56 day limit - ** APPEAL ALLOWED **

[stuartw]

Hi,

 

I was wondering if anyone can clarify something for me.

 

I received a "notice to owner" and made a formal appeal against a PCN,

however the council have not sent me a notice of rejection

and it's now gone way beyond the 56 day limit in which they should respond.

 

I was of the understanding that if they didn't respond within 56 days the PCN was cancelled,

however I've since been sent a charge certificate, which I've challenged,

 

they then sent me a letter offering to let me pay a reduced amount as "a good will gesture"

which I've declined and they've now sent me an "order for recovery of unpaid penalty charge" through the county court.

 

I've returned the witness statement and challenged it on the grounds that they didn't respond to the formal appeal.

 

However, on the PATAS website it states that if the witness statement is accepted, the case goes back to the council who can then re issue the "notice to owner" letter, effectively giving them a second chance to enforce the PCN.

 

So I was wondering what the point of the 56 day limit is, if the council can continue the process of enforcement regardless?

 

Can any one out there clarify this for me?

 

Many Thanks

[green_and_mean]

Just to clarify did you get the charge certificate BEFORE the rejection?

[stuartw]

I've not had a notice of rejection at all, or the PATAS forms they usually include with it, so it hadn't even reached the stage where I could make an appeal thru PATAS.

 

What they did do was send me a reply to an informal appeal for an unrelated PCN that was nothing to do with me.

[green_and_mean]

The witness statement system works both ways, we only have your word it wasn't received they is no physical way to prove it wasn't and you have no way to prove it wasn't sent. The Council could argue whats the point of having a payment deadline or a deadline to appeal if you can use a witness statement to turn back the clock.

[stuartw]

Of course, I can't prove it wasn't sent however in most of the correspondence I've stated that I hadn't recieved it and the council have not sent me another copy or stated that it was sent on XX date. I would not have been able to contest the Charge certificate either if it had been sent as they would have produced the document in order to enforce it, which they didn't, they sent the "Good will gesture" letter instead.

 

If it came to it, then they would also have to provide a copy of the dated notice of rejection and show it in their paper trail.

 

In any case I was only enquiring as to the validity of the 56 day limit and whether it was binding or not, and if not, then why is it there?

[Jamberson]

The process works the way they are suggesting. What you need to do is ascertain whether the council actually has a record of your incoming appeal. If they have, you should respond to the second NTO with a statement to the effect that there has been a procedural impropriety and explaining their error to them. Ultimately if they refuse that, you can refer to PATAS for a decision and it should go your way. That's assuming the council received your original appeal.

[stuartw]

OK Thanks for the info.

 

The council definitely got my appeal, because despite sending me a response to an unrelated PCN, they also refered to a specific point made in my appeal about my tax disc number.

 

This whole case has been a farce of incompitance from start to finish, even the photos they supplied as evidence didn't show my reg plate, so the car is unidentifiable, which I presume, makes the PCN is unenforcable anyway.

 

The 56 day rule seems completely pointless, not sure why it even exists if councils can just ignore it.

Edited March 15, 2014 by stuartw

[Jamberson]

I don't think it's useless. If you are certain they got your appeal, and certain that they ignored it, then the 56 day rule should get you a cancellation. What you'll need to do is wait for the NTO to be sent again, then appeal on those grounds. I think you will win, regardless of the details of the original case. That's on the basis that they did get it, and did not reply.

 

The photos don't invalidate the PCN by the way. They are not required when a PCN is issued, and are just to help clarify matters.

[stuartw]

Ok Many Thanks,

 

I'll wait to see what happens next.....

[Pocket Nines]

What you'll need to do is wait for the NTO to be sent again, then appeal on those grounds.

 

He'll wait a long time; There should be no second NtO. In such circumstances the Council may only refer the matter directly to the Adjudicator.

 

Apart from that, it isn't clear what the latest letter received, re-offering discount, actually is?

Nor is it clear whether the Council received and/or responded to the Reps?? Or what they've said on that?

