21 May 2018

No common sense at Barnet Council

An atomic clock, not really room for it in the car
Sometimes, just sometimes, an adjudicator really tells the council quite firmly that they are bang out of order. It happened recently to Barnet Council who were being ridiculously mean spirited and mercenary & polishing their fearsome reputation for being venal and rapacious (copyright: 'Incandescent' an ace contributor on pepipoo). Hopefully someone, and the £1million spin machine do read Mr Mustard's tweets, will read this blog post, have a little think and then put some sensible leeway into the times at which PCNs are dished out by computer on school keep clears.

The below PCN was issued outside Colindale Primary School in Clovelly Avenue, NW9. The main school day finishes at 3.15pm so by 4.15pm there won't be many children exiting the premises. Thus, being miserable at 4:14:18 has no purpose other than to raise revenue. For comparison TfL apply a 2 minute leeway on congestion charge penalties.


This PCN was issued for the alleged contravention of being stopped in a restricted area outside a school when prohibited. The alleged contravention occurred in Clovelly Avenue at 4.14pm on 8 March 2018.

I have looked at the CCTV footage and also the site images submitted by the Council. These show that Mr B's vehicle was stopped on entrance markings in front of Colindale Primary School. They also show that there is a sign at the location warning motorists that there is no stopping on the entrance markings between 2.45pm and 4.15pm Mondays to Fridays.


Mr B appeals because he says that he stopped to pick up his children from school. He says that he is well aware of the restrictions and that the clock in his car showed the time of 4.15pm. The Council says that its clock is calibrated according to the Atomic Clock, ensuring 100% accuracy. The CCTV timing shows the vehicle stopping at 4:14:18.


I accept the evidence of Mr B that the clock in his car showed the time of 4.15pm. I find that the alleged contravention did not occur. There must be some application of common sense. Motorists cannot all be expected to wear time pieces calibrated to the exact second according to the Atomic Clock. A motorist reading an ordinary watch will not be able to know the time calculated to the exact second.

Only about 1% of PCNs progress as far as an adjudicator. The other 99% don't really get looked at by anyone other than the local authority and it is rather assumed that councils will apply the rules in a fair manner. We have seen enough cases like this one to know that they don't and a special parking manager needs to oversee them all to make sure that they act in a fair way and to stop their worst excesses. 

For every Mr B there are 99 people who would just roll over and pay. None of them know Mr Mustard.

Yours frugally

Mr Mustard

16 May 2018

Photos are secondary evidence

The invisible car (almost)
Motorists often think that if the council haven't managed to take photos of their car at the time that a PCN is issued then they will not have to pay the PCN due to the lack of evidence.

The council think that they can say the same thing every time 'the photos are secondary evidence and not essential'  and hope that will be enough to nudge you into paying.

This tribunal decision, 2180108307, shows that if the council can't produce adequate primary evidence (and are too lazy or stupid, or disrespectful to the tribunal, to produce their evidence) they can lose and the motorist gets their PCN cancelled.

The allegation is parking on a restricted street during prescribed hours. The Appellant says the contravention did not occur and asks for evidence of this from the authority.

The Penalty Charge Notice Civil Enforcement Officer’s notes states that a blue Volvo was observed from 11.52-11.53 and the notes state that all windows were checked, no notes were displayed, no loading seen, driver not seen, the Penalty Charge Notice was affixed to windscreen and photos taken (pt). I asked the authority for photos or an explanation as to why none were available and I have not received a response.
The onus is on the authority to satisfy me that the alleged contravention occurred. I accept that photos are secondary evidence. The other evidence provided satisfies me that the vehicle was parked on Alexandra Grove. The Penalty Charge Notice and Civil Enforcement Officer’s notes do not mention where on this street it was parked. The site report is not of any probative value in the absence of a contemporaneous note to show where it was parked. I cannot be satisfied that the alleged contravention occurred.

I allow the appeal.

