Follow-up: Council rejected procedural impropriety claims. Worth appealing?

[Sergei]

Hello again,

 

I thought it would be not necessary but bad luck, council did evaluate my rejection of PCN in time

 

Details on the original PCN is here:

 

http://www.consumeractiongroup.co.uk/forum/parking-traffic-offences/218535-cctv-pcn-challenge.html

 

In short, PCN was dated more than 28 days following the contravention.

 

I've just received a reply from Newham Council on the case, and they rejected my claim.

 

The contravention took place on 25 July 2009. We then went to the DVLA to obtain the registered keeper details on the tenth day after this.

 

Our remit is to go to the DVLA before the 14th day after the contravention and as you can see that is what we did. That is the only timescale for which we are responsible at this stage in the proceedings and the delay in printing and posting the PCN out to you was a result delays from the DVLA.

 

So is it worth appealing?

 

And another question, they request £100 fine now, is it correct? As I've send the initial representation within £50 period....

[green_and_mean]

There is something fishy about all this! Newham have on this and other forums claimed this '14 day' excuse on numerous occasions in the last few months. The Council I work for has delayed responses from the DVLA in very few cases and generally for a reason, no trace, keeper etc. It seems very strange the DVLA are late with most responses to Newham when other Councils get 'next day' replies to requests. Personally I would request data from both DVLA and Newhan to both back up their claim in your case and additionally general figures on response times to vq4 requests between DVLA and Newham over the last few months.

[green_and_mean]

In addition Newhan as a London council are supposed to abide by the London Councils code of practice which states...

 

Issue of Penalty Charge Notices (PCNs)

2.4.10 The operator will use the contemporaneous record, or tags on the digital record, to identify the sections of the ‘working’ video recording, which contain possible contraventions.

2.4.11 Each contravention will be reviewed on the working video to decide whether it is clear and indisputable. Appropriate details of the vehicle and circumstances involved in clear and indisputable contraventions are recorded, and registered keeper details obtained. A PCN is then sent to the registered keeper.

2.4.12 All PCNs are to be issued within 14 days of the contravention and should be sent by first class post. The PCN is deemed to have been served when it would be delivered in the ordinary course of post.

 

The statutary guidance from Secretary of state also states...

 

In these circumstances a PCN is served by post on the owner (whose identity is ascertained from the DVLA), and also acts as the Notice to Owner. The Regulations set out what information must

29

be stated on a PCN sent by post. The Secretary of State suggests that postal PCNs should be sent within 14 days of the contravention.

Edited October 23, 2009 by green_and_mean

[lamma]

Newhams' response is gibberish and wrong.

[green_and_mean]

What date did they state the DVLA replied? If they sent it off on the 5th Aug as claimed they 2 weeks to get back the details and send the PCN which is plenty of time to get it served in time.

[green_and_mean]

From a similar case....

 

Got a reply back for FOI Request yesterday.

 

I asked

 

 

How many regulation 10 PCNs have been sent 28 days after Contravention occurred between 1st April 2009 and 1st October 2009

 

My Reply was

 

Dear Sir/Madam,

 

Freedom of Information Act 2000

Request for Information: Information Not Held

Please quote our reference: E4953.

Subject: Regualtion 10 PCNs.

 

We write with regard to your recent enquiry for information held by the Council under the provisions of the Freedom of Information Act 2000.

 

The information is not held, as the parking software system is not configured to produce the requested information.

 

If you require any further information or are not happy with our response please do not hesitate to contact a member of our team on (020) 8430 3737 or email us at [email protected].

 

If you are not satisfied with the decision, you may ask for an internal review via Newham Council Complaints Procedure. I enclose a copy of the procedure.

 

 

Yours Faithfully

 

Information Governance

 

Newham Council

[Sergei]

What date did they state the DVLA replied? If they sent it off on the 5th Aug as claimed they 2 weeks to get back the details and send the PCN which is plenty of time to get it served in time.

 

They did not disclose this information.

