Parking penalty charge notices appeals policy in relation to fluttering ticket cases
Dear Sefton Borough Council,
In accordance with the Freedom of Information Act, please provide the information requested below in electronic format.
1) Do Sefton have any explicit or implicit policy in place in relation to how appeals against parking penalty charge notices made on the grounds of a valid pay and display ticket having been purchased but not having been properly displayed due to movement of the ticket (so called “fluttering ticket” cases) be dealt with? If so, what is it and has the policy changed in the last 10 years?
2) Is there any guidance provided by Sefton to its staff in relation to the judgement of appeals against parking penalty charge notices made on the grounds of a valid pay and display ticket having been purchased but not having been properly displayed due to movement of the ticket (so called “fluttering ticket” cases)? If so then please provide details of this.
3) Do staff have any targets to meet or are they in any way graded in relation to the number or proportion of appeals against parking penalty charge notices that are rejected or upheld by them?
4) How many members of staff have the authority to dismiss an appeal against a parking penalty charge notice on grounds other than those specified by Sefton Council in their “Notice To Owner” at the first level of appeal, how many have that authority at the second level of appeal and how many at the third level of appeal?
5) How many members of staff have the authority to uphold an appeal against a parking penalty charge notice on grounds other than those specified by Sefton Council in their “Notice To Owner” at the first level of appeal, how many have that authority at the second level of appeal and how many at the third level of appeal?
6) Are there any staff whose pay, bonus or income are affected by the number of parking penalty charges issued or paid or appeals against them upheld or rejected? If so, then please provide details of this.
7) Are there any staff whose pay, bonus or income are affected by the financial performance of the Sefton parking team If so, then please provide details of this.
8) Are penalty charge notice payments directed into the parking budget or are they directed elsewhere? If so, then where?
9) Is the entire financial surplus generated by Sefton parking directed towards provision of public transport services in the borough or is some of it directed elsewhere and if so then where?
10) Please give the number of parking penalty charges notices issued at Civic Hall, Waterloo pay and display car park which were issued due to a ticket not being properly displayed, since its existence as a pay and display car park
11) Please give the number of appeals made against parking penalty charge notices issued at Civic Hall, Waterloo pay and display car park where the appeal is on the grounds that a valid ticket had been purchased but had for some reason moved so that it was no longer properly displayed (so called “fluttering ticket” cases). Please then give the number and the dates on which the appeals on these grounds were rejected and the numbers and the dates on which appeals on these grounds were upheld.
Please note that in relation to my questions 10 &11 the information commissioner's office has already found that you do hold and are required under the freedom of information act to provide the type of information I have requested (please see ICO case reference: FS50514881). Should the numbers involved mean that you would then object against providing the information I have requested by quoting exceptions under section 12 of the act, then please simply provide the data I have requested for as long a period going back as you will be able to without incurring expenses that would invoke the exceptions listed under section 12 (in relation to this you may again find it useful to refer to the ICO case FS50514881).
Yours faithfully,
John Power
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1. mailto:[email address]
Dear Sefton Borough Council,
I'm writing in relation to my freedom of information request "Parking penalty charge notices appeals policy in relation to fluttering ticket cases'
I now realise that there are only two stages of appeal with Sefton Council against parking penalty charge notices and so I understand that the "third level of appeal" I refer to in questions 4 & 5 does not apply. I ask therefore that you answer those questions simply in relation to the stages of appeal that do exist.
I wish also to amend a further request for information which I will now list as questions 12) and 13)
12) Of those appeals to which I refer to in my question 11 which were upheld by Sefton Council, at what stage (first or second) was the appeal upheld.
13) Of those appeals to which I refer to in my question 11 which were dismissed by Sefton Council, what number of those appeals were then referred to the Traffic Penalty Tribunal and how many of those were then found in favour of the appellant by the tribunal?
Yours faithfully,
John Power
Information request
Our reference: 1362133
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Dear Mr Power
Freedom of Information Act 2000
Thank you for your request for information that was received on 17 August
2018 in which you raised a number of queries about Penalty Charge Notices
issued on the Crosby Civic Hall Car Park.