The council in providing contradictory evidence in the case summary was just asking for trouble.

It takes 24 to 48 hours for the traffic warden's photos, if there are any, to be uploaded to the council website.

Yours frugally

Mr Mustard

3 May 2018

Time to stop this sort of PCN

This is the type of situation which Mr Mustard hopes will arise less often if the residents decide to vote Labour councillors into power as Mr Mustard thinks that they will be more inclined to listen to his advice and be more reasonable towards the public.

The above car was given a ticket for not being 'parked correctly within the markings of a bay or space'. The driver is a blue badge holder and that is a disabled space that his car is within. Given the large distance to the next bay, which is now an electric vehicle charging bay, no difficulty would arise for any car in the adjoining bay as there is plenty of space within which to open car doors.

One question is therefore why this sort of borderline but miserable PCN gets issued? (and this one to a client of a money advice centre which Mr Mustard assists) and the answer that Mr Mustard comes to is that ruling councillors take very little interest in day to day ticketing activities carried out by NSL, their outsourced supplier of traffic wardens, unless a resident complains and residents tend not to.

The second question is to whether the car is outside the markings of the bay at all, as the hatched area can be seen to be part of the bay, at least up until the mid-point between two bays. Mr Mustard can't see an adjudicator upholding such a PCN given the complete lack of a traffic management purpose, the only obvious purpose being the raising of revenue.

Yours frugally

Mr Mustard

2 May 2018

the Contractor's sub-contractor

Barnet Council can't see through this nor see what their contractor's sub-contractors are up to
Mr C made a mistake in a yellow box, it happens. He received a PCN from the all seeing computer and within 4 days, he had paid it. He received a letter confirming that the PCN was at an end.

His troubles were only just starting except that Mr C didn't know it.

2 hours later someone went into the computer record and reopened the file

Half an hour later another user set the PCN to move forward in the process the following day

The next step after an unpaid postal PCN is a charge certificate. One was generated.


The penalty charge has not increased to £195 as £65 has been paid. That is mistake number 1.

The PCN grants periods of 28 days (from issue date or receipt date respectively) for the PCN to be paid or challenged. After 9 days (the 18th is day 1) the 28 day periods have clearly not expired. The Charge Certificate is a nullity and an unlawful demand for payment. One questions why the software is not programmed to stop stupid errors like this one.

The charge certificate may well have been generated but it didn't reach Mr C who stayed in the dark.

Next up comes the Order for Recovery. The batch in which that was generated and sent to liberty by NSL contained an error.


That email, of 11 December 2017, was not processed by NSL. How many documents were in those batches? not just Mr C's?

In October 17 the details of the PCN were sent to a bailiff for a pre-debt check. This was a data breach as Mr C was not a debtor or even a potential debtor.The bailiff decided he was worth powder & shot so the PCN continued through the process.

The council's record shows that the PE3, Order for Recovery, was produced, but not that it was posted. Mr C did not receive it and that is because it was not mailed to him.

The next thing that Mr C knew was that he was contacted by the bailiff, for a PCN which he had paid months prior at the discounted rate.

This is what can happen when you contract out your responsibilities and they then get sub-contracted to another company (Liberty in this case, owned by Crapita, but not so crap in this case). It looks like a failure by NSL but the address to which Liberty sent their email has been redacted, for no good reason so Mr Mustard can't be 100% sure.

Now that Mr C has been to his councillor he has received an apology for his PCN being mishandled but no mention of any compensation for the fright of a bailiff sending a demand for payment which simply was not due.

This is why Mr Mustard is against the way in which Barnet Council outsource services. he doesn't have a problem with it per se as he himself offers outsourced debt collection, the difference being that he is staggeringly efficient and his clients receive a weekly report of progress and any problems, so they know what is happening.

Barnet council outsource and then let the outsourcer outsource some more so are two steps removed from knowing what is going on. Throw in extreme automation of processes and the lack of human involvement and injustices like this one happen.

