Certificate Charge query

[cream70]

We had a order of recovery revoked at the end of june.

we ticked

you made representations about the penalty charge to the enforcing authority concerned within 28 days of the

service of the Notice to Owner/penaltycharge but did not recieve rejection notice.........

 

I assumed the LA had to refer this to PATAS yet

we recieved this letter last week.

 

 

I'll post the payment details page later.

Any thoughts?

[Bernie_the_Bolt]

It does indeed go back to the stage before you assumed.

 

You either pay now or wait for an NTO. You can appeal against the NTO or pay then. If your appeal against the NTO is successful you can appeal to PATAS.

 

The LA will not refer this to PATAS.

[cream70]

From the TRAFFIC MANAGEMENT ACT 2004 – OPERATIONAL GUIDANCE

 

 

 

 

Witness Statement (formerly Stat Dec)

 

264 Person against who order for recovery is made may serve WS on court to refute need to pay on following grounds -

 

§ (1) Did not receive NtO

 

§ (2) Made representations but did not receive NoR

 

§ (3i) Submitted appeal but received no response, (3ii) appeal had not been determined before receipt of CC, (3iii) or won appeal

 

§ (4) Penalty charge been paid in full.

 

 

265 Valid WS revokes order for recovery & CC. Where WS made on basis of ground (1), revokes NtO also so LA must then decide whether to continue to pursue.

 

266 Where ground (1) used, a 2nd NtO should be issued.

 

267 If grounds (2) or (4) ground used LA must refer case to adjudicator.

 

268 If ground (3i) used LA must refer case to adjudicator.

 

269 Above may change as result of TEC review of Part 75 of Civil Procedure Rules.

 

Has this changed recently?

[Bernie_the_Bolt]

Good point, don't know.

 

Wait it out then because if you get another NTO you can argue procedural impropriety as well!

[lamma]

good find. that points to S.I. 2007/3483, regulation 23(2)(d)

so that S.I. would have to have been changed modified

[lamma]

and regulation 23(7)

[Jamberson]

You have spotted something many local authorities overlook. They should refer the matter to PATAS at this point, but they rarely do.

[cream70]

2) The witness statement must state one and only one of the following—

 

(a)

that the person making it did not receive the notice to owner in question; .

(b)

that he made representations to the enforcement authority under regulation 4 of the Representations and Appeals Regulations but did not receive from that authority a notice of rejection in accordance with regulation 6 of those Regulations; .©

that he appealed to an adjudicator under regulation 7 of those Regulations against the rejection by the enforcement authority of representations made by him under regulation 4 of those Regulations but— .

(i)

he had no response to the appeal; .

(ii)

the appeal had not been determined by the time that the charge certificate had been served; or .

(iii)

the appeal was determined in his favour; or .

(d)

that he has paid the penalty charge to which the charge certificate relates. .

(3) Paragraph (4) applies where it appears to a district judge, on the application of a person on whom a charge certificate has been served, that it would be unreasonable in the circumstances of his case to insist on his serving his witness statement within the period of 21 days allowed for by paragraph (1).

 

(4) Where this paragraph applies, the district judge may allow such longer period for service of the witness statement as he considers appropriate.

 

(5) Where a witness statement is served under paragraph (1)©—

 

(a)

the order of the court shall be deemed to have been revoked; .

(b)

the charge certificate shall be deemed to have been cancelled; .

©

in the case of a statement under paragraph (2)(a), the notice to owner to which the charge certificate relates shall be deemed to have been cancelled; and .

(d)

the district judge shall serve written notice of the effect of service of the statement on the person making it and on the enforcement authority concerned. .

(6) Subject to regulation 12, service of a witness statement under paragraph (2)(a) shall not prevent the enforcement authority from serving a fresh notice to owner.

 

(7) Where a witness statement has been served under paragraph (2)(b), © or (d), the enforcement authority shall refer the case to the adjudicator who may give such directions as he considers appropriate and the parties shall comply with those directions.

