Get ready for refunds?

[Pat Pending]

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http://www.independent.co.uk/news/uk/home-news/drivers-may-reclaim-millions-in-unfair-parking-fines-9746466.html

[The Bald Eagle]

Case Number GD 05067G

Adjudicator’s Decision
xxxxxxxxxxxxxxxxxxxxxx and Gloucestershire County Council
Penalty Charge Notice
GD99046128
£60.00
Appeal allowed on the ground that the Council does not contest the appeal.
I direct the Council to cancel the Penalty Charge Notice.

Reasons

1. The PCN is dated 6 January 2014 and was issued by post in respect of a contravention on 11 December 2013 at 19:43 relating to vehicle AD57YYH in Llanthony Bridge for being in a bus lane. On 21 March 2014 a notice was issued that the Council did not contest the appeal. This appeal is allowed and the penalty charge notice does not have to be paid.
The Hearing

2. On 27 June 2014 a face-to-face hearing was convened in respect of thirteen separate appeals, as listed on the attached schedule, which I had ordered be consolidated to consider whether the enforcement authority, Gloucestershire County Council (‘the Council’), should pay costs and expenses in any of the thirteen cases to reimburse those who had challenged penalty charge notices. In all cases the Council had previously issued a notice that it did not contest the appeal and the appeals had been allowed with directions issued to cancel the original penalty charge notice. In three cases, the former appellants, Ms Lindsey Tait-Bailey, Mr Adam Fletcher and Mr Eric Fosbeary attended the hearing and made personal representations. In one case, Mrs Alexandra Tilly Loughrey, representations were submitted in writing and in the remaining nine cases no additional representations were received.

1. The Council was represented at the hearing by Ms Sarah Farooki, solicitor, and submitted evidence in a witness statement from Mr Scott Tomkins, Lead Commissioner Highway Authority, Gloucestershire County Council. Mr Tomkins was accompanied at the hearing by other Council officers who, on occasions, he invited to clarify issues that arose. In none of the thirteen cases had the Council submitted a bundle of evidence relating to the original alleged contravention. Nine of the alleged contraventions concerned breaches of parking restrictions and four alleged contraventions concerned a failure to comply with bus lane restrictions. This decision considers the general principles relating to awards of costs and my conclusions.

The Law in Respect of Costs

2. The power of an adjudicator to order costs in respect of parking contraventions is set out in paragraph 13 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 and in respect of bus lane contraventions in regulation 24 of the Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005. Both regulations begin with the statement that “the adjudicator shall not normally make an order awarding costs and expenses” but both continue that an order may be made against an enforcement authority where the adjudicator “is of the opinion that the party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable or…that the decision appealed against was wholly unreasonable”.

3. The factors required to demonstrate that a public authority has acted wholly unreasonably are well known from the law relating to judicial review as applied by the High Court. It is not necessary for me to set those principles out in any detail but suffice it to say that I must be satisfied that there has been significant and weighty departure by the enforcement authority from the standards or actions which a reasonable local authority would have taken in the circumstances and which led to decisions which were wholly unreasonable. For this purpose it is not sufficient that the actions of the enforcement authority may have been administratively in error or misguided. The test of “wholly unreasonably” requires a substantial departure from the principles of good public administration.

The Facts

4. In his witness statement Mr Tomkins sets out some of the details of the contract which had been entered into between the Council and APCOA Parking Ltd (‘the company’), a private contracting company. Mr Tomkins said that the contract was for the company to provide “parking management services” to the Council and that the contract came into effect on 1 April 2013. The services provided by the company included street enforcement, CCTV monitoring and data transfer, processing and administration of penalty charge notices, call handling/queries service, the processing of payments and services relating to pay and display equipment.

5. Mr Tomkins produced certain extracts from the contract which dealt, he said, with the specifications for the parking management services. He set out how the contract required the company to perform functions relating to payments, telephone management, dealing with informal challenges and dealing with formal representations in conjunction with the Council. He referred, particularly, to the provisions of clauses 3.2.3.1 and 3.2.3.2 on the consideration of representations, the preparation of a draft response by the company and the submission of that draft response to the Council for assessment and decision.

6. Mr Tomkins said that the Council accepted that issues and concerns had been raised about the handling of representations between the company and the Council which had led to revisions of the practices and procedures. He accepted that in a number of cases representations against a notice to owner had been rejected without an appropriate Council officer approving the action, although he stated that in “the vast majority” of cases the Council as the enforcement authority had considered the representations referred to them by the company and had made a decision before any notice was issued to the person appealing. He said that there had been changes made to the internal processes and training had been undertaken to ensure that all procedures now complied with the relevant regulations.

