Tuesday, February 21, 2006

Pass the Buck Darling ... Pressure mounts

Finally after some nine weeks we have a response from the Department for Transport regarding the questions raised about Sunderland City Council's Parking shambles, raised through Chris Mullin MP.

The questions were raised initially on 19th December 2005 and a reminder was posted on the website on 13th February 2006.
The response was signed by Karen Buck, Under Secretary of State, Department for Transport and not the Secretary of State, Alistair Darling.

An analysis (red) can be seen below:

1.To ask the Secretary of State for Transport:
‘What is the procedure is for revoking a Decriminalised Parking Enforcement Special Parking Area / Permitted Parking Area Order and what criteria or evidence would be required for the Secretary of State for Transport to initiate such a revocation?’
If a Special Parking Area / Permitted Parking Area (SPE / PPA) Order needed to be revoked this would entail the Secretary of State making a statutory instrument that would have to be laid in Parliament for 21 days. We would not wish to create an enforcement vacuum so it is likely that criteria would include who would be responsible for enforcing road traffic contraventions if the local authority was not.
Hasn't fully answered the question
Therefore the supplementary question now needs to be 'what evidence would be required in order to revoke the SPA /PPA and how and by whom would this procedure be initiated?'
As we have ample evidence, and full admissions that the lines, signs and TROs were not correct or in force at the time DPE commenced in Feb 2003 then it is clear that the DfT and the Secretary of State, along with Parliament, has been misled.
Who would need to initiate the action to begin the revocation? An individual complainant or the DfT itself?
There would no need to be an 'enforcement vacuum.' Control could revert back to the Police and Traffic Wardens. The Traffic Orders could be amended to take this into account listing the penalties and procedure with one simple Amendment Order.

2.To ask the Secretary of State for Transport:
‘What procedures are in place at the Department for to check the accuracy of statements made by a Local Authority within a Decriminalised Parking Enforcement application to the Department for Transport?’

3. To ask the Secretary of State for Transport:‘Who is responsible for checking the claims of a local authority in their Decriminalised Parking Enforcement application that their signs, lines and Traffic Regulation Orders are correct and in force before the commencement of Decriminalised Parking Enforcement?’
DPE applications are checked by the DfT staff to ensure that they comply with Local Authority Circular 1/95, as amended, which includes consulting the local police, regional government office, Council on TRibunals and Highways Agency.
Doesn't answer the question. There are no checks as to the accuracy or validity of the statements, claims and reassurances, especially with regard to the lines, signs and plates. There is complete acceptance of 'reassurances' given by officers of the local authority that they will all be correct and in force at the time DPE comes into force. Nobody checked that the TROs and signs didn't comply.

4. To ask the Secretary of State for Transport:
‘If it is the case, and can be shown to be the case, that the Secretary of State for Transport has been misinformed and/or misled into granting a Special Parking Area / Permitted Parking Area Order, what provision is there for reimbursing motorists wrongly levied with fines and what provision is there to provide compensation for motorists who have suffered losses at the hands of bailiffs?’
If PCNs are incorrectly issued, it is firstly for the issuing authority to cancel tickets whenever they are aware of such cases.
In the case of Sunderland they became aware in May 2005 that they were issuing tickets that did not conform to the Statutory Requirements. The City's legal department told NCP to chage them immediately. This wasn't done for some five months. Therefore, according to the DfT, now that the Council is aware that all these tickets, May to November / December 2005, were issued without the correct legal wording then they should ALL be refunded immediately, and any outstanding should be immediately cancelled. This has not been done.
The tickets issued with unlawful wording between Feb 3rd 2003 and May 2005 (when the Council was unaware that they were unlawful) should also be refunded.
For motorists that have their representations to the relevant council refused, there is an independent parking adjudicator body to which they can appeal.
The motorists at the point the ticket was issued would not have been aware that the council was acting unlawfully and therefore could not have used the illegal tickets as a defence. Now that the maladministartion has been highlighted it is not possible to go to the adjudicator. A small claims court action on each individual ticket with costs awarded against the council may be an avenue to proceed along, or a police complaint as the Council were fully aware that they were acting unlawfully and did not have the authority to demand the money in relation to any parking contravention.

5. To ask the Secretary of State for Transport:‘
What action, and by whom, could be taken against a Local Authority or Council Officers, should it be proven that they:-
(i) Submitted a Decriminalised Parking Enforcement application to the Department for Transport knowing that the enforcement regime would not or could not be in force legally because at the time DPE was due to commence there were numerous errors with regard to on-street signage and incorrect Traffic Regulation Orders?
(ii) Submitted a Decriminalised Parking Enforcement application to the Department for Transport but due to incompetence were unaware that there were numerous on-street signage errors and incorrect Traffic Regulation Orders?

