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CAMDEN PARKING TICKETS WITH CREDIT CARD SURCHARGE RULED INVALID.

London General Transport Services Ltd v London Borough of Camden

 

Case No. :                   2090198127

PCN Number:                         CU16294296

Contravention:           Entering and stopping in a box junction when prohibitted

Adjudicator:               Henry Michael Greenslade

Decision:                     Allowed          

Decision date:             1 June 2009

 

 

Statutory Register entry:

 

At the hearing the Appellant Company were represented by Mr Andrew Smith, Transport Manager, and the Local Authority were represented by Mr Peter Cremin, Solicitor, and Mr Lee Bacon, Principal Officer.

Paragraph 7(1) of Part II of Schedule 19 to the Traffic Signs Regulations and General Directions 2002 provides that no person shall cause a vehicle to enter a box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles.

The Appellant Company appeal on the ground that the penalty charge exceeded the amount applicable in the circumstances of the case and, more tentatively, that the contravention alleged did not occur.

These were effectively summarised under three heads:
1.    The vehicle stopped in the box junction because another vehicle cut in front of it after it entered.
    2.    There was a 'procedural impropriety' by the local authority as regards the wording of the Penalty Charge Notice and the Notice of Rejection.
3.    The local authority have no power to require payment of more than the sum shown on the Penalty Charge Notice.
    
As to the facts, there is no real dispute that at this location the vehicle did enter the box junction and then had to stop within the box due to the presence of a stationary vehicle, as clearly shown in the closed circuit television video evidence produced by the local authority.

The Local Authority's evidence is from two different closed circuit television cameras and still images were originally provided to the Appellant Company. From the angle of the first camera it appears that, at the point when the vehicle, a double-decker London bus, entered the box junction there was space beyond its exit. Another vehicle does indeed appear to move in front of the bus within the box markings. The bus then has to stop substantially within the box. The angle of the camera made it unclear as to whether the bus could have fully exited the box in any event. However, images from a second camera confirm that even if the vehicle that cut into the path of the bus had not done so, the bus would still have had to stop within the box junction making due to the presence of the stationary vehicle beyond that.

Rule 175 of the current edition of the Official Highway Code refers to box junctions. It explains that these have criss-cross yellow lines painted on the road and warns: 'You MUST NOT enter the box until your exit road or lane is clear. However, you may enter the box and wait when you want to turn right, and are only stopped from doing so by oncoming traffic, or by other vehicles waiting to turn right. At signalled roundabouts you MUST NOT enter the box unless you can cross over it completely without stopping.'

The box junction marking must comply with Diagram 1043 or 1044 of Schedule 6 to Part I of the Traffic Signs Regulations and General Directions 2002. The images produced show that in this case the markings do not appear to comply. However, the local authority have produced a Special Authorisation for the Secretary of State under Sections 64 and 65 of the Road Traffic Regulation Act 1984 and the markings do appear to comply with Schedule to it. No issue was taken on behalf of the Appellant Company in respect of this.

Considering all the evidence as to the facts of the contravention itself I am satisfied that, on this particular occasion, a contravention did occur.

As to the second head: 'procedural impropriety', this is a concept introduced by Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 made under the Traffic Management Act 2004 and although the local authority have responded in some detail as regards this particular head, is perhaps not strictly relevant in this specific case.

This Penalty Charge Notice was issued under the London Local Authorities and Transport for London Act 2003. The decriminalisation of parking in London began with the Road Traffic Act 1991 and various London Local Authorities Acts from 1996 onwards extended the principle to other contraventions including bus lanes and, in 2003, to certain moving violations including box junctions contraventions, such as this present one. Although the Traffic Management Act 2004 effectively drew all these various strands together, both in London and outside, and is now in force as regards parking contraventions, it does not yet apply to contraventions under the London Local Authorities Act 2003.

The Appellant Company have made submissions and the local authority responded on something of a false premise in this regard. However, in their submissions the local authority refer to the statutory guidance under the Traffic Management Act 2004. I will deal with this below.
  
I turn now to the third head, that the local authority have no power to require payment of more than the sum shown on the Penalty Charge Notice.

The penalty charge is £120. The amount of the penalty charge is set by the Transport, Environment and Planning Committee of the Association of London Government and approved by the Mayor of London with the authority of the Secretary of State.