7. To his statement Mr Tomkins attached an outline of the representations by the Council which accepted that in a number of cases the Council had not complied with the relevant provisions in the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 but he argued that the Council had immediately taken steps to issue a notice that it did not contest the appeal where it became apparent that there had been a failure to comply with the relevant procedures. He argued that there was no basis for concluding that the Council had acted frivolously, vexatiously or wholly unreasonable in any of those cases listed for hearing. Finally, Mr Tomkins attached various extracts from the contract.

8. Individual representations were made at the hearing by Ms Lindsey Tait-Bailey, Mr Adam Fletcher and Mr Eric Fosbeary. Ms Tait-Bailey pointed out the large number penalty charge notices that had been issued, as stated by Mr Tomkins, and suggested that the vast majority of people, even though unhappy about the issuing of the penalty, would simply have paid. In her case, she referred to a failure by the Council to send a reminder by SMS text message of the imminent expiry of a parking permit, an action which had previously been done. She referred to her attempts to explain the circumstances to a council officer, which she felt were ineffective because of the appointment of the independent contractor to whom she was not able to speak. The Council, through the company, had proceeded to issue a charge certificate when they were not authorised to do so which had caused her enhanced levels of stress. She said that she had written on several occasions seeking to draw to the Council’s attention various important factors but the letters she received, which all came from the company, had failed to address any of those issues and had clearly been written to a formula. She was not able to quantify the expenses that she had incurred.

9. Mr Adam Fletcher pointed out that in his case the Council had issued two penalty charge notices for the same contravention. He had paid the first of those but had never received confirmation that the Council accepted that the second PCN was issued in error. He remained concerned that it might be revived on some future occasion. In response, Mr Tomkins said that he would ensure that a letter was sent to Mr Fletcher confirming that the second PCN had been issued in error and was withdrawn. Mr Fletcher said that he had receipts to show that the specific costs of postage that he had incurred amounted to £7.32.

10. Mr Eric Fosbeary produced the original penalty charge notice he had received which contained two sample still photographs that were, essentially, black. He had written to challenge the alleged contravention and he too complained that the letters he received in reply failed to address the issues that he had raised. In his case too, the Council had issued two PCNs for the same contravention which, he argued, should not have been possible if proper processes had been in place. He produced receipts to show that his expenses of pursuing this matter amounted to £113.17, including his costs of attending the hearing.

Traffic Management Act 2004 and Regulations

11. The powers of a local authority to enforce traffic regulation orders by the imposition of a penalty charge notice derive from the provisions in Part 6 of the Traffic Management Act 2004, which have been in force since 31 March 2008 and superseded previous powers in the Road Traffic Act 1991. Section 75 grants powers to the Secretary of State for Transport to designate the whole or part of a local authority’s area as a civil enforcement area for parking contraventions. Schedule 8 sets out provisions in respect of civil enforcement areas and enforcement authorities both in Greater London and, in Part 2, outside Greater London. Paragraph 8 (5) of Schedule 8 defines the enforcement authority to mean, in relation to the provision of an off-street parking place, the council which provides the parking place and in respect of all other parking contraventions, the local authority in whose area the contravention is committed. A similar provision is included in paragraph 9 in respect of bus lane contraventions and in paragraph 10 for moving traffic contraventions, although that paragraph has not yet been brought into force in England. Paragraph 8 (2) sets out that in England an application for a civil enforcement area for parking contraventions may be made by a county council for the whole of that area.

12. In the exercise of the powers under the TMA, the Secretary of State enacted the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 and the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 which both came into force on 31 March 2008. The General Regulations provide procedures for the issuing of a penalty charge notice for a parking contravention and prescribe the information that must be included in that notice. Those regulations provide for the issuing of penalty charge notices both by fixing to the vehicle or handing it to the person in charge of the vehicle or, separately, by post in certain circumstances.

13. The Appeals Regulations confirm that the recipient of a penalty charge notice or a notice to owner may make representations against the notice “to the enforcement authority” (regulation 3 (2) (a) and regulation 4 (1)) and the enforcement authority will consider those representations. Regulation 4 (4) sets out various grounds on which representations against a notice to owner may be made, which include that “there has been a procedural impropriety on the part of the enforcement authority”. Regulation 4 (5) defines procedural impropriety as “a failure by the enforcement authority to observe any requirement imposed on it by the 2004 Act, by the General Regulations or by these Regulations in relation to the imposition or recovery of a penalty charge or other sums” and includes a failure to take steps required by the Regulations.

