Ticket when not driver

[saitken]

Hello

 

I would appreciate any advice on a parking ticket I received through the post from my local Council, for an alleged parking offence. The vehicle is a company car and I am required to lend it out for other employess to use for business use. On the date of the alleged offence my vehicle was on loan. I advised the council of this but they have rejected my appeal. It had now gone to the Adjudicator. The council have stated in their submission that under the 'Traffic Management Act 2004, Chapter 18, Part 6, 92 - Minor Definitions that the owner...means the person by who the vehicle is kept...is presumed (unless the contrary is proved) to be the person in whose name the vehicle is registered'.

 

Is this correct? I do not see why I should be charged with a crime I did not commit. Is there any advice as to what I should do now? Should I write with a further submission to the Adjudicator to challange this? Or is there no hope?

 

SA

[Jamberson]

Yes, it's basically correct.

 

You haven't been charged with a crime - you have been held liable for a PCN issued to a vehicle you are responsible for.

 

It's a shame you didn't post on here before things got this far, but as they have, your options are limited.

 

You can attend the adjudication hearing and plead your case - it costs nothing except time. You may get an agreement to meet you half way on the charges - but really, you don't have much of a case.

 

Maybe you could get on the driver's case and get them to pay it, and be done with?

[Bernie_the_Bolt]

But it is a company car so the OP is not the owner.

 

The company should have a record of who was driving that day should they have a lawful arrangement to collect penalties from their staff.

 

Don't see how OP is liable for this.

 

Defence to the NTO is "I was not the owner" and give the name of the company ie rebuttal of the presumption if OP is named as keeper.

[crem]

I agree with Bernie on this. Further, I'd be surprised if the OP is even the Registered Keeper of the company car in the first place, so see no reason why the OP was ever involved in this situation at all.

 

In my view, the company have probably named the OP as the "normal" keeper/driver of the car, but on his reply to the council saying he wasn't, it should have been returned to the company as their ultimate responsibility.

[buzby]

You are not 'charged with a crime'. However, you are expected to 'fess up whoewver was driving if you know and your company does not. Failing this, the buck will stop with you.

[Jamberson]

The OP said he received the postal documents, and I assume he wouldn't have explained things as he did unless he was the person named on them. While it is possible to transfer liability, it has to be done in response to the NTO. He's now progressed it to adjudication with a hearing pending. He could try arguing the point at the hearing, but if that's the line he wants to take now, he's not followed due procedure previously.

[saitken]

Hello

 

Thanks for all your replies. I have now requested a hearing.

 

Some more info on the sequence of events below.

 

I received the Notice through the post. It was sent to the registered keeper who is my company car organisation. It stated 'following receipt of the attached notice identifying you as the person responsible for the vehicle referred to within the notice. I am writing to request that the attached documention is completed and returned to the relevant authority etc.'

 

In the Notice History contained within the bundle sent to me, the council contacted the DVLA and the returned information is shown in the History on 28/8 as 'DVLA - VQ5 Retunred Address Needs Review'. Then on 4/9 is states 'New Address Added to Case, Addressee 'C/o The XXXX XXXXX Co Ltd'. This address was the company car company. Then on 14/10 it added 'New Address Added to Case, Addressee: myself'. I have since contacted my company car dept and they advised me in writing that the registered keeper is 'The XXXX XXXXX Co Ltd' not myself. So should I write to the Adjudicator stating that I am not the 'owner' since I have been advised by the company that they are the registered keeper? Or keep this in my back pocket and state it on the day as my defence?

 

As an incidental issue, I sent a letter of appeal to the Tribunal stating that I was not the driver on 5/11 - as the Council has advised me that would refuse any correspondance and to take the matter up with the Tribunal. I did not get a reply from the Tribunal, so assumed my appeal was successful and the penalty had been cancelled. Then, out of the blue, I got a letter from the Council on 14/12 stating that they were now registering the charge as a dept at the County Court! To be honest I couldnt believe it. The Council have since stated that the Tribunal did not receive the letter. I have written to the Tribunal asking this - with a copy of the letter. They replied that 'my letter of 5/11 will be passed onto the Adjuduictor'. So not a categorical yes. I am wondering if this makes the process adopted by the council as unlawful?

