Miller

Xxxxxxx xxxxxxx
Xx xxxx xxxx
Xxxxxx xxxx xx
xxxxxxxxxxxxxx@gmail.com

Transport for London
PO Box 194.
Sheffield S98 1LZ
Phone 020 8253 7000
Fax: 01903 767 359
Xx xxxxx xxxx
gfxxxxxxx xxxxxx xx xxxx

As the notice is dated for Friday the 27
th
of December and assumed posted
on that day it is deemed served on the 31
st
. Although the post during this
time is unreliable I can not prove otherwise. I therefore have to make my
representation latest on the 28
th
even though I have not had the information
asked for or the viewing requested in writing. All these below are part of my
representation and not to be taken or confused with a FoI request.
I would need the full and understandable responses to all the points
raised, in a notice of acceptance or rejection as "one of the
fundamentals of good administration." (Lord Denning MR in
Breen v. AEU

a) I have made my viewing request but to date this was not
complied with or even given alternative dates as requested. I
have not even had a confirmation that this case is placed on
holed as promised. I had given as second options 2 TfL
registered offices besides the Manor House tube one. I would
have liked to have the requested information as well. I am
therefore hampered in making my full representation but feel
the need to make this initial appeal or else loose my chance. I
may have more to add once the information is given and
recordings are seen.

b) In fact the actual PCN had failed in the mandatory
requirement to convey Regulation 3 (6) of the Civil
Enforcement of Parking Contraventions (England)
Representations and Appeals Regulations 2007. This is not
just an assertion on my part but clearly spelled out in the
following regulation as to the contents of the PCN: (6) Where
the recipient of the penalty charge notice makes a request
under paragraph (5), the enforcement authority shall comply
with the request within a reasonable time.

c) I can not know the precise circumstances as I have not had
the viewing as promised. The driver claims the belief that one
may have parked so.

d) There is no fax number or email address within the NTO.
The appropriate fax number and email address for the sake of
representations within the NTO is a mandatory requirement
and the lack of it renders it void. 3(4) (c) of The Civil
Enforcement of Parking Contraventions (England)
Representations and Appeals Regulations 2007 clearly
state that a fax number and email has to be included if
appropriate. It does not become inappropriate by the wish of
any TfL/NSL member of staff. In fact the TfL document
schedule-2-enforcement-operations-sor page 168 chapter
E6.1.2 R1 (tagged as mandatory) states that TfL and its
agents (service provider) have phone, web, email, courier,
and facsimile contact facilities for PCN recipients. I
understand TfL has a similar document for the red routes.

e) I have been given the fax number 01903 767 359 for making
viewing requests and representations against parking tickets.
This was given by TfL themselves when an associate rang in
at the phone number given 02082537000 (the phone number
for making the penalty payments). This fax number was also
displayed on the TfL website. TfL had further adopted the
practice to accept representations on this fax number for quite
some time and (as widely used across all spheres of case law)
is legally bound to honor it unless there is good reason not
to do so (Nadarajah v Secretary of State).

f) I am aware that The London councils (and only they may
make the decision) have decided the form for making
representations. In fact they have clearly decided in the paper
PCFL Form of Representations that any sort of form
submitted is to be treated as so specified by The London
Councils. I quote London boroughs should not reject
representations delivered to them in another form on the sole
ground that they are not presented in the standard form..
Furthermore, their procedures for dealing with
correspondence must be such that they are able to identify
valid representations raised in a normal letter. This is further
reconfirmed in the updated determination below.

g) The above mentioned document included that a pink form
has to be supplied for making representations. I quote once
again. It is therefore proposed that the form specified by the
PCfL should set out the statutory grounds in plain English
and be part of the NtO. The sheet should always be pink,
regardless of the different colors that individual boroughs
select for the main part of the form. TfL have not given this
pink form to me as required by The London Councils. I
quote from Rob Kidd the FoI officer of The London
Councils from the 9
th
of August 2011 London Councils'
joint committee does decide the form for making
representations. This was originally determined under the
Road Traffic Act 1991 (paragraph 2(2) of schedule 6) and
was continued when the Traffic Management Act 2004
replaced this legislation. This document is still in force.