Even then once a cock-up occurs the administration doesn't cover itself in glory by offering a fulsome apology and making a payment in compensation. No the explanatory letter which Mr Mustard has seen goes on about how correct the initial PCN was, as if this is some comfort, in order to deflect attention from how dire everything was that happened after that, and says not a word about the data breach nor offer any compensation for receiving a threatening letter from the bailiff when absolutely no money is owed to the council.

This is just one reason why Mr Mustard will Vote Labour tomorrow. Should Labour get a majority tomorrow Mr Mustard will offer his services as Parking Czar to them in order to stop PCNs becoming a revenue stream, in order to bring fairness & commonsense to the system and to reduce automation and put the human touch back to the forefront.

Yours frugally

Mr Mustard

25 April 2018

Echoes of MetPro - Procurement failings not cured

Mr Mustard does not like litter louts, injustice or incompetent councils. Sadly he lives in the London Borough of Barnet and thus he is exposed to three things he doesn't like, all of the time.

This will be a long blog so best put the kettle on & then settle down for a read.

Let's go back in time to 2011 when procurement at Barnet Council was a dog's dinner (nothing has changed).

Mrs Angry blogged extensively on the subject of MetPro, here is just one of her delights for the reader

Mr Mustard blogged in a less amusing manner on the procurement action plan, a plan which the wheels have fallen off, probably due to the numerous potholes in Barnet these days.

Let's move on 5 years.

On 8 March 16 the Environment Committee of Barnet Council approved the trial of streetscene enforcement:


On 25 July the 'Contract for services relating to a streetscene enforcement project' commenced:


 The Contract also contained the following clause:

 
and the following one:

a clause which does not appear to have been used. If it had been exercised, that would give NSL Ltd a valid contract up until 24 October 2017. If not, and no contract extension has been provided to Mr Mustard in response to his Freedom of Information request, then the contract to enforce expired on 24 January 2017.

On 8 November 2016 the Environment Committee received an update on the Streetscene Enforcement activity.

The Environment Committee noted the update. They also agreed to increase fly tipping penalties to £400. Littering penalties remained at £80 although the difference between littering & fly tipping is borderline. By September 16, 570 Fixed Penalty Notices had been issued, 15 in July, 138 in August and 419 in September 16, as staffing numbers increased. 564 of the FPNs were for littering. At that time, 52% of the FPNs had been paid, 85% of them at the discounted rate. 16 cases were going to the Magistrates' Court on 10 November.

On 15 March 2017 a further report went to the Environment Committee.


 which led to the following decision


The committee approved the procurement of a street scene enforcement contract with the view of an income shared model, without setting any parameters limiting the respective shares. That was not their best ever decision.

From the March 17 committee meeting

note the potential extension for evaluation purposes

So, Barnet Council paid all of the costs of setting up the trial. They then let NSL keep all of the penalty income. Genius.

This was profitable for NSL but cost the council four times as much as the profit which NSL made.

 

The trial is not contracted, at least not legally, until 31 March 17.

On 19 February 18, Mr Mustard asked, under Freedom of information legislation, for the current enforcement contract. He was sent the contract which started on 25 July 16, no contract extension, and was told that the 'full contract is currently out to tender'.

Mr Mustard has checked the Barnet Council procurement portal and did not find an opportunity on offer and the OJEU (The EU procurement portal) and he did not find an opportunity to bid there either. He questions the use of the word 'currently' as meaning, 'we might get round to this soon, especially now that you have shown an interest'.

In Mr Mustard's opinion, and he will defer to specialist local authority & procurement lawyers, in fact to any lawyer at all, no penalty charge issued since 24 January 2017 has been legal.

He questions how NSL Ltd, could legally issue a Fixed Penalty Notice for fly tipping to the business which he is assisting, in February 2018 as they don't have a contract to issue Fixed Penalty Notices?