Under Section 4(8)(a)(iv) and 4(10) of the London Local Authorities and Transport for London Act 2003 the local authority must accept the reduced penalty of £60 if paid before the end of the period of fourteen days beginning with the date of the Penalty Charge Notice. Once this period has expired and, for whatever reason including appealing to the Adjudicator and/or making representations to the authority, the charge remains unpaid then the full penalty becomes due.

Section 4(18) of the 2003 Act provides that in determining, for the purposes of any provision of the Act, whether a penalty charge has been paid before the end of a particular period, it shall be taken to be paid when it is received by the council.

It would seem clear therefore that what must be received by the council, and thus what must be paid by the recipient of the Penalty Charge Notice, is the specified penalty charge and nothing more.

The local authority's case is that the penalty does not exceed the amount applicable because the fee (as they refer to it) does not form part of the penalty charge:
1.    Regulation 2(1) of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (the 'General Regulations') defines a penalty charge as meaning a penalty charge relating to a parking contravention and payable in accordance with Regulation 4 but that -
    a.    The fee is not payable in accordance with Regulation 4 or at all as it is not mandatory; and
        b.    The fee is not a charge relating to a parking contravention it is a fee relating to the cost of use of credit card.
        2.    The penalty charge does not change and the set amount is not exceed because:
    a.    The person paying the penalty charge is not obliged to pay by credit card and therefore the amount charged does not change;
        b.    It is abundantly clear what the penalty charge is and that the fee is applicable in relation to one method of payment only, namely credit card payment.
        
As stated above this Penalty Charge Notice was not issued under the General Regulations but rather the London Local Authorities and Transport for London Act 2003, which does not define 'penalty charge'. However, as a matter of generality, the definition in Regulation 2(1) of the General Regulations is equally valid for this contravention.

The Local Authority state that there are four methods of payment available to the recipient of a Penalty Charge Notice and, indeed, a Notice to Owner or Enforcement Notice. These methods are:
1.    Cash, for which there is no additional charge, although Mr Cremin conceded this method could only be used at the Authority's offices or parking shop.
    2.    Cheque, which the Authority still accept with no additional charge for the presumably labour intensive clearing process.
3.    Debit card, which could be used in person, by telephone or on the Internet, for which there is also no additional charge.
4.    Credit card, which could be used in person, by telephone or on the Internet, for which from 5 January 2009 there is an additional 1.3% charge.
    
At this stage, it should be stated that the Penalty Charge Notice in this present case, which was issued on 15 January 2009, does not refer to the 1.3% charge on its face. Mr Cremin stated that this was because old pre-printed ticket stock was being used at the time but Penalty Charge Notices now being issued did state this and that, in any case, anyone attempting to make payment in person, by telephone or on the Internet would be 'warned' of the charge before payment was taken. The local authority's Notice of Rejection, dated 10 March 2009, does refer to this charge.

Whether or not the lack of the information on the Penalty Charge Notice about the 1.3% charge is material must depend on determination of the basic issue, that is to say whether the local authority can actually charge it.

The Authority say that the power to impose this additional 1.3% charge is granted by Section 93 of the Local Government Act 2003 (Power to charge for discretionary services). I set it out in full:
(1)    Subject to the following provisions, a best value authority may charge a person for providing a service to him if-
      (a)    the authority is authorised, but not required, by an enactment to provide the service to him, and
        (b)    he has agreed to its provision.
        (2)    Subsection (1) does not apply if the authority-
      (a)    has power apart from this section to charge for the provision of the service, or
        (b)    is expressly prohibited from charging for the provision of the service.
        (3)    The power under subsection (1) is subject to a duty to secure that, taking one financial year with another, the income from charges under that subsection does not exceed the costs of provision.
      (4)    The duty under subsection (3) shall apply separately in relation to each kind of service.
(5)    Within the framework set by subsections (3) and (4), a best value authority may set charges as it thinks fit and may, in particular-
      (a)    charge only some persons for providing a service;
        (b)    charge different persons different amounts for the provision of a service.
        (6)    In carrying out functions under this section, a best value authority shall have regard to such guidance as the appropriate person may issue.
      (7)    The following shall be disregarded for the purposes of subsection (2)(b)-
      (a)    section 111(3) of the Local Government Act 1972 (subsidiary powers of local authorities not to include power to raise money),
        (b)    section 34(2) of the Greater London Authority Act 1999 (corresponding provision for Greater London Authority), and
(c)    section 3(2) of the Local Government Act 2000 (well-being powers not to include power to raise money).
        (8)    In subsection (1), 'enactment' includes an enactment comprised in subordinate legislation (within the meaning of the Interpretation Act 1978).
      