We are dealing with your request under the Freedom of Information Act
2000 and we aim to send a response by 17 September 2018.
In some cases, a fee may be payable. If we decide a fee is payable, we
will send you a fee notice and we will require you to pay the fee before
proceeding with your request. However, in this case I note that you have
asked us to limit the amount of information supplied to you so that it
fits within the fees limits.
The Freedom of Information Act 2000 may restrict the release of some or
all of the information you have requested. We will carry out an assessment
and if any exemptions apply to some or all of the information then we
might not provide that information to you. We will inform you if this is
the case and advise you of your rights to request an internal review and
to complain to the Information Commissioner's Office.
We will also advise you if we cannot provide you with the information
requested for any other reason together with the reason(s) why and details
of how you may appeal (if appropriate).
Yours sincerely
Dave Marrin
Manager, Highways Management
NOTE: Please do not edit the subject line when replying to this email.
Information request
Our reference: 1362133
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Dear Mr Power
Thank you for your request for information received on 17 August 2018.
Please find attached our response to your request along with a spreadhseet
containing additional information.
Yours sincerely
Dave Marrin
Manager, Highways Management
NOTE: Please do not edit the subject line when replying to this email.
Dear Sefton Council,
Thank you for your response to my freedom of information request (reference 1362133). I would just like to ask for some minor clarification.
Your answer to my question 1 does not directly answer my question but suggests that there is no explicit or implicit policy in place in regards to how fluttering ticket appeal cases be considered, other than that they be considered on their own merits. Is this correct?
In the response to my question 2 you state,
“However, staff are made aware that whilst the Council would expect a pay and display ticket to be displayed at all times, any mitigating circumstances should be considered.”
Does this mean that staff operate under the instruction that the appellant’s being able to prove their having paid for a valid ticket should never by itself be considered sufficient mitigation to uphold an appeal?
Thank you,
Yours sincerely,
John Power
Dear Mr Power,
My responses to your request for clarification are gine below:
Your answer to my question 1 does not directly answer my question but
suggests that there is no explicit or implicit policy in place in regards
to how fluttering ticket appeal cases be considered, other than that they
be considered on their own merits. Is this correct?
That is correct. The Councils website contains the following reference
and this is followed with all appeals:
It is the council's policy to consider all representations received on
their own merits, whether or not any of the statutory grounds apply. If
you have sufficient grounds - or have presented compelling reasons in the
particular circumstances of the case which the council consider merit the
exercise of discretion ' the Council will cancel the penalty charge notice
and no payment will be required.
In the response to my question 2 you state, 'However, staff are made aware
that whilst the Council would expect a pay and display ticket to be
displayed at all times, any mitigating circumstances should be
considered.' Does this mean that staff operate under the instruction that
the appellant's being able to prove their having paid for a valid ticket
should never by itself be considered sufficient mitigation to uphold an
appeal?
The Penalty Charge Notice is issued for the contravention of being
"Parked without Clearly Displaying a Valid Ticket". It is the Councils
view that it is up to the motorist to ensure that a valid ticket is
clearly displayed at all times that a vehicle is parked.
The two requirements of pay and display parking are discrete and
fulfilment of the first is not mitigation for the failure to meet the
second. That a motorist may have paid a parking fee will be taken into
account, but unless there is a direct correlation between the purchase and
the motorists subsequent failure to ensure the ticket was clearly
displayed it may not be considered as mitigation.
In general terms mitigation for the failure to display would usually be
taken into consideration where a motorist has provided an explanation of
circumstances that either precluded their being able to display the ticket
or being able to check the position of the ticket before the vehicle was
left secured and unattended.
