6 APPEALS TO THE PARKING ADJUDICATORS
113. A very small proportion of Penalty Charge Notices result in an appeal to the National Parking Adjudication Service for England and Wales, 0.37 per cent of the notices issued.
114. Motorists must initially make representations to the local authority that issued the Penalty Charge Notice and the local authority must serve notice on the owner stating whether it accepts or rejects the representations before an appeal to the adjudicators can be lodged. If the authority rejects the representations, the owner may make an appeal within 28 days. The decisions of the adjudicators are binding and enforceable.
115. The proportion of Penalty Charge Notices that become the subject of appeal has remained fairly constant since the introduction of civil parking enforcement. Nonetheless, the proportion of appeals varies considerably between councils.
116. Prior to improvements made in 2003, Manchester City Council accounted for some 40 per cent of all appeals to the parking adjudicators, outside London. Westminster City Council made up 23 per cent of appeals to adjudicators within London in 2004-05. Of appeals made in England and Wales, 62 per cent were allowed by the adjudicators in 2004. The London Parking and Traffic Adjudicators allowed 63 per cent of the appeals lodged. For any appeal system this high success rate suggests severe weaknesses in the original decision-making.
Independence of the adjudicators and quality of service
117. The National Parking Adjudication Service for England and Wales, and the London Parking and Traffic Appeals Service, are independent tribunals comprising independent judicial office holders with a minimum of five years legal experience. The adjudicators operate under the supervision of the Council on Tribunals, and have security of tenure. They are accountable for the decisions they reach neither to the councils, the Department for Transport, the appellant, nor the Chief Adjudicator. They seek to provide a fully objective and impartial adjudication on the matters in dispute by reviewing the facts and applying the law.
118. The Road Traffic Act 1991 requires those councils that operate decriminalised parking enforcement to fund the provision of parking adjudication. The funding mechanism is agreed annually by a joint committee of enforcing councils. We received evidence in this inquiry from those who challenged the independence of the adjudicators on the basis of the way the service is funded. We do accept that this may cause confusion over the independence of the adjudication service. This is an important issue which we deal with later in this Chapter. But we received no evidence in this inquiry which placed any question over the actual independence of the adjudication service, or the integrity with which it conducts its business.
119. The impression given of the adjudication service is that of a flexible ’customer-oriented’ service, more so than the traditional Magistrates’ Court process. The Leggatt Review of Tribunals 2001 found the service to be user focussed, "practices show a concern for users unmatched elsewhere in the justice system". Unlike the Magistrates’ Courts, appellants can choose to have their case decided by the adjudicator through a postal appeal, or to attend a hearing to put their case to the adjudicator in person. The London Parking and Traffic Appeals Service has a target to decide 95 per cent of appeals within 49 days of receiving them, and to hear 95 per cent of personal appeals within 15 minutes of the appellant’s arrival.The National Adjudication Service works to similar performance standards.
120. The best efforts of the adjudication service can be undermined by lacklustre performance on the part of local authorities. The Chief Adjudicator has repeatedly criticised local authorities in her annual reports for the late disclosure of evidence at appeal stage.
121. She was also critical of the high proportion of appeals that are ultimately not contested by councils. In 2004, 35 per cent of appeals were not contested by local authorities. This statistic however obscures a mixed picture. Some councils fail to contest more than half the appeals lodged against them. Nick Lester of the Association of London Government, explained that in some cases the appellant will produce more evidence at the appeal stage and the council will see no reason to contest the appeal, alternatively a more senior officer will deal with the case than at representations stage. He also suggested that appeals are not contested by councils, regardless of the strength of the case, simply to clear a backlog of work.
122. The administration of some local authorities is sluggish and relevant council papers often arrive late with the parking adjudicators. The local authorities need to be better organised to ensure that the adjudicators have the relevant papers in a timely manner.