As stated above, this Penalty Charge Notice was issued under Section 4 of the London Local Authorities and Transport for London Act 2003. That Act received the Royal Assent on 30 October 2003 but the Road Traffic Act 1991, which created the decriminalised scheme was certainly in force and there is no reference to it in the Local Government Act 2003.

If the local authority's case is that the provision of a facility to pay a penalty charge by credit card is a 'service' they provide within the meaning of Section 93 of the Local Government Act 2003 and are thus entitled to charge for, then I do not find that such proposition is sustainable.

A 'service' must mean a substantive service. I note that guidance under that Act entitled General Power for Best Value Authorities to Charge for Discretionary Services - Guidance on the Power in the Local Government Act 2003 issued in November 2003 by the Office of the Deputy Prime Minister gives the example of advisory services, such as trading standards and fire safety.

A penalty charge is not a service in any sense. A penalty charge is a statutory charge and a method of paying a penalty charge is not a substantive service. It is simply that, a method of payment.

It is not for me to determine whether the local authority are entitled to impose any charge for the use of a credit card in the making of payments to the council generally. I have no need to do so but I will assume that as regards other payments, being properly advised, they may well be. However, the live issue here is specifically whether or not the Local Authority can impose any additional charge, fee or sum, howsoever described, over and above the statutory amount of the penalty charge.

The local authority state that in accordance with guidance issued under the Traffic Management Act 2004 -
Parking enforcement should be self-financing and the national or local taxpayer should not be expected to meet any deficit. The introduction of this fee meets these aims as if the fee is not met by the person paying the penalty charge then ultimately it will be met by the national or local taxpayer.
    and
Authorities should offer motorists a choice of payment facilities.
    
Again, I reiterate that this Penalty Charge Notice was issued under the London Local Authorities Act 2003 but, naturally, the local authority will have general regard to it for all Penalty Charge Notices as, in the end, all will be in accordance under Regulations made under the guidance.

Section 87 of the Traffic Management Act 2004 provides:
(1)    The appropriate national authority may publish guidance to local authorities about any matter relating to their functions in connection with the civil enforcement of traffic contraventions.
    (2)    In exercising those functions a local authority must have regard to any such guidance.
    
The Department for Transport's Guidance to Local Authorities for the Part 6 of the 2004 Act in relation to the civil enforcement of parking controls entitled Operational Guidance to Local Authorities: Parking Policy and Enforcement - Traffic Management Act 2004 (May 2008) actually states (if relevant) at 3.8 -
Previous guidance said that local authority parking enforcement should be self-financing as soon as practicable. This is still a sensible aim, but compliant applications for CPE [civil parking enforcement] will be granted without the scheme being self-financing. However, authorities will need to bear in mind that if their scheme is not self-financing, then they need to be certain that they can afford to pay for it from within existing funding.
    
The Guidance also states, as the local authority have referred to, at 10.8:
Enforcement authorities should offer motorists a range of facilities for paying penalty charges.
    
However, at 10.17 it is quite clear as regards the live issue:
Paying by online debit and credit cards is convenient for many motorists and is more secure for local authorities. The electronic card reader automatically seeks authorisation for values previously agreed between the card holder and the card company, and automatically bars any 'blacklisted' cards. Auditors favour the use of online debit and credit cards to avoid creating bad debts and minimising collection costs. There are operational savings to debit/credit cards so authorities cannot justify applying surcharges for their use [my emphasis].
    
This is the guidance referred to in Section 87(1) of the Act and the Local Authority must have regard to such guidance under Section 87(2) as regards Traffic Management Act 2004 cases specifically and all cases generally. In the ordinary sense of the English language this means that the Authority must take into account what the guidance is. In many parts of Parking Policy and Enforcement this may well include a degree of sensible discretion in some areas set out there. For example, matters such as communication skills of civil enforcement officers and use of digital cameras may be dependant upon local circumstances. However, the words 'authorities cannot justify applying surcharges for their use' in relation to debit/credit cards could not be clearer.

Although the Local Authority in this present case have stated that they do differentiate between debit cards and credit cards as regards the additional charge, Parking Policy and Enforcement does not.