Regards
Dave Marrin
Manager - Highways Management
Sefton Council
Dear Sefton Council,
Thank you for your quick response and clarification. However, I still believe that my question 2 has not been directly and fully answered. I understand the council’s position is that paying for a ticket and displaying it are as you say "discrete requirements". However what I asked is whether council staff are operating under the instruction that proof of having paid for and possessing a valid ticket should never by itself be sufficient grounds for an appeal to be upheld. You seem to confirm this when you say:-
“The two requirements of pay and display parking are discrete and fulfilment of the first is not mitigation for the failure to meet the second. That a motorist may have paid a parking fee will be taken into account, but unless there is a direct correlation between the purchase and the motorists subsequent failure to ensure the ticket was clearly displayed it may not be considered as mitigation.”
However, your use here of the qualifier “may” is equivocal. As the council’s policy is that payment and display are considered discrete obligations and the first does not mitigate the former, then when judging appeals staff would therefore be operating under that policy and would have to dismiss appeals where the appellant’s appeal is based solely upon their ability to prove valid payment had been made.
It might be helpful if I give a hypothetical example. Let us say an appeal is made on the grounds that the appellant had paid for and attempted to display a ticket. The ticket was not displayed correctly and the appellant believes this was likely caused by movement of the ticket when the car door was closed. The appellant does not recall having checked that the ticket was correctly displayed after closing the car door and there was nothing that precluded the possibility of him having done so. However, the appellant is able to prove beyond any reasonable doubt that he paid for a valid ticket for his vehicle and he had not stayed longer than for the period for which he had paid. In this case, given no other mitigating circumstances, would adjudicating staff have to follow the council’s view that payment and display and discrete obligations and dismiss the appeal?
Yours sincerely,
John Power
Dear Mr Power,
Staff have not been specifically instructed that proof of payment should
never by itself be sufficient grounds for an appeal to be upheld. What
staff are charged with doing is undertaking a review of the facts of each
case on a case by case basis. If an appellant provides evidence of a
ticket that was valid at the time of notice issue but has no other
mitigation, then the facts of that case would be that the appellant had
failed to comply with both parts of the regulations and therefore as the
contravention had occurred none of the specified grounds have been
established. The absence of any other mitigation does not require the
member of staff reviewing the case to give further consideration.
The use of 'may' was a conscious decision as possession of a valid ticket
not only fails to prevent a penalty charge notice being issued it is also
not of itself proof that the appellant had purchased that ticket. It can
and does happen that pay and display ticket are transferred between
drivers once a penalty charge notice has been issued. Whilst some
appellants will have paid for their parking some may not have and might
have been given the valid ticket after the fact.
With regard to the hypothetical case then the answer would be yes, because
the contravention occurred, specified grounds for cancellation had not
been established, and there was no mitigation put forward for
consideration.
Appeals where a ticket has not been clearly displayed are treated no
differently to those made against any other contravention. There is no
difference between a face down tikcet and any other instance where a
motorist has failed to comply with all aspects of the restriction for
example a Blue Badge holder parking on a yellow line and not displaying
their time clock car set at the time of arrival. If they were unable to
provide mitigation that explains why the time clock card was not set at
the time of arrival, then the penalty charge notice would not be cancelled
just because they are a Blue Badge holder.
Regards
Dave Marrin
Dear Mr Marrin,
Thank you again for your prompt response. I am though still slightly confused by your answer. You state that although, “Staff have not been specifically instructed that proof of payment should never by itself be sufficient grounds for an appeal to be upheld”, that when appeals on these grounds are presented then as, “none of the specified grounds have been established. The absence of any other mitigation does not require the member of staff reviewing the case to give further consideration”.
Would it be fair to summarise what you are saying here as that because proof of purchase of a valid ticket without further mitigating circumstances is not one of the specified grounds for appeal, then staff are not required to give it consideration? That you are able to answer "yes" to the hypothetical case I gave would seem to support this. The contravention of failing to display took place and the mitigation offered of having paid for a valid ticket is not one of the specified grounds.
You go on to note the possibility of appellants having obtained valid tickets after the fact and not of having actually purchased the tickets themselves. In relation to this, the 2006 annual report of the National Parking Adjudication Service notes,
“The motorist may provide a valid p&d ticket covering the time when the PCN was issued. It is important to remember that the majority of these are perfectly genuine.”