 

http://www.opsi.gov.uk/si/si2008/uksi_20080609_en_3

 

The statuary legislation does appear to tally with the operational guidelines I posted earlier.

It was just this quote below in the operational guidelines which I was unsure whether the legislation had been slightly altered

recently.

269 Above may change as result of TEC review of Part 75 of Civil Procedure Rules.

Has this changed recently?

 

I have emailed TEC for clarification.

[cream70]

You have spotted something many local authorities overlook. They should refer the matter to PATAS at this point, but they rarely do.

 

Is that a slam dunk procedural impropriety?

[lamma]

unless it has been changed them yes it has to be a slam dunk. A council HAS to follow statutes.

[cream70]

unless it has been changed them yes it has to be a slam dunk. A council HAS to follow statutes.

 

Does that mean the fishing letter the LA sent is actually an unlawful demand of monies.

[cream70]

When it's referred to the adjudicator, what is his decision based on?

What is he actually deciding?

Has the process ended for me.?

Or do I complete PATAS forms?

[Jamberson]

The adjudicator will consider legalities, fairness, procedure, benefit of doubt - all sorts. he will rule that the appelant is liable, or that they are not, and that decision is pretty much final.

 

It appears the council are not intended to follow procedure. So wait and see what they do - if they issue you with an NTO, you have a case for procedural impropriety. You can't and shouldn't attempt to refer it to PATAS at this stage.

[lamma]

they HAVE to follow statute.

[cream70]

Here is the rest of it.

 

 

I see it's from their debt team!

[cream70]

Update:

My email to TEC.

 

Dear Madam/Sir

 

I'm in receipt of Lambeths acknowledgment of the revoking of the Order of Recovery.(see attached)

Yet I was under the impression that Lambeth were obliged to refer this Penalty Charge Notice

to the Parking and Traffic Appeals Service, on receipt of my successful Statutory Declaration.

 

Yet their correspondence is offering me to pay the Penalty Charge Notice at the discount stage

or wait for a new Notice to Owner.

 

Is this the correct procedure?

 

 

Yours faithfully

 

 

XXXXX

 

 

TEC response:

 

I'll ring PATAS for confirmation, and politely ask if they can allow me to submit additional evidence.

[Jamberson]

The court is right - it's nowt to do with them. And don't write to, or phone PATAS - it's nowt to do with them either, unless you have a hearing scheduled, and you haven't indicated that you have.

 

Ignore the letter from the Council advising you to pay, if it's just a letter. If the council are telling you to pay, they need to issue you with a new Notice to Owner. Have they done so? If not, you aren't in the system anyway and they can't chase it! If and when they do issue one, return it to them with the box ticked "There has been a procedural impropriety" and include a brief written representation explaining their error.

 

It's crunch time for them - they have blown it, and you've told them so. From there on, you are in the strongest position.

[cream70]

update:

Scambeth in their wisdom decided to send us a second NTO.

Our response:

Formal Representations to

Notice to Owner

 

I'm appealing PCN: LHXXXXXXXX

on the grounds that:

1. The alleged contravention did not occur

2. There has been a procedural impropriety on the part of the enforcement authority

I’m in receipt of the above Notice to Owner, yet I was unaware that a Penalty Charge Notice had been issued to the vehicle for which I am the Registered Keeper.

A Penalty Charge Notice was never handed to the driver or attached to my vehicle.

It would appear that the Parking warden LH637 has maliciously, retrospectively issued this ticket and then discarded the PCN.

Please also be aware that you have unlawfully issued a 2nd Notice to Owner after my successfully lodged application to revoke the certificate charge and previous Notice to Owner, at the traffic enforcement centre(TEC) on the 28/06/2010.

This despite the intimidating and rather desperate letter titled ‘Final Warning’(see attached) by Rej Mistry, Head of Parking, dated 17/05/10, warning of dire consequences if the PCN was not paid, as well as attempting to misstate my statutory rights.

