Can a CEO observe a contravention in 1 minute and doesn’t the Restricted Loading Bays allow for drop-off and pick up ?

[Michael Browne]

(h)in a case where a penalty charge notice was served by post on the basis that a civil enforcement officer was prevented by some person from fixing it to the vehicle concerned or handing it to the owner or person in charge of the vehicle, that no civil enforcement officer was so prevented;

 

It wasn't served by post, so doesn't apply

[Jamberson]

I wouldn't get too tied up in all the various legal provisions and so on. The system is much less formal than it appears.

 

All you need to do is write a letter. Deny that a PCN was served, and ask them to check their evidence. Point out that the CEO was not prevented from serving one, he just elected not to, and that since no PCN was ever served, there is no basis to issue you with a Notice to Owner.

 

That's all you need to get over to them, and if they reject that you have the adjudication service at your disposal. According to your account there will be no evidence that a PCN was ever served.

[rojroj]

So, should I ask when and how was the PCN Served - to see what they come up with (rather than mentioning at this stage that the CEOs neither handed over any PCN to any of us, nor asked us to wait) ?

Can I then mention this later on once they have replied ?

Or shall I mention everything at the onset ?

Which will help my case ?

[rojroj]

Sorry Jamberson, I didn't see your post before posting my last update.

I shall draft an Appeal and post it here for everyone to check and correct / suggest.

[Jamberson]

Just write one letter, stating your arguments. Don't ask questions, and hope for replies - it just confuses the system! Just get down on paper the reasons why the PCN should be cancelled and send them that.

[rojroj]

I have drafted the following taking phrases & paragraphs from various other posts in the Forum. I am not sure if I should include the 1st and the 3rd Ground (which I showed in Grey Colour and in Italics). Could you kindly check and suggest please.

Also, should I send this by Recorded Delivery or a simple Certificate of Posting from Post Office is enough.

Another point is that they didn't include any photo showing the restrictions / taxi rank. Shouldn't they ?

 

 

I wish to formally appeal against penalty charge notice XXXXXXXX for the Vehicle with Registration No XXXXXXX on the following grounds :

 

• The alleged contravention did not occur ;
  
• There has been a procedural impropriety on behalf of the authority ; and
  
• In a case where a penalty charge notice was served by post on the basis that a civil enforcement officer was prevented by some person from fixing it to the vehicle concerned or handing it to the owner or person in charge of the vehicle, that no civil enforcement officer was so prevented (this has not even been included on my Form)
  

On 15/04/2013, my wife came to pick me up at Church Street, Slough. On spotting me waiting at the Junction of the High Street and the Church Street, she stopped at the nearest sensible spot with marked bays, which now we realize to be a Taxi Rank. As I started walking towards the car, she left the Driver Seat and walked around towards the Passenger Side. The Car Engine was always running and our young Son was seated in his Car Seat at the back. My wife was always near the car and can be seen in the 1st picture (taken at 19:55). She then spotted two Civil Enforcement Officers and told that we are not stopping and going immediately. The CEO said "OK, you can go". So, I drove off immediately. Just as I was driving off, the CEO took a close up picture of the Tax Disc (again at 19:55).

The CEOs neither handed over any PCN to any of us, nor asked us to wait.

No PCN was sent by Post either.

The reason for that is that they didn't even start to issue the PCN when I drove off.

 

Now, I directly received a 'Notice to Owner' dated 29/05/2013, thereby giving me NO opportunity to either make an Informal Appeal, take advantage of the Reduced Payment Period, avoid having to make a Formal Representation or Appeal to an Independent Adjudicator.

 

The Secretary of State’s guidance (88) instructs that a council should have regard to the following :

“It is likely that an enforcement authority will receive informal challenges against PCNs before they issue the NTO. They are likely to receive these within the 14 day discount period. Enforcement Authorities should give proper consideration and respond to these challenges with care and attention, and in a timely manner in order to foster good customer relations, reduce the number of NTOs sent and the number of Formal Representations to be considered”.

 

By denying my Right to Informal Appeals and directing that I must either pay the Double Charge or make a Formal Representation, the Enforcement Authority is in Contravention of the Regulations, which is vital to avoid unnecessary Appeals and the wastage of Time and Costs that would be incurred by all the parties including the Adjudicator.

