The Road Traffic Act 1991 provided for the London boroughs to enforce
parking regulations under decriminalised procedures. The transfer
of parking enforcement from the police to the London boroughs was
completed by the end of 1994. Many councils outside London have
also subsequently opted to enforce parking regulation under the
decriminalised procedures.
We recognise that councils operating the decriminalised procedures
face a difficult task and we also understand that the efficient
enforcement of parking control is essential in managing increasing
levels of traffic. This task is possibly made more difficult by
the perception of some motorists that the imposition and pursuit
of penalty charges is inherently unfair.
Last year we received in the region of 300 complaints about various
aspects of parking enforcement. Underlying many complaints is a
sense of injustice because the complainants feel that they have
not been listened to. We have observed a wide variety of practice
on the part of councils as to how motorists who feel a penalty is
unfair or unwarranted are afforded an opportunity to make their
case. This may stem in part from a lack of clarity about what issues
a council can consider when a motorist wishes to challenge a penalty
charge.
In order to promote good practice, we have set out here the position
of the courts, the Department for Transport and the Parking Adjudicators,
and given our view on the responsibilities of councils regarding
consideration of both the statutory grounds for appeal and other
pleas of mitigation. We address this special report both to those
councils who currently have this responsibility and to those who
may assume it in the future. We trust that this will assist in the
difficult task of enforcing parking control effectively and fairly.
In preparing this report, we have sought the views of the Local
Government Association, the Association of London Government, the
Department for Transport, the Parking and Traffic Appeals Service,
the National Parking Adjudication Service, the Society of Local
Authority Chief Executives and Senior Managers, the Association
of Council Secretaries and Solicitors, the National Decriminalised
Parking Association, the Automobile Association and the RAC Foundation.
We are very grateful for the responses we have received.
Powers to enforce certain parking regulations were given to councils
under the Road Traffic Regulation Act 1984: enforcement action was
taken through the criminal (magistrates’) courts. The Road Traffic
Act 1991 made councils in London responsible for the majority of
parking enforcement and provided a right of appeal against penalty
charges, on specified grounds, to independent adjudicators through
the Parking and Traffic Appeals Service. Under this regime, penalties
are no longer considered in the magistrates’ court: they are therefore
‘decriminalised’.
The decriminalised arrangements have also now been adopted by many
councils outside London, with appeals being dealt with by the National
Parking Adjudication Service. It is for individual councils to ‘opt
in’ to these arrangements. It is likely that over 120 councils outside
London will have done so by the end of 2004.
If a parking attendant considers a contravention has occurred, a
Penalty Charge Notice (PCN) is issued. A discount (currently 50%)
is applied where the penalty charge is paid within 14 days. If the
penalty remains unpaid after 28 days, a Notice to Owner is issued
to the person appearing to be the owner, usually the person registered
with the Driver and Vehicle Licensing Agency (DVLA) as the keeper
of the vehicle. The owner may then make representations to the council
against the penalty charge. The council is required to cancel the
penalty charge if it considers that a statutory ground is met. In
summary these grounds are principally that:
• the recipient did not own the vehicle at the time of the contravention;
• the alleged contravention did not occur;
• the vehicle had been parked by someone who had taken it without
the consent of the owner;
• the designation (parking) order was invalid;
• the vehicle had been hired and the person who hired it had agreed
to be responsible for penalty charges;
• the penalty charge exceeded the amount applicable in the circumstances
of the case; and
• (in London only) the parking attendant had not been prevented
from serving a Penalty Charge Notice, where a council believed that
this was the case and so had served the Notice by post. Where a
vehicle has been clamped or removed, additional grounds for appeal
apply.
If representations are rejected by a council, the registered keeper
may make an appeal to a Parking Adjudicator, but only on one of
the statutory grounds. A Local Government Ombudsman may not investigate
a complaint where there is a right to appeal to a Parking Adjudicator
unless it is not reasonable to expect someone to use or to have
used that right. The parking appeals procedure is free and readily
accessible: only in exceptional circumstance would the Ombudsmen
consider a complaint where a right of appeal to a Parking Adjudicator
exists or existed.
There will be occasions where the motorist accepts that a contravention
occurred and no statutory ground of appeal applies, but he or she
considers that the imposition of a penalty charge is nevertheless
inappropriate and wishes to make a plea of mitigation as to why
the penalty charge should not be pursued.
Councils have discretion not to pursue a penalty charge at any stage
of the procedure and have, as a matter of administrative law, a
duty to act reasonably, fairly and without fettering that discretion.
