Kensington NTO but no PCN!!

[omoeko]

Hello Everyone,

 

On the 23rd of April I mistakenly parked on a resident bay to pick a document up as i didnt realie it was a resident bay, not knowing that i am being watched by some parking officers, as soon as i stepped out of the car to pick the document up.

 

I came back less then 2 minutes later to find that an enforcement officer was about to start writing me a ticket, I tried to explain to him that look, I am already here and besides you only just started to write it, to my annoyance, I drove off, he didnt have the chance to write the ticket before i drove off.

 

Now 6 weeks after, I got a letter in the post saying that the offier served me with a notice and that i should now pay 120 quid. Now, I am not an expert in such matters, but these are my points.

 

In the letter, there were no photographic evidence placed along with it. Can the charge be denied

6 weeks after the alledged offence, is there like a specified allowed time for councils to serve a notice etc.

Also, now i wasnt even given the option of paying a reduced rate at all.

 

Where do i stand here

 

Thanks in advance.

[crem]

Are you sure it was a council PCN? It should clearly state which council has issued it at the top of the letter.

 

Yes, there are specific rules covering when each stage in the process should be reached and the council must adhere to these unless they can show a good reason why they didn't (eg it took longer to write to you coz you drive a company car and they had to write to the company first to get your address).

 

Confirm a few details off the letter if you can like council name, or better still, post a pic up on here after you have covered all your personal details of course.

[omoeko]

Hi Sorry,

 

It was not a PCN, the letter says notice to owner.

 

I have now attached the letter below:

 

[patdavies]

Appeal on procedural impropriety by the Council.

 

No PCN was issued as you drove off whilst it was being completed. At that point, the Council could have, but did not choose to,issue a s.10 PCN instead.

 

It is now out of time for issue of an s.10 PCN and as you have a NtO, the Council are attempting to enforce an unissued s,9 PCN.

 

You will probably have to take it all the way to the adjudicator, but the Council will have to prove rather than assert service of the s.9 PCN

[omoeko]

Right.

 

Thanks very much for your reply, its just that I have never had to do this before, I will read up on the sections you mentioned in the post. My first question is, what do i do now ?

 

On the form that was sent to me, there is a section saying making representations. should I fill this in or what ?

 

Thanks for your guidance.

[Al27]

We need to see the back.

 

"Do not pass this notice to the person who was in control of the vehicle at the time the alleged contravention occurs"

 

This fetters your ability to appeal. Whilst the owner is financially responsible for the charge, this sentence creates the real possibility that owners will not make Representations because they are under the impression that they must not find out the driver's account of events. The TMA 2004 makes no such requirement that owner liablity should be stated in such a misleading way and this is merely the council's clumsy attempt to get the owner to respond to the notice.

[Bernie_the_Bolt]

Right.

 

Thanks very much for your reply, its just that I have never had to do this before, I will read up on the sections you mentioned in the post. My first question is, what do i do now ?

 

On the form that was sent to me, there is a section saying making representations. should I fill this in or what ?

 

Thanks for your guidance.

 

Yes you must.

 

You must also comply with the time limits.

 

At the very least use PatD's answer. It is likely to be rejected and then you appeal to PATAS where you can be more detailed and give more grounds.

 

I am an advocate of chucking every possible argument at them but with the greatest of respect to Al27, yours even I would baulk at!

[omoeko]

Thanks everyone for the reply, see the attached note for the back of the form which was also sent to me.Please let me know what exactly i should write on the form. thx

 

[Al27]

I am an advocate of chucking every possible argument at them but with the greatest of respect to Al27, yours even I would baulk at!

 

I want someone to finally test it at adjudication Bernie! It's a London councils feature I notice.

Do you not think it's prejudicial? What does "do not pass to driver" actually mean?

[omoeko]

I assume you guys want me to tick optoin 6 and also explain what Pat D stated above.

 

thx

[Bernie_the_Bolt]

I want someone to finally test it at adjudication Bernie! It's a London councils feature I notice.

Do you not think it's prejudicial? What does "do not pass to driver" actually mean?

 

I think that the LA would quite successfully argue that all it does is to reinforce the issue of owner responsibility. What it does not do is to say that the owner cannot ask the driver for an explanation or details of what happened.

 

I don't have a counter to this argument.

[green_and_mean]

I think that the LA would quite successfully argue that all it does is to reinforce the issue of owner responsibility. What it does not do is to say that the owner cannot ask the driver for an explanation or details of what happened.

 

I don't have a counter to this argument.

 

Exactly it is there to avoid confusion over responsibility, only the recipient of the NTO has a legal right to make representations anyway regardless of who was driving.

[omoeko]

Exactly it is there to avoid confusion over responsibility, only the recipient of the NTO has a legal right to make representations anyway regardless of who was driving.

 

 

what should i do now guys, i dont want to leave this till the last minute, at the same time, the 120 bucks is a lot and i dont want this to increase, as we all know the way these crooks work.

