Examination of Witnesses (Questions 300
- 319)
WEDNESDAY 14 DECEMBER 2005
MS CAROLINE
SHEPPARD AND
MR MARTIN
WOOD
Q300 Mr Scott: What steps would you
recommend that local authorities take to use more discretion so
that it does not perhaps ever reach you?
Mr Wood: At the end of the day,
of course, the exercise of discretion is a matter of policy for
the local authorities. The adjudicator's job is to apply the law.
We do certainly encourage local authorities to re-offer the 14-day
discount when they receive early representations and if they reject
those representations then to re-offer the discount. I think all
but two local authorities in London do that. I think the important
point is for local authorities to understand that they do have
this discretion to waive a penalty, but I am afraid, from what
the adjudicators see, it is not always the case that local authorities
appreciate that. They confuse discretion with the right to have
a penalty cancelled. For example, one sees letters from local
authorities that say, "We are satisfied the contravention
occurred so we are not going to exercise our discretion."
That entirely misunderstands the nature of discretion because
the whole point is discretion only arises when you have decided
that a contravention occurred and you are then deciding whether
you should enforce the penalty or not.
Q301 Chairman: Who is responsible
for making sure that local authorities know what they are doing,
which would be a start, and that the public have some idea what
local authorities are doing, which would move us on a bit?
Ms Sheppard: I have been involved
in this from day one. I think originally this was new stuff for
councils.
Q302 Chairman: So it is your fault!
Ms Sheppard: I think originally
they thought it was like the council tax. As you know, there are
very few reasons why you can avoid liability for council tax.
I think that is very much how they set about it. As Mr Wood was
saying earlier on, I think they thought that decriminalisation
was delegalisation and they thought that this was an administrative
act. So obviously they have had a lot of learning to do along
the way. It is their job. Already the issue of training and back-office
staff has come into this. I am not convinced that in many councils
very high priority is given to the operation of the parking departments.
It is not the fault of the staff themselves personally. I simply
do not think they get the appropriate training or support that
they need. I think in many ways they sort of use the fact that
it is a legal process to say, "Oh well, this is out-with
the other areas of the council." So you see, for example,
letters not being replied to for five months, whereas you know
that it is a beacon council in every other department and everything
is dealt with within ten working days. For some reason or other
these departments are left on their own and they are not supported
to the extent that would make it into the sort of service that
the public is entitled to expect.
Mr Wood: I think what is surprising
is that there is no requirement for parking attendants to have
any training at all as a matter of law and they are carrying out
law enforcement and, similarly, the back-office staff. It seems
to me that at the end of the day it is for the Department for
Transport to introduce some requirement either through the statutory
guidance or whatever.
Q303 Mr Scott: Would you say that
confusion can sometimes be there for members of the public in
that when they go 50 yards into another council they have a completely
different set of rules for parking in the first place? Would you
agree that that causes a fair amount of confusion to the public
and that perhaps there should be some uniformity about it?
Mr Wood: The basic position is
that where you park there should be signs telling you what the
restrictions are at that point and provided the signs are clear
and adequate you should be able to tell what you can and cannot
do. There is a big exception to that, which is the rather arcane
controlled parking zone. I do not know if Members are familiar
with that. Essentially in a controlled parking zone there is no
requirement for there to be signs at the point of parking where
you have entered the zone and the entry sign tells you what the
parking restrictions are. So you can enter a zone, drive half
a mile, decide to park and then you think, "Have I passed
a sign? What on earth did it say?" In London you can go across
several of these zones and when you decide to park you have not
a clue whether you can or cannot park. I think the controlled
parking zone in particular does cause a lot of confusion.
Q304 Mr Donaldson: Let us move on
to the issue of statutory guidance and codes of practice. Which
recommendations of the parking adjudicators do you think should
be picked up in the statutory Guidance and which in the code of
practice?
Ms Sheppard: I am not sure why
we have got two different documents to be honest. I am not at
all sure how this has developed, it may be a resource issue. Statutory
guidance is very, very valuable partly because it is the next
best thing to legislation. If councils fail to comply with it
the High Court will take account of it and so will the adjudicators
and that is why it is very important that the most important aspects
of this scheme are contained in statutory guidance. The Guidance
that was issued in 1995 (DfT Circular to Local Authorities 1/95),
which drew on the early experience of London, is a fantastically
good document and it has a lot of very practical guidance for
councils, and indeed if it is written in bold, it is guidance
that they must follow. As I understand it the new guidance that
has been prepared has much higher level principles but it will
be much harder to pin it down on councils and say that they have
failed to comply with paragraph 5(2). We find in towing away cases
the guidance that exists now is excellent. For example, the guidance
says that if there are four wheels still on the ground when the
person returns to his car then the procedure should be stopped
and they should be allowed to drive away. If they do not do that
we allow the appeal on the grounds that they have failed to comply
with the guidance. Unless these things are in the guidance at
the end of the day there will be more opportunities to play fast
and loose with them.