 

Not sure if there is any further advice on defences based on the above or should I stick with I was 'not the owner' since I have been advised by the lease company that they are the 'registered keeper'?

 

Thanks

[Jamberson]

I am now less clear on who is being held liable for this. Ignoring the issue of who the registered keeper is, and what the address is, and so on, you are only liable if the documents (specifically the Notice to Owner) have your name on.

 

Do they?

 

If not, and the company itself is named, you seem to be acting as a representative of the company. I am not sure if this is the situation you want to be in, but it means the company is liable, not you.

 

Can you confirm if you are named on the documents as the liable party?

[saitken]

Sorry, yes, my name is on the Notice to Owner with a number after it. But the address is put as 'C/O The XXXX XXXXX Co Ltd, etc, etc, England' i.e. the lease company.

[saitken]

And it was sent the lease company first. So perhaps they named me and gave my address?

[Jamberson]

Yes, they probably did. Legally, the owner of the vehicle is initially liable (not always the registered keeper, but nearly always) - however under certain circumstances the owner can transfer liability to someone else.

 

One such circumstance is if the vehicle is hired out on a lease agreement, and they have a contract showing you as the leasee. They can quite legitimately have liability transfered to you if that's the case.

 

In the same manner, they could transfer it to a company, if the company has a lease agreement, and the company can in turn transfer liability to an employee provided there is paperwork showing it to be that person's company car.

 

(Incidentally, if you want to know how your name became attached to the case, you can phone the council and ask them. They will tell you where they got your name from.)

 

What I am concerned about is the fact that someone else uses it. If, as you say, you are required to allow colleagues to use it, then you ought not to be under any sort of agreement saying that you are the user. This is for your sake, and for this very reason. If it's "your" company car and you choose of your own free will to let a colleague use it, that's different, but if the company expects you to, then it should be treated more like a pool car than your own company car.

 

What this hinges on is the details of the contracts:

 

Who actually hires it from the lease company - you or your employer?

 

What sort of written agreement do you have with the employer concerning the vehicle?

[Bernie_the_Bolt]

Saitken,

 

Your employer is required by law to keep a record of who was driving their car at any time if it is available to multiple people so they should be able to tell you who it was.

 

As Jamberson says, the only way you can be liable for this PCN is if you have signed an agreement with the lease company agreeing to be liable. It is possible that you have given your employers an indemnity (or similar) but this is different to a liability for the PCN itself.

 

Jamberson, be careful when talking about a "transfer of liability" this can only happen if there is a liability in the first place. When a statutory defence exists and is accepted there is no liability to transfer - just a small technical point of interest, perhaps!

[saitken]

Jamberson & Bernie

 

I will check who hires the car from the lease company. I am not sure if this is me or my employer.

 

I have a written agreement for the car which I will check tomorrow and let you know.

 

Thanks

[saitken]

My name IS on the documents I have received as the liable party such as the Notice to Owner. And I sign the lease agreement not my employer. There is a full set of t&cs.

 

The only statement I can find in the T&Cs re 'ownership' is the following:

 

© Upon our acceptance of this Agreement we will pay to XXXX Motor Company Limited the Loan Value. Upon your collection of the Goods title to them will immediately pass to you directly from XXXX Motor Company Limited.

 

So this would look like to me that I am the 'owner'.

 

Also, I see in the T&Cs the following:-

 

© You are liable for any offences and/or charges committed or incurred by you in contravention of the Road Traffic Act 1974 (or any subsequent amendments). (We may pay any fine you incur for which you will reimburse us upon demand together with an administrative charge of £10 (plus any VAT) per fine

 

So....it looks like, unbeknown to me, I a HAVE signed an agreement saying that I am the owner and I am liable!!