h) The PCN wrongly mentions that one must sign the
representation. This is not stated anywhere within the
regulations and contrary to the TfL internal guidance.

i) I understand that the decision making is outsourced to
another company when TfL may not do so. Only a copy of
the contractual relationship TfL may have with NSL can
refute this standpoint. I fact NSL themselves claim We
produced a rigorous policy document that clearly sets out the
criteria for allowing or refusing representations against
PCNs. This thorough document provides clear direction to
the outsourced processing team for the whole process. The
TfL document schedule-2-enforcement-operations-sor.pdf is
only further proof of the outsourced decision making. Again
a non redacted version of Schedule 2 Enforcement
Operations SOR and their appendixes or its equivalent
pertaining to red route enforcement may further disprove my
contention.

j) As NSL actually for all due purposes run the decimalized
parking and traffic process, it is done with a profit and not
ring fenced as required. A rundown of the annual profit NSL
makes from this franchise with TfL, may disprove the
allegation just made.

k) The VQ4 owner details request was wrongly done by NSL
rather than the actual authority TfL. Only the relevant
delegation documents can disprove the claim just made.

l) The photos supplied do not show the location for example the
longitude and latitude. This is a clear requirement in the code
that TfL have signed up to, and therefore obligated. It is
therefore highly unlikely that the device actually corresponds
to any authorised system. A copy of the authorization and its
full specification of the CCTV and auxiliary equipment
known as the Technical Construction file (TCF), and a
rundown of the actual devices and procedures actually used
and done may disprove the claim just made. A simple
certificate or an assertion is by far inadequate. As explained
the system used can not be the same as the one specified.

m) I can confirm that contrary to the second principal of the
DPA, TfL is not registered at the ICO for the specific
purpose of the non revenue (ring fenced) decriminalized
traffic enforcements and their prospective penalties. The
entry of Purpose 5: Assessment and Collection of Taxes and
Other Revenue that includes OWNERS AND REGISTERED
KEEPERS OF MOTOR VEHICLES do not refer to the
prospective (non revenue and ring fenced) penalties but
rather only to car park fees etc. If as I believe my data was
acquired against the regulations I demanded that it not be
further processed as it would be illegal to do so, but
immediately deleted and confirmed to me so. Please pass a
copy of this letter to the TfL data compliance officer.

n) I just do not understand why a CCTV was used in the first
place and not a regular warden. TMA 2004 allowed the use
of CCTV however according to the attached guidance given
by the Secretary of State (that the authorities must have
regard to, as mentioned in the very same TMA) CCTV
should not be used for enforcement at this location as it is not
sensitive, impracticable or difficult to use foot patrol CEO
enforcement. As disabled are allowed to alight at this spot
CCTV is specifically disallowed. This was disregarded. The
CCTV has its place as mentioned in the regulations but
clearly not in this instance. The guidance is very clear, in any
location it is either foot patrol or CCTV and never both. If
TfL have undertaken to enforce quite a number of miles of
road it would be an impertinence later to claim that the task is
too great and so much easier to differ from the guidance. Any
decision (if any) could only be done and published at the
highest TfL level. The actual status of statutory guidance is
very clear from case law. "departure from the guidance will
be unlawful unless there is a cogent reason for it" .."it is
difficult to envisage circumstances in which mere
disagreement with the guidance could amount to a cogent
reason for departing from it X, R (on the application of) v
London Borough of Tower Hamlets [2013] EWCA Civ
904. Parliament did not intend local authorities to whom
ministerial guidance was given to be free, having considered
it, to take it or leave it. R v. Islington Borough Council, ex
parte Rixon (1998) 1 CCLR 119 at [23] Sedley J (as he
was then)

o) There is scant signage showing that CCTV is operational at
this spot. As Transport for London have signed up to the
Code of Practice for Operation of CCTV Enforcement
Cameras published by the London Councils they are duty
bound to it. To date there are no regulations/publications (or
opinion for that matter) that counter the following statement
in the London Councils code of practice. CCTV in public
places MUST be operated with regard to the advice and
guidelines issued by. Office of Data Protection Registrar
(ICO). The ICO (formally known as the Office of Data
Protection Registrar) have given very firm guidance with
requirement to adequate signage at each spot, that appear to
have been disregarded.