It would therefore be a breach of that duty if a council were to
act unreasonably or unfairly or to fetter its discretion when considering
such representations.
In considering complaints about parking penalties, we have noticed
that the procedures adopted by a number of councils have the effect
of fettering the council’s exercise of its discretion, or of unreasonably
or unfairly deterring a motorist from making representations on
other than the statutory grounds. We therefore think it important
to give guidance by setting out our views.
The issue of discretion has been considered by the High Court.Although
this was primarily about another issue, in considering the role
of the council, Mr Justice Elias said:
“In short, there are two distinct categories of representation.
First, there are the statutory representations which, if successful,
oblige the authority to cancel the notice to owner and impose no
penalty. There are then other representations which may cause the
authority to choose not to exercise its discretion to pursue or
enforce payment, but which do not oblige it to do so.”
In 1992 the Parking Committee for London, a joint committee of London
councils, issued a Code of Practice which discussed at some length
the need for discretion in applying penalty charges to be exercised
properly. The Code was revised in 1997. It says:
“When a motorist accepts that the contravention did occur but argues
that the PCN should be cancelled on grounds of extenuating circumstances
individual authorities will have the choice of exercising discretion.”
The advice suggests that the grounds for using discretion to cancel
a Penalty Charge Notice could include:
“. . .benefit of the doubt and upon demonstrating extenuating circumstances
deserving compassionate action.”
In 1995 the Department for Transport issued guidance2 about decriminalised
parking which, while directed at councils outside London, is the:
“. . .minimum or common standard with which the Secretary of State
would expect all local authorities enforcing decriminalised parking
would comply.”
The Department’s guidance states that:
“There are no [statutory] grounds for making representations where
the recipient of the [Notice to Owner] acknowledges that a contravention
occurred but argues that there are extenuating circumstances. However,
local authorities should establish their own guidelines for dealing
with such cases, balancing the need to show flexibility in dealing
with exceptional cases against the need to enforce parking controls
firmly in the wider public interest. Besides cancelling PCNs where
there is satisfactory evidence to support a motorist’s case on the
statutory grounds. . . , authorities should consider cancelling
PCNs in the following circumstances:
a) The parking meter or all nearby pay-and-display machines
were faulty (except where the relevant [Traffic Regulation Order]
makes parking in such circumstances a contravention).
b) The information on the PCN is inadequate or incorrect,
due to an error by the parking attendant.
c) There is satisfactory evidence that the vehicle was broken
down at the material time and that reasonable steps were being taken
to move it as soon as possible.
d) There is satisfactory evidence that the penalty charge
should be waived on well defined compassionate grounds.
Local authorities must decide what constitutes ‘satisfactory evidence’
in these cases. It would be reasonable to give a motorist the benefit
of the doubt on a first representation but be stricter on any subsequent
occasions.”
The guidance also says councils should ensure:
“. . . that they have sufficient authorised officers available to
deal with statutory representations. These officers should be familiar
with all aspects of decriminalised parking enforcement, so that
they can judge whether or not a representation falls within the
statutory grounds under the [Act] or within the authority’s own
guidelines for exceptional cases.”
The Department for Transport’s guidance includes a specimen Notice
to Owner. This sets out the statutory grounds for appeal and provides
tick boxes for the motorist to indicate which of those grounds apply.
The specimen notice states that the council is not required to consider
any other circumstances, but there is provision on the notice to
make ‘other representations’.
The joint annual reports of the London Parking Adjudicators have
included their concerns about how councils exercise discretion.
In their 2001-2002 report3 they said:
“. . . for authorities to be able properly to exercise their discretion,
motorists must be aware of the discretion. Unless they are, they
are not in a position to make a fully informed decision whether
to pay the penalty or make representations. In our view, the Notice
to Owner, as well as setting out the grounds on which legal liability
may be challenged, should also explain the discretion. We are not
aware that at present any Notices to Owner do so. Indeed, some appear
positively to discourage representations on mitigation by including
something along the lines of: ‘excuses such as . . . will not be
accepted’. We recommend that all Local Authorities should revise
their Notice to Owner accordingly.”
In their 2002-2003 annual report4, the London Parking Adjudicators
have also referred to continuing evidence that not all councils
were properly considering mitigation, and highlighted the need for
staff to receive appropriate training in this area. They have commented
on the need for decisions to be conveyed to motorists clearly, and
that they sometimes refer appeals back to the council where it is
not clear that the council has exercised its discretion properly.