 

If they sent the request for registered keeper address to the DVLA 10 days following the contravention, that would mean a date around 5 August. They mean however that the rest of the delay is not their fault but DVLA's. Why would DVLA take about three weeks to reply, still avoids me. Even before the contravention, I already had a certificate from DVLA posted to me...

 

By the way, on the reverse side of the rejection notice... I'm not a native speaker, but this english sounds rather gibberish....

 

You also mention that fact you felt you had to have a two minute observation period. This you had. We do not have to give this time as this what is termed as an instant fine but out of courtesy we do give this under this contravention.

Took me several readings to understand more or less what exactly they refer to... Still, why would it be an instant fine?

[green_and_mean]

They did not disclose this information.

 

If they sent the request for registered keeper address to the DVLA 10 days following the contravention, that would mean a date around 5 August. They mean however that the rest of the delay is not their fault but DVLA's. Why would DVLA take about three weeks to reply, still avoids me. Even before the contravention, I already had a certificate from DVLA posted to me...

 

By the way, on the reverse side of the rejection notice... I'm not a native speaker, but this english sounds rather gibberish....

 

 

Took me several readings to understand more or less what exactly they refer to... Still, why would it be an instant fine?

 

I think Newham has a problem with postal PCNs this delay is not normal I can assure you most responses from DVLA are next day. The waffle at the end is correct in some respects the penalty is instant as soon as you park you are in contravention the only reason you can park is to pick up or drop off which is why its normal practice to observe for 2 mins to check this is not taking place. I would personally take this to PATAS there is a good chance they will back out before hand and if they dont I think you have a good chance of winning. If you do appeal to PATAS I can supply relevant legislation to back up case.

[Sergei]

Need to think about that. What's more interesting, I have another PCN which was as well delivered more a month after the contravention, and I have yet to receive reply to my presentation for that.

 

Interesting enough I spoke with them on the phone regarding the first PCN (in september, before I replied to it) and the lady said I had another parking violation as well. The 2nd contravention occurred in the first week of August And the second PCN was posted about a week or so following the phone conversation, so way overdue again.

 

It would be interesting to see what they can came with in regards to the second notice.

 

upd:

Just checked the papers. The second PCN was dated 16/09 regarding the contravention which took place on 05 August

I had a phone conversation with their parking department around 7 or 8 September, when they mentioned there was another fine due.

Edited October 23, 2009 by Sergei

[green_and_mean]

Need to think about that. What's more interesting, I have another PCN which was as well delivered more a month after the contravention, and I have yet to receive reply to my presentation for that.

 

Interesting enough I spoke with them on the phone regarding the first PCN (in september, before I replied to it) and the lady said I had another parking violation as well. The 2nd contravention occurred in the first week of August And the second PCN was posted about a week or so following the phone conversation, so way overdue again.

 

It would be interesting to see what they can came with in regards to the second notice.

 

upd:

Just checked the papers. The second PCN was dated 16/09 regarding the contravention which took place on 05 August

I had a phone conversation with their parking department around 7 or 8 September, when they mentioned there was another fine due.

 

I am pretty sure you can request the dates requested and returned from the DVLA which would show if Newham are not being honest about the delay.

[Sergei]

Hi there, it's been a while.

 

just an update on this, I appealed to the original PCN. The decision was scheduled in January.

 

It is almost May now, and I finally got the response from Adjudicator.

 

And guess what, yes, the appeal has been rejected.

 

So, it seems, councils now how the right to serve PCNs at any time following the contravention, how sweet...

 

The date of the next general election is approaching quickly, just a thought

 

Still have to pay £100 now though

[kwaks]

did you get the relevent legislation off G&M to back up your apeal? He offered it a few posts above.

[Sergei]

did you get the relevent legislation off G&M to back up your apeal? He offered it a few posts above.

 

 

Well, that would be bad for an Adjudicator not to know it, right?

 

The trouble is that he agreed that the notice was served outside of 28 days period and that he himself cited the appropriate paragraphs.