 

Furthermore, the following Guidance (8.77) to the Local Authorities clearly states that :

A PCN may not be served by post if the motorist returns to the vehicle before the CEO has started to issue it. A CEO has not started to issue a PCN if s/he is observing a vehicle or jotting down some details. It is only when the CEO starts to create the PCN and would otherwise have to cancel it that they have started to issue it. If the driver returns before the CEO has started to issue the ticket, the CEO should establish whether the vehicle is parked in contravention (for example, if drop off or pick up is taking place). If the vehicle is in contravention, the CEO should ask the driver to comply with the restrictions.

If a driver is with the vehicle best practice is to ask him to comply before issuing a PCN, if the driver is in the vehicle he/she may have been picking up or dropping off a passenger so starting to issue a PCN without even speaking to the driver is totally wrong.

 

These sort of unreasonable and deliberate acts by the CEOs cause such a lack of trust and bad reputation for the Councils.

 

So, I would demand to see the Print-Out of the PCN History with the Time Stamps of when the PCN was started and also demand to see the evidence that the PCN was ever Served either by pasting it on the Vehicle, handing it over to the Owner or the Person in Charge of the Vehicle or sent by Post and also the evidence that the Civil Enforcement Officer has recorded that we refused to comply and recorded the Contravention happening for a reasonable length of time before issuing a PCN.

 

Also, under the 'Freedom of Information Act', I would demand that you provide me with all the statistics regarding how many such Informal or Formal Appeals were made by the people in the past few years Contesting that no PCN was ever Served to them before issuing the NTO.

 

So, in view of the above, I believe that there has been a Procedural Impropriety on behalf of the Authority and demand that the PCN be cancelled.

Should my Formal Representation be rejected I will have no other alternative but to pursue this matter to Independent Adjudication where I will be making a request for costs as well on the grounds that the Enforcement Authority has acted indifferently and wholly unreasonably in not following the proper Procedures and Guidance's.

[Jamberson]

May I suggest you edit this down. The staff who deal with appeals spend most of their working days ploughing through endless scans of letters, and they've heard it all before, and their minds go to sleep. The more complex your argument is, the more difficult it is to understand, and the more likely it is that the staff will not grasp it or deal with it properly. Also, they don't like being quoted chapter and verse.

 

Better to put it in a nutshell. This is what I would suggest:

 

Penalty charge notice XXXXXXXX

Vehicle Registration XXXXXXX

 

On 15/04/2013, my wife stopped at a Taxi Rank to allow me to board the vehicle. She spotted two Civil Enforcement Officers who were already taking particulars of the vehicle and told them that we were departing in a moment. The said "OK, you can go" and walked away.

 

A few moments later we drove away. The CEOs had not handed us a pcn nor affixed one to the vehicle, and we naturally assumed that was the end of the matter.

 

I then, to my amazement, received a Notice to Owner.

 

Incidentally, if the CEO's notes imply that he was prevented from serving a PCN by our departure (which isn't actually the case), then we ought to have been served a PCN by post, which we were not.

 

In any case, no PCN has ever been issued/served to me, and so I consider the NTO to be invalid. I would ask you to check your records, which will confirm that no PCN has ever been served to me.

I look forward to hearing from you, etc.

[rojroj]

It's almost 5 weeks since my Appeal and I'll probably get a Rejection letter soon. Do I only have 4 weeks from the date of Rejection to appeal to an Adjudicator ? I assume this has to be in writing.

Also, does it make a difference if one appears in person at the time of Adjudication ?

 

Thanks and Regards

[Jamberson]

Five weeks is quite a while - if I were you I would call them on Monday and check where the appeal is at.

 

Yes, you will have four weeks to apply to the adjudicator, if they reject your appeal. Their letter will spell everything out, and they will enclose forms for you to complete.

 

In the event that you do take the case all the way, I would certainly recommend that you attend in person. Otherwise you won't be able to respond to anything which comes up during the process. Much better if you are there to clarify things and dispute anything dodgy which the council person might say.

 

Keep us posted - you might find they uphold your appeal.

[rojroj]

Thanks Jamberson.

Well, I did call them earlier to confirm if they received my Appeal. They confirmed that they received it on the 4th June and were looking at it. I also asked how was the PCN Served as per the Notes. They didn't want to divulge any information. After repeated asking, I was told that 'it was handed over to the Driver'.

If they don't respond within 8 weeks, doesn't it default to an Acceptance anyway ? So, is there any point chasing them ?

My only concern is that we'll be on a Holiday for about 2 weeks middle of August.