Q305 Mr Donaldson: Would you like
to see penalty charge notices go to the driver rather than the
vehicle owner? Do you think that would reduce the number of appeals?
Mr Wood: The position generally
speaking is that it is the owner of the vehicle who is legally
liable for the penalty. The penalty charge notice needs to go
to that person.
Ms Sheppard: Having said that,
of course, particularly in these cases where the penalty charge
notice was not found the half rate is offered to the driver, but
it is not offered to the owner who is the person who is liable
to pay. This is a complete conundrum that is in the scheme. A
lot of the arguments are when people say, "I have received
a notice to owner. I am legally liable by statute for this penalty,
but I was not offered the privilege of paying at the reduced rate."
Q306 Mr Donaldson: Are you satisfied
with the role that adjudicators have had in the design of the
statutory guidance?
Mr Wood: Both Ms Sheppard and
I are members of the working group that is presently working on
the statutory guidance, so we are heavily involved in it.
Q307 Chairman: I find that a bit
worrying in view of what Ms Sheppard has just said.
Ms Sheppard: It is early days.
Q308 Chairman: Ms Sheppard was making
it clear that she was concerned that it would move from being
a fairly straightforward and easily understandable document to
being something which was on a different level and that was perhaps
not as clear.
Mr Wood: I share her view that
the current guidance is a very useful document and that the new
guidance should draw heavily on it.
Chairman: Forgive me, Mr Wood, but that
rather implies exactly the same thing that Ms Sheppard said because
you have not said you were sure it would be the same as the existing
document, you said you share her view it should be. The English
language is very good in conditional tenses. You have to listen
to what it says.
Q309 Mr Donaldson: Ms Sheppard, in
your annual report you recommended that the Local Government Ombudsman
be involved in the drafting of the statutory guidance. Why do
you feel this is important, and is it your understanding that
this has been implemented?
Ms Sheppard: The Local Government
Ombudsman produced a very helpful report about the accuracy of
forms and the approach to discretion. In terms of how the thing
is managed from the back office, it is quite clear that some of
the Local Government Ombudsman's recommendations in other departments
are not being applied and it is really almost a message to the
councils that these procedures are as valuable as any others they
do. There is this problem whereby a lot of people's cases fall
between two stools in that because they require the exercise of
discretion, or because their complaint is effectively about how
their case has been handled, they may not fit within our grounds
of appeal and yet for a long time the Local Government Ombudsman
said, "Hang on. There is a parking adjudicator. You cannot
come to us because you have got your own tribunal." Obviously
we have been talking more to the Local Government Ombudsman about
trying to clarify that. Nevertheless, the scheme does actually
have a big black hole between us and them which is why I think
it is important we all speak to each other and try and clarify
those issues.
Q310 Mr Donaldson: Do you think the
guidance should include standards for the use of bailiffs to collect
outstanding parking penalties? Do you feel that the public is
properly protected from the use of debt recovery agencies by local
authorities in this area? If not, what should be done about it?
Ms Sheppard: We see these things
really after what is called the statutory declaration, which is
when the debt has been registered at the county court. If the
process has not been properly gone through, they have not received
the appropriate notices, then the case can be referred to us.
Obviously we do not deal too much from the adjudication end with
bailiffs. We do have cases where the bailiffs have been involved.
I think it very much depends on the bailiff. It is the county
court's role to regulate bailiffs. I am not aware that in this
scheme there is any provision legally for councils to use any
other debt collection agencies. It is not provided for in the
Road Traffic Act. The only provision is debt registration at the
county court followed by a warrant issued to bailiffs. Therefore
if they are using other debt recovery services presumably their
legal departments may have given them advice. I think basically
the legal departments need to be much more involved in this process.
There is no doubt about it, a lot of the difficulties that councils
have got themselves into are because they have not referred things
to their lawyers. All the cases where the lawyers have become
involved have been incredibly helpful in terms of the parking
department realising exactly what their duties are. I certainly
would hope that again the guidance will recommend that the legal
departments take a much more active and supervisory role over
all these activities and debt collecting must be crucial, but
it should be appropriately supervised at the right level.
Q311 Mr Donaldson: Do you think the
adjudicators should have a role and a power to investigate the
allegations of bad practice by bailiffs and debt recovery agencies
in relation to parking penalties?
Ms Sheppard: I do not personally
think the adjudicators should do it. I think we agree about this,
do we not?