14. Regulation 5 sets out the duties of the enforcement authority to which representations have been made. The enforcement authority must consider the representations and respond to the person making the representations indicating whether it accepts that one or more of the grounds in regulation 4 (4) applies or whether “there are compelling reasons why, in the particular circumstances of the case, the notice to owner should be cancelled and any sum paid in respect of it should be refunded”. Regulation 6 creates a duty on the enforcement authority to serve a notice of rejection of representations, if that is the decision. Regulation 5 imposes duties to cancel notices to owner where the enforcement authority accepts the representations that have been made. There are prescribed particulars for notices of rejection of representations and it is only after the service of that notice and the expiry of the period of 28 days that the enforcement authority may proceed with the next stage, which is the service of a charge certificate.

15. The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005 impose similar duties on the enforcement authority in regulation 5 to consider representations that are made against the penalty charge notice and in regulation 6 to serve a notice of rejection. Because penalty charge notices for bus lane infringements are only served by post, there is no second stage where a notice to owner is issued. There is, therefore, only one statutory opportunity for the owner of the vehicle to submit representations. Throughout the relevant regulations the duty to consider the issues is imposed only on the enforcement authority.

16. It is clear, therefore, that the regulations impose duties on the enforcement authority which require the making of discretionary decisions in the light of information and representations that the authority has received. Because the discretion rests only with the enforcement authority, this is not a function which the enforcement authority can delegate to any external body. There are special provisions in the Local Government Act 2000 which enable local authorities to form joint working groups or committees for similar functions, which enable individual local authorities to enter into “agency” agreements with each other in connection with the enforcement of parking contraventions, but those special statutory rules are not applicable to contracts with outside contractors. They do not apply to the contract between the Council and the company.

My Conclusions and Decision

17. The Council concedes that the original contract that it entered into with the company was not operated properly in a number of cases where representations against the penalty charge notice or notice to owner were rejected by the company without reference to the Council. It now maintains that it has changed procedures to ensure that it is shown in the evidence that an authorised Council officer considered all of the representations referred by the company and that the company only issued notices of decisions after that assessment had been made.

Continued.......

[The Bald Eagle]

Continued...

18. In the course of the hearing I asked Mr Tomkins about clause 3.2.2.1 of the contract which referred to “detailed written guidance on the circumstances under which a PCN may be cancelled”. I noted that I had not been provided with this guidance. I was informed that draft guidance had been prepared to deal with the handling of representations before a notice to owner had been issued, so-called informal representations, but the guidance had not been completed and did not deal with representations made after the issuing of a notice to owner. The draft guidelines are part of the local transport plan.

19. I drew attention to clause 3.2.3.3 which Mr Tomkins confirmed required that the company has a separate appeals officer who presents to the Council a list of recommended actions in individual cases, currently set out on a spreadsheet. It was accepted by Mr Tomkins that the relevant log of events included in the computer software package which handles penalty charge notices, provided to the Council by Chipside, had not included an entry to show the involvement of a county council officer, although that was now being rectified. It was in the arrangements between the Council and Chipside that duplicate PCNs had been issued for the same bus lane contravention. Mr Tomkins said in his statement that this had occurred when two copies of the relevant video recording were sent to the contractor which were handled independently. The duplicate PCNs had been identified in all but two cases and he regretted and apologised for the error that had been made. The Council has moved to the digital transmission of CCTV recordings which, Mr Tomkins said, removes the risk of the events happening again.

20. Whilst I am grateful to Mr Tomkins for having taken the time to attend the hearing, it was very clear that he was not the best placed person to answer questions about the everyday working of this contract between the Council and the company. The statement that he signed includes an acceptance that errors had been made and that the terms of the original contract between the Council and the company did not satisfactorily deal with the obligations on the Council imposed by the various regulations. In the course of submissions, Ms Farooki accepted that the contract had not dealt with the Council’s wider public law obligations, such as its obligation to operate all administrative systems in compliance with the common law duty of fairness and, more particularly, the Council’s obligations under the Equality Act 2010, all of which are applicable to parking and bus lane enforcement.

21. In paragraph 16 of his statement Mr Tomkins referred to a decision that I made in November 2013 following which he says that the Council and the company “reviewed the branding and wording of its template NtO, Notice of Rejection of Representations”. Mr Tomkins does not say that there was any review of the fundamental relationship between the Council and the company or of the handling of representations, although it was said in the course of his evidence that such a review had now been undertaken. His use of the word “branding” refers, presumably, to the organisation names at the heading of the various letters, a factor I had mentioned in my decision in November 2013, but it also creates the impression that his concern was simply superficial. I pointed out in my previous decision that the involvement of the county council was not mentioned on the documents, and I have now noted that more recent notices of rejection have included the Council’s name and logo.