6. To ask the Secretary of State for Transport:
‘What action, and by whom, could be taken against a Local Authority or Council Officers, should it be proven that they are continuing to allow Penalty Charge Notices to be issued knowing that aspects of the Decriminalised Parking Enforcement regime are unlawful?’

7. To ask the Secretary of State for Transport:
‘What are the financial and audit implications for a Local Authority found to have been issuing Penalty Charge Notices without the correct lawful authority and deriving income from unlawfully issued Penalty Charge Notices?’
The answers to these are conveniently lumped together.
Local authorities are accountable to their electorate and a Council that is seen to be acting improperly is open to the will of the public at each election.
As long as the matter is correctly reported by the local press and the impression not given that it is just a minor technical matter involving a couple of 'loopholes.' This is wholesale ineptitude and incompetence from hoghly paid council officials. Only then would the enormity of what has been done be able to be translted thorugh the ballot box.
In addition, individual PCNs can be taken to the adjudicator.
But how can an adjudicator decide on the lawlessness of the Sunderland regime if he refuses to accept evidence (as we offered) and does not see evidence (as Sunderland, in every instance where it appears that the unlawful regime will be exposed, refuses to present evidence to NPAS so the appellant wins by default).
Also, cases of perceived maladministration can be taken to the Local Government Ombudsman.
An avenue that is next to be pursued.
Local Authority accounts are audited by the Audit Commission. Under Section 17 of the Audit Commission Act, the auditor has a discretionary power to apply to the court if an item appears to the auditor to be contrary to law. On such an application, the court may make or refuse to make the declaration requested and can order rectification of the accounts. That item of account can be an item of income, expenditure, or a balance sheet item. So, in the case of deriving income from alleged unlawful penalty notices, the auditor could make an application to the court if that income appeared to the auditor to be contrary to law.
This is ongoing. However, it is down to how seriously the District Auditor considers the matter. If they consider that the PCNs are unlawful or unlawfully worded then there could be a cas. However, some money has already been set aside in order that the accounts can be signed off. A bigger problem is likely to happen with next years accounts if the Council do not refund the money from PCNs they knew to be unlawful.

8. To ask the Secretary of State for Transport:‘Could he please advise as to his view of the current status of the Declaration and Bill of Rights insomuch as the1991 Road Traffic Act appears to be unlawful and fails to expressly repeal, and therefore conflicts with the provisions of the Constitution.’
At the end of the day (I thought this was a footballer speaking and not a Government Minister) it is, of course, for the courts to interpret the law. However, the Department does not consider there to be any conflict between the 1689 Bill of Rights and the DPE system brought in by the 1991 Road Traffic Act. (Did I expect them to say anything other?)
Under the Road Traffic Act 1991 there is a statutory duty on DPE councils to consider and respond to representations against the imposition of a PCN. As already mentioned, there is a right of appeal to an independent tribunal (a parking adjudicator) against the issue of a PCN, if the council rejects the representations.
And this is where their next problem lies ... the adjudicator cannot be independent if he is funded by one of the parties involved in the dispute (60P PER every PCN issued), and representatives from the participating local authorities sit on the Joint Committee that oversees NPAS. Quite staggering really.
The scheme under the Road Traffic Act 1991 therefore provides a right to challenge a PCN and in our view is consistent with the 1689 Bill of Rights.
Thought they said it was up to the courts to interpret the law?


Anonymous said...

Nice article, the language quite tricky to follow(the law,eh?!!). But,of course, ignorance of the law is no defence,I am told. I am also led to believe that we are innocent till proven guilty. Is it just me,or is that not a contradiction of terms? I think it epitomises the essence of our law dynamic and it's purpose.The key phrase in the whole 'answers' part of this article was at the end, when you come to the exasperated conclusion that you thought the law was interpreted by the courts. This means that they have already decided that the only option available to those inspired enough, brave enough or educated/informed enough, is to take it to court on an individual basis. For a large proportion of even those people, I would guess many would 'decide' against pressing the issue. The survivors/gamblers go to court. With no guarenteed court costs refund, even if successful, how many of the total proportion of people originally

Anonymous said...

'fined', will be able to afford to fork out for the legal skills needed in defence of a comparitively minor altercation and fine?
Perhaps we ought to ask the Secretary of State how that set-up should be revoked if it were proven to be a completely incompetent facility, denying access to justice rather that enabling it?
I would like to add that all these questions appear to be rhetorical, giving the impression that the answers are already suspected, if not known. That cannot be good for the well-being and security of our society and communities. Please tell me I'm way off.
Thank you and well done for your efforts on our behalf.

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