Edited March 28, 2014 by Pocket Nines

[Jamberson]

He'll wait a long time; There should be no second NtO. In such circumstances the Council may only refer the matter directly to the Adjudicator.

 

Apart from that, it isn't clear what the latest letter received, re-offering discount, actually is?

Nor is it clear whether the Council received and/or responded to the Reps?? Or what they've said on that?

 

You are correct in the way the system should work, but in practice, nearly all councils re-issue an NTO if a witness statement goes through. I believe it's impropriety, but that seems to be how it works in reality.

 

I think it is pretty clear what was received last - see post 1. He's had an Order for Recovery and responded by filing a witness statement. As for your other comment about the reps, again I don't disagree except to say that I have tried to emphasise that my advice is based on an assumption which the OP is confirming to have happened - see for example my post 8: "If you are certain they got your appeal, and certain that they ignored it, then..."

[Pocket Nines]

on the PATAS website it states that if the witness statement is accepted, the case goes back to the council who can then re issue the "notice to owner" letter, effectively giving them a second chance to enforce the PCN.

No it doesn't; not in relation to your situation.

 

You will hear from the Adjudication service.

 

I'm still curious exactly what that letter was that you received? The one offering discount payment.

[stuartw]

Just to update the situation...... The witness statement has been accepted and the charge certificate, NtO and order for recovery have now been cancelled. I have not (yet) had any more communication from the Council.

 

To Clarify what it says on the PATAS website if a witness statement is accepted:

"If the ground is that the Notice to Owner was not received, the Order for Recovery, Charge Certificate and Notice to Owner are cancelled.

The enforcement authority may then issue a new Notice to Owner;"

 

(Link to page (scroll down to "witness statement"): http://www.patas.gov.uk/tmaadjudicators/tmaparkingenforcement.htm

 

I'm not sure why I will now hear from the adjudication service, as I have not made an appeal to PATAS

 

Regarding the discount offer, I'll quote the letter:

 

"Thank you for your correspondence regarding the above penalty charge notice. The charge will not be cancelled because it is too late to dispute the case.

 

While the authority is satisfied the contravention occured we are prepared, as a gesture of goodwill, to accept the discount amount of £55.00 to close the case. This offer is only valid for 14 days from the date of this letter. If payment is not made within this time frame the charge will revert to £165.00 and the case will progress as stipulated below.

 

I have noted your comments; however an email was sent out on the 05/09/13. Please find enclosed a copy"

 

This letter was sent after I'd received and challenged the charge cerificate and I'm not sure how they can claim that "it's too late to dispute the case" whilst it's still ongoing.

The "progress as stipulated below" refers to them seeking recovery through the county court and because I didn't take them up on ther kind offer, I subsequently received the order for recovery, which has now of course been succesfully challenged.

The email they refer to and which a copy was enclosed, is their response to my original informal appeal. It's competely irrelevant.

 

So there we are after 7 months of correspondence and countless hours of wasted time for them, myself and the county court, for a trivial parking contravention that would be far better dealt with with a policy of notification and education rather than this aggressive pursuit of money at any cost.

[Pocket Nines]

Hi,

I received a "notice to owner" and made a formal appeal against a PCN,

however the council have not sent me a notice of rejection

(A)

Hi,

I've returned the witness statement and challenged it on the grounds that they didn't respond to the formal appeal.

 

(B)

Just to update the situation...... The witness statement has been accepted and the charge certificate, NtO and order for recovery have now been cancelled.

 

(A) and (B) cannot happen.

Either you did not tick the box 'I made reps but received no reply' on the Witness Statement ( and instead ticked 'no NtO received') OR TEC have cocked up.

 

Which is it?

 

 

Just to update the situation...... The witness statement has been accepted and the charge certificate, NtO and order for recovery have now been cancelled. I have not (yet) had any more communication from the Council.

 

To Clarify what it says on the PATAS website if a witness statement is accepted:

"If the ground is that the Notice to Owner was not received, the Order for Recovery, Charge Certificate and Notice to Owner are cancelled.

