18 August 2017

Lewishan the internecine Council

Mr Mustard keeps an eye on the results at London Tribunals each day. He sees odd things sometimes.

Here Lewisham Council have refused representations from themselves four times and taken themselves to the PCN tribunal four times at a total cost in tribunal fees of about £120. At that point they have decided to not contest their own arguments.

Bonkers or what?

Interestingly they chose to fight the 5 motorists who weren't the borough themselves, perhaps because they stood to actually raise some revenue from them, but even then they only won 2 out of 5 of the cases and so should collect £260 in due course but have paid out about £150 in tribunal fees (not recoverable) and probably spent about 7 - 10 hours in getting the evidence packs ready for the tribunal & on pursuing the PCN generally.

Yours frugally

Mr Mustard

17 August 2017

Cooker - for charity or community.

Mr Mustard has decided to replace his twin oven cooker. It was purchased in October 05. He always found the top oven, non fan, a bit slow being a man always in a hurry. Conversely the bottom oven was always too hot and burnt pizza to a crisp in minutes. At least it did until last week when it tripped the breaker and now there isn't a fan.

The four rings work perfectly and rather than send it for recycling Mr Mustard thought that there might be a charity who could use it if they mostly use the rings.

It is a Smeg Opera A42-5 and is 70cm wide (measure any gap it needs to fit within).

If your charity or community group would like it, email mrmustard@zoho.com and it is yours for free.

If an individual wants it for their own use then that is also possible in return for a donation to the North London Hospice.

Bus fare?

Mr Mustard keeps an eye on decisions at London Tribunals and looks at anything out of the ordinary. This decision, number 2170244830, was unusual:

I have to deal with appeals against a large number of PCNs issued by this Enforcement Authority to a number of the Appellants’ buses, alleging in each case that the vehicle entered and stopped in the box junction at the junction of Castelnau and Trinity Church Rd. when prohibited. Mr. Claridge attended on behalf of the Appellants with Mr. Johnson representing the Enforcement Authority. I am grateful for the assistance each provided.

Mr. Claridge does not dispute in any of the cases that the bus entered and stopped in the box junction but he criticises the particular box junction which he argues does not serve the purpose of facilitating traffic turning right onto Castelnau. He states that it is company policy to require their drivers to pay penalty charges or face disciplinary action. When the Appellants began to receive PCNs from this location they were paid as usual. However, given the large number of PCNs received, and having spoken to their drivers and made their own assessment of the particular box junction, they took the view that enforcement was unfair. Mr. Claridge points out that there is a bus stop beyond the box junction which services up to 50 buses during morning rush-hour. He says that 8 of these buses terminate here and therefore tend to need longer than at a through-bus stop. Mr. Claridge states that the bus stop is capable of serving 3 buses at a time but that the design dictates that the driver of the first bus must stop short of the end to enable passengers to board or alight. He says that when 2 buses are stopped at the bus stop there is insufficient remaining available space for a third bus to clear the box junction. He points out the box junction follows an ‘at any time’ bus lane and argues the only vehicles in the inside lane should be buses. He indicates that he has had negotiations with representatives of the Enforcement Authority and Transport for London with a view to relocating the bus stop.

I initially considered a group of 46 cases which relate to this box junction. In each case the enforcement camera DVD appeared to show a clear example of the contravention, with the bus entering the box junction and having to stop wholly or partly in the box junction due to the presence of stationary vehicles. In 24 cases the situation presented the classic problem identified by Mr. Claridge, with 2 buses stopped at the bus stop leaving insufficient space for the third to clear the box junction. In the remaining cases there was either one bus or another type of vehicle which prevented the Appellants’ bus clearing the box junction.

I have had the opportunity to question Mr. Claridge and consider his submissions and I am quite satisfied these appeals are advanced in good faith. I accept that for some reason the Appellants’ drivers find this box junction particularly difficult to negotiate. However, I have not identified anything unusual about this box junction in any of the enforcement camera footage. I am satisfied that the box junction is substantially compliant, clear and adequate and therefore enforceable.

