this statement.

However, in the context of this case, they maintain that they exercised their discretion properly and fairly and that their policy of only giving disabled drivers one chance does not fetter this discretion.

With respect to the Council and on the basis of the evidence before me in this case, I disagree. In that respect, when the Appellant first wrote to the Council in this matter, he received a reply from National Car Parks, specifically written on behalf of the Council, dated 20 June 2006. In that letter, National Car Parks state as follows:

“Unfortunately, as the badge has been produced previously on 15 September 2005, I am

unable to consider cancelling the above Notice”.

The very wording of this reply ie. “I am unable to consider” flies in the face of the Council’s contention that their policy is not fettered and is flexible. In my mind, these very words make it clear that, because of this earlier cancellation, there is simply no question of any subsequent PCN being considered for cancellation.

Furthermore, in the Council’s letter of 17 August 2006, having set out the circumstances and the fact that a previous PCN was cancelled, the author of the letter states:

“I cannot consider this case for cancellation”.

Again, the very words used, ie. “cannot” indicates that there is simply no question of

consideration being given to a cancellation in this case.

Furthermore, in their Advisory Leaflet to disabled drivers, which the Council have produced, they

state: “If you have already had one or more penalty notices whilst using this disabled parking badge, we will not cancel this one”.

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National Parking Adjudication Service Case No: BC 05063H

Again, the use of the words “will not” do not recognise the existence of a discretion and are completely inconsistent with the Council’s contention that their policy is nevertheless not fettered and inflexible. I make it clear that, in any case, the Council are entitled to exercise their discretion and that, if that discretion has been properly exercised, an Adjudicator has no power or authority to interfere with it. Furthermore, I also make it clear that I accept that an Adjudicator himself has no similar power to exercise discretion and allow an appeal on the ground of mitigating or extenuating circumstances alone.

However, that discretion, which is vested in the Council, must be exercised fairly and properly in each case. Furthermore, as Mr Binns pointed out in his Decision dated 11 December 2006, the Special Report from the Local Government Ombudsman made it clear that Councils must not fetter their discretion. Indeed, in the case of Walmsley v. Transport for London and Others

[2005] EWCA Civ. 1540, Lord Justice Sedley confirmed that, although a Council may adopt a policy to assist them in the exercise of their discretion, that discretion nevertheless still had to be applied flexibly and must not be formulaic.

In the circumstances and on the evidence before me in this case, I am satisfied that the this case did not exercise their discretion properly, fairly and with flexibility and, accordingly, the Council in exercise by the Council of their discretion was unlawful.

For the above reasons, therefore, I grant the Appellant’s application for a Review of Mr Binns’ Decision dated 11 December 2006, which Decision I hereby revoke. Furthermore,for the above reasons, I now allow the Appellant’s appeal and now direct that the PCN and Notice to Owner be cancelled.

Clifton Barker

Parking Adjudicator appointed under Section 73 of the Road Traffic Act 1991

Date: March 28 2007

Green how many more times do I and lammy have to shout !! It is unlawfull, ruled upon simple as that.

[green_and_mean]

Read this, an adjudication overturned and the lack of discretion deemed as Unlawfull..

Green how many more times do I and lammy have to shout !! It is unlawfull, ruled upon simple as that.

 

Its unlawful not to consider discretion which is not the case here the Council does not feel its appropriate to let the OP off a correctly issued PCN. In the case you quoted the Council stated discretion would NOT be used as the driver had already been let off before .... a completely different scenario. If it was compulsory to use discretion no one would ever pay a fine as everyone could dream up some form of mitigation.

[nero12]

Its unlawful not to consider discretion which is not the case here the Council does not feel its appropriate to let the OP off a correctly issued PCN. In the case you quoted the Council stated discretion would NOT be used as the driver had already been let off before .... a completely different scenario. If it was compulsory to use discretion no one would ever pay a fine as everyone could dream up some form of mitigation.

what are you on about.

It would be correctly pursued if the op subsequently could not provide details of a blue badge. This is not the case a blue badge can be produced this then should be the end of the matter .It is not fake, stolen or othewrwise missused the LA can easly check. It seems however they are choosing not to, to persue this ticket in my opinion becomes vexatious, intimidating unfair and ultimately as I have shown here as unlawful. All with the aim of one thing, money. Double or quits run the risk of appealing and we will double your fine , never mind fairness.

 

Green after deatils of the blue badge have been produced, directives from the secretary of state produced , adjudications galore, and key adjudications that have been overturned at what point in DPE would discretion be used if not here.

Edited July 15, 2008 by nero12

[lamma]

The council do not have to consider discretion they have to exercise it.

Big difference.

[green_and_mean]

Very helpful to rapunzel

 

green so you advise to shut up and payup, furthermore dont post on here with your sobstory.

 

The OP can follow what ever choice he chooses but the idea that anyone who produces a blue badge after failing to display it should be let off is ludicrous and would make the scheme even less enforceable than it currently is.