Thank you
xxxxxxxxxxxx

Even though these contraventions have been deciminalised it
would be against the regulations and contrary to Article 6 of the
Human Rights Act 1998 if these representations would be only be
considered and addressed at a later stage or just shoved under
differing legislation (FoI). This is a representation!
I quote snippets from a review G R Hickinbottom 30 March 1998
with the full case attached below.
Whether a contravention of parking regulations under the scheme
of the 1991 Act is criminal or civil is a moot point. . The
European Court case of ztrk v Germany (1984) 6 EHRR 409
was considered at the hearing of this review. ..
decriminalisation, such offences were still criminal within the
meaning of the Convention, and consequently attracted the greater
protection of Article 6(3).

If legal certainty and the avoidance of capricious power require
reasons to be given, and nothing save perhaps a modicum of
administrative inconvenience and cost points the other way, a
decision to refuse reasons will be an irrational one; and so will
itself be in breach of duty. (Laws 1992, para 12):

It is trite law that where, as here, an authority is required to give
reasons for its decision it is required to give reasons which are
proper, adequate, and intelligible and enable the person affected
to know why they have won or lost. (R v Brent London Borough
Council, ex p Baruwa (1997))

Form of making Representations for Road Traffic Contraventions London Councils TEC 14 March 2013
Agenda Item 9, Page 1

London Councils Transport and
Environment Committee

Form of making Representations for
London Local Authority Road Traffic
Contraventions

Item No: 09

Report by: Andrew Luck Job title: Transport Officer
Date: 14 March 2013
Contact Officer: Andrew Luck
Telephone: 020 7934 9646 Email: andrew.luck@londoncouncils.gov.uk

Summary: This report reviews the determination made by the former Parking
Committee for London on the form in which representations should be
made against civil parking and traffic enforcement in the light of the
Equality Act 2010.

Recommendations: Members are asked to agree the revised determination on the form in
which representations against civil parking and traffic enforcement
should be made.

Background

1. The Road Traffic Act 1991 required in Schedule 6, paragraph 2 (2), that representations
against Penalty Charge Notices (PCNs) for parking contraventions must be made in a form
as specified by the London authorities acting through a joint committee. This requirement
was re-enacted in paragraph 4(3) of the Civil Enforcement of Parking Contraventions
(Representation and Appeals Regulations) 2007, made under the Traffic Management Act
2004.

2. Both the London Local authorities Act (LLA) 1996 for bus lane enforcement, and the London
Local Authorities and Transport for London (LLA and TfL) Act 2003 for moving traffic
contraventions also state that the form for making representations needs to be determined
by the enforcing authority, acting through the joint committee.

Form of Making Representations for Road Traffic Contraventions London Councils TEC 14 March 2013
3. This determination covers the formal representations made against enforcement which, if
rejected, allow the vehicle keeper access to the appeals process operated by PATAS.

4. The original determination was made by the former Parking Committee for London in 1993
and has not been revised since, notwithstanding changes in other legislation, particularly the
Disability Discrimination Act and the Equality Act, which do have a bearing on the issue.

Current Situation

5. The current determination with all decriminalised road traffic contraventions in London is that
all representations must be made in writing, either by responding and signing the relevant
section of the Notice to Owner
1
, by letter, by email or in any other written form.

6. The rationale behind this determination was that, once made, there should be no element of
doubt about the representations and it should not be possible for the vehicle keeper
subsequently to claim that the representations made had been something quite different.
For this reason, simple telephone representations (even though these are not prohibited
under legislation) were not accepted as there would be no irrefutable record kept of the
representations made or proper audit trail.

7. Since then, operational guidance issued by the Department for Transport has encouraged
local authorities to accept challenges in the most user friendly forms. However, boroughs
remain reluctant to accept telephone representations as there is no audit trail or discernible
process for ensuring what has been verbally stated and recorded is an accurate
interpretation of what the motorist intended.