I do want to pursue it all the way (on principle). How long after I appeal to the Adjudicator will the hearing be approximately ? Or is it one or the other - either Appeal by Post or Appeal in Person ? Any idea where could the hearing be ?

Regards

[Jamberson]

I think it is 6 months to reply to your appeal, so no it won't default as you say - at least, not for a long time.

 

When they reply, if it is a rejection, you will get 28 days to respond. Therefore being away for two weeks shouldn't stop you.

 

I am not sure what a normal timeframe would be for the hearing, but I would think a few weeks - three weeks maybe, give or take. You will have to submit all the details of your appeal in writing, using the forms you will be sent along with the rejection letter. But make sure you apply for a personal hearing by completing the relevant parts of the form, if you want to attend and participate in the consideration of the case. I certainly would go for that rather than leaving them to deal with it without your presence.

 

The hearing will be local to the town where the contravention happened. Usually in a hired room somewhere, like a meeting room or a hotel room or somewhere. There will be an adjudicator behind a desk, and a chair for you and someone from the council to sit, so you can all discuss the issues. It's pretty informal, but the adjudicator will expect the usual courtesies and politeness all round. He will ultimately guide the discussion and decide whether the PCN should be cancelled, depending on what emerges from the case details.

[rojroj]

Thanks Jamberson for the detailed reply.

As suggested, I would definitely apply and attend it personally. So, if there's only 1 chair for me, I guess my wife can't accompany me.

 

Now, I am not sure which driver they claim to have handed over the PCN. However, since the NtO is addressed to me (being the Registered Owner), I can represent the hearing irrespective of who they claim to have handed over the PCN - isn't it ?

 

Also, I now remember the Council Rep saying that they have 56 days to respond to my Appeal.

[Jamberson]

Your wife can accompany you. There will be more seats for people to watch proceedings, although there probably won't be anyone else there. She won't be able to participate though, unless the officer hearing the case decides that he wants to ask her something for some reason (unlikely).

 

Yes, the NTO is issued to you - it's your case to fight, regadless of who the PCN was allegedly given to.

 

I am unsure about the 56 days. I said that to someone recently and was corrected by someone else. Anyway, until 56 days have passed it's not an issue.

[rojroj]

Thanks.

I called them on 28th June. So, I'll probably call them towards the middle of next week to make sure that it hasn't gone missing in the post.

[rojroj]

I rang and spoke to them on the 23rd July again and was told that it is still in the Queue and they have 56 days to respond.

 

I also sent them an email and got this standard reply :

 

The Parking Appeals Team will reply to your representation within 56 days from the date of receipt of your request.

In order for us to progress your representation effectively please ensure you have provided the following details:

Penalty Charge Notice (PCN) number

Vehicle Registration Mark (VRM) details

If you have omitted any of the details above from your original email, please email them to us as soon as possible.

Please note that your representation is now on hold until a decision has been made and you receive notification of the outcome.

If you are making representation in response to the Notice to Owner, if your representation is successful, a Notice of Acceptance will be issued and the Penalty Charge cancelled. If your Representation is unsuccessful, whether made within the period of 28 days from service of this notice or outside that period and the Representations are disregarded, a Notice of Rejection will be issued and you must either pay the Penalty Charge Notice in full or appeal to an Adjudicator, who will independently consider your appeal.

If you are making representation in response to the Charge Certificate, this will be considered but you have lost your right to make any further appeals to an independent Adjudicator. You must wait for the Order for Recovery (TE3) to make any further representations.

Further information is available on Slough Borough Council’s website www.slough.gov.uk

Data Protection Statement

Slough Borough Council will use information including, personal information, collected through the issuing of this Penalty Charge Notice for the enforcement of traffic contraventions and it may also be used for compatible purposes. The information may be disclosed to other Councils, other enforcement agencies and third parties where it is necessary and lawful to do so e.g. for the prevention and detection of crime. All information will be processed in accordance with the Data Protection Act 1998.

On behalf of:

Slough Borough Council – Parking Section’

[rojroj]

Good News, finally.

They sent a reply (almost on the last day) 'Accepting my Representation' saying that the "Penalty Charge has been Cancelled due to an Error by the CEO".

Thanks a lot to all the Members who helped.

So, the moral of this story seems to be 'Make it as difficult for them as possible by showing as many Clauses and asking as many Questions as you can so that they have to spend ages to justify a Rejection'.