ETA Register of Appeals - London Tribunals Page 1 of 4

ETA Register of Appeals

Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or
Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals
Regulations 2007, as applicable

Case Details
Case 2190347315
reference

Appellant Natalia Skorosz

Authority London Borough of Barking and Dagenham

VRM GV03OCY

PCN Details
PCN BU90539622

Contravention 21 Jun 2019

date

Contravention 12:51:00
time

Contravention Ripple Road

location

Penalty GBP 130.00

amount

Contravention Fail comply restriction vehicles entering ped zone

Referral date

Decision Date 12 Oct 2019

Adjudicator Jack Walsh

Appeal Appeal allowed

decision

Direction cancel the Penalty Charge Notice.

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Reasons Miss Skorosz appeals against a penalty charge notice (PCN) in relation to an alleged moving traffic
contravention. There is no dispute that the alleged contravention occurred. Indeed, Miss Skorosz does not
dispute liability. In her ground of appeal Miss Skorosz complained that she was unable to take up the
enforcement authority (EA)’s offer, made in its Notice of Rejection, to accept the reduced penalty amount,
notwithstanding its rejection of her representations, because the EA sent it to an old address.

WHETHER TO ADJOURN FURTHER

I have adjourned this case twice to allow the EA to consider its position. In the first adjournment notice I wrote:

“It is clear from the Notice of Rejection that the enforcement authority intended to extend, in an exercise of
discretion, the period during which the reduced amount was payable. Whereas the PCN itself was sent to the
appellant's old address, in her representations the appellant clearly provided her updated address to the EA.
The Notice of rejection was then, inexplicably, sent to the old address. For that reason the EA was unable to
give effect to its intention that the reduced amount was still acceptable because the appellant did not receive
the NoR until well after the period had elapsed.”

There was no response to that adjournment notice and I adjourned again, this time suggesting that I might
require the attendance of the EA’s appeals officer. I further stated:

“I am keen to understand the statutory basis for the EA's apparent policy of not sending notices of rejection to
updated addresses in the absence of evidence of the address change from the DVLA.”

There has, again, been no response from the EA. There is no reason to think it did not receive the adjournment
notices.

The adjudicator’s power under paragraph 10(3) of Schedule 1 to the London Local Authorities and Transport
for London Act 2003 and Regulation 19 of the Bus Lane Contraventions (Penalty Charges, Adjudication and
Enforcement) (England) Regulations 2005 to require the attendance of witnesses is akin to the power to
summons a witness to Court. It is designed to procure the attendance of witnesses and/or the provision of
documents in their control. In reality, the EA’s appeals officer is not a witness. I am not sure that the power to
require the attendance of witnesses extends to the power to require the attendance of officers of the EA so that
they can explain the decisions of the EA. Further, I am not satisfied it would be proportionate to adjourn the
case again. I propose to deal with it today. The EA has had ample opportunity to set out its position; I have
invited its representations on the point. Paragraph 5 of The Road Traffic (Parking Adjudicators) (London)
Regulations 1993 reads, as far as is relevant:

“(2) The adjudicator may invite a party to deliver to the proper officer representations dealing with any matter
relating to an appeal within such time and in such a manner as may be specified.

(3) Where a party fails to respond to an invitation under paragraph (2), the adjudicator may (without prejudice
to any other powers he may have) draw such inferences as appear to him proper.”

It is a proper inference to draw – and I do draw the inference – that the EA does not have an adequate
explanation that will withhold scrutiny for its decision (apparently based on a policy) not to send formal notices
to addresses provided by recipients of PCNs in the absence of documentary evidence from the DVLA to
corroborate the change of address.

THE RELEVANT LEGISLATION

Sections 2(2) and (3) of the London Local Authorities and Transport for London Act 2003 reads:

“(2) Subject to paragraph 1(8) of Schedule 1 to this Act [not relevant], the owner of a vehicle for the purposes
of this Act, shall be taken to be the person by whom the vehicle is kept.

(3) Subject to the said paragraph 1(8), in determining, for the purposes of this Act, who was the owner of a
vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that
time registered under the Vehicle Excise and Registration Act 1994 (c. 22).”

Section 4 reads (as far as is relevant):

“(2) … the relevant borough council may serve a penalty charge notice

(a)in relation to a penalty charge payable by virtue of subsection (5) below, on the person appearing to them to
be the owner of the vehicle; …”

Paragraph 1(7) of Schedule 1 specifies:

“(7) It shall be the duty of the enforcing authority to whom representations are duly made under this paragraph

(a) to consider them and any supporting evidence which the person making them provides; and

(b) to serve on that person notice of their decision as to whether they accept that the ground in question has
been established.”

Paragraph 9 of Schedule 1 to the 2003 Act provides:

“9 Service by post

Any charge certificate, or notice under section 4 (Penalty charges for road traffic contraventions) of this Act or
this Schedule–

(a) may be served by post;”

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THE CHRONOLOGY

Miss Skorosz accepts she received the PCN albeit she had missed the 14 day period for payment of the
reduced amount. That was in part because it had been sent to her at her old address, which was the address
at which the vehicle was registered in her name.

