82. Under civil parking enforcement any motorist who has received a Penalty Charge Notice which they believe to be inappropriate can make representations to the local authority to have the Penalty Charge Notice cancelled. In 2003, 20 per cent of the 7.1 million Notices issued in England were cancelled either because of a recognised error on the part of the parking attendant; a successful challenge by the motorist; or because the vehicle owner could not be traced.This is far too high a proportion and indicates that the system is malfunctioning.
83. Some of the most severe criticisms that we heard related to the representations stage where a Penalty Charge Notice is challenged. It is at this stage that communication between the recipient of the Penalty Charge Notice and the local council frequently breaks down with allegations that correspondence is ignored, approaches are treated unsympathetically, or exchanges are unduly drawn out. In fact, there is no statutory requirement placed upon local authorities to reach decisions on representations within a specified timeframe.
Waiting for the ’Notice to Owner’
84. There is some confusion among the motoring public about the process of challenging a Penalty Charge Notice, i.e. making representations. We heard surprising accounts of confusion about this even among those most frequently encountering the system, for example, road haulage companies.
85. There is no excuse, years after the system of decriminalised parking started, for there to be confusion on the part of motorists about the steps required to challenge a Penalty Charge Notice. Motorists themselves have a responsibility to know the basic facts. But that such confusion appears to exist also reflects poorly on the efforts of local authorities to communicate adequately with the public on this matter. There is an important and urgent job to be done by the Department for Transport and the local authorities in raising awareness amongst motorists of the steps involved in making representations against Penalty Charge Notices.
86. The ’Notice to Owner’ is the notification that is sent by the council to the vehicle owner if a Penalty Charge Notice has not been paid within 28 days of its issue. The Notice to Owner has three purposes: it reminds the owner to pay the unpaid penalty; it warns the owner that if payment is not received within a further 28 days the charge will increase by 50 per cent; and it gives the owner the opportunity to make formal representations against the penalty charge.
87. A common misconception is that it is necessary to wait until the ’Notice to Owner’ has been received before contacting the council. There is no maximum period within which such ’Notices to Owner’ must be served by the council. Representations can however be made prior to the ’Notice to Owner’ being received, for example, immediately on receipt of a parking ticket. Although local authorities are not obliged to consider representations before the ’Notice to Owner’ has been issued, it is good practice for local authority officials to deal with any representations and challenges as soon as they are received. The Department needs to emphasize this in its statutory guidance.
Local authorities’ response to representations
88. Once a vehicle owner has made representations against a Penalty Charge Notice, there are currently no requirements on local authorities to deal with the representations within a set timeframe. Although the time required to deal with a representation will sometimes vary according to the type of challenge and the availability of information to the council, we heard evidence that the vast majority of representations ought to be handled within a set timeframe. We agree. It cannot be right for the time available to a local authority to respond to a representation to be open ended.
89. At present there is no requirement on local authorities to deal with challenges to Penalty Charge Notices within a set time framework. This is extremely poor administrative practice. It is also plainly unfair as the motorist appealing must adhere to a strict deadline of 28 days when making a challenge.
90. We suggest that the statutory guidance from the Department should require local authorities to resolve most representations within an established time limit. We suggest that the starting point for identifying a sensible target time for all representations should be 28 days. Members of the public have 28 days in which to lodge their representations once they have received the ’Notice to Owner’. It seems reasonable that the local authority should work to the same standards. It should be possible for councils to resolve the vast majority of representations within that period. Where a dispute is exceptionally complex then a correspondingly exceptional extension of time might be allowed. The vital point is to establish administrative clarity, so that the complainant and the local authority have precise deadlines for exchanging correspondence, and expectations about what the procedures should deliver are managed properly.
Grounds for considering representations
91. The existing guidance sets out the grounds on which representations may be considered under the terms of the Road Traffic Act 1991. Local authorities have discretion to consider cases on their merits. This includes: responding to problems with parking meters, errors by parking attendants in completing Penalty Charge Notices, invalid Traffic Regulation Orders, evidence of legitimate loading/unloading, and reasons for waiving the penalties on compassionate grounds. The guidance advises local authorities to devise their own guidelines for dealing with such cases to ensure consistency.