The report then goes on to mention councils who operate a policy of discretion for a limited number of failures to display for this reason.
But, putting this advice aside, there have been multiple cases in Sefton when appellants have been able to prove beyond doubt that they had made payment for their ticket and yet their appeals have been rejected. The proof is normally due to the payment having been made by credit or debit card and there thereby existing a record of the transaction and the time it occurred. These cases have been raised in the press by a Sefton councillor before:-
https://www.southportvisiter.co.uk/news/...
Finally, in relation to the comparison of a fluttering ticket contravention and the failure to set arrival time with a Blue Badge permit I would make two points. Firstly, I would hope that Blue Badge timers are not so badly designed that the closing of a car door routinely causes them to malfunction. Secondly, if in such a case the Blue Badge holder was able to prove both the time of their arrival and departure, then I would expect any reasonable authority mindful of the actual purpose of the Blue Badge scheme to cancel the penalty charge notice.
Yours sincerely,
John Power
Dear Mr Power,
In response to your latest email I can confirm that if no mitigation is
offered other than having purchased a ticket then the Council would expect
staff not to cancel that Penalty Charge Notice.
I can add that Adjudicators have dismissed appeals where the a ticket has
been produced as they agree that proof of payment is not sufficient to
warrant cancellation of a charge
An example of this is the following extract from an adjudicator
decision:
"Put simply, he had the duty, after shutting the last door and prior to
leaving site, to look through the windscreen and check that the ticket was
still clearly displayed. Had he done this, he would have had the
opportunity to correct the fact that it had blown down and then this PCN
would have been avoided. Mr *** has argued that the Council has an
obligation to behave fairly and proportionately in deciding whether or not
to enforce this PCN. I agree with him, but if it cancels one PCN where the
pay-and-display ticket has fallen down and the motorist has failed to
check that it was still in position before leaving the car, it will have
to cancel all such tickets and there will be no pressure on motorists to
properly display the pay-and-display ticket. The decision to enforce this
PCN is, therefore, both reasonable and understandable. In all of the
circumstances I am satisfied, and find, that the contravention occurred
and that being so, this appeal must be dismissed. Mr *** should now pay
the Council the outstanding £50 penalty charge. Appeal dismissed."
I note your other points.
Regards
Dave Marrin
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John Power left an annotation ()
The below may not be entirely relevant but I cannot resist commenting on the quotation from an appeal judgement that is quoted by Mr Marrin in his last response to this FOI. I want it to be clear that my comments are in no way a judgement on Mr Marrin who has always been extremely prompt and thorough in his responses and who is simply quoting an independent judgement that supports Sefton Council’s position.
I’m well aware that when posting on a public forum one should be wary of the offence one’s comments might cause and so I offer my apologies in advance if I cause any undue distress to morons when I describe the judgement of the quoted adjudicator as utterly moronic.
The crux of the adjudicator's argument is that if the council, “ cancels one PCN where the pay-and-display ticket has fallen down and the motorist has failed to check that it was still in position before leaving the car, it will have to cancel all such tickets and there will be no pressure on motorists to properly display the pay-and-display ticket.”
This adjudicator is supposing that motorists will undergo a thought process along the lines of, “Bearing in mind my council’s policy on fluttering tickets, I don’t need to ensure my parking ticket is properly displayed because I could retain it, photograph it and submit an appeal should a fine be issued. So then, I think I’ll throw it in my car without looking and may even just not bother displaying it.”
Who exactly is going to prefer the hassle of raising an appeal to the council rather than attempting to properly display their ticket? Not to mention the obvious fact that the vast majority of motorists will be completely unaware of “fluttering ticket” cases and their council’s policy in relation to them and are likely only to ever become aware once they receive a penalty charge notice after their ticket has fluttered!
It actually angers me that someone employed and presumably receiving payment to adjudicate on anything can be this stupid.