8. The Disability Discrimination Act and the Equalities Act do, though require local authorities
to consider the services and procedures they operate and require them to make
adjustments where necessary to meet the needs of protected groups. The Local
Government Ombudsman has recently received two complaints from motorists where the
vehicle keeper states that his disability makes it impossible to make representations in
writing. The Local Government Ombudsman has tentatively concluded that the councils
policies in requiring representations to be made in writing is faulty. This fetters discretion
and does not take into account the wording of the regulations and guidance. More
importantly the Ombudsman has considered that by insisting on written representations, an
authority could well be contravening the Equality Act 2010.

9. The Equality Act 2010 obliges a council to make reasonable adjustments to its policies and
practices where these place a disabled person at a substantial disadvantage to a person
without a disability. Insisting on written representations in situations where an individual is
unable to do this is, in the view of the Ombudsman, placing disabled people at a
disadvantage and denying them the opportunity of accessing a statutory scheme of redress.

This also has a bearing on the determination previously made on the form of
representations which had no flexibility to deal with people whose disability makes it
impossible for them to make written representations, although the requirements of the
Disability Discrimination Act and the Equality Act would allow this implicitly.

1
or regulation 10 postal PCNs under the TMA 2004, moving traffic PCNs under the LLA and TfL
Act 2003 or bus lane Enforcement Notices under the LLA 1996

As a result the Committee is recommended to review the determination previously made on
this issue.

Proposal

10. The general rationale behind the previous determination is still, in officers views, sound.
That is that there needs to be an audit train providing an irrefutable record of the
representations made, and that representations made in writing continue to provide the best
means for this. However, in the light of the Local Government Ombudsmans conclusions,
there is a need to make an explicit reference to the needs of people with disabilities rather
than rely on the implicit action of the Equality Act on the previous determination.

The proposed form of the determination is therefore:

Representations against parking and traffic enforcement should be made in writing, either by
responding and signing the relevant section of the Notice to Owner, by signed letter, by
email, by internet form or in any other written form. Where a vehicle keepers disability
prevents them from providing written representations, the authority should accept oral
representations provided that an appropriate audit trail giving an irrefutable record of the
representations is kept.

11. There are a number of ways in which representations might be made in ways other than in
writing while still maintaining an audit trail, but authorities would need to have a defined
procedure in place. This could be achieved by having, with the vehicle keepers permission, a
recording of representations made by telephone. Alternatively, this could be achieved by a
council officer making and then sending a transcript of the telephone conversation by post.
This would then be signed by the recipient confirming that they agree with the contents. This
process could also be undertaken electronically where the council would email their record of
the telephone conversation and the recipient would send a simple response confirming that
they are in agreement with the transcript. In both cases, authorities would need to be aware
of statutory timescales, and ensure that cases are closely monitored so that they do not
escalate unnecessarily by way of the issuance of a Charge Certificate if there is any
reasonable delay.

Financial Implications for London Councils

12. There are no financial implications arising from this report.

Legal Implications for London Councils

13. There are no legal implications arising from this report.

Equalities Implications for London Councils

14. There are no equalities implications for London Councils arising from this report. By
implementing this change however, authorities would be recognising the impact of the
Equality Act explicitly, and ensuring a positive impact on equality.

Recommendations

15. The Committee is recommended to agree the revised determination of the form in which
representations against parking and traffic enforcement are to be made as follows:

Representations against parking and traffic enforcement should be made in writing,
either by responding and signing the relevant section of the Notice to Owner, by signed
letter, by email, by internet form or in any other written form. Where a vehicle keepers
disability prevents them from providing written representations, the authority should
accept oral representations provided that an appropriate audit trail giving an irrefutable
record of the representations is kept.