The enforcement authority may then issue a new Notice to Owner;"

 

(Link to page (scroll down to "witness statement"): http://www.patas.gov.uk/tmaadjudicators/tmaparkingenforcement.htm

 

 

 

I'm not sure why I will now hear from the adjudication service, as I have not made an appeal to PATAS

 

You continue to say so but the process that applies to the situation YOU described is stated clear as day on the page YOU have linked? What am I missing? (and sorry if so)

[stuartw]

Ok, there seems to be some confusion, I'll try and clarify.

 

1. I received a notice to owner and made a formal appeal.

2. I received a reply but it was for an unrelated PCN that was nothing to do with me, the reply refered to other information in my appeal, so I know it was received, yet they have not issued a notice of rejection relating to my PCN.

3. I then received (and challenged) a charge certificate

4. I received a "gesture of goodwill" letter offering to accept a discounted payment.

5. Having not made that payment, I then received an order for recovery, which was successfully challenged on the grounds that I had made representaions and had not received a rejection notice.

 

Having re-read the county court letter it states that the charge certificate and order for recovery have been cancelled however it does not cancel the original PCN allowing the authority to take further action. which brings me back to the original point of my post regarding the 56 day limit.

 

here's what it says on the PATAS website (same link as previous post):

"The enforcement authority considers your representations

The authority must, before the end of 56 days beginning with the date on which they receive representations:

 

• Consider representations received in time;
  
• Decide whether to accept or reject them;
  
• Serve on the person who made the representations:
  
• A Notice of Acceptance, if it accepts them; or
  
• A Notice of Rejection and a Notice of Appeal form, if it does not accept them
  

If the authority fail to respond within 56 days, they will be deemed to have accepted the grounds in question

If they have accepted the representations or failed to respond within 56 days, cancel the Notice to Owner (where the Penalty Charge Notice was served at the scene) or the Penalty Charge Notice (where this was served by post) and refund any sums paid."

Which seems fairly clear, if the authority fails to respond within 56 days "they will be deemed to have accepted the grounds in question" and must cancel the Notice to Owner.

Yet despite this, it would appear (according to the PATAS website quoted in the previous post) that the authority can still continue their enforcement all the way through to the county court, who after accepting a witness statement, can allow the authority take further action.

 

So My confusion is over the 56 day limit and what it's there for, if a local authority can just ignore it.

Maybe I'm missing something here, which was why I posted here seeking clarification.

[Pocket Nines]

Well, one way or another, now that I recall your case from elsewhere (don't I?), you are onto a potential winner but, with respect, you're confusing where each rule applies.

 

That's not a crticism; It's just that you've read a lot and then, of course it can become confusing.

 

So, can we start by

 

1/. just clarifying that you are now saying the TEC letter does NOT say that the NtO is cancelled?

 

2/. What box you actually ticked on the Witness Statement.

 

---

To help, I hope; Once a Charge Certificate is issued then there is really little chance of success by trying to negotiate or reason with the Council. You must follow the process, wait for the OfR as it seems you did and get the matter reset.

 

That means -- and this seems to be what you are failing to understand -- that the matter of exceeding the 56 day limit (the erroneous rejection not being valid - and their latest letter is a try-on) is not currently up for discussion: You WILL get that opportunity later.

[stuartw]

Thanks for the help, it is confusing. I'll see what transpires next

[Pocket Nines]

Thanks for the help, it is confusing. I'll see what transpires next

 

Ok. Harsh hat on again.

 

It's confusing because you don't answer the simple questions posed!

 

Questions 1/. and 2/. above.

[stuartw]

OK

 

1. The letter from the court states that the order for recovery is revoked and that the charge certificate is cancelled. It further states that the original penalty charge has not been cancelled and that the local authority may take further action. It doesn't mention the NtO, that was probaly my mistake misreading the PATAS website.

 

2. The witness statement was submitted on the grounds that I made representations but did not receive a rejection notice.

