Monday, 6 February 2017

London Tribunals - November 2016

The number of Appeals rocketed in November 2016. There were 253 in November for Barnet Council which exceeded the previous high figure of 210 for July with the lowest monthly total being in March when a mere 111 Appeals were considered.
In November motorists won their Appeal on 146 occasions. That is 58% and so a good month (50% is the pan-London norm) but amazingly 81 of those wins were by a walkover with the council not offering any evidence. That is, yes, 81 cases out of 253 or 32% or almost 1 in 3. Well worth filing your Appeal even if you think you will lose as the council may throw in the towel and it also costs them close to £30 each time in tribunal fees.
Yellow box junctions were bad news for the motorist with 19 of them being lost, nearly always because they were shown to have entered the box when their exit was not clear and then had to stop due to stationary vehicles. Best start stopping at the entrance to a yellow box Barnet drivers as otherwise you will be £130 (or £65 if you cough quickly) worse off.
Part of the reason for the jump in Appeals is the commencement of moving traffic enforcement by cctv and so we will have to see if the number of Appeals tails off soon.
Here are some of the interesting decisions of the month in the words of the adjudicators (save that I anonymise the names even though they are on a public register)
Pay by phone text delay
Mr G was driver of the PHV at the time. When attending on l2 November he explained to me that he was an experienced pay-by-phone user. He explained that his proper details were long registered.
The Council has produced a record of relevant transactions for the day from the driver's telephone. Mr G has provided a print of a text message timed 1426.
Mr G explained to me that he did not see the officer responsible for the penalty charge notice. I do not believe that officer was at fault as he checked the system correctly when dealing with the vehicle here concerned.
Mr G explained that he was not dealing with a PHV customer at the time but doing personal shopping in the Tesco supermarket. The Council no doubt correctly claims that the relevant plate with the location number was close to his car (4 metres).
So far as I could identify criticism of the driver in this case this was principally that he failed to remain with the car until the pay-by-phone transaction was confirmed which is certainly the prudently required course.

He explained to me however that he had not previously encountered transaction issues as he did on this occasion despite proceeding earlier as had on the day the disputed penalty charge was imposed
He showed me the print of his phone screen which although not bearing the relevant date nonetheless records a message timed at "Today 14:26" which advised that the transaction had not been confirmed and encouraging the recipient to call back and ensure confirmation if wishing to park. I have accepted that that print relates to a message from the material date and time concerned.
Mr G repeatedly assured me that he had not previously encountered similar difficulties in transacting effectively either at this location (one that he had previously used) or indeed others and I have accepted that as true.
His explanation given for delay in transacting was essentially him having to start the phone transaction again and needing to refresh himself as to the location number as he said he had to check on this as he had not remembered it. I viewed that explanation as sufficiently plausible for acceptance in this particular case.
It seems to me that the outcome of this adjudication hinges chiefly upon whether the failure to complete the transaction effectively with valid confirmation was a result of system difficulties over equipment including software that the operator was using, or whether it was a motorist based fault as would generally be the case where any delay over a successfully completed transaction had arisen because the motorist had for example dropped mobile reception because of entering a shop. That latter situation would generally incline me to view delay over payment as lying with the motorist and doing so in a manner justifying the penalty charge being upheld.

Taking the evidence overall I have however decided to decide this case in the appellant's favour. I have been prepared to accept on this occasion that the delay more probably arose essentially from temporary glitching over pay by phone software or equipment rather than any other cause.
I have decided on that basis there is insufficient evidence to uphold this particular penalty charge.
I have recorded the appeal as allowed.
Council duplicitous in their production of evidence
The appellant attended.
There are two allegations: one on 2nd May 2016, AG04****** and the other on 30th May 2016, AG 03******.

the allegations are at the same place but the allegations are different because different restrictions applied at the different times.

The issue is that the appellant was compelled to park there on both days because on both occasions his inhaler had run out. He had to return home to obtain his spare inhaler. He had an asthma attack; he struggled to control his breathing; his hands were hurting. He kkeps one inhaler in his car and the other in his flat.

He said that he was unable to park elsewhere because there were no other spaces available nearby.

He told me that the stress this brings on, causes him to become confused about the signage.

In the proceedings for the first allegation of 2nd May 2016, the appellant made representations on 4th May, 20th May and 28th July 2016.

The thrust of the appellant's representations were that he was ill and that he parked in order to got to his flat.

The local authority's notice of rejection stated that it was unclear from the representations whether this was a routine stop or an emergency stop; the appellant had not provided any evidence.
With regard to the allegation of 30th May 2016, the appellant made representations on 2nd June 2016, in which he only mentioned signage.

The local authority has included evidence of two different, separate representations by the appellant in this case, one for AG04666120 and the other for AG0345695A, both dated 28th July 2016 but both separate. This is confusing. I find it duplicitous and will allow the appeal for case, 2160416940 (AG0345695A).
(Funny this one as councils always say each case is dealt with on its own merits and yet they wanted the adjudicator to know there were two PCN thus implying the motorist was a habitual defaulter).
Evidence not forthcoming
The appellant attended the hearing.

The appellant told me and I believed him that he had tried 20 times to access the on-line footage expressed on the penalty notice and was unable to do so.

I also accept that he telephoned on 3 or 4 occasions and was told that if he wrote in he would be sent a hard copy of the alleged contravention.