Miss Skorosz made representations against the PCN in accordance with Section 4(8)(a)(vii) and (b) of, and
paragraph 1 of Schedule 1 to, the London Local Authorities and Transport for London Act 2003. She did so at
11.00.35 on 21 July 2019. These were received because the EA exhibited the e-mail in its evidential bundle for
this hearing. The representations said:

“The Penalty Charge exceeds the relevant amount

To whom it may concern,

I agree that the contravention occurred and I have no problem with paying it, however I am new to the borough
and the notification of penalty charge has arrived to my old address 74 Mintern Close N13 5SY ,when I have
been living under new address Flat 19 Brook Court ,510 Ripple Road IG11 9JU for a week.

Also I have been on holidays during the 2 week period and I have missed the deadline for the penalty to be
reduced by 50% to £65.

Therefore for those reasons I appeal for the fine to be lowered to £65.”

The EA replied to the above representations the following day. In its letter it said:

“As a goodwill gesture, we are willing to reoffer this £65.00 discount until the end of the period of 14 days
beginning with the date of service of this letter. If payment is not received within this period then the full amount
of £130.00 will be due.”

This gesture is to be commended. Inexplicably, however, the EA did not send the Notice of Rejection to the
address it had been provided the day before, but to the address it had been told was an old address.

Miss Skorosz received the Notice of Rejection but, again, missed the 14 day period because it had gone to the
wrong address.

THE EA’S POSITION

In its case summary the EA says:

“The Enforcement Authority finds that DVLA have provided the appellants details as being the DVLA registered
keepers address. The Enforcement Authority finds the appellant has not provided any documentary evidence
to support their claim, therefore the address could not be changed. The Enforcement Authority also finds that
the discount was offered when the Rejection letter was served to the appellant.”

As I have indicated, I invited the EA to provide a justification for its stance that it will not recognise a change of
address without corroboration from the DVLA. It has not done so and I have drawn the inference to which I
have referred.

THE EFFECT OF THE DECISION TO SEND THE NOR TO THE WRONG ADDRESS

Miss Skorosz can have no complaints that the PCN was sent to her old address. The EA complied with the
statutory scheme in that respect because the person appearing to be the owner was the person the DVLA
informed the EA. The DVLA also informed the EA of the address of the appellant, as it understood it to be. The
best evidence the EA had of the appellant’s address at that point was that provided by the DVLA.

Thereafter, the EA received from the vehicle’s registered keeper and owner yet better evidence of her address.
She told the EA directly what her address was.

Sub-paragraph (7)(b) of paragraph 1 of Schedule 1 to the 2003 Act requires the notice to be served on the ‘the
person’ who made the representations. In this case it was the vehicle’s owner. Nowhere in the statute is the EA
required or indeed permitted to send an NOR to an address provided by the DVLA. The address of ‘the person’
had been provided by ‘the person’. The EA appears to have decided, without justification, to ignore it. The
2003 Act envisages that notices are sent to ‘the person’ at the best known address for 'the person'.

In the event, the decision to send the NOR to the wrong address did not prevent it ultimately being received
and, thus, formally served. That is because the appellant obtained it from the new residents of her old address.
But that was despite, and not because, of the decision of the EA to send it to the wrong address. It had no
reason to believe that Miss Skorosz would ultimately receive the NOR, although in the event she did. The
almost inevitable consequence was that the 14 day period had lapsed.

I take the view the EA’s failure to serve an NOR to what it knew to be the appellant’s address and, conversely,
to send it to what it knew to be an old address, amounts to a procedural impropriety, within the meaning of
Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. It was quite deliberate,
unjustified, and could well have precluded effective service of the NOR altogether.

An allegation of a procedural impropriety is, in effect, a collateral challenge to the enforceability of the penalty,
i.e. a challenge that does not fall within the parameters of paragraph 1(4) of Schedule 1 to the 2003 Act. The
decision of Mr. Gary Hickinbottom (as he was then) in Davis v. Royal Borough of Kensington and Chelsea
(case 1970198981) at page 51, is authority that an adjudicator does have a residual power to allow an appeal
on the basis of a collateral challenge. In terms of expressing the reason for allowing any appeal, that must be
done in the terms of paragraph 1(4). The best way of expressing the position in those terms is to say, if the

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collateral challenge is made out, that the penalty exceeds the amount applicable. That is because, in effect, the
adjudicator has found that the EA, by virtue of the procedural impropriety, is not entitled to collect the penalty at
all.

I do find that the procedural impropriety in this case, as described above, renders the penalty unenforceable.
That is to say, the recoverable amount in respect of that PCN is nil. The appeal is allowed.

Authority
Response

I certify this to be a true copy of an entry in the register

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