Islington Council PCN appeal

[harrybrown]

Hi

 

I got a street issued PCN back on 02/08/09. I am not the registered keeper but was driving my partners car that day. I appealed by email but was rejected and received an email on 01/09 rejecting appeal. It included the wording:

 

"If you wish to continue to contest the matter, the next stage is that a Notice to Owner will be sent to the person responsible for the penalty charge. This is a necessary legal step and further correspondence will only delay this process." I understood the person responsible to be me as I was driving.

 

The notice to owner was sent out 15/10 and I appealed again by email on 10/11.

 

I received an email on 15/11. In the meantime my partner had received by post a charge order. The email said:

 

"Thank you for your email of 10 November 2009 regarding the above Penalty Charge Notice which was recently received at this office.

 

Your email has been received after the issue of a Charge Certificate, which gave legal notice that the opportunity to appeal has now expired. That being the case, we will not be treating your challenge as a formal appeal.

 

Your informal challenge has been rejected previously and a further period was granted where you may have paid the charge at the discount rate of £60, but this has not been taken. If you wished to pursue the appeal you were advised by by my colleague, (edit), on 1 September and again by my colleague, (edit), on 5 October 2009 that a Notice to Owner would be sent to the registered keeper and she was entitled to make formal representations within 28 days.

 

A Notice to Owner was sent to the registered keeper on 15 October 2009 and only that person is entitled to make formal representations within 28 days of receiving the notice. None have been received before the time limit expired and therefore the matter will not be referred to Parking and Traffic Appeals Service.

 

However, I am prepared to remove the Charge Certificate surcharge by discretion. I must request that you make payment of £120 within 14 days of this letter. If payment is not received the registered keeper may face the inconvenience of debt recovery proceedings for the full amount including charge Certificate fee of £180."

 

Have i lost the right to appeal as my partner should have been doing so? Spoke to PATAS who won't deal with unless council reject the appeal formally. Is there anyway get the appeal in so council recognise it?

 

Any help gratefully appreciated...

Edited November 30, 2009 by ErikaPNP
removal of names

[Jamberson]

 

Have i lost the right to appeal as my partner should have been doing so? Spoke to PATAS who won't deal with unless council reject the appeal formally. Is there anyway get the appeal in so council recognise it?

 

 

Yes, you have lost the right to appeal, but not in the way you might think.

 

As the driver (not the owner) you can appeal within 28 days of the PCN being served, which you did. If your appeal is rejected and you don't pay, then a Notice to Owner goes out to the keeper.

 

From that moment on, you cannot appeal. Everything from there on is the responsibility of the person named on the notice to owner, and they have to deal with it all.

 

You have therefore been given factually correct info. If the owner - your partner - did not exercise their right of appeal after the NTO was issued, they are liable, and can not appeal now a Charge Certificate has gone out, nor take it through PATAS. There is a loophole, if they did not receive the notice to owner, but you received it, presumably addressed to your partner, so I guess that wouldn't apply. Correct me if I am wrong on that...

 

You personally can't do anything about this charge now, as you are not liable for it.

[StrawDog]

From that moment on, you cannot appeal. Everything from there on is the responsibility of the person named on the notice to owner, and they have to deal with it all.

 

Jamberson - whilst I understand that in the final analysis the RK is ultimately responsible for payment of the PCN, surely a formal appeal following service of the NTO can be made on behalf of the RK. Is there really a requirement that the appeal must be made by RK themselves? There may be a shedful of reasons why that is not possible.

I recently dealt with seperate PCNs on behalf of two elderly friends who were unable to handle the matters themselves.

[lamma]

authorised representative can and are used.

[harrybrown]

In light of above comments I have sent the following reply. Will update forum with any response..

 

Dear Mr X

 

I am an authorised representative of Miss X the registered keeper and as such my appeal should be treated as if coming from her directly and thus be formally recognized.

 

In your email sent 25/11/09 you state, and I quote

 

"Your email has been received after the issue of a Charge Certificate, which gave legal notice that the opportunity to appeal has now expired. That being the case, we will not be treating your challenge as a formal appeal"

 

This is not the case and is incorrect. The NTO was sent to the registered keeper on 15th October. Acting as her representative, my email response was sent 10th November within 28 day time limit. The Charge Certificate was issued 12th November so the email was not received after the issue of the Charge Certificate but 2 days before.

 

My appeal stands as formal and within time limits. If you are still not prepared to cancel this PCN then please now refer this case to PATAS

 

Regards

 

X.

[StrawDog]

Hi HarryB,

 

Your situation raises some very interesting points well worthy of further debate & appeal.

 

I can only respond on the basis of my own humble personal opinion (that's all it is) and experience were I to be faced with the same problem.

About 3 years ago I received a PCN from a Midlands City Council for an alleged parking violation. The RK of the car was my wife, but I was the driver. In my own right, I submitted an informal challenge (rejected) followed by a formal appeal which was accepted with the result that the PCN was cancelled. This Council did not have any issues concerning the 'author' making the formal appeal not being the RK.