92. The local authorities that gave evidence confirmed the importance of giving proper consideration to representations. Mr Nick Lester, Association of London Government, told us that, in his experience, authorities should give more thought to dealing with the subsequent correspondence with those in receipt of Penalty Charge Notices. Councillor Tony Page, Reading Council who was representing the Local Government Association, told us:
93. We heard evidence from local authority representatives of the importance of those who have challenged a Penalty Charge Notice receiving high quality responses to their representations. Local authorities cannot contract out their statutory responsibility to consider representations. Councils must therefore make a proper investment in staff training and management processes to ensure that this statutory responsibility is discharged satisfactorily. In order to deal thoroughly with representations, councils will need to employ appropriate numbers of well-trained administrative staff and legal specialists to advise swiftly and authoritatively on parking enforcement matters.
94. Failure on the part of local authorities to exercise discretion properly in considering representations has attracted criticism from a range of sources, including the parking adjudicators and the Local Government Ombudsmen. Mr Martin Wood, Chief Adjudicator for London, expressed the following opinion:
95. This view was endorsed in a Special Report of the Local Government Ombudsmen into decriminalised parking enforcement. The Report concluded that councils were too often failing to exercise their discretion to cancel Penalty Charge Notices "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." The Ombudsmen found breaches of the duty of councils to act reasonably, fairly and without fettering discretion. It is a serious failing that some local authorities are not properly discharging their responsibility to use discretion in considering representations. Councils must take this responsibility seriously in order that a just outcome is reached on each occasion that a Penalty Charge Notice is challenged.
Design of notices
96. The design of both the Penalty Charge Notice and the ’Notice to Owner’ must be clear and comprehensive. It is important that these notices contain full, clear, and accurate explanations of the process, showing not only how to pay, but also the right of the motorist to make representations, and ultimately to appeal to the independent Parking Adjudication Service.
97. We heard that the notices currently in use were falling short of this standard. In some cases the design of the ’Notice to Owner’ was considered actively to deter drivers from submitting pleas of mitigation. The London Parking and Traffic Appeals Service told us:
This view was shared by the Local Government Ombudsmen in their 2004 report:
98. Despite the clear recommendation of the Local Government Ombudsmen in 2004, a lack of clear information to motorists on the representations stage of the parking process continues to be a problem. This is reprehensible on the part of the local authorities concerned, and steps need to be taken straightaway by them to ensure that the documents they issue are drafted fairly, clearly and accurately. Local authorities must attend to the recommendations of the Local Government Ombudsmen.
99. Omitting information on ’Notice to Owner’ forms about appeals, while including information on the required payments, leaves local authorities open to charges of sharp practice. Motorists are entitled to be told of their right to challenge a Penalty Charge Notice and of their subsequent right of appeal to the independent adjudicators. This is not always the case at present, and it must change.
100. The Department should issue revised statutory guidance to local authorities setting out the content to be included in the Penalty Charge Notice and ’Notice to Owner’. This must, as a minimum, convey to the public how the process operates, the right to challenge the penalty and how to do so, and the grounds on which mitigation will be considered. There is currently lack of clarity, consistency, and completeness in the information councils provide.
The ’pay or challenge’ approach
101. In addition, the initial Penalty Charge Notice and the subsequent ’Notice to Owner’ must make clear that fundamental to the system is the ’pay or challenge’ principle. This means that payment of the penalty charge prevents the owner from making representations subsequently. We received evidence to show that not all motorists understand this point.
102. The Department’s statutory guidance should require local authorities to make it clear on the Penalty Charge Notice and on the ’Notice to Owner’ that payment of the charge will preclude the driver from challenging the penalty at a later stage. Unless this aspect of the system is made clear, motorists may be misled as to the course of action they wish to follow. Because there is the attractive incentive of a discount for early payment, it is of particular importance that the ’pay or challenge’ principle is clearly communicated to motorists at the first opportunity.
