I’ve had a few council parking/traffic fines over the years. I’ve paid all of them – on the basis they were a fair cop – except one Kirklees parking fine a few years ago. Somehow the dispute over a £35 ticket ended in the Traffic Penalty Tribunal.
One of my children – now healthy – was extremely poorly after he was born. He had problems breathing. He was discharged from hospital after three months and for the next nine months he had to have oxygen at home. The oxygen was in big cylinders under his cot and in the front room with a portable cylinder for when we had to go out. It was a difficult and stressful time.
In July 2012, he had a chest infection and the paediatric nurse came to see him at home. She was moderately concerned and said we should take him to the GPs or hospital. I was fairly sure we would end up in hospital – another admission to add to the collection. But: always keen to avoid A&E for both self-centred and public-spirited reasons, I rang the doctors.
The boy’s name and date of birth did for the receptionist and within ten minutes we were pulling up outside the surgery. All the surgery parking spaces were full and there were no general parking spaces free nearby. The options were: drive round looking for a space an unknown distance away or park in the sparsely occupied residents ‘permit holders only’ zone which was ten metres from the surgery entrance.
Half an hour later and after a thorough examination, we were on our way home with:
- a prescription for antibiotics (‘I’m sure it’s a viral infection, but we’ll have a side bet with a course of antibiotics’);
- advice to come straight back if he got any worse; and
- a parking ticket stuck to the windscreen for parking in the residents’ zone without a permit.
Representations to the Council
Kirklees is my local council in West Yorkshire, covering the towns of Huddersfield, Dewsbury, Batley and Holmfirth. I expected the council would have some policy or discretion to cancel parking tickets in deserving cases. I wrote to the council enclosing medical evidence and said:
On 13 July 2012, [child’s name] had breathing difficulties due to a chest infection. We were visited at home by a paediatric nurse who advised us to take [child’s name] to see his GP or to hospital for a check up as soon as possible. I took him to see his GP at Marsh Surgery on St James’ Road. There was nowhere to park near the GPs other than the residents’ parking bays. It was raining. Moving [child’s name] any distance is difficult due to his oxygen cylinder. He needed to see the GP urgently. There were hardly any cars parked in the residents’ parking bays on St James’ Road so it was not like I was preventing residents parking their cars.
In the circumstances, I decided to park in the residents’ parking bay for a short time while I took [child’s name] to see the GP. I visit the GP’s regularly and have only parked in the residents’ bays on one previous occasion, again when [child’s name] was quite poorly. I would hope in the circumstances, i.e. I was taking a quite poorly baby to see his GP urgently and there was nowhere else near to park, that the penalty charge can be waived. I expect any reasonable person would have acted as I did in the circumstances.
I thought that would be the end of it, but I got a letter back from Kirklees saying:
I have given careful consideration to the circumstances you have described but regret that there are not sufficient grounds for the PCN [penalty charge notice] to be withdrawn. Your vehicle was parked in a Residential Permit parking place that is clearly shown to be restricted for residents permit holders only. The Civil Enforcement Officer has noted that you were not displaying a valid permit for that parking place. This is a contravention of the parking regulations and the PCN was, therefore, correctly issued.
Having considered all the circumstances I have decided not to cancel the charge notice on this occasion and request that you pay the full outstanding charge of £70 within 28 days of the date of this letter. However, if you pay within 14 days the charge is only £35.
The perfunctory nature of this response chafed. There’s an area of law which goes under various names including ‘public law’, ‘administrative law’ and ‘judicial review’. It is concerned with the legality of the decisions of public bodies: government departments, local authorities, etc. Tom Bingham, former President of the Supreme Court, summarises the foundation principle in his book The Rule of Law at page 60:
Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.
On top of this simple foundation is a complex body of legal rules (case law and legislation) called public law. The rules cover matters such as which bodies and what actions can be judicially reviewed; and the procedure for review and the remedies courts can grant. The body of law amounts to a detailed and evolving code by which the judiciary may review the legality of decisions made by ministers and public officers. ‘Decisions’ may affect one person (say, rejecting a planning application) or many (say, closing an NHS hospital) and ‘decisions’ includes broader things like formulating policies or procedures.
