PARKING MATTER

[Manxman in exile]

@JambersonYou say "It's what the process was set up for... ", but it's not as simple as that is it?  Surely the whole point of the OOT process is to accommodate those "normal" situations where the RK does not receive any notices because their V5C address at the DVLA is temporarily wrong because they are in the middle of moving house or of buying/selling a car?  Those seem to me to be entirely legitimate (or "plausible" if you will) grounds for not receiving any correspondence and are the grounds that the OOT is designed for.

 

Now (leaving the OP aside for a moment) I think any council would object to an OOT where the reason the RK never received anything is not for any of the "legitimate" reasons above, but simply because the RK had failed - whether by accident or design - to keep DVLA updated with their address, which is an offence in itself.  I'm sure the council would take the view (rightly or wrongly) that the RK had brought this about by their own actions and would object to the OOT - and I'm also pretty sure the traffic court would agree (rightly or wrongly) with their objection.  It's then open to the RK to appeal to a district judge - if they can afford it.

 

Getting back to the OP, I actually think he might have a legitimate reason for not receiving any papers.  He was chucked out of his home (which was his V5C address) and was subsequently homeless with no fixed address (for how long OP?) and because of that he felt that he didn't have an effective address he could change his V5C to.  Whether it was practicable for him to collect mail from his former address - and should he have done so - well, we don't know.

 

Unfortunately we don't know what the OP put on his first OOT statement that was rejected (he hasn't told us) and he hasn't told us either what his lawyer friend advised putting on the subsequent statements.  It might be useful to know.

 

So what practical advice can be given to the OP?  So far he's been advised to submit another OOT saying that his friend was the driver ( 100% mistaken in my view) and that Birmingham CC are wrong to tell him that he is liable and not the driver (again 100% mistaken to suggest the council are wrong).

 

So, assuming he is able to submit further applications in respect of this first PCN - and I'm not convinced* he can - what form of words does he use to maximise his liklihood that the traffic court will accept it?  I would be wanting to say something like" I'd been chucked out of my home and had been made homeless with no fixed address or other address where I could be reliable contacted and so decided not to update my V5C address... etc"

 

Or are there any other alternative lines of defence for the OP?  Bearing in mind that if his OOT is wrongly rejected by the court, then he can't afford to appeal against that decision.

 

*I'd be a tad surprised if it were possible to submit up to nine separate applications in respect of each PCN.  Did the person researching that not give some sort of authority for that proposition?  Nine is such an odd number for a limit

[Jamberson]

@Will GoodfellowLet's not get too bogged down in this nine applications thing - it's not really relevant, but you are right it's a perfect tactic to frustrate the system.

 

However it depends on the Council repeatedly issuing an Order for Recovery, which they shouldn't do, although many will. If they do issue one, then someone can respond to it with a TE9 every time. It's standard.

 

Would be very unusual to keep submitting out of time ones, as they will have the correct address after the first one and will look to issue notices there - so they can then reject it. But do it in time, and you can stall the process for months and months.

 

@Manxman in exileThe court don't accept or reject it - the Council does. The law is on the side of the debtor.

 

In law you cannot be fined without the right of representation. This has been tested up to the House of Lords in connection with PCNs, whereby you have no option to present a defence in court.

 

The legal position is, the appeals process serves that defence purpose and so it is an absolute right to have the appeals process made available to you, and you cannot be deprived of it because you were negligent in advising DVLA, or for any other reason.

 

The council is seeking to penalise you - they have to serve notices first so you can choose to appeal. Serving notices does not occur if you do not live at the postal address they use - whoever's fault it is.

Therefore they have to re-issue them to your correct address. 

 

I understand your reasoning, but the system doesn't work quite as you describe.

[Will Goodfellow]

The nine applications issue is relevant when you are telling someone to resbumit a TE7 which was already rejected, and unless it was rejected on the basis of the form not being completed properly, a TE7 cannot be resubmitted after a rejection. There is still a right of appeal but the TE7 is not the correct process.

 

It is not the decision of the council to accept or reject a TE7, the council can contest it or not but a court officer can reject it even where the council does not contest the application. Do you seriously think that where a TE9 is accepted by the council and the PCN is not paid, once an order for recovery is enforced again, it will accept another TE9 for the same PCN? That would be completely barmy.