 

Any ideas please

[lamma]

Exactly it is there to avoid confusion over responsibility, only the recipient of the NTO has a legal right to make representations anyway regardless of who was driving.

 

For an NTO issued on the back of a police FPN the Owner can send in a request for a court hearing from a person who was using the vehicle at the time of the offence. This request must be signed by the driver of the vehicle. Council NTO place liability on the Owner but they do not restrict or limit the rights of the owner e.g. "that if representations which have been made within the representation period or outside the period but not disregarded, are not accepted by the enforcement authority the recipient of the PCN may appeal against the authority’s decision to an adjudicator" Note that the regs do not say ONLY the recipient may make representations, if you wanted to hire a solicitor to do it for you you could. Appeals do get made in person by third parties e.g. Neil Herron does it.

[green_and_mean]

For an NTO issued on the back of a police FPN the Owner can send in a request for a court hearing from a person who was using the vehicle at the time of the offence. This request must be signed by the driver of the vehicle. Council NTO place liability on the Owner but they do not restrict or limit the rights of the owner e.g. "that if representations which have been made within the representation period or outside the period but not disregarded, are not accepted by the enforcement authority the recipient of the PCN may appeal against the authority’s decision to an adjudicator" Note that the regs do not say ONLY the recipient may make representations, if you wanted to hire a solicitor to do it for you you could. Appeals do get made in person by third parties e.g. Neil Herron does it.

 

An FPN is completely different the owner is not liable and its a criminal case. A 3rd party can accompany you to an appeal hearing but they cannot appeal on your behalf to formal representations because it would fetter your right of appeal. If I was living at your house whilst you went on holiday and thought I'd do you a favour by replying to an NTO on your behalf and lost you would end up being chased for the fine with no further right of appeal. If you were then allowed to appeal again because your 'friend' screwed up it would make a farce of the system. You can get advice and seek legal help but the representation must be from you or on your behalf as your represenative. Any representations are made as if they represent the keeper and no one else.

Representations against notice to owner

 

4.—(1) The recipient may make representations against a notice to owner to the enforcement authority which served the notice on him.

(2) Any representations under this regulation must—

(a) be made in such form as may be specified by the enforcement authority;

(b) be to either or both of the following effects—

(i) that, in relation to the alleged contravention on account of which the notice to owner was served, one or more of the grounds specified in paragraph (4) applies; or

(ii) that, whether or not any of those grounds apply, there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should cancel the penalty charge and refund any sum paid to it on account of the penalty charge.

[lamma]

everyone has a right to be represented by an agent acting on their behalf. As I said you could appoint a solicitor to do it if you wanted to.

[Bernie_the_Bolt]

everyone has a right to be represented by an agent acting on their behalf. As I said you could appoint a solicitor to do it if you wanted to.

 

Ah, so what you are saying is that the "do not pass to the driver" fetters your right to appoint the driver as your representative to appeal your owner's liability for the penalty?

 

I can see some merit in that but I feel it may cut little sway with an adjudicator unless the facts of the case showed that the driver was better placed to make the arguments out.

[lamma]

what they should say is 'do not pass this to the driver without taking it back' but its legalese as you know. You could appoint a QC if you wanted. No one is forced to represent themselves in legal proceedings I believe.

[Bernie_the_Bolt]

what they should say is 'do not pass this to the driver without taking it back' but its legalese as you know. You could appoint a QC if you wanted. No one is forced to represent themselves in legal proceedings I believe.

 

Personally I think it would be crystal clear if it said:

If you pass this notice to the person who was in control of the vehicle at the time the alleged contravention occured, you will still be responsible if they do not pay the penalty for you and by the time you know this the penalty may have had other charges added and it could be too late for you to do anything about the extra charges and you could have lost your right of appeal.

[lamma]

maybe "'do not pass this to the driver without taking it back in time" then

[patdavies]

Er, if the RK was the driver, does this mean that he can't deal with it (or talk to himself) :grin::grin:

[patdavies]

what should i do now guys, i dont want to leave this till the last minute, at the same time, the 120 bucks is a lot and i dont want this to increase, as we all know the way these crooks work.

 

Any ideas please

 

As advised previously - procedural impropriety by the Council as you were not served with a PCN since you drove away. Your original query has got lost in the thread drift as you can see.

 

The cost cannot increase now unless and until you have had you appeal to the adjudicator refused and still failed to pay.

[omoeko]

Hi Guys

 

Just to give a heads up, the council have now admitted that its thier fault and the charge cancelled. Thanks everyone for your help.

[Bernie_the_Bolt]

Nice one! Well done.

[Al27]

Well done.

 

Er, if the RK was the driver, does this mean that he can't deal with it (or talk to himself)

 

Issue is that actual prejudice does not have to have been demonstrated - just the potential.

 

Still think it's a very clumsy line which isn't required by law. There will be keepers out there who just pay because they think they have to deal with it themselves.

 

A lot of people don't even know there's an Adjudication option.