Memorandum submitted by the Chief Parking
Adjudicator for England and Wales
1. I was appointed as the Chief (and first)
Parking Adjudicator for London in 1992, just prior to the introduction
of the Decriminalised Parking Enforcement (DPE) scheme in London
and, with Nick Lester, set up the then Parking Appeals Service
(now PATAS). I therefore experienced the early days of DPE and
the emerging and developing issues that arose from the operation
of the new scheme in London.
2. I continued in that role until 1999 when
I was appointed as Chief Adjudicator for the newly formed National
Parking Adjudication Service (NPAS).
3. This evidence is based on my personal
experience of DPE from its earliest beginnings, and the views
of the NPAS adjudicators and administrative staff.
THE NATIONAL
PARKING ADJUDICATION
SERVICE
4. NPAS deals with appeals from those councils
in England and Wales (outside London) that have adopted the Road
Traffic Act 1991 (RTA) powers. At the end of 2004 there were 117
councils outside London in the scheme. Most have set the penalty
charge at £60 (£30 if paid in 14 days). One or two have
kept the penalty charge at £40 (£20 if paid in 14 days).
5. The 31 National Parking Adjudication
Service (NPAS) Adjudicators decide appeals by motorists and vehicle
owners against Penalty Charge Notices (PCN) and where the vehicle
has additionally been either clamped or removed.
6. The NPAS administrative staff are located
in Manchester, and Manchester City Council is the Lead Authority
for the National Parking Adjudication Joint Committee.
7. Appellants can select whether their case
is decided by the adjudicator on the basis of the documents (and
photographs) supplied by themselves and the council concerned,
or whether they attend a hearing to put their case to the adjudicator
in person. A particular feature of the NPAS service is that the
appellant can select a hearing at any of the 60 venues where hearings
are held. Therefore appellants can ask for a hearing local to
their home or office, even if the PCN was issued elsewhere. Some
councils regularly attend the hearing, others seldom do.
8. Of the 9,213 appeal lodged in 2003, 67%
of appellants requested a "postal" decision, and the
other 33% wanted a hearing. The adjudicators allowed 28% and dismissed
33%. The councils did not contest 37% of the appeals resulting
in those appeals being allowed. Therefore, overall, 66% of appellants
were granted the relief they sought, namely the cancellation of
the PCN.
CHARACTERISTICS OF
THE DPE SCHEME
9. Two key features if the RTA scheme are
first, that the council must accept half the face value penalty
charge if it is received within 14 days, and secondly full owner
liability (as opposed to driver liability with a presumption that
the register owner was the driver). Both of these are a distinct
departure from the criminal fixed penalty regime.
The Reduced Penalty
10. The scheme requires the council to accept
the reduced (half) penalty if received in 14 days from the issue
of the PCN (although most councils extend that period by a few
days). Although there are no accurate figures published, councils
generally agree that approximately 40% of penalty charges issued
for parking contraventions are settled at the reduced penalty.
This percentage, however, inevitably includes a number of PCNs
which could have been successfully challenged. Many pragmatic
drivers and commercial firms regard it as simpler just to pay
the reduced penalty than engage in the cumbersome appeals process.
(Typically these might be where a vehicle has lawfully been engaged
in loading/unloading.)
Owner Liability
11. Under the DPE scheme it is the owner
of the vehicle who is liable for payment of the penalty charge.
The exceptions are where a vehicle has been hired or taken without
consent. The presumption is that the registered keeper at the
DVLA is the owner, although that presumption can be rebutted if
the registered owner satisfies the council or the adjudicator
that they were not the owner. While it can be recognised that
this provision is to facilitate the enforcement of payment of
the penalties, it nevertheless creates its own problems. Adjudicators
frequently hear from aggrieved vehicle owners, both private and
commercial, who feel that it is unfair that they are being forced
to pay a penalty when someone else had driven the vehicle. They
are especially aggrieved that, even though they are legally liable,
as the owner, for payment, there is no provision for them to pay
the reduced penalty. In adjudicators' experience, most councils
will accept the reduced penalty in these circumstances, others
hold out for the full penalty, which may provoke an appeal to
the adjudicator.
