Author Topic: LBTH issue NtO - a month after ALL PCN fees were paid.  (Read 2552 times)

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Offline BGB

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LBTH issue NtO - a month after ALL PCN fees were paid.
« on: 20 September, 2012, 12:41:46 PM »
LBTH have sunk to a new low.

A driver was towed for parking on a single yellow line.

The driver attended the car pound and paid the £65 PCN charge (and the £200 release fee).

A month later, despite having received all the fees due, LBTH then sent a Notice to Owner again demanding payment.

PaTAS case 2120390207

"The appellant has appealed on the ground that there has been a procedural impropriety in this case.
A procedural impropriety is a failure by the enforcement authority to observe any requirement imposed upon it by the Traffic Management Act 2004, the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 in relation to the imposition or recovery of a penalty charge or other sum.
The contravention date is 12 th  February 2012.
I note that the appellant's vehicle was removed.
I also note that a notice to owner dated 15th March was sent to Hhfs Ltd when it appears that on 12th February 2012 £265 was paid for the vehicle's release.The issue of a notice to owner in removal proceedings must I find be a procedural impropriety.
I will therefore allow the appeal.
"

« Last Edit: 20 September, 2012, 01:28:34 PM by BGB »

Offline Ewan Hoosami

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Re: LBTH issue NtO - a month after ALL PCN fees were paid.
« Reply #1 on: 20 September, 2012, 01:32:37 PM »
Point of law. Where there has undoubtedly been a procedural impropriety, does the authority have to refund the £265? I would like to think so.

Appealing to the council is like playing chess with a pigeon. You might be a chess grand master but the pigeon will always knock all the pieces over, shit on the board and then strut around triumphantly.

Offline BGB

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Re: LBTH issue NtO - a month after ALL PCN fees were paid.
« Reply #2 on: 20 September, 2012, 01:58:08 PM »
Point of law. Where there has undoubtedly been a procedural impropriety, does the authority have to refund the £265? I would like to think so.




Yes

Offline BGB

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Re: LBTH issue NtO - a month after ALL PCN fees were paid.
« Reply #3 on: 05 November, 2012, 01:14:21 PM »
...and also issue a charge certificate whilst considering an appeal.

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable
Case Reference:   2120364502
Penalty Amount:   £80.00
Contravention:   Parked after the expiry of paid for time
Decision Date:   20 Aug 2012
Adjudicator:   Neeti Dhanani
Appeal Decision:   Allowed
Direction:   cancel the Penalty Charge Notice and the Notice to Owner.
Reasons:   The appellant attended the hearing before me. He reiterated the statements made in his appeal and he complained that he had received a letter telling him that the penalty had increased to £120. He produced a copy of a Charge Certificate dated 7 th  June.

It is of some concern that the Authority has made no mention of the fact that a Charge Certificate had been issued. In addition the date of issue of the Notice to Owner is not clear from the evidence produced by the Authority. Fortunately the appellant was able to assist and produced a full copy of the Notice to Owner. The Notice to Owner is dated the 8 th  May, the Charge Certificate is dated 7 th  June and the Notice of Rejection is dated 2 nd  July.

I would remind the Authority of the principle expressed in Miah v Westminster (PATAS Case No. 2050339777) where the issue of a Charge certificate when an appeal was pending was found to be a procedural impropriety. The principle expressed in Miah applies equally to this case.

The issue of a Charge Certificate whilst the appellant awaits a response to its representations is an unlawful demand for money, coupled with the threat of court action. For a public authority to issue such a document is utterly unacceptable. The Authority is required to produce the full correspondence folder, if certain items of correspondence have been omitted, an explanation should be given. To fail to include a copy of a formal notice issued as part of the enforcement process in the evidence folder is unacceptable as it is a failure to disclose material evidence and is tantamount to misleading the adjudicator.I find that there has been a procedural impropriety on the part of the Authority and so I allow the appeal.