 

Although the Order of Recovery was revoked on the 28/6/10 it was only acknowledged on the 4/8/10 by S Minta Jacobs from Lambeths Parking Debt team (see attached) Yet she still attempted to made more unlawful demands of monies from myself.

This was 37 days after the revoke of the order of recovery.

The letter from TEC quite clearly states the authority should inform myself as soon as possible regarding the issue of a 2nd PCN yet Lambeth have issued this 2nd PCN dated 14/09/10, over 11 weeks after my successfully lodged application to revoke the certificate charge and previous Notice to Owner.

 

Also be aware that after the revoke of the order of recovery,on the 28/06/10 this matter should have been referred directly to the Parking and Traffic Appeals Service,

As the basis of my witness statement(see attached) to TEC was that I had made a formal appeal within the statutory timescales, yet did nor receive a rejection letter from Lambeth.

This is a clear breach of the statuary regulations which means this Notice of Owner

And the previous pre NTO letter from S Minta Jacobs from Lambeths Parking Debt inviting me to pay at the discount rate is also unlawful.

I will quote the relevant statuary regulations. From the

Civil Enforcement of Parking Contraventions (England) General Regulations 2007

 

I’ve highlighted the relevant text in bold.

Enforcement of charge certificate

22. Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the enforcement authority may, if a county court so orders, recover the increased charge as if it were payable under a county court order.

Invalid notices

23.—(1) This regulation applies where—

(a) a county court makes an order under regulation 22;

(b) the person against whom it is made makes a witness statement complying with paragraph (2); and

© that statement is served on the county court which made the order, before the end of—

(i) the period of 21 days beginning with the date on which notice of the county court’s order is served on him; or

(ii) such longer period as may be allowed under paragraph (4).

(2) The witness statement must state one and only one of the following—

(a) that the person making it did not receive the notice to owner in question;

(b) that he made representations to the enforcement authority under regulation 4 of the Representations and Appeals Regulations but did not receive from that authority a notice of rejection in accordance with regulation 6 of those Regulations;

© that he appealed to an adjudicator under regulation 7 of those Regulations against the rejection by the enforcement authority of representations made by him under regulation 4 of those Regulations but—

(i) he had no response to the appeal;

(ii) the appeal had not been determined by the time that the charge certificate had been served; or

(iii) the appeal was determined in his favour; or

(d) that he has paid the penalty charge to which the charge certificate relates.

(3) Paragraph (4) applies where it appears to a district judge, on the application of a person on whom a charge certificate has been served, that it would be unreasonable in the circumstances of his case to insist on his serving his witness statement within the period of 21 days allowed for by paragraph (1).

(4) Where this paragraph applies, the district judge may allow such longer period for service of the witness statement as he considers appropriate.

(5) Where a witness statement is served under paragraph (1)©—

(a) the order of the court shall be deemed to have been revoked;

(b) the charge certificate shall be deemed to have been cancelled;

© in the case of a statement under paragraph (2)(a), the notice to owner to which the charge certificate relates shall be deemed to have been cancelled; and

(d) the district judge shall serve written notice of the effect of service of the statement on the person making it and on the enforcement authority concerned.

(6) Subject to regulation 20, service of a witness statement under paragraph (2)(a) shall not prevent the enforcement authority from serving a fresh notice to owner.

(7) Where a witness statement has been served under paragraph (2)(b), © or (d), the enforcement authority shall refer the case to the adjudicator who may give such directions as he considers appropriate and the parties shall comply with those directions.(8) A witness statement under this regulation may be served on the county court by email in accordance with Section I of Practice Direction 5B in Part 5 of the Civil Procedure Rules 1998(15).

9) In this regulation—

(a) references to a “notice to owner” include a regulation 10 penalty charge notice; and

(b) “witness statement” means a statement which is a witness statement for the purposes of the Civil Procedure Rules 1998 and which is supported by a statement of truth in accordance with Part 22 of those Rules.

 

As you should be aware I sent Lambeth a copy of my witness statement(see attached) which was faxed to the Traffic Enforcement Centre and was acknowledged by a Jacqueline Gayle on the 28/6/2010.