12. A significant proportion of appeals
are from the recipients of Notices to Owner who claim they had
sold the vehicle prior the issue of the PCN. In 2003 ownership
was the appeal issue in 12% of NPAS cases. This was the largest
appeal "type", signs/lines issues, and pay and display
tickets accounting for the next highest—11% each.
13. The up-to-date accuracy of the DVLA
register is one of the cornerstones of the DPE scheme.
TRAFFIC REGULATION
ORDERS
14. It should be borne in mind that councils
create parking restrictions and designated parking places by means
of Traffic Regulation Orders (TRO), known as Traffic Management
Orders (TMO) in London. These are made under the enabling powers
of the Road Traffic Regulation Act 1984. A parking contravention
is, quite simply, a breach of a provision or condition of a properly
made TRO/TMO.
15. While Circular 1/95 made it completely
clear that before taking on DPE councils should update and consolidate
their TROs, not all councils fully go through that exercise. Adjudicators
observe that the format and variety of approaches to drafting
TROs know no bounds. While some councils have meticulously consolidated
their old orders into a single neatly word-processed and concise
new order, others soldier on with literally hundreds of old TROs,
which have, over the years been amended, varied or modified. The
style of drafting can be obscure, prolix, and opaquely complex.
Many of the car park TROs still provide for the issue of an excess
charge notice for a breach of the order.
16. At least 3% of appeals allowed by NPAS
adjudicators are because drafting flaws in the relevant TRO. These
outcomes are naturally very dispiriting for the parking attendants
and back office staff who have carried out their jobs in the process
in a perfectly satisfactory manner.
17. However, the problems are more wide-reaching;
since all parking provisions and control policies are founded
on these byelaws. If the task of revising or consolidating them
is over onerous and demanding on resources local authorities may
be constrained from making much needed changes.
18. Recently parking in violation of a bus
stand signs and road marking has become a contravention attracting
a PCN under the RTA. Also Part 6 the Traffic Management Act provides
for civil enforcement of contraventions against other traffic
signs. If parking policy is play a significant part in traffic
management and demand management consideration should be given
to bringing about the principle of contravening against the sign
for parking. This initiative would be unlikely surprise to the
motoring public who already believe that, a parking contravention
is disobeying a sign. Many appellants are amazed when the adjudicator
explains that the signs simply reflect the provisions of the TRO/TMO.
THE APPEALS
PROCESS
19. Only a small proportion of appeals result
in an appeal to adjudicators. We therefore tend not to see cases
where the representations have accepted, or been rejected with
helpful reasons resulting in a payment However, there are five
problems that have beset the appeals process, and have given rise
to a sense of unfairness in some motorists, namely:
— late disclosure of evidence;
— the high proportion of appeals that
are not contested;
— failure to exercise discretion in
deserving cases; and
20. We must emphasis that in many councils
none of these criticisms arise. Nonetheless, since the RTA was
implemented in 1993 these themes have occurred over and over again
and have been brought up in the various annual reports of the
adjudicators over the years.
Delay
21. Delay consistently emerges as a problem
in the scheme. Adjudicators have often seen and commented upon,
letters not being answered for over four months or Notices to
Owner sent out considerably beyond the 28 days intended by the
statute. This is all the more surprising given the service standards
applied in the other departments of the councils. In this sense
the PCN processing procedure is not a level playing field—the
motorist and vehicle owner have tight time limits placed on them
(and most councils apply them fairly rigidly) whereas there a
no time limits placed on councils to prosecute their processes.
22. The appeal process could be made fairer
by imposing appropriate time limits on the local authorities.
Councils should also ensure that their parking departments are
staffed with enough staff with appropriate training and experience.
The greater involvement of council legal departments would also
improve standards.
Late Disclosure of Evidence
23. It is in the nature of the scheme that
a motorist or vehicle owner does not see the evidence to support
the penalty charge until late in the appeal stage of the process.
It is only if and when the case proceeds to appeal to the adjudicator
that the council serves its evidence on the appellant. Fortunately,
increasing numbers of councils are sending copies of photographs
in response to representations, or sometime at the informal challenge
stage, but there are many examples where the first that a motorist
knows of the evidence is moths later and he has gone to appeal.
Many appellants complain that the evidence is produced to them
only shortly before the hearing; and by then they may have inadvertently
lost or destroyed some evidence which would have assisted their
case. Matters are, of course worse if there has been delay in
the council process.