I accept that he did so but nothing was ever sent to him.

The only time he received the evidence was when he received the evidence bundle.

The issue of this appeal is whether the appellant was given authority to do so by way of a positive assertion from the civil enforcement officer acting on behalf of the local authority.

I have to make a decision based upon the evidence available to me and that decision must be on a balance of probabilities. The test is whether the public body has issued a promise or adopted a practice, which represents how it proposes to act. The law requires it to be honoured. It takes its place alongside a fair trial. In the High Court case of Mr. Justice Bean stated that a legitimate expectation must be a representation, which may include a regular practice and a course of dealing, whereby a public body may create an expectation from which it would be an abuse of power to resile. The representation must be clear, unambiguous and unqualified.

I am just sufficiently persuaded that the appellant was given a legitimate expectation that he would be able to view this evidence and was not able to through no fault of his own.

I am also persuaded that he was given a legitimate expectation that he would receive the evidence if he wrote in, which he did but nothing was sent to him.

I will therefore allow the appeal.
Markings, what markings do you mean?
This PCN was issued for the alleged contravention 24 not parked correctly within the markings.
The Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 sets out the contents required by the Regulations for a valid PCN served under Regulation 9.
Among other things, the PCN is required to state the grounds on which the enforcement authority believes that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to properly understand the nature of the alleged contravention.
The alleged contravention cited on the PCN was not the correct wording for a code 24 contravention which is not parked correctly within the markings of a bay or space.
This wording is critical as it conveys to the motorist precisely the nature of the alleged contravention. The wording on the PCN in this case failed to identify what markings it was alleged that the vehicle was not parked within. The PCN was defective for failing to cite correctly the alleged contravention and the appeal is allowed for that reason.
What car!
Having heard the Appellant at length and in detail the position in this case in bare summary is as follows. The vehicle parked was B15ABC, the Appellant’s own vehicle and the vehicle for which he intended to pay. The vehicle for which payment was recorded was LJ54XYZ – a vehicle which was not and never had been the Appellant’s, but for which he had on the 11th March paid for parking by phone on a one-off basis. The Council’s position is that during that phone conversation the Appellant changed the number of the registered vehicle to LJ54XYZ - something the Appellant had no intention of doing.
I have listened to the recording of that conversation. Communication was clearly rather difficult and fractured. The Appellant does ask that the other vehicle be taken off and cancelled; however he understood this to mean that whatever the vehicle his friend for whom he was paying might be recorded should be changed to LJ54XYZ the vehicle now being paid for. Whist one can understand how the Council thought that LJ54 XYZ was now to be the registered vehicle it does seem to me that it was not made clear to the Appellant that his own vehicle was being removed – BY15ABC does not appear to be mentioned during that conversation.
This seem to me to be something of a classic communication failure, and is the sort of thing that unless great care is taken can easily occur in the operation of any pay by phone system. However it is ultimately the responsibility of the Council to ensure that these misunderstandings are avoided. The Appellant, who continued to park BY15ABC on many subsequent occasions without receiving a PCN could in my view reasonably believe that on parking BY15ABC on the 1st April he had paid for that vehicle.
I am therefore allowing the Appeal.
Type of bay should be specified
This PCN was issued for the alleged contravention of being parked in Station Road at 3.03pm on 25 July 2016 in a parking place or area not designated for that class of vehicle.
The Schedule to The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 sets out the contents required by the Regulations for a valid PCN served under Regulation 9.
Among other things, the PCN is required to state the grounds on which the enforcement authority believes that the penalty charge is payable. Those grounds must be expressed in terms that allow the recipient of the PCN to properly understand the nature of the alleged contravention.
The Council say that the place in which vehicle registration EF16*** was parked was a goods vehicle only loading bay. In other words, the bay was designated for goods vehicles only. This is not, however, clear on the face of the PCN which states simply that the vehicle was parked in a place not designated for that class of vehicle.
A motorist reading the PCN would not understand from the wording the nature of the alleged contravention because there is nothing to explain the class of vehicle for which the parking place was designated. The PCN needs to identify, whether by wording or images, that the class of vehicle for which the bay is designated is goods vehicles only.
I therefore find that the PCN was invalid and the appeal is allowed for that reason.
I am also not satisfied that there was adequate signage of a goods vehicle loading only restriction. I can see no signage of this restriction in the CEO's images and the Council submits no library images of any restriction signs at this location.
I make no finding in relation to Mrs J's submission that this vehicle registration plate EF16ASX is cloned and that the car in the CEO's images is not her vehicle. Mrs J submits an image of the rear plate of her vehicle with the distinctive word Elms beneath the registration. She says that she doubts that this word is on the plate in the CEO's images. Unfortunately, there is no close up view of the plate in the CEO's images. There is also no correspondence from the police to confirm the crime report details given by Mrs J.
(In this case as the car is cloned Mrs J did not know by signage which type of bay the cloned car had been parked within hence why the PCN was issued. If you get the PCN on your car some adjudicators will refuse as you knew, even though the PCN does not say what sort of bay).
Usually I end my blog posts by exhorting you to file more Appeals. You have been listening, thank you. Will the short (for the tribunal) month of December be even busier. You will find out once I have found the time to read every single December decision. I will need lots of tea and the odd biscuit. Some of the decisions take those, mind.
Yours appealingly
Miss Feezance

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