They have said: “Whilst some Local Authorities do comply with the
desired standard, there are still many whose responses are inadequate
and must leave the motorist in a quandary as to what to do. Some
rejections amount to no more than a cursory ‘Your representations
have been rejected’. Others go into some detail about uncontested
elements of the incident without addressing the particular issue,
often mitigation, raised by the motorist.”
They also commented that:
“Local Authorities may wish to consider that every appeal that would
have been avoided had an adequate reply been given is an expense
to the Local Authority both in terms of the fee paid to the Appeals
Service and the administrative time of preparing the appeal. So
a proper reply is as much in the Local Authority’s own interests
as it is fair to the motorist.” 3 Outside London, the annual report
of the National Parking Adjudication Service for 2000-2001 (published
in May 2002) included a joint report of the Parking Adjudicators
for England and Wales on the exercise of discretion by councils
when considering representations. This cited various decisions by
adjudicators, supported by the guidance issued by the Department
for Transport, to the effect that:
“. . . a council has a discretion not to pursue payment at all in
deserving circumstances, even if an owner cannot bring himself within
the statutory grounds.”
The Parking Adjudicators for England and Wales also said:
“. . .we would stress again . . . the importance of a council recognising
the existence of its discretion and considering whether or not to
exercise it outside of the statutory grounds. If it fails to do
either, then it does not act with fairness towards an owner.”
The following examples
of practice are drawn from complaints which we have considered.
Some of the issues identified have occurred in a number of councils
and even those councils who generally do things very well should
review their procedures. Where concerns have been brought to the
councils’ attention, they have taken, or are taking, action to deal
with identified faults. For these reasons, we have not identified
the councils involved in these examples.
There are three general areas of fault we have seen:
• misrepresentation of what a council has a duty to consider;
•misleading advice about what may be accepted as a plea of mitigation;
and
• denial of an opportunity to plead mitigation at an appropriate
stage in the process.
We have seen numerous examples where the Notice to Owner inaccurately
describes the council’s responsibilities. Typically, the notice
requires the motorist to indicate which statutory ground applies
by ticking a box. One example apparently restricts the choice to
only one box, although there appears to be no reason why representations
could not be made on more than one ground. The implication is that
no other reasons can be put forward.
Even worse, notices commonly state that the council ‘is not required
to consider any other circumstances’ or that the 1991 Act sets out
the only grounds on which representations may be made.
In one of the more extreme examples we have seen, the Notice to
Owner issued by the council stated that it was unable to consider
any other circumstances. When asked about this, the council’s view
was that the wording complied with the law and was intended to explain
the motorist’s legal right of appeal. It said that councils are
not obliged to consider any representations which do not fall under
these provisions, but that they had discretion “to be applied in
accordance with their internal procedures”. It said that it considered
mitigating circumstances as a matter of practice and, although this
was not referred to in the notice this was “not to discourage appellants
when appealing their case”.
Clearly, the wording of the Notice to Owner did not properly reflect
the council’s responsibilities. The motorist could make representations
on grounds other than those listed and the council was obliged to
consider these properly.
In this case, we consider that the wording had the clear effect
of deterring a motorist from making any representation other than
on the statutory grounds. It is of little comfort that the council
said that it would consider such representations, when any reasonable
person would interpret the notice to mean that the council could
not do so.
We are pleased to say that the council accepted that the wording
should be changed and has undertaken to do this. It has also confirmed
that it has the processes and procedures in place to manage any
appeals received effectively, although it recognises that there
will be resource implications in doing this.
It is, perhaps, unsurprising that there is a consistency in the
format used by councils as they closely follow the specimen Notice
to Owner produced by the Department for Transport. The major difference
is often that the notices served by councils, unlike the specimen,
have no space for ‘other representations’. Moreover, we believe
that the duty on councils to consider other representations is now
so clearly established that the model itself is misleading in this
respect. ‘Unacceptable reasons’
There are, of course, many councils which do indicate that they
will consider pleas of mitigation. But the documentation issued
by these councils, like the specimen Notice to Owner produced by
the Department for Transport, often includes a list of
We agree that it is useful for a council to reinforce the fact that
it is only in exceptional circumstances that a penalty charge will
be waived on discretionary grounds. But we have seen examples where
the wording is too restrictive. In one case, it is stated that the
motorist being delayed would not be accepted as a reason – when
clearly there might be instances when the reason for the delay was
itself exceptional.
If such examples are included, we consider that the wording in many
cases might usefully be changed to reflect what would not normally
be accepted, rather than to suggest what would never be accepted.
