Thursday, 22 August 2013

PATAS - w/c 12 August

This particular week was fairly routine except that there were 5 cases which were refused (technically) with a recommendation that the council cancel. This is an unusually high number in one week and is perhaps a sign that adjudicators generally think that Barnet Council (NSL) is being too harsh. There were 44 cancelled PCN and 29 upheld which is a win rate of 60% (ignoring the 5 in a state of flux).

Here is the first of the recommend cancel cases (the adjudicator is not allowed to cancel a PCN on the grounds of discretion or mitigation, only in accordance with the law).

Mrs A does not dispute that the contravention occurred. She states that she had put a visitors' permit in the car. She had left the window slightly open because of the hot weather. When she returned to her car the permit had fallen down. Mrs A works as a carer and works at various homes in the London Borough of Barnet. She provides a copy of the permit that she states was in the car.

I accept the appellant's evidence. I find as a fact that Mrs A did complete a permit when she parked her car. However as the permit was not properly displayed when the Penalty Charge Notice was issued I find that the contravention occurred.

I have no jurisdiction to take into account the mitigating circumstances raised. I refuse this appeal. However I consider that there is compelling mitigation. Firstly I accept the appellant's evidence that she had parked her car in Redacted Gardens to carry out her work as a carer. Secondly I find that there was a permit in the car but that it had fallen from the dashboard. I recommend that the local authority cancels this Penalty Charge Notice.

So the local authority have already made their decision since the 12 August (long and careful thought obviously) and have rejected the recommendation so the PCN is due for payment. The council might reflect on this when they find it difficult to recruit carers who are poorly paid and can ill afford to lose £110. This event was back in July 12 so it is one of the PCN that has incorrect wording on it. What a pity the carer did not know this.

Someone whose windscreen wiper fell off so they stopped in a bus lane and called a mechanic had their PCN cancelled as it was not safe to proceed on a wet day. Mechanical breakdown and safety trump parking tickets; good to see commonsense in play.

Council evidence was too vague in another case and they relied, as they always do, on a site photograph from google without mentioning that it is not contemporaneous. The adjudicators seem to be catching on:

The Google images might have been taken some time ago and the bay markings may have deteriorated further, leading the CEO to miss them. In any event, I am not satisfied that the Appellant parked outside the bay markings. I am allowing the appeal.

A person who didn't move their car and had 3 PCN issued on separate days had one cancelled. The motorist paid one and the council cancelled the second which means that to be consistent they have to cancel the third one so why didn't they?

A blue badge was displayed in the windscreen but the traffic warden managed not to photograph it. How remiss of them.

This case (PATAS ref 2130330788) could be handy for other people who are appealing;

The facts in this case do not appear to be in dispute. The appellant used his pay by phone app. To pay for parking. Unfortunately the appellant elected the wrong registration number for payment. As the appellant has two accounts for two different vehicles, he mistakenly chose the wrong vehicle registration number.

I have to be satisfied in these circumstances that the contravention is made out, since technically it is. However, I am satisfied that there was no intention to evade payment; indeed the appellant did make a payment, albeit for his other vehicle. The VAT receipt corroborates the appellant's account that he made a genuine error.

The Authority responds by stating that it is not responsible for any error on the part of the appellant. That is correct, but I make a recommendation that bearing in mind there was no attempt to evade payment for parking, and that a genuine error was made, and that the appellant has consistently maintained this account which was supported by credible and reliable evidence, the Authority should not pursue any further enforcement, because to do so would no t be fair and proportionate bearing in mind the mischief that the Authority intends to deal with. Clearly the appellant now knows the implications on making an error, albeit genuine one when paying by phone for parking.

I must refuse the appeal but make a recommendation that the PCN be cancelled for the above reasons.
The council have not yet decided what to do.

In an absolute classic blunder the council rejected an appeal and then issued a Charge Certificate the very next day when a period of 28 days should be allowed. Computer error will get the blame. The PCN is now cancelled.