123. It would appear common sense that in a process with a high degree of confidence in its own processes, almost all appeals against decisions reached would be contested. But this is not what we found. This indicates a failure on the part of the authorities to consider the representations made to them at an earlier stage. The failure to contest appeals is all the more serious in cases where vehicles have been removed or clamped by a council, and consequently the appellant has been put to serious inconvenience.
LACK OF AWARENESS OF THE RIGHT TO APPEAL
124. Even absolute independence and excellent customer service is not effective if the public are simply not aware of their right to appeal to such a tribunal. There is evidence that there is currently considerable lack of public awareness of the right to appeal. Recent research found that 53 per cent of people sampled whose representations had been rejected by councils but who had not taken their cases to the parking adjudicators, were unaware of the National Parking Adjudication Service.
Are drivers deterred from challenging Penalty Charge Notices?
125. Approximately 40 per cent of Penalty Charge Notices issued for parking contraventions are settled at the reduced penalty. The Chief Adjudicator for England and Wales suggested that more of these could have successfully been brought to appeal:
126. Drivers should be encouraged to challenge Penalty Charge Notices which they believe to be incorrect. A simple and efficient appeals process will enhance that likelihood. A statutory requirement to re-offer the 14 day 50 per cent discount after the appeal stage for all appeals rejected by the adjudicators would also address what appears to be a common deterrent to use of the adjudication service.
127. The adjudication service provides an important function in a suitably independent, professional and customer-oriented manner. But it may not be used as often as it should. Only 0.37 per cent of Penalty Charge Notices issued end up with the parking adjudicators for decision, a very small proportion indeed. The right to independent adjudication is central to the proper functioning of decriminalised parking enforcement. Information on this right needs to reach all motorists, and to be widely understood by the public at large. We suspect that the very small number of appeals is partly at least related to the relative obscurity of the service.
128. Technical barriers to seeking justice through independent adjudication must be removed. The 14-day 50 per cent discount should be automatically re-offered to motorists whose appeals to the adjudicators are rejected, except in cases of deliberate abuse of the system.
Powers of the adjudicators
129. The Traffic Management Act 2004 created the possibility of reviewing the powers of the adjudicators when determining appeals. The Department’s proposals, as set out in the submission made to this inquiry, include setting a timescale within which local authorities must respond to the adjudicator about cases that have gone to appeal. The Department is also considering giving the adjudicators power to require a person to attend the appeal hearing, or to produce documents for the appeal. There will also be an opportunity to consider whether the adjudicators should have the additional powers already available to the Courts to consider extenuating circumstances and to exercise discretion accordingly.
130. The Chief Adjudicator for England and Wales has suggested that where an adjudicator finds that a council has not properly exercised discretion, or has rejected a representation without consideration of the full facts of the case, the adjudicators should have similar powers to those exercised at Judicial Review. This would mean that the adjudicators would be empowered to instruct a local authority to reconsider new facts, extenuating circumstances, or reasons for mitigation in light of the appeal.
131. The Chief Adjudicator noted that, in practice, this already happens but that:
The Chief Adjudicator told us that most councils are usually happy to reconsider their decisions on the request of the adjudicator. There have been instances however where a council has refused to accept the adjudicator’s findings of fact, or has replied stating that they had indeed considered the original representations and that was the end of the case.
132. It appears disproportionate to have to take a dispute over a parking ’ticket’ to Judicial Review at the High Court in order to enforce the adjudicator’s advice on proper consideration of discretion. Where councils have failed to exercise discretion, the adjudicators should have the powers to instruct local authorities to reconsider. We were pleased to learn that the Department for Transport is considering including these powers in the regulations under section 80(3) of the Traffic Management Act 2004.
133. The AA Motoring Trust has recommended that the Parking Adjudication Service should have the power to investigate allegations of malpractice and maladministration by councils in the operation of civil parking enforcement.
134. The Local Government Ombudsman is currently responsible for investigating such cases. The Ombudsman has investigated instances of non-compliant traffic regulations, maladministration, and the pursuit by councils of unpaid tickets through civil proceedings, both before and since decriminalised parking enforcement was commenced. The Ombudsmen’s 2004 report on parking enforcement by local authorities was based on about 300 complaints made to the Ombudsman that year alone.