It is important for a council to consider all of the circumstances
of a particular case, without prejudging the outcome.
At what stage should the exercise of discretion
be considered?
Although the Notice to Owner provides the more usual opportunity
for a motorist to make representations, many councils will consider
submissions at an earlier stage.
We have seen a Penalty Charge Notice which invites written representations
on any grounds within 14 days of issue. Commendably, the discount
period is put on hold while these are dealt with. But motorists
are warned that no further correspondence will be accepted without
the amount payable rising to the full penalty charge. If the matter
is not resolved within 28 days of the contravention or the serving
of the Penalty Charge Notice, a Notice to Owner is issued. However,
the Notice to Owner only provides for representation on the statutory
grounds.
Another council advises motorists that they can submit pleas of
mitigation in writing, stating why they believe that the penalty
charge is not payable. If these are received promptly, a further
14 days discount period would normally be granted. However, motorists
are specifically told that, following this, they could only make
representations on the statutory grounds.
The registered keeper of a vehicle may be unaware of the issue of
the Penalty Charge Notice until the Notice to Owner is issued. If
the exercise of discretion is restricted to the period prior to
the issue of the Notice to Owner, the registered keeper would have
no opportunity to ask for mitigation to be taken into account. Such
a restriction would, in our view, constitute a fettering of discretion.
The proper consideration of representations in mitigation has resource
implications for councils. However, income from penalty charges
is ring-fenced and should therefore be used to finance the decriminalised
procedures. A lack of resources would not be a valid reason for
the failure of a council to operate the procedures properly. As
the Department for Transport’s guidance says, councils should have
sufficient authorised officers to deal both with representations
on statutory grounds and where exceptional circumstances might apply.
It is also important that any letter advising a motorist of a decision
taken on representations relating to mitigation should make the
reasons for that decision clear. Where the representations are rejected,
the letter should refer to the grounds for mitigation put forward,
demonstrate that they have been properly considered and explain
why they have not been accepted.
The job of the parking attendant can be difficult. It seems likely
that it would be made easier if motorists were aware that a procedure
exists for councils’ consideration of mitigating circumstances.
There can be no doubt that councils are required to consider
representations which are not made on the statutory grounds and
must not fetter their discretion to do so. The process for considering
mitigating circumstances should be transparent: it should be clear
to motorists that they have this right and how it can be exercised.
This is not an unimportant matter. Where the 1991 Act procedures
are not used, a motorist ultimately has a right to a ‘day in court’
to make a case and seek justice. In the decriminalised procedures,
the grounds for appeal are prescribed and the adjudicators cannot,
by law, allow an appeal because of mitigation although, as we have
said, they do sometimes refer mitigation back to the council. The
consideration of discretion by a council is the only opportunity
a motorist has to make a case that there were exceptional circumstances
why a contravention occurred and why a penalty charge should therefore
be waived. For the system to be seen as just, this consideration
should be not be unreasonably restricted.
We consider that the form of the Notice to Owner used by many councils
actively deters motorists from submitting pleas of mitigation. Where
this is the case, the council’s procedures and documentation should
be amended as soon as possible to reflect the council’s obligation.
It does not seem to us that the Department for Transport’s sample
Notice to Owner makes it sufficiently clear to motorists that they
can put forward mitigating circumstances. There may be many councils
that have adopted the model, in whole or in part, but that, in our
view, still prejudice the motorists’ right to have their case heard
properly. However, the sample Notice to Owner dates from 1995 and
it may be timely for the Department to consider revising its guidance
to councils.
We commend all councils to look critically at their documentation,
advice and procedures in respect of the 1991 Act scheme, to ensure
that pleas of mitigation are not unreasonably deterred and are given
proper consideration. In doing so, we hope that councils will find
the following points helpful:
• Discretion can be exercised at any point in the procedure. Councils
should not restrict consideration of mitigation to any particular
part of the process, such as the period prior to the issue of the
Notice to Owner.
• Councils should ensure that that they establish clear guidance
and procedures for dealing with pleas of mitigation, and that staff
who consider representations receive guidance and training to enable
them to make rational and consistent decisions on the exercise of
discretion.
Conclusions
• Decisions on the exercise of discretion must be clearly explained
to motorists, particularly when representations are not accepted.
• Guidance given to staff or information given to the public on
how discretion will be exercised should not have the effect of fettering
councils’ discretion. They should not, for example, list reasons
for waiving a penalty charge which would never be accepted.