Whilst not directly relevant to moving contraventions, provision does exist for the paying of release fees and storage charges when recovering a vehicle from a pound, following its removal in connection with a stationary contravention. This illustrates that specific related charges may be provided for. However, the local authority has no power or authority to require a motorist who is paying (or attempting to pay) a penalty charge, whether at the full, discounted or additional rate, to pay any other amount, howsoever described, in connection with that penalty charge, unless specifically authorised.

Although apparently raised elsewhere, the merchant agreement between the Enforcement Authority and the credit card company was not produced and was not referred to at the hearing by either the Enforcement Authority or the Appellant Company. It may not have been of great evidential value even if produced, because whether or not it specifically permits or prohibits a surcharge to be made by the Enforcement Authority then that would be between the Enforcement Authority and the credit card company or handling agent. It was tentatively suggested that the credit companies generally do not permit surcharges to be made. Even if the agreement permits a surcharge, the Authority cannot charge what the law does not permit in any particular circumstance and the agreement must be subject to that. If the agreement specifically prohibits the making of a surcharge, then again that is a contractual issue between those two parties. It may well be that merchants such as holiday companies and airlines who have agreements with the credit card companies, the terms of which do permit surcharges. A local authority probably does not fall into the same category but, in any event, that is not relevant to the issue to be determined here. A local authority is not a merchant in the sense of a high street store. A shop can charge what a customer will pay. A local authority can only charge what it is authorised to charge.

Whatever the statutory guidance may be and whatever any agreement between the local authority and a credit card company or service agent may provide, the local authority cannot impose a charge, fee or penalty without the power so to do. This is the basic issue.

Considering the matter carefully, I find as a matter of law that, for the reasons set out above, the local authority are neither entitled nor empowered to impose any sum, whether for the method of payment or anything else, in addition to the statutory penalty charge imposed under the London Local Authorities and Transport for London Act 2003. For completeness, this obviously also means that no sum in addition to the reduced penalty of 50% or the Charge Certificate amount of 150% of the original charge, as the case may be, can be imposed. It is therefore immaterial whether or not the fact of the surcharge is actually printed on the Penalty Charge Notice. [Barrie's emphasis]

Although I do not need to determine the issue, it must follow that this is the same for any Penalty Charge Notice or, where relevant, on any Notice to Owner or Enforcement Notice issued under the Road Traffic Act 1991, other of the London Local Authorities Acts 1990 to 2003 or the Traffic Management Act 2004. [Barrie's emphasis]

It is agreed that the local authority did require an additional fee for payment by credit card of this particular penalty charge.

For the reasons set out, I find that the penalty charge in this case did exceed the amount applicable in the circumstances of the case.

Accordingly, this appeal must be allowed.

 

 

 

 

 

Daskalova v London Borough of Camden  Case No. :                   2090272445

 

Here is the Full Case.

Penalty, payment of; Credit card surcharge

 

Daskalova v London Borough of Camden

 

Case No. :                   2090272445

PCN Number:                         xxxxxxxxx

Contravention:           Parked in a residents or shared use parking place or zone                                      without clearly displaying either a permit or voucher

Adjudicator:               Martin Wood

Decision:                     Allowed          

Decision date:             23 June 2009

Statutory Register entry:

The Appellant says that she did display the visitor's permit on the nearside passenger window, in accordance with the instructions on the permit. She has produced the permit in evidence. She told me that she regularly visits premises in this street. It is owned by a friend who is not living there at present. She collects the post for him. She produced a large number of other permits she had used for this purpose.

The civil enforcement officer recorded that no valid document was on display and took six photographs. However, none of the photographs clearly shows the nearside passenger window. This is significant, because that is where the motorist is instructed to display a visitor's permit. It is therefore a serious gap in the Council's evidence that there is no photograph of that window, to show whether or not a permit was displayed. In the absence of such evidence, I am not prepared to find that no permit was on display. I therefore cannot find that this contravention did occurred.

I would add that in any event the Penalty Charge Notice is invalid because it states that payment of the penalty by credit card will incur an additional charge of 1.3%. It is not lawful for the Council to demand such an additional payment. The fact that the Council now says that it will no longer require that payment does not affect the fact that the Council has made an unlawful demand on the Penalty Charge Notice.  [Barrie's emphasis]

I allow this appeal



 

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