I am not satisfied that the Appellants have established anything in any of these cases which goes beyond mitigation. The Enforcement Authority may cancel a PCN as a matter of their discretion but Adjudicators have no power to direct cancellation on the basis of mitigating circumstances.

Having considered all the evidence I am satisfied that the contravention occurred and that the PCN was properly issued and served. I am not satisfied that any exemption applies.

The penalty charge in each of these cases has always been £130. The Enforcement Authority must accept half of this amount in full and final settlement if received within 14 days beginning with the date of the PCN. Outside this period the Enforcement Authority may accept the reduced amount in full and final settlement but this is entirely a matter of their discretion. An Adjudicator has no power to direct that they do so. It follows that in this case the Enforcement Authority are entitled to insist on payment of the full penalty charge. However, the Enforcement Authority have indicated that they are in each of these cases prepared to accept the reduced amount of £65 in full and final settlement. This must be paid within 21 days of today or the full penalty charge will fall due.

Mr Mustard doesn't see anything to quibble over with the decision.

Mr Mustard has often wondered if buses just weren't given yellow box junction PCN as he had rarely seen obviously bus company names in the tribunal register. Well, that has all changed now. Don't be at all surprised if other boroughs, their parking manager having spoken to the Richmond manager at a quarterly meeting, decide to go after bus companies for easy money in order to improve road safety and traffic flow.

This has cost the bus company 46 * £65 = £2,990

Mr Mustard observes the following:

1. Given that the yellow box is within traffic lights it probably isn't needed. With suitable phasing both roads could get a fair share of the available road space.

2. It is harder for a bus, about 11m in length, to get clear of a yellow box, but in this case they have a bus lane in advance of the box so do not have fight with more nimble cars for the exit space.

3. Similarly, if the box waited short of the box they would not be in conflict with other waiting traffic, which is in lane 2.

4. The road is the route of the 33, 72, 209 & 485. One of them seems to terminate there on 8 occasions during the rush hour. The location is a bus stop not a bus stand so buses should not be parked there, only stopped for passengers to board and alight, for up to 2 minutes. (Any bus experts are welcome to correct this if wrong).

5. As can be seen from the photo the alighting point has not been placed at the end of the bus stop but further along. That needs to be changed.

The trouble with discretion being entirely at the judgment of the enforcement authority who will receive the income if they reject your representations is
'Nemo judex in causa sua' which means 'no-one should be a judge in his own cause." It is a principle of natural justice that no person can judge a case in which they have an interest. The rule is very strictly applied to any appearance of a possible bias, even if there is actually none: "Justice must not only be done, but must be seen to be done". This wasn't. As the problem became apparent it would have been the mature approach for Richmond Council to have sat down with the bus company and resolved the matter without penalty.

As it happens Mr Mustard has just sorted out his own bus related yellow box PCN in Barnet. Here is the scene.

The black car, fully in the box, stopped where they were thus leaving the junction clear but could, in Mr Mustard's opinion have cleared the box so they chose not to, they were not stopped due to the presence of a stationary vehicle, the bus. The PCN was at the charge certificate stage as the PCN itself had not been received, i.e. £195 was being claimed. If you look like getting completely stuck, take a left turn down Ravensdale Avenue instead, or turn right into Avenue Road, or even reverse out, do a u-turn, crawl forwards at half a mile an hour, anything, just don't sit there like a sitting duck.

Mr Mustard was going to go down the witness statement route at the TEC, to obtain a fresh PCN, once the Order for Recovery had been issued, but instead he looked up the PCNs which had been issued at that location on the day in question, as Barnet Council publish them without personal data. There wasn't a PCN for the bus (based upon the contravention time) which was fully in the box. The parking manager tells Mr Mustard he likes to be fair. Mr Mustard suggested that sending a PCN to the car but not the bus was not fair. The PCN was cancelled, whether for fairness or because arguably the car did not commit a contravention, was a source of no concern to Mr Mustard. The PCN has been cancelled which has saved both sides a whole load of work and the council may have saved themselves a £30 tribunal fee.