Mr Wood: Yes.
Ms Sheppard: One of the crucial
things about our independence is that we do not have any financial
interest in this whatsoever and therefore I do not think we should
be involved where they are looking at the collection of penalties.
The county court is perfectly able to do that, if they are willing
to, and that is one of their functions because ultimately the
bailiffs are under the supervisory role of the county court judges
who look at that and I think that that is a good place for it
to be.
Q312 Mr Goodwill: Where an appeal
is successful for technical reasons, maybe a bay has been incorrectly
marked at the side of the road, do you communicate that fact back
to the local authority and tell them that they are acting illegally
in levelling a fine?
Mr Wood: The decision that is
made will state the reasons and so they would see those reasons.
In appropriate cases as well I will reinforce that by writing
a letter to the parking manager. The actual adjudicator's reason
will state why the appeal has been allowed.
Q313 Mr Goodwill: But the local authority
could continue to issue fines on that particular parking bay if
it chose so to do.
Mr Wood: If the adjudicator has
found that the signs are not adequate then that restriction is
not enforceable. If the adjudicator has decided that, one would
expect the local authority to accept that and put the signs right
before continuing enforcement.
Ms Sheppard: We had a recent case
with a council where 15 different adjudicators had all found the
same bay to be inadequately signed and not only did the council
just carry on as before, for some extraordinary reason they kept
allowing them to come to appeal. In none of the appeal summaries
did they say, "By the way, 14 adjudicators have already allowed
appeals on this but nevertheless we want to keep going,"
and ultimately the whole thing was refused. The adjudicator went
to the site, all 15 appellants turned up and as they were standing
there a car pulled up—the case was all about the pay and
display machine in the car park being next to the bay on the street—and
out got a motorist who did exactly what the other 15 had done,
ie they parked, they went to the machine and all the appellants
said, "Stop! You will get a ticket." Even then the council
wrote in afterwards and said there had been a stunt, that one
of the appellants had organised for one of their friends to come
and do that. So it is not always very reliable.
Mr Wood: One of our concerns is
what mechanisms local authorities have for dealing with feedback
from the adjudicators through their decisions and through their
reports and through letters and so on. One of our recommendations
in our report was that they must have proper feedback mechanisms
for identifying these sorts of issues and taking the appropriate
actions but, as Ms Sheppard says, it does not always happen.
Q314 Chairman: You do not think there
was somebody with a particularly dark sense of humour in that
council?
Ms Sheppard: Possibly. On our
recent research a lot of councillors came back and said they found
that decision incredibly helpful and they have changed things.
We do not want to tar everybody with the same brush.
Q315 Mr Goodwill: Presumably those
14 appeals were just the tip of the iceberg. A lot of people would
have paid up anyway. Do you think that local authorities have
an obligation to issue apologies and refunds to people who have
been illegally fined?
Ms Sheppard: That is very difficult
because each case turns on its own facts.
Q316 Chairman: It is an interesting
point. Did any adjudicator offer compensation to somebody in that
set of circumstances?
Ms Sheppard: If they had applied
for costs we would have done so, but because they all went in
front of different adjudicators nobody picked up that there was
a pattern. Certainly by case seven we would have regarded it as
wholly unreasonable for them to be contesting the appeal having
lost six on the same point, and had that appellant asked for costs,
I cannot think of an adjudicator who would have refused it.
Q317 Chairman: Since it is not a
legal case, would they know that they could ask for costs and
compensation?
Ms Sheppard: We certainly inform
them. Costs are not normally awarded, it is only in very limited
circumstances, but when they get their decision from the adjudicator
it sets out the provisions about costs; we tell them their rights.
Mr Wood: Costs can only be awarded
if the adjudicator finds that the council have acted wholly unreasonably,
vexaciously or frivolously.
Q318 Mr Goodwill: Do you think it
would be useful in cases like this if at least the information
about how many people have been illegally fined could be in the
public domain so that people could think, "Wait a minute,
I was fined there three months ago. I must now go to the council
for a refund"?
Ms Sheppard: This is how we ultimately
discovered about this case, it appeared in the press and that
is how we realised we had had 15 cases. They have very good computer
systems. Parking industries supply them with excellent systems.
They can easily draw off a report saying how many tickets they
have issued road by road and contravention by contravention.
Q319 Chairman: What about the idea
of a parking regulator overseeing local authority parking policy,
is it a good idea or a bad idea?
Mr Wood: I think one would have
to ask exactly what the regulator's role would be within all of
this. I am not necessarily convinced that another body would be
helpful[2].
2 Ms Sheppard: I was not given an opportunity
to reply to this question-I would support the creation of a parking
regulator. Back
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