135. The Chief Adjudicator for England and Wales told us that the Local Government Ombudsman has been reluctant to take on parking cases. Generally, the Ombudsman may not investigate a complaint that is properly a matter for parking adjudicators through the appeals process.The Chief Adjudicator said:
136. We understand the potential for confusion between the roles of the parking adjudication services and the Local Government Ombudsman over parking appeals. But these roles are quite separate. Investigating systematic maladministration is distinct from deciding whether a correct decision has been reached in individual cases of disputed Penalty Charge Notices. The responsibility for investigating maladministration by local government parking teams should continue to be a matter for the Local Government Ombudsman and not for the parking adjudicators.
137. We note the concern expressed by the Chief Adjudicator for England and Wales that some cases appear to be falling between these two tribunals. We recommend therefore that the Government considers this issue to ensure that where there appear to be implications for the parking adjudication services in the work of the Local Government Ombudsman, and vice versa, there are agreed procedures to ensure that confusion is avoided. We expect the two tribunals to work well together so that the public is not inconvenienced.
THE IMPORTANCE OF DEVELOPING THE ADJUDICATION SERVICE
138. The parking adjudication service is a very important part of the decriminalised parking enforcement arrangements. The adjudicators are highly trained and experienced lawyers, the service is a tribunal - a judicial body - and the performance of the national adjudicators is high. Unfortunately its current profile is low and does not therefore match that importance. This matters because the service has the potential to disseminate a sense of fairness and justice amongst motorists that we sensed was substantially missing in the way the system of parking enforcement operates at present.
139. The Government needs to unlock the full potential of the parking adjudication service. The independence of the service needs to be emphasized in its funding arrangements. At present participating local authorities fund the service. This projects an unfortunate appearance that the service may be under the control of the councils. It certainly does not convey the impression of independence that is the basis for raising its status and profile. The Government should review the funding of the service and propose arrangements that emphasize its separate judicial status and its independence from the councils.
140. The councils’ performance during the adjudication process is often unacceptably low. Council papers often arrive late with the adjudicator; and many appeals made by motorists to the adjudicator are uncontested by the councils which suggests a lack of commitment to the adjudication process on the part of councils. These actions undermine the status of the service, foster an impression that it is unimportant, and show a lack of respect. We expect councils to make much greater efforts to support the adjudication process by improving their cooperation and their parking administration throughout the adjudication process. By doing so they will contribute to raising the overall professionalism of the parking system and improving the service to the public. We have encouraged adjudicators to use their powers to award costs against councils whose performance is unacceptable. We expect the Government to review these powers, take a view on whether they are an effective means of ensuring council compliance, and consider what more could be done to provide the adjudicators with powers to ensure good council cooperation.
141. Much more must be done to raise awareness among the public both of the existence and function of the parking adjudication services and of their independent status. Local authorities have a responsibility to make sure that all motorists who receive a ’Notice to Owner’ about a parking contravention are made aware of their eventual right to appeal to the parking adjudicator if their representations to the council are rejected. The initial Penalty Charge Notice and the ’Notice to Owner’ should make this clear. In the correspondence rejecting a challenge, local authorities should explain the reasons for the rejection, in order that the motorist can make an informed decision about whether to proceed to the adjudicator. Information on the process and the role of the parking adjudication services in particular, should be presented invariably to the public on council websites.
142. We urge the parking adjudicators themselves to consider what, as a body, they can do to raise the professional profile of their service. They should ensure that the Government is fully aware of their views. The service performed by the adjudicators is a most important one. Motorists are frequently frustrated by what appear, and frequently are, unresponsive local authority processes. The knowledge that there is a ’court of appeal’ where they will receive a fair and speedy hearing is a significant factor in balancing the administration of justice, improving the professionalism of the parking system, and reducing individual stress.