 

Slight correction to the above after re-reading, if the council accepts the TE7, the PCN will be reset, however, where the council objects to the TE7, that decision can be overturned by a court officer.

Edited December 8, 2020 by Will Goodfellow

[LUGHO]

@Manxman in exileThis what i wrote the last two PCN "

 

 

 

{At the day of the offence i wasn't the driver of the vehicle ,

and i wasn't aware of the parking fine.

have i been aware of the penalty charge i wouldn't have hesitated to pay it off.}

this what i wrote on the First PCN that was rejected 

[Will Goodfellow]

That's a lot better than the first one, good luck.

[Manxman in exile]

2 hours ago, Jamberson said:

@Will Goodfellow

 

In law you cannot be fined without the right of representation. This has been tested up to the House of Lords in connection with PCNs, whereby you have no option to present a defence in court.

 

The legal position is, the appeals process serves that defence purpose and so it is an absolute right to have the appeals process made available to you, and you cannot be deprived of it because you were negligent in advising DVLA, or for any other reason.

 

The council is seeking to penalise you - they have to serve notices first so you can choose to appeal. Serving notices does not occur if you do not live at the postal address they use - whoever's fault it is.

Therefore they have to re-issue them to your correct address. 

 

I understand your reasoning, but the system doesn't work quite as you describe.

 

No - I think I understand quite well the principles behind our legal system and how it is meant to work. I think the problem is that your somewhat principled view of how the system should apply to parking fines does not accord with what I think is the practical reality.

 

As I said in my previous post, I have no doubt that most if not all councils, when presented with an OOT application based on the wrong address having been used by the council because the OP had not updated it with DVLA, will as a matter of course object to it.  I'm not suggesting that they are right to do so - I'm simply saying that that is what they will do and the application will end up being rejected. 

 

You surely can't be suggesting as a matter of fact that councils always act correctly?  When somebody in receipt of a PCN makes representations against it - or appeals against it - and the council replies with a boilerplate letter of rejection completely ignoring the points made (and demonstrating ignorance of the law they are meant to enforce), safe in the knowledge that most punters will pay up rather than take it further, you can't surely be thinking that the council is acting correctly and honestly there, can you?  Of course they aren't - it's just that it's not in their interests to give up the potential revenue so easily and they are effectively conning people out of money. 

 

And I'm not suggesting that the OP has no right of appeal if his OOT application is turned down.  He can apply to have an appeal heard before a district judge.  But that application would cost either £100 or £255 with no guarantee of being able to recover the fee even if successful.  So nobody is saying the OP has no right to appeal, but if he can't afford to do so (as here) that right of appeal is purely academic and of no practical use to him.

 

3 hours ago, Jamberson said:

@Will GoodfellowLet's not get too bogged down in this nine applications thing - it's not really relevant, but you are right it's a perfect tactic to frustrate the system.

 

However it depends on the Council repeatedly issuing an Order for Recovery, which they shouldn't do, although many will. If they do issue one, then someone can respond to it with a TE9 every time. It's standard.

...

 

 

So are you now saying that the nine applications only applies where the council repeatedly (and wrongly) keeps issuing Orders for Recovery?  Why would they issue any more after the first one if the OOT is rejected?  Are they even allowed to do that?  I've looked at several websites dealing with PCNs and OOT statements today, and not one of them has suggested that you can keep repeating OOTs after one has been rejected.  They all state that the only course of action after rejection is appeal via an N244.

 

So what's the practical advice for the OP?  File another TE7/TE9 with better wording?  Or just keep his head down and hope the bailiffs don't track down his new car? 

 

Or if he wants to appeal to a judge against the rejection, it needs to be done within 14 days of notice of the rejection doesn't it, or enforcement will continue?

[Manxman in exile]

Hi LUGHO - yeah, what you've put in #29 is much better and more likely to succeed.  The one for the first PCN would have been rejected straight away when you said you weren't the driver - that's irrelevant to the reason you were late and no grounds for an out of time statement.

 

Good luck

 

(Come back and let us know how the others go).

[Manxman in exile]

Sorry - I wanted to add this to my earlier post but forgot.

 

Regarding what other websites dealing with PCNs and OOTs say, this is from one of them, and one that I had always previously thought reliable.  Is it wrong?

 

"Will my debt be automatically cancelled if I file an Out of Time witness statement.