 

What I don't understand about the 56 day limit is what it is actually for, because that limit had been reached in this case yet the council, contrary to what is stated by PATAS and other websites, are still pursuing enforcement. All I can presume is that when it actually gets to PATAS you can use it in your appeal.

[Pocket Nines]

OK

 

1. The letter from the court states that the order for recovery is revoked and that the charge certificate is cancelled. It further states that the original penalty charge has not been cancelled and that the local authority may take further action. It doesn't mention the NtO, that was probaly my mistake misreading the PATAS website.

 

2. The witness statement was submitted on the grounds that I made representations but did not receive a rejection notice.

Ok good.We are getting somewhere towards clarifying for you.

 

So, per the part of the patas site that actually refers to YOUR situation >>

 

[i"]What happens next depends on the grounds for making the witness statement.

 

If the ground is that the Notice to Owner was not received, the Order for Recovery, Charge Certificate and Notice to Owner are cancelled. The enforcement authority may then issue a new Notice to Owner;

For any of the other grounds, the enforcement authority must refer the witness statement to the adjudicator who will decide what will happen next".[/i]

 

What I don't understand about the 56 day limit is what it is actually for, because that limit had been reached in this case yet the council, contrary to what is stated by PATAS and other websites, are still pursuing enforcement. All I can presume is that when it actually gets to PATAS you can use it in your appeal.

 

Erm -- would it surprise you if I mentioned that Councils make mistakes? A LOT of them!

Then, even if that becomes apparent to someone at the Council with some savvy (the cleaner?), they may still try to wing it -- simply because most people just pay up.

 

Having not responded to your Reps they should not have issued a Charge Certificate and it should have ended there. I've seen that happen when Councils realise they've been timed out.

 

BUT - you've explained that they did send a rejection - an irrelevant one that seems to have got confused with someone else's -- and isn't valid. But be fair; All they do is look at their computer record - which very probably says they HAVE sent YOU a rejection - so they just carried on enforcing and progressed to Charge Cert.

 

It's a matter of knowing the nature of the beast. they are basically useless. Even if some poor sharp clerk spotted the error they would be too frightened to flag it up to superiors for fear of being labelled a nuisance member of staff: Sorry, that's just the reality of the Council culture.

So yes - the 56 days DOES apply but you've already given a clue why it didn't get realised in your case.

 

So -- you've done the right thing and got it reset.

It can ONLY now go to the Adjudicator. They should contact you.

 

You should win, based on exactly what you are thinking; they failed to respond to your Reps - end of story.

They will probably realise when they come to prepare the paperwork for the Adjudicator - and then would be daft to contest it.

 

Keep us informed of what happens.

[stuartw]

Great, that all makes sense now.

Many thanks for your help and I'll let you know what happens.

[Jamberson]

You will almost certainly get an NTO. This is how it usually works in practice, despite it being wrong. When you do, you can challenge it either on the original grounds or on the grounds of impropriety.

[stuartw]

I think Impropriety, since they wouldn't accept my original appeal

[Pocket Nines]

You will almost certainly get an NTO. This is how it usually works in practice, despite it being wrong. When you do, you can challenge it either on the original grounds or on the grounds of impropriety.

You said so -- and I asked for an example case.

 

If it ever happened and it won't, he would have no need of a challenge as the Adjudicator would be required, by the process he has already completed, to accept his application for a hearing.

[Jamberson]

I could tell you that I worked for an LA who didn't even know that these cases were supposed to go to adjudication, and must have issued thousands of incorrect NTOs before someone in the department raised the issue. It was brushed under the carpet and to the best of my knowledge, the LA (Brighton & Hove) still do it the wrong way. Nobody cares. And in my experience on this site, that's common across the board - routine even.

 

The OP will tell us what happens next. I'll bet he get an NTO. If he doesn't challenge it, you know what will happen. Another CC, then OR, then bailiff warrant.

 

It shouldn't be that way, but we are dealing with the real world, not an ideal.