Mr Mustard has no objection to Barnet Council not issuing PCNs to the buses who are trying to get to their stop as their exit is usually free and they will otherwise lose out to vehicles coming out of Ravensdale Avenue

Yours frugally

Mr Mustard

14 August 2017

Enforcement authorities duel it out

Great use of the public purse? One publicly funded authority defending themselves against another one. Whilst you might think Hackney Council lost, really the tax payer did as they paid for both sides to fight.

Completely fair of TfL though to not show any favouritism, they are happy to take anyone's money.

Going to the tribunal to argue the discount is a waste of time as the adjudicator must apply the law & not use discretion. Hackney would have opposed such an argument if used against them.

Yours frugally

Mr Mustard

11 August 2017

Greggs - Ballards Lane, Finchley Central, London N3

Mr Mustard had to meet a lady about her PCN & car tow away in Brent and as she lived nearby they arranged to meet in Costa in Ballards Lane N3. Mr Mustard was stood outside as he was, as per usual, early. He heard shouting from across the road. He saw an apparently homeless man sitting quietly minding his own business on the pavement at the left hand edge of the Greggs shop and to the right, next to the open front door, a female Greggs employee with a mop & bucket. She was washing the black frontage. She shouted at the homeless man to 'go away' more than once. Mr Mustard, who used, once upon a time, to volunteer in the Crisis at Christmas homeless shelters, felt very uncomfortable with this. Then he sadly realised what was going to happen when the man didn't move, which was that the employee sloshed her bucket of water onto the ground in front of the shop, just to the left of the front door.

Now you can't drop a bucket of water on the floor without it spreading sideways in all directions and it duly reached where the poor homeless man was sitting and it caused him to move pretty sharpish. At this point Mr Mustard took to Twitter as he didn't have time to get further involved.

Mr Mustard has now got back to his office and had time to have a quick look at the social responsibility pages on the Greggs website, which includes the following snippets,

Clearly at senior level Greggs have the right idea but the message has not reached to one member of shop staff.

Firstly, why didn't the employee simply say to the man 'Please could you move for a few minutes as I want to wash the shop front?' as an innoffensive homeless person is deserving of as much decency & politeness as customers of Greggs; remember he was simply sitting there minding his own business. If he was being uncooperative then maybe you just wait and wash the shop front later?

The second thing is that the pavement fronting onto Greggs appears to be the public highway so she had no right to order him about, she would not have done it to Mr Msuatrd if he had stood there on his mobile phone. The homeless man is not a lesser being, he is a human being, in a lesser state at the moment. The pavement is his home. Homelessness is not, in a way, our, society's, problem, it is the problem of the homeless themselves. Once you hit rock bottom, no home, no job, no money, no food, no doctor, no shelter or safety, no toilet or shower facilities, no friends, no family, no health & no prospects, what you don't need is to be shouted at and splashed with water (luckily it is a warm sunny day but getting wet is one of the biggest problems to face the homeless) but some help, a place of refuge, some help fixing the drink &/or drug and/or mental health problems which may exist and then perhaps some work may be possible, is the solution that is needed and an advanced society's duty to assist.

Mr Mustard can easily appreciate how no food business would want a person camped out outside their shop making it look untidy & perhaps innocently sending customers elsewhere (30 years ago Mr Mustard lived in Potters Bar and the local tramp was no fool, he used to sit quietly on the wall near the cashpoint and the bakers where people fed him and gave him money) but the misguided actions of this one employee (Mr Mustard is assuming this event was a one off unless you know better, residents of Finchley Central) are not the answer. Mr Mustard does not want the employee to be sacked (as losing your job can lead to losing your home) but to be educated about her attitude, manner and behaviour.

Greggs have got far more financial resources than most and perhaps could help in London by working once again with charities and local authorities to try and get some of these people off the street with a helping hand rather than trying to get them washed away.