Because the time period to file a Witness Statement has expired…..the debt will NOT automatically be cancelled.  Instead, the local authority (Dart Charge , Merseyflow etc) are given the opportunity to decide whether or not they are willing to give PERMISSION to allow you to file your witness statement LATE. In reaching their decision, the council must rely upon the information provided in the ‘reason’ section on the PE2 or TE7. A word of warning….it will not be sufficient to merely state that you had moved address and this is the mistake that the vast majority of motorists make." [My bold for emphasis]

 

I interpret that to meant that the applicant needs a damn good reason for being late, and that their own failure to keep their address updated at DVLA would not be a damn good reason.

 

Please note - I'm addressing the general point here and I'm not necessarily saying that this OP does not have a good reason - provided it is properly explained.

 

So what does he do about the one that's been rejected?

[LUGHO]

Should I filed  N244 form for the one that have been rejected? 

I am still waiting for the outcome  on the other two. 

[Jamberson]

I would not file an N244 right now, I would send a new TE9/7 for that PCN and see what happens. However keep it in mind as an option, in case it comes to that. If you do have to go down that route, your second TE7/9 may in fact strengthen your case - but first things first.

 

In your TE7 you must explain the situation clearly or they are likely to reject it. I would say something like this:

 

In xxxx I lent my car to a friend named xxxx. I since learned he received three PCNs, but he did not tell me about them. I left me previous home on xxxxx dur to family circumstances, and when you sent me the official notices out I was no longer living there and did not receive them. The first knoweldge I had of the PCNs was when I was contacted by bailiffs. Therefore I have not had an opportunity to pay or appeal them. This is why my application is late.

[dx100uk]

 

[Will Goodfellow]

12 hours ago, LUGHO said:

Should I filed  N244 form for the one that have been rejected?

 

What date did you receive notice that the TE7 was rejected as you have 14 days from service of that in which to submit an N244?

Edited December 9, 2020 by Will Goodfellow

[Manxman in exile]

16 hours ago, Will Goodfellow said:

 

What date did you receive notice that the TE7 was rejected as you have 14 days from service of that in which to submit an N244?

 

But according to Jamberson it doesn't matter if LUNGHO misses the deadline for submitting an N244 in respect of the first rejection, because he's entitled to submit a further eight (!?!) TE7s in respect of the same PCN, and if they all get rejected he only needs to appeal against the last one that is rejected.

 

But then I'm not so sure about that and neither is Jamberson it seems , because he also seems to be saying (#27) that you can only submit more than one TE7 in respect of a single PCN if the council issues more than one OfR in respect of that single PCN:  "However it depends on the Council repeatedly issuing an Order for Recovery, which they shouldn't do, ..."

 

But he doesn't explain why a council would issue a further OfR if the applicant's TE7 has been rejected as surely the hold on bailiff action is lifted and the bailiffs proceed as if nothing had happened?

 

It's entirely possible that I'm completely mistaken in my understanding and Jamberson is completely right that you can submit more than one TE7 - but I'd like to read something more authoritative for that proposition than: "The nine submissions came from when I used to run an appeals team in my local Council.   ... I had one of my team research the Council's whole legal obligation and this is one of the facts which came up",  which seems to be reliant on nothing more than the unknown legal research skills of some council employee.

 

I've read nothing anywhere else on t'internet that suggests that resubmitting a TE7 (with different wording) is a valid response to a rejected TE7, rather than appealing via N244.

[Manxman in exile]

On 09/12/2020 at 08:35, LUGHO said:

Should I filed  N244 form for the one that have been rejected? 

I am still waiting for the outcome  on the other two. 

 

You might as well try what Jamberson suggests in #35.  I think as long as it's worded as he suggests, it might work.  It depends on whether the council and traffic court will accept a new TE7 once one has already been rejected.  I'm not convinced they will - but if you don't try...

 

If you want to appeal via N244 it will cost you (I think) either £100 or £255 depending on how you want the appeal heard.  You might not get that money back.  And as Will Goodfellow says, you have to apply within 14 days of service of the rejection notice.  (How that works if you are able to submit additional TE7s as Jamberson says, I simply don't know).

 

I realise you're getting mixed advice here including - in my opinion - erroneous advice (ie say that you weren't the driver, which is irrelevant, and telling you that Birmingham CC were wrong to tell you that the owner and RK were liable and not the driver - which is wrong in itself). 