 

One item I have not mentioned is that the Council proceeded with their action against me and registered a dept at the County Court after they had advised me that they would refuse to correspond with me and AFTER I made representations to the Tribunal (as they advised I should do). It does not seem correct procedure that they continue with action inspite of me continuing my appeal with the Tribunal office. When I complained about this, the Council denied that my letter was received by the Tribunal. I wrote to the Tribunal and they confirmed that they got it. So this seems highly irregular to me and I have written to the Council with a harrassment complaint because of this. But perhaps I can use it at the Tribunal?

[Bernie_the_Bolt]

If you own the car, on what basis does your employer require you to lend it to others? Who insures it when it is used by others? Do you know who was driving it when the alleged contravention took place and can this be proved?

[Jamberson]

The correct sequence of events is as follows:

 

Council issued you with a Notice to Owner

You have 28 days to make representations (ie appeal in writing)

The council must respond to your representations with a Notice of Rejection

 

Only if all these steps have happened, can you refer the case to the adjudicator. I think you have 21 days from the Notice of Rejection to do so (it will say on the notice how many days). It is up to you to submit an application for adjudication with PATAS.

 

Has this process been followed? If not, which part did not happen?

 

I am concerned that you said above " I sent a letter of appeal to the Tribunal stating that I was not the driver on 5/11" - a letter will not do - you needed to submit an application form to apply for a hearing.

[green_and_mean]

Person by whom a penalty charge is to be paid

 

5.—(1) Where a parking contravention occurs, the person by whom the penalty charge for the contravention is to be paid shall be determined in accordance with the following provisions of this regulation.

(2) In a case not falling within paragraph (3), the penalty charge shall be payable by the person who was the owner of the vehicle involved in the contravention at the material time.

(3) Where—

(a) the vehicle is a mechanically propelled vehicle which was, at the material time, hired from a vehicle-hire firm under a hiring agreement;

(b) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement; and

© in response to a notice to owner served on him, the owner of the vehicle made representations on the ground specified regulation 4(4)(d) of the Representations and Appeals Regulations and the enforcement authority accepted those representations,

the penalty charge shall be payable by the person by whom the vehicle was hired and that person shall be treated as if he were the owner of the vehicle at the material time for the purposes of these Regulations.

(4) In this regulation—

(a) “hiring agreement” and “vehicle-hire firm” have the same meanings as in section 66 of the Road Traffic Offenders Act 1988(5); and

(b) “the material time” means the time when the contravention giving rise to the penalty charge is said to have occurred.

[saitken]

Hi

 

Jamberson:-

 

The sequence of events was that I initially ticked the box on the Notice saying something like 'rejected on basis of legal technicality'. This was because I received the Notice via second class post. This was rejected by the Council since they stated that they correctly served it to the registered keeper, The XXXX Motor Co Ltd, by first class post. I then realised that I had loaned the car out on that day (hence the reason I received the Notice via post) and so wrote to the Council saying this and advising that for this reason I did not believe the parking offence was anything to do with me. They wrote back with neither a rejection or acceptance but said that they would not enter into any further correspondance and that I should contact the Adjudicator on this. So I wrote to the Adjudicator (first class post), as requested by the Council, with this information asking them to cancel the penalty. I recieved no reply so assumed that the penalty had been cancelled. The next thing I got is a letter from the council some weeks later stating that a dept had been registered with the Court, my employer will be contacted to take the money from my salary, baliffs will be send etc etc. At this point I was rather shocked, to say the least, and wrote to the Council to ask them to explain but they claimed that the Adjudictor had not recieved my letter. I then wrote to the Adjudicator to ask if they received my letter. They wrote back to say they 'had passed my letter of appeal onto the Adjudicator'. So I take this as tacit confirmation that they received it. And I have now requested a personal hearing which has also been accepted. At no point have they asked me to fill in any form in order to make an application for adjudication. They have said my letter is the application.

 

I have just received a letter from a DCA but with no details of what it is about. So I am not sure if I am now being chased by a DCA on this. Are the Council allowed to do this when I have requested and had a Tribunal accepted? I think the acceptance of the Tribunal came after the Council sent their threatening letter and so perhaps they have been remiss in cancelling the DCA action etc? Should I write to the Council to complain about the DCA chasing me when I have a Tribunal set for April? I would have thought this is clear-cut harassment.