 

From the timeline of events it is quite clear that your formal challenge, (albeit inexplicably not accepted as such), was made in time, and the Charge Certificate was issued with indecent haste thereafter before the expiry of that time limit & without any due consideration to your pending appeal.

 

Whatever the merits/or otherwise of your formal appeal, it should have been treated as such, considered & then either accepted or formally rejected.

Quite how Islington Council can justify ignoring/informally failing to accept a formal appeal on the grounds that 'A Notice to Owner was sent to the registered keeper on 15 October 2009 and only that person is entitled to make formal representations within 28 days of receiving the notice ' is beyond my comprehension. This is surely misleading at best, if not totally incorrect.

 

I consider that your PCN should be cancelled on the grounds of 'procedural impropriety' alone.

 

Anyone else with views on this matter..............?

 

Good Luck.

SD

[green_and_mean]

Representations against notice to owner

 

4.—(1) The recipient may make representations against a notice to owner to the enforcement authority which served the notice on him.

 

 

There is no legal obligation to accept formal representations from a 3rd party.

[green_and_mean]

If you are still not prepared to cancel this PCN then please now refer this case to PATAS

 

 

The Council cannot appeal to PATAS only the keeper can.

[StrawDog]

Representations against notice to owner

There is no legal obligation to accept formal representations from a 3rd party.

 

Can this statement be evidenced please G&M

[green_and_mean]

Can this statement be evidenced please G&M

 

It is clearly stated in the legislation that only the 'owner' can make representations, it would legally be acceptable for someone to act as an 'agent' of the appealant just as a solicitor can speak for you in Court but a 3rd party cannot make representations in their own right.

[lamma]

where does it say 'only'. anyone can have an authorised representative. It is not uncommon for this to happen. I have done it - (the council lost )

[green_and_mean]

where does it say 'only'. anyone can have an authorised representative. It is not uncommon for this to happen. I have done it - (the council lost )

 

Where does it state anyone else can? It clearly states that the person who is served with the notice can appeal it does not say the driver, his neighbour or some bloke he knows down the pub it says the 'person on who the notice was served', bearing in mind one of the 'grounds' is I was not the keeper at the time would make accepting reps from a 3rd party stupid.

[StrawDog]

bearing in mind one of the 'grounds' is I was not the keeper at the time would make accepting reps from a 3rd party stupid.

 

Bearing in mind another 'ground' states 'the alleged contravention did not occur'.

If the RK was not responsible for the alleged contravention, was not present, had no knowledge, was out of the country etc etc, that would make accepting representations from the RK rather stupid me thinks.

 

More to come but a bit pushed for time at the mo.

[lamma]

Where does it state anyone else can? It clearly states that the person who is served with the notice can appeal it does not say the driver, his neighbour or some bloke he knows down the pub it says the 'person on who the notice was served', bearing in mind one of the 'grounds' is I was not the keeper at the time would make accepting reps from a 3rd party stupid.

 

It doesn't have to - anyone can have an authorised representative. your not the keeper argument is completely spurious. the clue is in the word 'representative'. the 3rd party is obviously not representing themselves. Doesn't Neil Herron do this a lot. You can bet that of there was way of stopping an authorised representative the councils would jump on it. But they can't as there isn't.

[green_and_mean]

It doesn't have to - anyone can have an authorised representative. your not the keeper argument is completely spurious. the clue is in the word 'representative'. the 3rd party is obviously not representing themselves. Doesn't Neil Herron do this a lot. You can bet that of there was way of stopping an authorised representative the councils would jump on it. But they can't as there isn't.

 

 

Maybe you should try reading the thread properly before leaving comments! I already said the keeper could be represented but a 3rd party could not make representations on their own behalf.....nice of you to agree though.

[StrawDog]

Representations against notice to owner

 

4.—(1) The recipient may make representations against a notice to owner to the enforcement authority which served the notice on him. (my highlight of this word - StrawDog)

 

 

There is no legal obligation to accept formal representations from a 3rd party.

 

Applying the same distorted rationale G&M, it is apparent there is no legal obligation to have accepted formal representations directly from the RK in this case in any event either, as she happens to be a her.

Do you agree?

Edited December 3, 2009 by StrawDog
Minor addition

[green_and_mean]

Applying the same distorted rationale G&M, it is apparent there is no legal obligation to have accepted formal representations directly from the RK in this case in any event either, as she happens to be a her.

Do you agree?

 

 

No, in legal documents the male gender is always used unless it specificly refers to a woman.

[StrawDog]

No, in legal documents the male gender is always used unless it specificly refers to a woman.

 

Quite - just as the legislators would not have intended that the opening words of regulation 4(1) be taken literally either.

 

My 'tongue-in-cheek' question was posed applying the same logic as Islington Council have done to the issue of their unreasonably failing to accept a formal appeal made by a third-party representative on behalf of the RK as an obviously intended direct response to the NTO she had received (or should that be he).

It is immaterial that the third-party was also making those representations due to his direct involvement in the alleged contravention.

Under regulation 5(2) Islington Council had a statutory duty to consider those representations.