22. It might be said that provided the letter looked right, it did not matter how the contents were created. If that is what Mr Tomkins believes, that is a fundamental and thorough misunderstanding of the obligations imposed on the Council as an enforcement authority, as I have briefly set them out above. In none of the thirteen cases listed for consideration on the issue of costs is there any indication that an officer of the Council properly appointed to do so reviewed the various representations and formed an independent decision of the proper course of action. Mr Tomkins concedes that in thirteen cases in total (as he stated in evidence) the Council did not consider the representations at all (witness statement paragraph 16), which cannot be the action of a reasonable enforcement authority.

23. There is no getting away from the legal requirements that representations both before and after the issuing of a penalty charge notice or a notice to owner must be considered by the enforcement authority which must make an individual and independent decision in every case, particularly as to whether compelling reasons have been shown for setting aside a notice to owner. That assessment must include in every case the compliance with the Council’s public law duties, which include the duty of fairness and the duties under the Equality Act 2010. Those public law duties cannot be delegated to any outside contractor which is not itself a public authority.

24. Whilst the regulations do not prevent or prohibit an enforcement authority from delegating to an outside contractor the handling of correspondence, I do not consider that an enforcement authority may delegate to an outside contractor the assessment of representations and the decision whether to accept those representations. The contractual situation whereby the company makes the assessment and simply refers a recommended decision for approval is not, in my judgement, in accordance with the statutory scheme envisaged in the regulations nor does it ensure compliance with the Council’s public law duties. The absence of any consideration of the wider public law duties imposed on local authorities is one factor which is omitted from all of the decisions the subject of this hearing and which cannot be delegated to an outside contractor. As the solicitor for the Council accepted, those wider aspects do not feature in any of the contractual provisions to which I have been referred. As the company is not a public authority, I do not consider that the company is bound by the public law duties to which I have referred.

25. There are also grounds to question the decisions to issue the penalty charge notices in each of the cases where the Council relies on a record of an approved device, mainly the bus lane contraventions. Mr Tomkins adopted an explanation which had been given in a letter in respect of Mr Fosbeary about the sending of duplicate copies of the CCTV recording to the Council’s contractors, Chipside, where a second penalty charge notice was issued without the person concerned realising that an earlier notice had already been issued. The implication of that statement is that the Council’s contractors are making decisions to issue penalty charge notices but those are, of course, decisions which can only be made by an enforcement authority. There appears to be further grounds to conclude that the Council has abrogated its responsibilities in another area, although I accept that that arrangement was not the focus of this hearing.

26. I conclude, therefore, that the basis of the contract entered into between the Council and the company, in so far as it leaves with the company the assessment and preparation of initial recommendations about representations, is not in accordance with the regulations and creates in every parking case procedural impropriety or a breach of the common law duties in a bus lane case. I find that no reasonable local authority could have concluded that this contract met the terms of its regulatory and public law duties and that in making the decisions to reject representations, whether or not those individual decisions were seen by a county council officer before being issued, the Council was acting wholly unreasonably. Because of the fundamental errors that the Council has made in formulating its contractual relationship, I am satisfied that the cases the subject of this hearing are ones in which it is appropriate that I make an award of costs. I find that in each case the Council should pay costs to the individual person who appealed to cover expenses that had been incurred up to the time that the Council took the decision not to contest the appeal and that the Council should pay the costs of those who chose to attend the hearing, as was their right, or submitted additional representations.

27. I have considered the appropriate assessment to be made in each case. I am mindful that an award of costs under these powers may not include an element of compensation for stress, although that is a factor mentioned by more than one of those who appealed. I have some specific figures from Mr Fletcher and Mr Fosbeary but not from other individuals. I have considered various options and I conclude that the appropriate course is to calculate an award of costs on the presumed basis that in each case there will be a minimum of two communications to the Council, followed by a completed notice of appeal for this tribunal. I am aware that in GD 05073K the chief adjudicator calculated an award of costs on the basis of time spent on letters, but was there dealing with a legal professional. I have no indication that there are any legal professionals in any of these cases.