 

Bernie:-

 

'If you own the car, on what basis does your employer require you to lend it to others?' It believe it is mandated that I lend it out for business use in my contract of employment. But I can confirm this from my HR dept if required.

 

'Who insures it when it is used by others?' It is covered by the same corporate insurance policy that I driven under.

'Do you know who was driving it when the alleged contravention took place and can this be proved?' No. No-one will admit!

 

Mean and Green:-

 

Re the section you highlight in red text...(1) My company car is not loaned under a normal hire arrangement! I work for the car manufacturer themselves and the company car I receive is taken on a loan agreement for a maximum period of approx 6 months and then I return it and it is sold in the dealer network. But I have no tax liability! I just have a monthly loan payment taken directly from my salary. So I am not sure if this qualifies as a 'hiring agreement' as in a 'normal' company car hire. (2) I am not convinced that I have actually signed any agreement where it states that I am liable for penalty charges. This may or may not be written down somewhere on an internal intranet site but clearly that does not mean I signed-up to this on the actual agreement form. I need to get a copy of the agreement I signed from my company vehicles office I guess?

 

Cheers all!

[Jamberson]

And I have now requested a personal hearing which has also been accepted.

 

The sequence of events you describe is not normal. However, if the adjudicator has agreed a hearing, in my view that trumps any progression of the PCN. You must inform the Council ASAP that there is an adjudication case pending on this, and that they must suspend any further action until the case had been heard and ruled on.

 

You are absolutely sure the adjudicator has agreed a hearing? If so, the Council have to abide by that.

[Bernie_the_Bolt]

This sounds like an absolute hogs ear of a mess.

 

I think that you have to deny this on the basis that you are not the owner of the vehicle. Forget the issue of who was driving for now because that does not change who has the legal liability for the PCN.

 

So challenge 1 is that you have never been the owner of the vehicle.

 

I think that it also sounds like that you should challenge as a procedural impropriety that in rejecting your representations made after receipt of the NTO the LA failed to inform you correctly or at all of your right to appeal to the adjudicator and that this failing includes but is not limited to a failure to provide you with the appeal forms. Secondly the LA then advised you that the adjudicator had not received correspondence from you when it was not their place to do so.

 

Challenge no 2 - Procedural impropriety.

 

You need to get your paperwork sorted on this - what do you still have copies of from either the LA or the Adjudicator?

 

Once you have lodged your appeal to the adjudicator, using the correct forms then get on to your employer.

 

You need to ask them the following:

 

1) Who owns the vehicle.

 

2) How they would describe its provision to you by the owner, eg Loaned, Hired, Leased etc

 

3) Copies of any agreements you may have entered into or other policy or other document requiring you to make the vehicle available to colleagues.

 

4) Copies of any agreements you may have entered into or other policy or other document under which you may assume or accept responsibility either directly or by reimbursement for parking penalties or motoring fines.

 

5) Company policy under which the company discharges its obligation to maintain records of who is driving its vehicles with its authority and to which it refers in the case of any allegation of speeding or other motoring offences.

 

Do not be afraid to use the grievance procedure for this but you do need this for your appeal hearing and for your security going forwards.

[saitken]

Hi

 

Update! I wrote to my Company Vehicle department and they have confirmed in writing that (1) The XXXX Motor Co is the registered keeper and (2) The XXXX Motor Co is also the 'owner'.

 

So I do not understand how the Council have decided that I am the owner and therefore put my name on the NTO. Surely, this is now my main defence. I have it in writing from The XXXX Motor Co that I am not the owner.

 

Is there any need to bother with secondary challanges based on this new news?

 

The adjudictor agreed to my appeal some weeks ago and I have already have a date for the hearing in April. The adjuducator accepted my letter - where I explained that I was not the driver, that the vehicle is a company car, was on loan on this day etc etc - as my appeal application. He did not ask me to complete any other application form. This is all in writing.