 

Any comments/advice concerning the point raised in post #13 as I remain baffled by your posts as to how a RK can otherwise make practical, effective & accurate formal representations under regulations 4(2)(b)(ii) -relating to compelling reasons, and 4(4)(a) - relating to 'the alleged contravention did not occur'?

[green_and_mean]

Quite - just as the legislators would not have intended that the opening words of regulation 4(1) be taken literally either.

 

My 'tongue-in-cheek' question was posed applying the same logic as Islington Council have done to the issue of their unreasonably failing to accept a formal appeal made by a third-party representative on behalf of the RK as an obviously intended direct response to the NTO she had received (or should that be he).

It is immaterial that the third-party was also making those representations due to his direct involvement in the alleged contravention.

Under regulation 5(2) Islington Council had a statutory duty to consider those representations.

 

Any comments/advice concerning the point raised in post #13 as I remain baffled by your posts as to how a RK can otherwise make practical, effective & accurate formal representations under regulations 4(2)(b)(ii) -relating to compelling reasons, and 4(4)(a) - relating to 'the alleged contravention did not occur'?

 

Unless you are privy to information other than what has been posted here we don't know what was sent to Islington Council, we have no information to suggest an appeal against the NTO was made on behalf of the owner just that the driver appealed twice. The OP was already turned down at informal reps stage and was informed the 'owner' would need to make formal reps sending a email from the drivers email address is not a response to the NTO. Whilst using the NTO form to reply is not compulsory any other communication should have some proof such as a correct return address or a signature of the 'owner'. If Councils started to accept unsolicited replies to NTO by email it would remove the 'owners' legal right of appeal. What would happen in this case if the owner sent in her appeal by post and the drivers formal email reps had already been rejected. The 'owner' could also fill in a statutary declaration and state she had not received the NTO after the OPs rejection because he could have hidden the letter out of embarrasement of getting the penalty for example. There have been numerous occasions on here where the OP has posted the PCN/NTO complete with the PCN no. in theory we could all make formal reps on their behalf by email, how would the Council know they are genuine? If any representations are made on behalf of the 'owner' there must be a clear statement to that effect by the owner in the document presented. 'I am appealing on behalf of my mate because I was driving' for example, in my view is not adequate.

[Jamberson]

the issue of their unreasonably failing to accept a formal appeal made by a third-party representative on behalf of the RK as an obviously intended direct response to the NTO she had received (or should that be he).

It is immaterial that the third-party was also making those representations due to his direct involvement in the alleged contravention.

 

 

There can only be one formal representation made which is either upheld, or rejected. If someone takes it on themselves to make representations in respect of someone else's NTO, for which that person is of course liable, they deprive the owner of their own right to do that.

 

It doesn't matter if the third party was involved in the contravention. Neither did the OP make representations as a representative. The Council were absolutely right not to accept the letter as a formal rep.

 

Imagine you had an NTO, and I wrote in saying "I'm not paying because the PA wasn't wearing a hat". Bang goes your route of appeal, on a PCN you are liable for.

[harrybrown]

Dear all

 

Thanks for your considerable interest in this. Unfortunately I have 2 days to decide whether to pay up or not and am still none the wiser. There is some mention above of not knowing what early correspondence was. I have attached all email correspondence in case this helps. 5 attachments here and 4 in the next post

 

If I do not pay in 2 days fine goes to £180. If I still refuse to pay can someone please tell me what happens next?

 

MAny thanks for everyone's interest

email 1.rtf

email 2.rtf

email 3.rtf

email 4.rtf

email 5.rtf

[harrybrown]

and the rest of correspondence...

email 6.rtf

email 7.rtf

email 8.rtf

email 9.rtf

[green_and_mean]

Dear all

 

Thanks for your considerable interest in this. Unfortunately I have 2 days to decide whether to pay up or not and am still none the wiser. There is some mention above of not knowing what early correspondence was. I have attached all email correspondence in case this helps. 5 attachments here and 4 in the next post

 

If I do not pay in 2 days fine goes to £180. If I still refuse to pay can someone please tell me what happens next?

 

MAny thanks for everyone's interest

 

After reading the emails I have to agree with the Council at no point before the deadline ran out was an appeal made by the 'owner' you didn't even mention her until the 1st of Dec.

[Bernie_the_Bolt]

Here's what I think:

It looks to me like you have tried to rely on your e-mails rather following the process established in statute. Even with your 10 Nov e-mail the council have treated this as a failure to respond to a NTO. This is why they have issued the charge certificate.

Your only hope is to ask the council if their discretionary removal of the charge certificate re-opens the deadline for responding to the NTO. If they confirm it does then that is what needs to be done. If they do not confirm this then frankly your best option is to pay and move on and learn.

[Jamberson]

I can only say once again - you can't, and shouldn't attempt to, deal with this. It's not your PCN. It's not your liability.

 

You are trying to force the system to operate in a way which is most convenient for you, and you can't win that way. (That's not meant as a criticism by the way.)

 

If the vehicle owner isn't prepared to deal with it, you might as well pay before the charges are ramped up.