Moving on the homeless is not the answer, the street is their home. You wouldn't want to be there.

Mr Mustard started the day at 7am the happiest he has been in a long time. This unfortunate event marred his morning & made him sad. Hopefully Greggs, who will be tweeted a direct link to this blog and will hopefully update us as to what they have done about this member of shop staff, will become part of the solution rather than be a problem. Don't just think of the PR aspect Greggs, think what you can do to help as that will naturally bring benefits to you & make Mr Mustard happy again.

Now, back to parking tickets.

Yours frugally

Mr Mustard

10 August 2017

Complaints must be repeated

Here is the story of how Barnet Parking failed, at the first attempt, to properly respond to a complaint.

A man, let's call him Oliver, rented a car to use as a mini-cab and a PCN was placed on the car in January 2017 which, for some reason, did not reach Oliver, the driver at the time (there has been talk of traffic wardens putting PCNs back in their pockets after issue in order to deprive drivers of the discount but that would work against the council's hunger for PCN income and they are happy with the 50% at the beginning, so would rather traffic wardens didn't do this, Mr Mustard surmises) . The Notice to Owner was quite properly sent to the registered keeper, the rental company. They made representations against the Notice to Owner that the car was hired out under a rental agreement which included a statement that Oliver was liable for any PCNs. The council then sent a fresh PCN to Oliver but unfortunately someone copied the address down incorrectly and sent the paperwork to #25 instead of #27. Oliver lives in a large block of flats and documents sent to #25 were simply retained by the occupier and not handed on.

The PCN progressed through the usual stages of Charge Certificate, Order for Recovery, Warrant of Control, Notice of Enforcement and the bailiff tracked down Oliver and upon request sent him a copy of the warrant. Oliver immediately saw the problem and a friend helped him to submit a complaint, of which this is the gist:

I am writing to make a formal complaint in connection to the above PCN.

First of all I did not receive any PCN at all, nor did I receive any statutory documents.

The bailiff has contacted me regarding the above PCN and he sent me the attached Warrant of control. However having reviewed information provided by the bailiff, it appears that the warrant was issued for the wrong address and also the local authority have sent all the statutory notices to the wrong address.

If I had received the PCN and the statutory documents I would have made a formal appeal straight away and I would  not have let the case progress to the bailiff at all.

My address is 25 Redacted House, Redacted Road, London NW? ??? and I have never lived at 27 Redacted House.

In addition I would like to inform you that I do not own and have never owned this vehicle and it is not registered under my name with DVLA.

I do recall that I have hired the vehicle  however, having reviewed the hire agreement I strongly believe that it does not comply with The particulars of hiring agreements set out in the relevant Regulations (which quoted Regulations were the superseded ones but the requirements were the same)

In order for the hire agreement to comply and for the liability to be transferred it must comply with the relevant Regulations.

I therefore request you to review the hire agreement submitted by the hire company and you will clearly see that it does not meet the requirements.

Please kindly cancel the warrant and  this PCN and remove my details from your system.

Now at this point you would expect the council to check two things, firstly the address on the hire agreement and secondly whether they had allowed liability to be transferred in accordance with the relevant Regulations.

Instead, Mr Mustard thinks they hit the defensive button and set about justifying their actions:

Mr Mustard sees the first paragraph all the time. It is a load of nonsense designed to try and deflect complaints. The complaint is about the process having gone wrong so it must be considered as such. The council should consider complaints made at any time, in case they have done something wrong.

The 'understanding', or rather lack of, of the writer is irrelevant padding, designed to obfuscate.

Just because a PCN was affixed to the car does not mean that it reached the driver.

OK, so a signed hire agreement was received by the council and based on that, they transferred liability to the person hiring the car.

Then the council claim, in terms, to have sent the fresh Notice to Owner to 27 Redacted House but the records show that they sent everything to 25. As that was a substantive point of the complaint, it is pretty poor work, or wilful blindness, to have missed that fundamental fact.