 

If you don't want to keep all your eggs in one basket, and want to widen your net for further advice that you might find useful, try the link at the bottom of my post #11.  (This forum has changed the appearance of that link but it should still work - but don't register with a Hotmail email address).  If I have a problem I like to check as many different sources as I can to get a variety of views.

 

Oh yes - never lend your car to anyone unless you trust them 100% and you are absolutely certain they have insurance to cover them driving your car(!), and make sure your friend pays his fair share of all your costs in this.  A fair share might be all of them.

[Jamberson]

3 hours ago, Manxman in exile said:

 

But according to Jamberson it doesn't matter if LUNGHO misses the deadline for submitting an N244 in respect of the first rejection, because he's entitled to submit a further eight (!?!) TE7s in respect of the same PCN, and if they all get rejected he only needs to appeal against the last one that is rejected.

 

But then I'm not so sure about that and neither is Jamberson it seems , because he also seems to be saying (#27) that you can only submit more than one TE7 in respect of a single PCN if the council issues more than one OfR in respect of that single PCN:  "However it depends on the Council repeatedly issuing an Order for Recovery, which they shouldn't do, ..."

 

But he doesn't explain why a council would issue a further OfR if the applicant's TE7 has been rejected as surely the hold on bailiff action is lifted and the bailiffs proceed as if nothing had happened?

 

It's entirely possible that I'm completely mistaken in my understanding and Jamberson is completely right that you can submit more than one TE7 - but I'd like to read something more authoritative for that proposition than: "The nine submissions came from when I used to run an appeals team in my local Council.   ... I had one of my team research the Council's whole legal obligation and this is one of the facts which came up",  which seems to be reliant on nothing more than the unknown legal research skills of some council employee.

 

I've read nothing anywhere else on t'internet that suggests that resubmitting a TE7 (with different wording) is a valid response to a rejected TE7, rather than appealing via N244.

 

I don't want this thread to get sidetracked on this matter. However for the sake of clarity, you can submit up to nine, but each one has to be submitted at the appropriate stage of the process, which is after an Order for Recovery has been issued, and normally only one would be submitted. But the council can issue a second Order for recovery later on, depending how the case progresses, and if they do, a second Witness Statement can be made, and so on, up to nine times. But none of that is particularly relevant to this case.

 

In the OP's case he has had one Witness Statement rejected so an N244 is the only formal route left open on that PCN, which is currently on hold waiting for the OP to decide what to do. And it DOES matter that he applies in time, if that's what he is ultimately going to do.

 

However while we are in the brief stage where all three are on hold, I think there is mileage in sending a new set of three witness statements and seeing what happens, because two of them have not been decided yet, so far as we know. The Council cant reasonably reject one and accept the other two, if they are all filed on the same grounds. So I say go for all three again and see what they do - nothing to lose. Filing an N244 is not easy, and there are upfront costs which might not ever get recovered, so for me, that would be the last resort. However the option remains open.

[Manxman in exile]

OK...

 

But if the submission of further TE7s after the first one has been rejected is dependent (which is what you seem to be saying) on the council issuing a further OfR - which they should not do - how does the OP submit a further TE7 in respect of the first PCN if Birmingham CC have acted correctly and haven't issued a further OfR?  (Apologies if I've missed it, but I've seen no suggestion that the council have issued another one?). 

 

And strictly speaking, we do not know if the first PCN is still on hold, do we, because we don't know when the initial TE7 was rejected?  It may be outside the time to appeal - we simply don't know.

 

"The Council cant reasonably reject one and accept the other two, if they are all filed on the same grounds".  But only if a second TE7 on different grounds from the first one is accepted re the first PCN.  At the moment the TE7s for the second and third PCNs are on different grounds from the first rejected one, and we don't even know if the TE7s for those subsequent PCNs have been accepted yet.

 

I understand the argument that if the OP cannot or will not file a N244 appeal (too costly or too late) then they may as well try to submit another TE7 even though the first one has been rejected.  It just seems to me that that is a bit of "Hail Mary," last ditch, no other alternative response with no real prospect of success.  Isn't there anything better?

 

It's ironic because I wonder if the OP had explained about the address situation properly in their initial TE7, instead of simply saying they hadn't been the driver at the time of the offence, the TE7 might well have been accepted.