APPENDIX 3
Memorandum submitted by Essex County Council
1. I write to submit evidence with regard
to the third bullet point in the Transport Committee's inquiry:
"Is the appeals process fair and effective? How could it
be improved?" I represent the united concern of Parking Enforcement
Managers of Essex Authorities regarding Appeal decisions by the
National Parking Adjudication Service. I respectfully invite the
Committee to recommend that an independent review mechanism for
NPAS Appeal decisions be established, in order to provide for
simple and practical scrutiny.
2. Essex County Council has sought and achieved
powers to carry out Decriminalised Parking Enforcement, and has
adopted Agency arrangements for those functions to be discharged
by its constituent Boroughs/Districts. A regular partnership grouping
of these enforcement Authorities has been established, so that
we can discuss issues of mutual interest. Our concerns have emerged
from discussions at that forum, and are supported by the representatives
of those Authorities.
3. It is not that the Authorities are doing
particularly badly in terms of Appeal decisions in comparison
with other Authorities, because we are not; it is a question of
the general principles involved. We feel that the manner in which
NPAS decisions are being made is becoming increasingly questionable.
4. It has sometimes been said by NPAS that
Local Authorities become too involved in Appeals, forgetting that
the sums of money involved are small. However this view does not
recognise that Authorities will frequently want to use Appeal
success as a Performance Indicator, and therefore these statistics
become important to them in assessing their overall achievements.
Indeed, one Essex Authority (with a relatively high success rate)
has come to mistrust the validity of the statistic to such an
extent that it has decided no longer to use it as an indicator
of performance.
5. The concerns we have outlined should
in no way be considered a criticism of the principle of having
an Appeal service, or indeed of the NPAS organisation itself,
which we believe to be highly professional. The difficulty for
us is that the system that has been set up using independent adjudicators
does not seem to work fairly, overall. We believe fairness to
be essential to ensure the credibility of parking enforcement,
and we have for a long time supported the work that NPAS does.
Moreover we regard the statistics of Appeals won and lost by each
Authority to be an important performance statistic in terms of
Government guidance to Local Authorities, but only if they are
assessed fairly.
6. All enforcing Authorities will be highly
aware of the need to establish robust procedures to ensure that
Penalty Charge Notices are only given to those motorists who deserve
them, and that proper procedures are in place to make sure that
potentially mitigating circumstances are properly and fully investigated
at all stages of the process. Regrettably, motorists typically
become highly aggrieved having received a PCN, and will often
use any means to avoid paying the charge. Contrary to the impression
one might gain from the media, it is very often the case that
Authorities have information available that strongly suggests
that Appellants are not telling the truth. The Press message of
incompetent or corrupt Parking Authorities is in our experience
a very long way from representing the truth. The plain fact is
that Parking Attendants very seldom have any reason to make up
evidence, whereas motorists in receipt of PCNs are often highly
angry and will seek any means they can think of to avoid payment.
This background seems not to be recognised by many adjudicators.
7. The Appeal, as a civil process, is intended
to be based on a "balance of probabilities" test, rather
than one of "beyond reasonable doubt". The impression
strongly held by Essex Local Authorities is that this principle
is often not applied by individual adjudicators, in practice.
8. To cite some examples of our concerns:
(a) Adjudicators often appear to miss evidence
that is before them, or appear too easily satisfied with some
Appellants' carefully worded statements.
(b) The evidence of Parking Attendants is
increasingly being brought into question, without apparent backing
from the case evidence. If the case boils down to a straight conflict
between statements of an Appellant and a PA, we have had cases
recently where the Adjudicator has allowed the Appeal on the grounds
that there must always be "an element of doubt" in any
PA's evidence. Such a principle would make it virtually impossible
to operate Parking Enforcement without independent witness corroboration
of every PA statement, which would be impractical. The fact that
there is in almost all cases no incentive for PA's to tell untruths
is apparently not being thought relevant.
(c) Some of the arguments used by Adjudicators
appear highly questionable. An Adjudicator rejected one case of
a PA's evidence regarding valve positions on the grounds that
the sequence of valve positions in the PA's notebook "appeared
like a Poker Hand", with the clear (but implausible) implication
that the PA had invented the figures.
(d) The standards of evidence required of
Local Authorities appear always to be increasing. For example,
it used to be the case that a PA statement about non-display of
a ticket or permit was acceptable at face value, but now it seems
it has to be backed up by photographs, sometimes covering every
corner of the vehicle's windscreen and windows. In another case
the Authority was criticised for not having provided evidence
to prove how sticky Pay Display tickets were when a PCN was issued
for non-display.
(e) In one case with one Authority in Essex
where a clear contravention had occurred, the adjudicator stated
that he would look for another reason to try to let off the Appellant,
and then decided that one of the copy letters in the evidence
was illegible.
9. In general it seems that no matter how
detailed the evidence supplied is, there is always something else
required. It is very difficult to avoid reaching the conclusion
that Local Authorities are being targeted, for other reasons rather
than evidential ones.
10. It would be possible to provide full
details to support the above claims, but this might be taken as
a biased sample. Accordingly, we would respectfully suggest that
the Parliamentary Committee examines closely the evidence in a
random sample of NPAS decisions nationally, so that it may judge
the matter for itself.
11. It has sometimes seemed to some Authorities
that NPAS is developing a policy "stance" because of
frequently cited media concerns about allegedly "over-zealous"
Authorities. This media bias is perhaps not surprising, bearing
in mind that those caught contravening typically display great
resentment, whereas the majority, other drivers who may well support
the principle of enforcement, are likely to remain silent. Indeed
the impression of "stance" was unfortunately backed
up when NPAS organised an annual seminar where the benefits of
a lenient attitude towards parking enforcement by one Authority
were clearly extolled. However we do not allege that the NPAS
stance is a deliberate one, as we believe that individual Adjudicators
act independently of each other. The effect probably results from
other factors, and is perhaps an unconscious response by adjudicators
to the situation in which they find themselves. However the overall
result is that there appears to be a bias in favour of Appellants,
for whatever reason.
12. We have considered what we can do about
our concerns. We are increasing the amount of photographic and
other evidence we provide, we will try to attend more Appeals,
and we will request reviews whenever we think it appropriate.
However these responses in themselves are very time-consuming
and costly, and the question must be asked, is it nationally desirable
to have a structure for considering Appeals that requires such
public expenditure, in order to operate fairly?
13. We respectfully suggest that an important
factor in the difficulties we experience is that there is no effective
independent review mechanism of NPAS decisions. It is in theory
open to an Authority to go to the High Court to challenge a decision
believed to be unreasonable, but in practice that would be impossibly
expensive in relation to the loss suffered per case, so the principles
are virtually never actually tested in this way. In criminal cases
this situation does not arise, since the issues are often so important
to one or other party that a full review process of decisions
is instituted, and therefore precedent is established. In contrast,
most NPAS decisions will go unchallenged by the courts, and even
when a review is granted, that challenge to the decision is assessed
internally by NPAS, sometimes even by the same adjudicator.
14. We respectfully request that the Committee
considers our foregoing submission.
|