Since 1970 there has been a huge growth in the number of public law cases being brought and the scope of the principles these cases have generated. Several reasons can be identified for this growth. Legal Aid meant funding was available to bring cases that would not otherwise be brought. And, of course, the availability of this funding led to a growth in the number of lawyers willing and able to bring judicial review claims. But beyond this, public law would not have ‘taken off’ without judicial approval. Judges could have prevented the expansion of public law by limiting the principles on which people could bring and win cases against public bodies.
Stephen Sedley, former Lord Justice of Appeal, advanced the boundaries of public law first as a barrister from 1964 then as a judge from 1992. His thesis is that the vigour of public law over the last 50 years is a result of: the huge increase in scope in the 20th century of the powers of ministers and the civil service; it becoming increasingly clear that ministers and the civil service are by no means infallible in the exercise of executive powers; and parliament being ineffective at holding the government to account. In the absence of other effective protection, public law expanded – and its expansion was accepted as legitimate – in order to protect citizens from executive injustice.
Anyway, back to the Kirklees parking fine. Two public law grounds which can make decisions unlawful are: failing to give adequate reasons for a decision; and decision makers fettering their discretion. If the council had properly explained its decision not to cancel the ticket, then I might have paid the £35. But what I got was a formulaic claim of ‘careful consideration to the circumstances’ with no reasons addressing the points I had raised. And the one reason given – the PCN was correctly issued – should have been the starting point for considering whether the ticket should be cancelled and not the end point for deciding not to cancel the ticket.
Included with the letter from the council were documents which explained the right to make formal representations. There were nine possible grounds. I picked the two likely looking candidates: ‘procedural impropriety’ (lack of reasons and fettering of discretion); and ‘other’ (the circumstances in which I parked were compelling reasons for cancelling the ticket). A few days later I got a letter – from the same person who responded to my first letter – rejecting my representations on three grounds.
(i) Your original appeal was considered and a response was sent giving you a reason why the Notice had not been cancelled, i.e. ‘Your vehicle was parked in a Residential Permit parking place that is clearly shown to be restricted for residents permit holders only. The Civil Enforcement Officer has noted that you’re not displaying a valid permit for that parking place. This is a contravention of the parking regulation and the PCN was, therefore, correctly issued.’ In view of the fact you were not displaying a valid permit, there was no reason to cancel the Notice.
(ii) Whilst I accept that you did have a ‘poorly’ child that needed urgent medical attention, I would contest that because of the parking situation around the doctors’ surgery, it may have been advisable to have taken your child to hospital, particularly as you were aware that parking around the doctors’ surgery was restricted to ‘resident permit parking’. In fact, you admit to visiting the GP on a regular basis, and have parked in the permit area previously. It is therefore evident that you knew it was a permit area and that parking is generally difficult in this area.
(iii) On this occasion, you claim that the paediatric nurse advised you to take your child to see his GP, or go to the hospital as soon as possible. Because of the parking situation, and the difficulty in having to move your son any distance with his oxygen cylinder (and the fact it was raining), it may have been more appropriate to take your child to the hospital, particularly knowing that parking was restricted outside the GP’s surgery
Point (i) repeats what was in the first letter in terms of the decision maker fettering their discretion – ‘The penalty charge was correctly issued. There was no reason to cancel it.’ And points (ii) and (iii) introduced another potential public law challenge: the decision was unreasonable or irrational. It’s not clear, but the thrust seems to be: you knew you might struggle to park at your GPs so, even though your child needed urgent medical attention and you were outside your GPs, you should have gone to A&E instead. Barmy.