Mr Mustard has yet to see a copy of the hire agreement but he knows the friend will have correctly analysed it and it will not meet the requirements of The Road Traffic Owner Liability Regulations 2000 which is the correct set of Regulations, not the Traffic Management Act 2004 at all.

Answers on a postcard please as to how you can respond to a Notice to Owner which was not delivered to you?

It is never too late for representations to be considered. It is the council's PCN, if they discover they have done something wrong, they can cancel a PCN at any time for any reason, even if the PCN is actually correct. It isn't ever the case that the council are unable to cancel a PCN, it is that they are unwilling to do so.
It isn't the job of Marston to mop up the council's mess.

The information wasn't helpful at all but that isn't unusual.

Needless to say a second complaint was sent to the council that their handling of the first complaint was inept and that parking had lied about the address to which documents were sent. Cue a rapid change of direction and the following email being received:

I have asked the Parking Team to further investigate and they have confirmed the following:

I have just compared the original signed hire agreement with the address NSL recorded on the system and Oliver is correct, they mistakenly put down his house number as 25 rather than 27 – accordingly, I have asked NSL Services to arrange for the bailiffs to return the Warrant as it is not enforceable. Once this is done, I will have the PCN cancelled accordingly and will write to Oliver to confirm this.

Good news but the enforcement contract isn't with NSL Services Ltd, it is with NSL Ltd. Note that NSL get given the blame and although they are to blame for the initial error the handling of the complaint should have been dealt with in-house by the council itself. Delegating complaints to whoever made the error in the first place is not wise as they will not be sufficiently critical or analytical.

What worries Mr Mustard is that less able motorists than Oliver would have paid the bailiff, especially if their car had been clamped and they needed it to go to work that day or on holiday. Monies paid to a bailiff are a nightmare to recover.

Making a mistake does happen but you are measured by how you deal with it, very badly in this case. More reputational damage has ensued for the council. Will Oliver ever trust anything the council says in the future?

There is too much automation in the world of PCN. In nil response cases sending the PCN to the bailiff is a bad idea, the case should be checked for obvious errors before a warrant is applied for, as the chances are if no response was received that the statutory documents have not been served.

Liability in rental agreement cases is transferred without proper checking in Mr Mustard's experience.

Mr Mustard thinks that complaints should not be handled by the parking department but by a dedicated complaints person, or even better, by a person independent of the council. Mr Mustard could provide that for other councils in London should they wish to improve their procedures. He can't do it for Barnet as he would be too conflicted by all the Barnet PCNs he challenges, he could decline to handle the small number he does in any other borough.

So now we await seeing the apology which Mr Mustard presumes that Barnet Council are going to send. How fulsome will it be? Will there be an offer of compensation for getting the address wrong in the first place and secondly for rejecting the valid complaint which could have caused a weaker person to pay up, that surely is maladministration?

Put your answer on the same postcard as Barnet Council never seem to regard their wrongdoing as cause for payment, it is only residents who must pay them for their misdeeds, not vice versa.

Yours frugally

Mr Mustard

9 August 2017

Public private boundary problems

Opposite Propeller Way in Aerodrome Road
Mr Mustard has seen two letters sent about PCN for parking on the grass where the silver car is on the right. The first one says that it is private land and that the two PCN will be cancelled then the second letter says that it is public land after all but the cancellations will stand (one of the council's duties is to be procedurally fair so to resile from their cancellations would not be possible).

Before he had read the second letter about the land being public, (and he needs to see what the sign on the wall says as this might be railway land? this being the bridge with the notorious overspend from before his time, he thinks), Mr Mustard had looked up pavement parking PCN in this road (some of which may have been elsewhere than this very spot) and so you may as well see the haphazard nature of enforcement at this location. W stands for Warning, PCN being issued for £0.00 to suggest not parking here again.

Parking in Aerodrome Way is at a premium but Mr Mustard suggests this is not a good place to park, on the grass rarely is.

Yours frugally

Mr Mustard