 

Should I now write to the Adjudicator stating that my challange has been modified - in-light of the bundle I have received from the Council where they stated that it is the 'owner' who is liable in the case where the driver cannot be identified and that I am the owner - to 'I am not the owner' and supply the written confirmation of this from my company car company?

[Bernie_the_Bolt]

Dear Adjudicator,

 

Re Case reference No: [#] (insert from letter they sent you)

 

Please find enclosed additional evidence relating to this appeal against a PCN. This confirms that I am not the owner of the vehicle and the identity of who the owner is. This comes direct from the owner themselves and therefore should be irrefutable.

 

This in support of my appeal against this PCN in the Statutory ground that "I never was the owner of the vehicle".

 

Yours faithfully.

[Jamberson]

My name IS on the documents I have received as the liable party such as the Notice to Owner. And I sign the lease agreement not my employer.

 

So....it looks like, unbeknown to me, I a HAVE signed an agreement saying that I am the owner and I am liable!!

 

It is legitimate for the legal owner to transfer liability to somebody contracted to use the car. This appears to be what happened here. If you rely on the issue of legal ownership you will come unstuck because there is no breach of the standard regulations in having the PCN transfered to you.

 

I would also point out that it is pointless writing to the adjudicator. You have a hearing scheduled, and that is where you present your evidence. I am not clear what your defence will be, but present it on the day.

[Bernie_the_Bolt]

It is legitimate for the legal owner to transfer liability to somebody contracted to use the car. This appears to be what happened here. If you rely on the issue of legal ownership you will come unstuck because there is no breach of the standard regulations in having the PCN transfered to you.

 

I would also point out that it is pointless writing to the adjudicator. You have a hearing scheduled, and that is where you present your evidence. I am not clear what your defence will be, but present it on the day.

 

It is not a transfer of liability and a contract to use the car is insufficient in itself. G&M quoted the law on this earlier, a hire agreement is needed as is a signed statement of liability.

 

What "standard regulations" do you refer to and what do they say?

 

Evidence does need to go to the adjudicator because it needs to be made available to the LA.

[Jamberson]

I am refering to The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

 

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. The relevant sections on grounds for making a representation are:

 

(4) The grounds referred to in paragraph (2)(b)(i) are—

 

(d) that the recipient is a vehicle-hire firm and—

 

(i) the vehicle in question was at the material time hired from that firm under a hiring agreement; and

 

(ii) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement;

 

It continues....

 

Where the ground mentioned in paragraph (4)(d) is relied on in any representations made under this regulation, those representations must include a statement of the name and address of the person to whom the vehicle was hired at the material time.

 

It continues...

 

(3) Where the enforcement authority accepts that a ground specified in regulation 4(4) applies or that there are such compelling reasons it shall—

 

(a) cancel the notice to owner

 

 

- The owner is therefore absolved from liability. The local authority then issues a new Notice to Owner to the keeper, which it has done to the OP here. That's what is meant by "transfer of liability". Without a hire agreement being provided to the local authority, the recipient of the NTO can contest liability when he submits his formal represtentation. He is only entitled to one formal representation, which he seubmitted: see post 1: "I received [an NTO] through the post from my local Council, for an alleged parking offence... I advised the council of this but they have rejected my appeal. It had now gone to the Adjudicator."

 

You accept what G&M said as correct: "(b) the person hiring it had signed a statement of liability acknowledging his liability in respect of any penalty charge notice served in respect of any parking contravention involving the vehicle during the currency of the hiring agreement;"

And this is the relevant part of what the OP said (post 14): "I sign the lease agreement not my employer. There is a full set of t&cs.

 

Also, I see in the T&Cs the following:-

 

© You are liable for any offences and/or charges committed or incurred by you in contravention of the Road Traffic Act 1974 (or any subsequent amendments).

 

So....it looks like, unbeknown to me, I a HAVE signed an agreement saying that I am the owner and I am liable!!"

 

 

- All seems pretty clear to me. What have I missed?

Edited March 5, 2010 by Jamberson