 

But here's what typically happens, all these sweet obscure small print in a subpoint in another paragraph trickery.

 

In this case the magic is done by Paragraph (6):

 

Where this paragraph applies, notwithstanding the expiration of the 28-day period, an enforcement authority shall continue to be entitled to serve a regulation 10 penalty charge notice —

(a) in a case falling within Paragraph (5)(a), for a period of six months beginning with the appropriate date;

 

Needless to say though that I never personally seen the exact evidence whatsoever that this case was indeed "falling within Paragraph 5.a clause"...

[green_and_mean]

Hi there, it's been a while.

 

just an update on this, I appealed to the original PCN. The decision was scheduled in January.

 

It is almost May now, and I finally got the response from Adjudicator.

 

And guess what, yes, the appeal has been rejected.

 

So, it seems, councils now how the right to serve PCNs at any time following the contravention, how sweet...

 

The date of the next general election is approaching quickly, just a thought

 

Still have to pay £100 now though

 

Can you post a copy of the PATAS letter.

[lamma]

seconded. we need to see it.

[Sergei]

seconded. we need to see it.

 

No problem with that!

 

Here you go, the 2nd and the 3rd pages of the reply. Just deleted date, case number etc. Just in case

 

 

 

 

[lamma]

did the council offer any evidence that 1) they applied to the DVLA with 14 days and b) the DVLA took too long to respond ? i.e. that 5) applies ? ? ?

[green_and_mean]

I doubt very much that it took the DVLA 16 days to respond, if the adjudicator is simply going to allow any period for service provided that the VQ4 was sent within 14 days then it makes a joke of the 28 day period.

[lamma]

exactly. especially if there was no evidence to support this submitted by the council. we need sergei to past back, this decision could be a travesty

[Sergei]

Well, they certainly presented some documents, but they submitted them directly to the adjudicator. I don't recall though that there were *exact* dates when they submitted the request to DVLA and when they received the information.

 

However, since the whole process has been so massively delayed, I haven't even found these papers yet (the council sent me a copy). PATAS sent me a confirmation letter in the early November, so it took them almost 6 months to make a decision for this relatively simple case, lol Lots of stuff happened since then, for instance, I have already sold my car, and it was like two or three months ago

 

if the adjudicator is simply going to allow any period for service provided that the VQ4 was sent within 14 days then it makes a joke of the 28 day period.

Yeah, he basically means exactly that. Not for unlimited period of time, but councils may serve the notice any time within six months following the contravention. Edited May 1, 2010 by Sergei

[lamma]

I am confused. "Well, they certainly presented some documents, but they submitted them directly to the adjudicator..... I haven't even found these papers yet (the council sent me a copy)." Contradictory statements ? the council has to send you a copy of their 'case' if you dig them out it would be good to see them. As said before unless the council proved the claimed exemption then the adjudicator has just made this up. you could meanwhile ask the DVLA when they received the request for the VRN from the ocuncil and when they supplied the response.

[green_and_mean]

I would complain to the Council at a higher level all London Councils are meant to abide by the Code of Practice for cctv enforcement.

[Sergei]

I am confused. "Well, they certainly presented some documents, but they submitted them directly to the adjudicator..... I haven't even found these papers yet (the council sent me a copy)." Contradictory statements ?

 

Not really. They did sent these statements to the Adjudicator directly. They did however sent me a copy which I received in November last year. However I cannot tell if the Adjudicator requested any additional evidence from the Council (or DVLA, for instance). It took way too much time for this process anyway, so it is possible that some additional evidence was indeed requested (but that is just my theory, of course!)

 

the council has to send you a copy of their 'case' if you dig them out it would be good to see them.

 

Of course, if I find it I'll let you know So far no success though. As I told in my previous post, I sold my car about two months ago, and received a confirmation of the ownership change from DVLA in March. After that I pretty much forgotten about this case anyway, to be honest with you... The case was due before the New Year anyway, in fact I find this delay even more annoying than serving the notice after 28 days!