A Saracens Event day PCN did not go well for the council.

I have dealt with this Appeal in the absence of the parties.

It must succeed. The Authority says that the Appellant's vehicle was parked in contravention of restrictions imposed for "event days" relating to the Saracens Rugby Football Club. The Authority has not shown this was an event day or that any sign anywhere alerted the motorist to that fact.

In its case summary the Authority suggests "the onus is on the driver to familiarise themselves (sic) on the days on which events are taking place. this can be done through the internet via the Saracens website". This has to be wholly unsustainable. The duty is on the Authority to sign appropriately to inform the motorist. He or she may be wholly unaware of Saracens RFC. He or she may not have internet access. In my judgement the Authority cannot avoid its responsibility in this manner.

The contravention cannot be sustained. The Appeal must be allowed.

More education is evidently required about the Saracens Event day zone

For a number of reasons itemised below I shall make a recommendation to the Authority to cancel the PCN.

The appellant and driver were both new to the area and were genuinely confused with regard to these event day parking arrangements. I am further satisfied that if the driver was aware of the restrictions then he would have found an alternative place to park. The relevant sign denoting the specific restrictions is in fact not in the street where the appellant's vehicle was parked, but an adjoining street, namely Thornfield Avenue.

In addition, the mischief that the PCN is intended to address is no longer an issue since the appellant is now aware of the parking arrangements at this location, and as a matter of fact no longer has any reason to visit the area. Furthermore, if the Authority would care to check its records I understand that on this particular day most of the vehicle sin that same street had PCN's issued for the very same reason, and whilst this does not provide any defence for this appellant. It is clearly indicative of a situation where a number of motorists on the same occasion are likely to not have noticed the signage and if they did, not to have understood what the parking restrictions were on this occasion.

This appellant made a genuine error and for all the above reasons I recommend that the Authority cancel the PCN.

Barnet's decision is not yet known.

Another PayByPhone case:

The Appellant, whom I have heard in person in some detail has s discovered from the Verrus records sent by the Council as part of the evidence that she had keyed in one incorrect digit in the registration number of her vehicle. Why the Council could not have explained that to her at an early stage is something of a mystery. She had recently acquired the vehicle and entered an "N" instead of an "M". The two characters are of course adjacent on the keyboard.

As a result of this error payment had strictly speaking not been made for the correct vehicle and a contravention occurred. I am with some regret unable to find that the PCN was issued other than lawfully. However the traffic management purpose to be served by pursuing a penalty in these circumstances is difficult to make out, the Appellant having, in general terms, paid to park her vehicle in the car park. Mistakes of this kind are easy to make. as the reference in the Council's own case summary to attempted payment "kinked" to the vehicle registration number shows only too clearly. This is a case where the Council should exercise its discretion not enforce the penalty and I strongly recommend accordingly.

For the avoidance of doubt, if discretion is exercised I see no reason why the Council should not nevertheless retain the sums paid by the Appellant subsequent to the issue of the PCN.

The PayByPhone system causes a lot more problems than a cash parking meter ever did.

The Appellant described the procedure adopted by her to comply with the parking regime, an identical procedure was adopted a second time on the same date; through no fault of her own, and without her knowledge the automated system reverted to a previous vehicle registration mark in respect of one transaction but not the other. I have no reason to doubt the veracity of the same and I have seen the phone record of both transactions.

I found the Appellant's oral evidence to be cogent and credible and I accepted it in its entirety.

In light of the same, and in view of the absences in the Enforcement Authority's evidence I consider there to be compelling reasons warranting this recommendation to the Enforcement Authority.

Looking back, it was a more eventful week than I first thought. What is clear is that it doesn't really matter what the council says as the independent adjudicator will level up the playing field and may well come to a different decision. Keep those appeals coming.
Yours appealingly
Miss Feezance

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