24. Adjudicators have seen cases where the
council has expressly refused to disclose its photographs or the
PA's evidence unless the vehicle owner appeals (this is typically
where a vehicle owner has n knowledge that the vehicle was where
the council allege it was parked).
25. Modern technology allows for photographs
to be incorporated into notices and councils should accordingly
endeavour to update their processes and notice. These improvements
to the councils parking services not only should become a priority
for expenditure from the parking accounts, but also would inevitably
lead to a reduction in cases subject to further representations
and appeals.
Appeals not Contested by the Councils
26. From the inception of the DPE scheme
adjudicators have expressed concern about the high proportion
of appeals that the councils do not contest. Again, the figures
vary from council. Of course appellants will inevitably produce
more evidence with their appeal and when the council considers
it decides not to accept the appellant's case. However this cannot
and does not happen in the number of cases not contested. One
NPAS council did not contest the first eighty appeals that were
lodged. This practice inevitably provokes the suspicion that councils
do not consider representation properly, only doing so if there
is an appeal.
27. When a council informs NPAS that it
is not contesting the case, they are asked to complete a short
form explaining why. All too often there are reasons such as "PA
error", or "inadequate signs". Both these problems
should have been identified at the representations stage.
28. Of particular concern is that in 2004
there were a significant number of appeals where the vehicle had
been removed and the appellant had paid the £135 charge,
but the case was not contested.
The Exercise of Discretion
29. The RTA sets out the statutory grounds
both for making representations against the Notice to Owner to
the council, and appealing to the adjudicator. Inevitably a significant
proportion of representations made to councils strictly fall outside
the statutory grounds, but amount to pleas for the councils to
exercise discretion.
30. The Council has a clear obligation to
consider fairly and properly any representations made following
the issue of the Notice to Owner against the background that the
Road Traffic Act Parking Scheme is intended to regulate parking
and not to generate income. Furthermore, the Council has a complete
and unfettered discretion whether to issue a penalty charge notice
or enforce a penalty charge. The Adjudicators do not have such
a wide and unrestricted discretion; they cannot allow appeals
where the appellant's case simply amounts to mitigating or extenuating
circumstances. This position astonishes many appellants who cannot
understand why the specialist tribunal has lesser powers than
the councils whose decision they are challenging.
31. At the representations stage the council
might have rejected the representations for any number of reasons,
for example they may not believe what is said, they may be following
particular policies, or they may require supporting evidence.
32. Whatever the reason was, the decision
to reject the representations should have been based on the council's
understanding of the facts presented to them.
33. The importance of fact finding in the
appeal process and the exercise of discretion cannot be over-emphasised.
It is the whole purpose of the right of an appeal to a legally
qualified judicial officer that he or she investigates the facts
of the case. It is in the nature of the process that, whereas
a vehicle owner may have quickly filled in the representations
form to the councils (probably in anticipation of them being accepted),
he or she will go to far greater lengths to prepare evidence for
the adjudicator. In many cases the adjudicator has the benefit
of oral evidence. The whole point of the appeal is that in many
cases the adjudicator will find facts different from those known
or found by the council. It may be simply, for example, accepting
the oral evidence of the appellant.
34. Since discretion is fact sensitive,
the council may have declined to exercise any on the basis that
they did not accept the motorist's case as presented. In these
instances adjudicators tend to request the council to reconsider
the decision based on the new facts found. Typically this might
occur where a Blue Badge was displayed the wrong way up and the
adjudicator has established that the badge holder has genuine
problems getting in and out of the car. Happily, most councils
will oblige, however there have been some instances where the
council has refused to accept the adjudicator's findings of fact,
or simply has replied that they considered the original representation
and that is that.
35. These approaches are far from ideal
for the appellant, either because it prolongs an already protracted
process (bearing in mind it is only a parking ticket) or it fails
to resolve the complaint, notwithstanding that adjudicator is
of the opinion that discretion should be exercised. The only recourse
for the aggrieved appellant at that stage would be to apply to
the High Court for Judicial Review.
36. The adjudicators consider that public
acceptance of the DPE scheme partially rests with discretion being
exercised in deserving cases at the appropriate level by those
trained and expert in the principles.