Fourteen day discount
103. Under the civil enforcement regime, local authorities offer motorists a 50 per cent discount on the penalty charge if they pay within 14 days of receiving the Penalty Charge Notice. This is supposed to encourage prompt payment. In practice however this tends to deter many motorists from challenging the Penalty Charge Notices that they believe to be incorrect. Many motorists decide not to risk making a challenge to their Penalty Charge Notice because they believe the time delay involved will put at risk the 50 per cent discount.
104. Moreover, if the ticket is removed from the vehicle by a passer-by before the vehicle owner sees it, the first time an owner may realise they have received a Penalty Charge Notice is when they receive the ’Notice to Owner’ document. By this point many will presume that they have already missed the opportunity to pay at the discount rate and will understandably feel aggrieved that they must pay the full charge.
105. ’Good practice’ advice from the Association of London Government recommends that authorities re-offer the 14 day 50 per cent discount to motorists after the representation stage has been completed if the motorist’s challenge is rejected. This advice is not always followed however. We believe that it is important to establish the impression of fair dealing throughout the system. This will help to underline the integrity of the civil parking enforcement process.
106. In order to ensure that no motorist is deterred from challenging a Penalty Charge Notice which they believe to be incorrect because they do not want to risk losing the 50 per cent discount, local authorities should be statutorily required to re-offer the 14 day, 50 per cent discount from the time of the ’Notice to Owner’ and for a further 14 days after representations have been rejected. We expect the Department to ensure that the new statutory guidance embodies this point.
Professional service, costs, compensation
107. Local authorities should be expected to provide a professional service to motorists who challenge Penalty Charge Notices. Responses to representations within a set timeframe should be standard. Where administrative mistakes occur, for example, where it is established that a Penalty Charge Notice has been incorrectly issued, apology should be made without delay.
108. If and when mistakes are made by enforcement staff, the errors must be corrected swiftly and professionally. It is most important that councils have good calibre and appropriately trained staff in the parking departments to deal competently with representations against Penalty Charge Notices, and to deal efficiently and effectively with any mistakes that arise. The Department for Transport should monitor the local authorities’ ability to appoint, train, and retain such essential staff.
109. Parking adjudicators have the power to award costs against either the council or the appellant where either party has ’acted frivolously, vexatiously or wholly unreasonably’. In practice relatively few such awards have been made. The National Parking Adjudication Service told us that between 25 and 30 orders of costs were made against local authorities each year. This is a minute proportion of the overall number of appeals registered, 10,441 in 2004, and suggests that there is scope for the adjudicators to make more muscular use of this procedure even within the present rather narrow criteria.
110. We encourage parking adjudicators to be fully alert to their powers to award costs. Where motorists have been unduly inconvenienced by poor council performance some financial award can help to alleviate the sense of injustice. The definition of ’wholly unreasonably’ as a criterion for the award of costs should be interpreted by adjudicators with this in mind, particularly in cases where frustration and inconvenience is caused unnecessarily to innocent parties.
111. Further, the Department for Transport should give consideration to extending the powers of the adjudicators to award costs, particularly where the administration of representations against Penalty Charge Notices has been deficient, and where Traffic Regulation Orders have not been updated. By doing so, the reach of the adjudicators will be extended, the accountability of councils sharpened, and councils also stimulated to raise their overall performance.
112. The award of compensation by local authorities to motorists who are found to be victims of incorrect ticketing was raised by motoring and other groups. At this stage we consider that it would be much more appropriate to give consideration to the powers of adjudicators to award costs and to raising the general standard of service provided by the local authorities. We do not consider therefore that setting up a compensation regime to penalise councils for errors in the application of parking rules would be appropriate at this time. This is not to say however that it should be dismissed as a future option if the quality of council parking services fails to improve.