In addition, the council knew that in September 16 the value of the Fixed Penalty Notices exceeded the value at which the contract should have been advertised under EU rules.

It appears to Mr Mustard that Barnet council have been playing fast & loose with procurement law & internal procedures since September 16 and that every Fixed Penalty Notice for littering, fly tipping & dog fouling etc. issued since 24 January 2017 in the name of Barnet Council, is invalid.

Over to the lawyers.

Yours frugally

Mr Mustard

20 April 2018

Death Cafe - 30 April

Mr Mustard thinks that Brits talk about death enough, so here is your chance to talk about it a bit more, in sensitive & understanding surroundings.

15 April 2018

50% tribunal wins = council failure

Parking Appeal stats 2016/17

In the news this week was the fact that 50% of immigration tribunal appeals were successful. One quote from the BBC article is: 'Nearly half of decisions that go to appeal in England and Wales are overturned, suggesting the system is "seriously flawed", the Law Society said.'

It struck Mr Mustard that there were parallels with the parking penalty charge notice system in which, across London, 47% of tribunal Appeals were successful. In the majority of cases there will have been two chances for the council to cancel the PCN, the first when considering the informal challenge received in response to service of the PCN & the second when considering the formal representation made in response to the Notice to Owner.

Mr Mustard thinks that the rejection of the informal challenge is almost routine and that the council can chance their arm in rejecting because the motorist is more worried about losing the 50% discount than anything else. Mr Mustard doesn't worry about the discount as he has the experience to correctly guess, most of the time, what the outcome will be at adjudication. Here is an example of Barnet Council needing two opportunities to make the correct decision.

Here is the informal challenge:

I represent Jane Doe as attached authority.

She was parked wholly outside number 23 (I should know, I live next door).

The suspension sign suspended parking from the right hand boundary of #23

Jane's car therefore was not within the suspended area and no contravention has occurred.

Please cancel the PCN.

(Incidentally the removal lorry had already departed and it would be helpful to residents if you didn't suspend bays until midnight which is not necessary for household removals).

Here is the informal rejection:

Following the Notice to Owner the formal representations were made:

I represent Jane Doe as attached authority.

She was parked wholly outside number 23 (I should know, I live next door).

The suspension sign suspended parking from the right hand boundary of #23

Jane's car therefore was not within the suspended area and no contravention has occurred.

Please cancel the PCN.

(Incidentally the removal lorry had already departed and it would be helpful to residents if you didn't suspend bays until midnight which is not necessary for household removals).

This time, the council accepted them.

You have to ask yourself why the council rejected the challenge the first time when clearly it was a valid one? You might think it is cynical behaviour on the part of the council as they know what most people don't, that you can challenge a PCN (one placed on your car) three times (only twice for a postal PCN). In this case the council wisely decided not to chance their arm at the tribunal as they were facing a pretty certain loss & they have to pay a tribunal fee of £30 (no charge for the motorist).

If you now look at the table above you can see the percentage of occasions on which the council got their decision wrong. Barnet are up there in the top quartile of the leader board.

Do please continue to take your PCN to the tribunal if you think it is wrong as you do get an independent review of your PCN unsullied by the prospect of extra revenue for the tribunal who are funded by fixed price payments per PCN by enforcement authorities. 

Put more simply, an adjudicator will not find against you because he/she profits by it, unlike councils who want the revenue and are under pressure to meet their annual projections. 

The system needs to be redesigned to remove the incentive for councils to issue more PCNs and to refuse more challenges.

Yours frugally

Mr Mustard

Sharp eyed readers will have noticed that if you were to sort the above table in size order of the number of parking PCNs taken to Appeal at London Tribunals, Barnet Council come out as the council whose PCNs get taken to the independent tribunal more often than any other council in London (TfL not being a London council).

Well done to the residents of, & visitors to, Barnet who are clearly becoming more independent & leading the fightback against unfair ticketing & revenue raising.