Proportionality
37. Closely related to the exercise of discretion
and the public's sense of fairness is the issue of proportionality.
Many grievances are caused because, for example the motorist considers
the penalty too high for the nature of the contravention. Typically
this is said where a PCN is issued shortly after the pay and display
ticket has expired, or where the vehicle was parked with one wheel
encroaching into the next bay. Where a local authority is unresponsive
to these types of complaint they cast doubt on the objectives
behind the scheme. The implementation of the Traffic Management
Act may herald the introduction of variable penalties for different
types of contraventions. This would provide a framework to encourage
proportionality where common sense may not always prevail.
CLAMPING AND
REMOVING
38. Few councils outside London clamp vehicles
these days, although clamping was much more common 10 years ago.
Approximately eight councils outside London remove vehicles.
39. The powers to clamp and remove vehicles
parked in contravention of a Traffic Regulation Order are draconian.
The motorist, on his return, suffers immediate distress and inconvenience.
Furthermore, the penalty charge, release and, if appropriate,
storage fees must be paid straight away, irrespective of any ground
for appeal which the appellant may wish to put forward. He is
therefore immediately out of pocket and may remain so for weeks
or months until the appeal is determined either by the council
itself or by the adjudicator.
40. The Human Rights Act 1998 came into
force subsequent to the Road Traffic Act 1991. Adjudicators are
of the view that the incorporation of the European Convention
on Human Rights into the national legislation places a greater
duty on councils to have regard to proportionality. In particular,
the decision to remove a vehicle must be taken in the context
of Article One of the First Protocol of the ECHR and requires
the exercise of judgment. It is for the Council to prove that
the removal was proportionate and necessary. They need to be able
to justify in every case why the issue of a PCN alone would not
have achieved the desired objective (ie of a reasonable level
of compliance with legitimate parking restrictions).
41. NPAS statistics over the past five years
show that one council in particular removes vehicles for approximately
12% of parking contraventions (compared with an average of 3%
for the other council that remove vehicles) which suggests that
different criteria may be being applied.
42. Adjudicators have drawn the need for
judgment and proportionality to councils' attention in two annual
reports and in various appeal decisions.
CAR PARKS
43. A significant proportion of PCNs issued
by the outside London authorities are for contraventions of car
park regulations, and an equivalent proportion of appeals to NPAS
adjudicators arise from car parks. Off-street car parks contraventions
were incorporated into the RTA by SI 1995/500.
44. Because there is little difference between
car parks operated by the private sector and those operated by
councils the public tend to perceive car parks as more of a contractual
relationship. The Secretary of State, although he has powers to
do so, has not made and Regulations specifying what signs should
be used in car parks. The Highway Code does not apply and the
obvious relationship between on-street parking and traffic management
is not so apparent when a motorist uses a car park. Hence, there
is an even greater need for proportionality and responsive policies.
45. Given that so many car parks, especially
those operated by the private sector, are controlled by means
of a ticket issued on the arrival of the vehicle with the driver
paying on leaving the car park ("pay on foot"), councils
should be encouraged to consider how appropriate it now is to
control car parks by means of penalties. It would be unfortunate
if the the necessary initial investment needed to introduce these
schemes was given a low priority, especially bearing in mind that
these arrangements would eliminate considerable numbers of representations
and appeals.
Are local authorities carrying out parking control
reasonably, fairly and accountably?
46. The adjudicators readily agree that
the majority of local authorities are carrying out parking control
reasonably and for the most part fairly. However many appellants
have expressed concern about the financial arrangements in the
DPE scheme and some inevitably believe that councils and contracted
PAs are issuing PCNs for financial gain. The lack of public accountability
is, however, a problem. For some reason the councils themselves
do not tend to publish and statistics or records relating to their
parking enforcement activities. In our 2003 Annual Report the
adjudicators pointed out that full disclosure of the relevant
statistics and parking accounts would dispel any misapprehensions
that exist. However, councils have been slow to take those steps.
Transparency and accountability are essential if public confidence
in civil enforcement is to be maintained. This will be particularly
so if the proposals to release the surpluses on the parking accounts
for high achieving councils. Consideration might be given to allowing
that privilege only to councils that are high achievers in their
parking services, measured against published standards.
Caroline Sheppard
Chief Adjudicator for England and Wales
30 September 2005
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