________________________________________
Costs Decision
Application By   Appellant
Decision Date   11/2/2012 3:50:42 PM
Adjudicator   Neeti Dhanani
Decision   Allowed
Direction   The Local Authority is directed to pay a sum of £95.00 to the Appellant
Reasons   

The Appellant appeared at a personal hearing of his appeal before me. The Appellant has submitted an application for costs.

Paragraph 13 of Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides:

"(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to subparagraph (2) make such an order-
(a)against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b)against an enforcement authority where he considers that the disputed decision was wholly unreasonable.
(2) An order shall not be made under subparagraph (1) against a party unless that party has been given an opportunity of making representations against the making of the order.
(3) An order under subparagraph (1) shall require the party against whom it is made to pay to the other party a specified sum in respect of the costs and expenses incurred by that other party in connection with the proceedings."

The appellant contends that the Authority acted wholly unreasonably and frivolously in resisting an appeal and in failing to disclose to the Tribunal that a Charge Certificate had been issued prior to the Notice of Rejection.

The Authority has made no submissions on the application for costs.

Having considered the matter, I find that although the Authority's reliance on the evidence recorded by the civil enforcement officer to issue the Penalty Charge Notice was not wholly unreasonable, frivolous or vexatious, I find their pursuit of the enforcement of the Penalty Charge Notice and their conduct in relation to the appeal to be wholly unreasonable, frivolous for the reasons stated in my decision.

I therefore find that the appellant is entitled in principle to an order for costs and expense in this case.

The above regulations provide that the sum specified in an order for costs should be in respect of the costs and expenses incurred by that other party in connection with the proceedings. Thus the order for costs is limited to the costs and expense in connection with the appeal.

The appellant has claimed costs in the sum of £235 as set out in his application.

I allow the following sums:
Travel costs 160 mile @ £0.45 per mile = £72
Parking                                                    =£08
Postage (not supported by receipts)       =£15

The claim for loss of earnings is disallowed. This tribunal has a flexible hearing system and parties may have their cases heard early mornings, evenings and on Saturdays. There should not be a need to take time off work in order to attend a hearing.

I direct that the Authority pay the sum of £95 to the appellant.
« Last Edit: 05 November, 2012, 02:37:56 PM by BGB »

Offline BGB

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...and again...
« Reply #4 on: 09 November, 2012, 12:20:25 PM »
Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable

Case Reference: 2120492954
Authority: Tower Hamlets
Contravention Date: 03 Jul 2012
Contravention Time: 15:27
Contravention Location: Robin Hood Lane E14
Penalty Amount: £80.00
Contravention: Parked for longer than permitted
Decision Date: 08 Nov 2012
Adjudicator: Carl Teper
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The Appellant has attended his appeal.

The Appellant accepts that he was parked in excess of the permitted time when in Robin Hood Lane on 3 July 2012 but argues that he has unfairly lost the opportunity to pay at the reduced rate.

The Appellant tells me, and I accept that he did not receive the enforcement authority's letter dated 26 July 2012 re-offering the reduced penalty.

I explained to the Appellant that even under those circumstances I am not empowered to reduce the penalty back to the discounted payment of £40.00.

However, the Appellant's appeal was lodged on 21 September 2012 at the Parking and Traffic Appeals Service and the authority was notified.

On 19 October 2012 the authority issued a Charge Certificate, while the appeal was pending, increasing the penalty from £80.00 to £120.00 and threatening court action.

This is an unlawful demand for money with the threat of Court action and I find it to be a procedural impropriety.

"Procedural impropriety" means a failure by the enforcement authority to observe any requirement imposed by the Traffic Management Act 2004 or the General Regulations or Representations and Appeals Regulations. This includes, pursuant to Regulation 4(5) (a) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 the taking of any step, whether or not involving the service of any document, otherwise than in accordance with the conditions subject to which; or at the time or during the period when, it is authorised or required to be taken.

I find that the issue of the Charge Certificate, to be a procedural impropriety as so defined.

Regulation 7(2) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that if the Adjudicator concludes that a ground specified in Regulation 4(4) above applies, "he shall allow the appeal". There is no discretion about this.

The appeal is allowed.