28. I therefore calculate each letter on the basis that it will cost an average of £20 to prepare the letter, plus the incidental costs of stationery and postage, where applicable, for which I add a further £1.25. That calculation incorporates the expenses of completing the notice of appeal. In respect of each of the 13 cases, therefore, make an award of costs in favour of the person who appealed in the sum of £42.50 and, in addition, I award the additional sum of £8 to Ms Tait-Bailey and Mr Fletcher for the costs of attending the hearing and an award of £113.17 to Mr Fosbeary (who travelled much further, including an overnight stay), making a total award of £50.52 each to Ms Tait-Bailey and Mr Fletcher and £155.67 to Mr Fosbeary. I also award a further £21.25 to Ms Alexandra Tilley Loughrey who submitted representations in writing. I direct that the costs be paid to each of the persons appealing within the period of 28 days beginning with the date that this decision is served on the parties.

29. Although not directly the subject of appeal, I was informed that both Mr Fletcher and Mr Fosbeary had received two PCNs, one of which they had each paid and the other of which was issued in error. I have expressed my reservations about the legality of the issuing of those PCNs by the Council’s contractors. Whilst I do not have an appeal in either case, I strongly recommend to the Council that the payments made by Mr Fletcher and Mr Fosbeary be refunded to them, if only as a gesture of goodwill.

C J E Nicholls
Adjudicator
8 July 2014

[The Bald Eagle]

http://www.independent.co.uk/news/uk/home-news/drivers-may-reclaim-millions-in-unfair-parking-fines-9746466.html

Drivers may be able to reclaim millions in unfair parking fines

Motorists could demand the refund of more than £100m in parking fines, after what experts described as an “explosive” tribunal ruling left local government traffic officials in “absolute panic”.

Councils have handed over parking management to private companies, but in many instances have also asked them to handle any appeals against penalty charge notices (PCNs). This process is supposed to be handled by councils, partly because it would be a conflict of interest for a company to examine its own possible mistakes.

The Traffic Penalty Tribunal is the second point of appeal and an adjudicator, Christopher Nicholls, has spelled out that council contractors must not be left to process PCN objections. His ruling stated: “I find that no reasonable local authority could have concluded this contract met the terms of its regulatory and public law duties.”

As a result, 13 motorists in Gloucestershire were awarded their parking fines and costs after their initial appeals were turned down by the county council’s contractor, Apcoa. The motorists were repaid sums ranging from £42.50 to £155.67.

The decision has widespread implications for people who may have been incorrectly fined.

Barrie Segal, who has acted for tens of thousands of angry motorists complaining about fines through his Appeal Now campaign, “conservatively” estimated that incorrectly issued fines are worth around £30m annually. He believes those who did not pursue their fines after the first rejection could claim back well over £100m, going back five years.

If the sums are correct it would amount to a major dent in a lucrative source of revenue for councils, which have suffered from spending cuts since the coalition took power. In 2012-13, councils raked in £353m in parking fines, up nearly 12 per cent on 2010-11. Critics claim councils are using these penalties as a revenue-raising measure.

“This decision is absolutely explosive in terms of catching out the councils,” said Mr Segal. “Clearly, councils are ignoring their responsibilities and the decision sets out that this is completely wrong.” A parking appeals officer, speaking on condition of anonymity, said: “There has been absolute panic – people are going: ‘Oh my God, we might have to hand all this [the fines] back.’”

Solicitor Richard Auton, of Walker Morris, said councils “may have to have a good look at what they have done” in their contracts with parking contractors, and that legislation “does not say they can give authority for appeals to anybody else”. 

A Gloucestershire council spokesman said: “Following the decision of the tribunal, the council has implemented the tribunal’s recommendations and apologised to the motorists involved … [This is] a perfect exposition of the law, including the statutory duty, common law duty and public duty.”

A spokesman for Apcoa said: “Naturally, as a private contractor, Apcoa operates within the guidelines set by the British Parking Association, and are compliant with the Traffic Management Act 2004.”

[The Bald Eagle]

A spokesman for Apcoa said: “Naturally, as a private contractor, Apcoa operates within the guidelines set by the British Parking Association [which has no relevance whatsoever to this matter], and are compliant with the Traffic Management Act 2004 [again a complete irrelevance given that it is the enforcement authority, NOT its contractors who need to comply with that Act].”

In fact it could be argued that APCOA are not compliant with the TMA 2004 because they were rejecting representations on behalf of the local authority when they had absolutely no right to do so.

16. It is clear, therefore, that the regulations impose duties on the enforcement authority which require the making of discretionary decisions in the light of information and representations that the authority has received. Because the discretion rests only with the enforcement authority, this is not a function which the enforcement authority can delegate to any external body.