So Lambeth Council would have been very much aware on what grounds I was making this witness statement on.

Therefore I expect this PCN to be canceled.

If you still wish contest this appeal further I request the following:

A copy of the original PCN

Copies of photographs of service of the PCN. i.e. attached to my vehicle

Copies of photographs of the alleged contravention.

Full tribunal disclosure of the parking warden’s notes and beat area, together with evidence that the ticket was correctly served.

The traffic order of the road of the alleged contravention.

 

On cancellation of this PCN

I will be making a formal complaint regarding the unlawful issuing of the original PCN ,the issuing of the 2nd Notice to Owner

and the unlawful demands of monies from myself at various points of the process. to the Local Government Ombudsman.

You can treat this as stage 2 complaint.

XXXXX

XXXXXXX

Scambeths response to my representations.

Scambeths emailed response to my complaint in my representations.

 

RE:PENALTY CHARGE NOTICE (PCN) LHXXXXXXXX

Thank you for your email dated the 17th September 2010 in which you express the wish to escalate your dissatisfaction with the way in which the above case was handled.

You have stated that you contested the PCN on the grounds that the alleged contravention did not occur and that there had been procedural impropriety on the part of the enforcement authority. You claim that the PCN was not handed to the driver or attached to the vehicle and you were therefore unaware of it.

Firstly, I must advise you that you cannot circumvent the appeals process by making a complaint. There is a statutory process which must be adhered to as outlined by legislation.

The PCN was issued on the 24th December 2009 under the contravention code 26E – vehicle parked more than 50 cm away from the edge of the carriageway and not within a designated space. Our records indicate that it was noted by the Civil Enforcement Officer (CEO) that it was placed on the windscreen of the vehicle. As no payment or correspondence was received in regards to the above PCN, the case escalated to the next stage and the Notice to Owner was issued on the 2nd February 2010, again no payment or Representation was made and the case escalated further which led to the Charge Certificate being issued on the 11th March 2010.

After a Charge Certificate has been issued the Appellant no longer has the right to make a representation, it was at this stage in the process that first correspondence was received from you the 19th March 2010. You were advised in a letter 11th May that we could no longer look into your case as your chance of making a representation had passed. Your Statutory Declaration/Witness Statement was received on the 30thJune 2010 and we received notification from The Traffic Enforcement Centre (TEC) on the 5th July 2010 that your Statutory Declaration/Witness Statement had been accepted and we were ordered to revoke the Charge Certificate. It was specifically stated that the order did not mean that the PCN was cancelled.

We then sent correspondence to you explaining that the Charge Certificate had been revoked and that the PCN was not to be cancelled. Our letter dated the 4th August 2010 requested payment of £60.00 to close the case or advised that you could wait for the second NTO in order to make formal Representations. The second NTO was sent on the 14th September 2010, your Representation was received on the 21st September and the concerns you raised were investigated which led to the PCN being cancelled on the 4th October 2010 due to the log book notes being incomprehensive. The PCN was not cancelled sooner as you had not the challenged the PCN or NTO and lost the right to have a representation considered by the council by the time your challenge was received.

Please be advised that the second NTO issued to you and the correspondence requesting payment was not unlawful as the PCN had not been cancelled, the charge certificate was revoked. You state that your witness statement was filed on the basis that you made a representation to the council within the specified time limit, but received no response. Our records indicate that no correspondence was received from you after the NTO.

In conclusion, this case has been dealt with according to the statutory procedures outlined in the Traffic Management Act 2004 and there has been no procedural impropriety on the part of Lambeth Council. I hope that matters have been clarified somewhat.

If you are dissatisfied with this response, you have the right to a review by a senior manager. If you wish to exercise this right, please contact the Customer Relations team, stating that you wish to escalate to a Stage 2 complaint, and explaining your reasons for dissatisfaction. Customer Relations can be contacted via the details below:

Customer Relations

2nd Floor Blue Star House

234-244 Stockwell Road

London SW9 9SP