Appeal to the Traffic Penalty Tribunal
The rejection of the formal representations came with a form for appealing the penalty charge to the Traffic Penalty Tribunal. While I was willing to advance my back-of-fag-packet public law points to the council, advancing them before an adjudicator at the Tribunal needed more thought and research. The old Code of Conduct for barristers had a rule which said a barrister must not advance any contention which he does not consider to be properly arguable. I’m not a barrister, but it’s a sound rule for everyone because advancing contentions which are not properly arguable is a waste of everybody’s time.
My luck was in though. The law on representations and appeals against council parking charges is in the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 (the Regulations) and the Department for Transport’s guidance: Traffic Management Act 2004 – The Secretary of State’s Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions (the Guidance).
Regulation 4 sets out the grounds on which you can succeed when you make representations to the council against a penalty charge. There are nine specific grounds in Regulation 4(4). And then a more general ground in Regulation 4(2): ‘there are compelling reasons why, in the particular circumstances of the case, the enforcement authority should cancel the penalty charge and refund any sum paid to it on account of the penalty charge.’
The Guidance issued by the Department for Transport requires councils making decisions about penalty charges to follow public law principles. It has been revised several times since my appeal, but the Guidance on a council’s legal powers has remained in the same terms:
10.3 An authority has a discretionary power to cancel a penalty charge notice at any point throughout the process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case. Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest.
10.4 Enforcement authorities have a duty not to fetter their discretion, so should ensure that penalty charge notices, Notices to Owners, leaflets and any other advice they give do not mislead the public about what they may consider in the way of representations. They should approach the exercise of discretion objectively and without regard to any financial interest in the penalty or decisions that may have been taken at an earlier stage in proceedings. Authorities should formulate (with advice from their legal department) and then publish their policies on the exercise of discretion. They should apply these policies flexibly and judge each case on its merits. An enforcement authority should be ready to depart from its policies if the particular circumstances of the case warrant it.
10.11 If the enforcement authority considers that there are no grounds for cancellation, it should tell the vehicle owner and explain its reasons.
My grounds were properly arguable: the council fettering its discretion, not giving reasons and the unreasonable decision were a procedural impropriety under Regulation 4(4)(f). And the Tribunal might recommend the cancellation of the Kirklees parking fine on the basis of Regulation 4(2) and ‘compelling reasons’. I put my submissions in writing to the Tribunal and the appeal was listed for an afternoon hearing in Manchester. I never got to go because, on the morning of the hearing, the adjudicator’s assistant phoned to say the adjudicator had read my submissions and was directing the council to cancel the penalty charge.
Looking back, I’m not sure why I dedicated the time and energy to appealing the Kirklees parking fine. It was a lot of effort for £35? Beyond that, the dispute shows that public bodies are not infallible when it comes to making decisions. The dispute also demonstrates the permeation of public law principles into even trivial matters like parking fines. It must be a good thing that public officers act fairly and properly when making decisions, even minor ones?
It does, however, highlight the problem of individual challenges to decisions: they are not necessarily effective at improving decision making generally. I may be doing the council a disservice and I’m acutely aware of sounding pompous since it was only a parking ticket. But I expect that after my appeal the council carried on as before, continuing not to engage with the question of whether a valid parking charge should be cancelled.
Traffic Management Act 2004, s 87 (link is to legislation.gov.uk)
Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, SI 2007/3482 (link is to legislation.gov.uk)
Bingham T, The Rule of Law (Allen Lane 2010)
Sedley S, Ashes and Sparks, Essays on Law and Justice (Cambridge University Press 2011)
Bar Council, Code of Conduct (October 2004) (link is to barstandardsboard.org.uk)
The statutory guidance issued by the Department for Transport has been revised and updated on several occasions. The current Guidance is:
Traffic Management Act 2004 – The Secretary of State’s Statutory Guidance to Local Authorities on the Civil Enforcement of Parking Contraventions (2016) (link is to gov.uk)
In addition to the above, there is more detailed operation guidance which incorporates the above Guidance:
Traffic Management Act 2004 – Operational Guidance to Local Authorities: Parking Policy and Enforcement (March 2015) (link is to gov.uk)