28 February 2008
1

DEPARTMENT FOR TRANSPORT

TRAFFIC MANAGEMENT ACT 2004

THE SECRETARY OF STATES STATUTORY GUIDANCE TO LOCAL
AUTHORITIES ON THE CIVIL ENFORCEMENT OF PARKING
CONTRAVENTIONS

FEBRUARY 2008

28 February 2008
2
STATUTORY GUIDANCE TO LOCAL AUTHORITIES ON THE CIVIL
ENFORCEMENT OF PARKING CONTRAVENTIONS

(I) Introduction and legal basis..................................................................................3
(II) Objectives of CPE.................................................................................................5
CPE policy objectives .............................................................................................5
CPE financial objectives.........................................................................................5
(III) Issues to consider before starting to use CPE powers ..................................7
(IV) Setting charges ....................................................................................................8
(V) Communicating CPE............................................................................................9
(VI) Appraising CPE................................................................................................. 10
(VII) Training and professionalism in CPE........................................................... 11
Civil Enforcement Officers .................................................................................. 11
The exercise of discretion................................................................................... 12
(VIII) On-street activities.......................................................................................... 13
Collecting evidence of contraventions .............................................................. 13
Enforcement using Approved Devices.............................................................. 14
Immobilisation/ removal: general ....................................................................... 14
Immobilisation and removals: special consideration for disabled badge
holders and vehicles with diplomatic registration plates ................................ 16
Persistent evaders ............................................................................................... 17
(IX) Policy and administrative functions................................................................ 18
Providing a quality service .................................................................................. 18
Collecting penalty charges.................................................................................. 18
Issuing the Notice to Owner ............................................................................... 19
Charge Certificate ................................................................................................ 20
(X) Considering challenges / representations / appeals .................................... 21
Challenges - also known as informal representations.................................... 21
Formal representations ....................................................................................... 22
Notification of the outcome of representations ................................................ 23
Adjudication........................................................................................................... 24
Cases referred back to the authority by the adjudicator ................................ 24
(XI) Ensuring the effectiveness of CPE................................................................ 26
Reporting ............................................................................................................... 27
Annex A ..................................................................................................................... 28
What enforcement authority annual reports should include .............................. 28
Financial................................................................................................................. 28
Statistical ............................................................................................................... 28
Performance against targets .............................................................................. 28
Annex B ..................................................................................................................... 29
Abbreviations ......................................................................................................... 29

28 February 2008
3
(I) Introduction and legal basis

1. This Statutory Guidance is published by the Secretary of State for Transport
under section 87 of the Traffic Management Act 2004 (TMA).

2. This document is also the Secretary of States guidelines on uniforms that
Section 76(3) of the TMA allows the appropriate authority to issue.

3. The Guidance sets out the policy framework for Civil Parking Enforcement
(CPE). It explains how to approach, carry out and review parking
enforcement. It attempts to strike the balance between:
as much national consistency as possible, while allowing parking
policies to suit local circumstances; and
a system that is fair to the motorist, but also effective in enforcing
parking regulations.

4. All enforcement authorities
1
in England should use this Guidance in
conjunction with the Regulations that give effect to the parking provisions in
Part 6 of the TMA
2
.

5. The Guidance has no special authority in regard to matters of legal
interpretation. Where there appear to be differences between the Guidance
and the legislation (the TMA and the Regulations), the legislation always take
precedence.

6. Where the Guidance says that something must be done, this means that it is
a requirement in either primary or secondary legislation, and a footnote gives
the appropriate provision. In all other instances, section 87 of the TMA
stipulates that local authorities must have regard to the information
contained in this Guidance.

7. This Guidance uses the same terminology as the TMA, so it refers to:
Civil Parking Enforcement (CPE) rather than Decriminalised Parking
Enforcement;
Civil Enforcement Officer (CEO) rather than Parking Attendant; and
Civil Enforcement Area (CEA) rather than Special Parking Area / Permitted
Parking Area (SPA/PPA)
3
.

1
See the TMA, Schedule 8
2
See the Traffic Management Act 2004 Sections 72 to 93 and Schedules 7 to 12; The Civil
Enforcement of Parking Contraventions (England) General Regulations 2007 (SI 2007/3483); The
Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations
2007(SI 2007/3482); The Civil Enforcement Officers (Wearing of Uniforms) (England) Regulations
2007(SI 2007/3485); The Civil Enforcement of Parking Contraventions (Approved Devices)
(England) Order 2007(SI 2007/3486); The Removal and Disposal of Vehicles (Amendment)
(England) Regulations 2007(SI 2007/3484); and The Civil Enforcement of Parking Contraventions
(Guidelines on Levels of Charges) (England) Order 2007(SI 2007/3487).
3
Areas which before 31st March 2008 were designated as special parking areas in London or as
permitted parking and special parking areas outside London automatically become civil
enforcement areas on that date: see Traffic Management Act 2004 Schedule 8, paragraphs 2(4)
and 8(4).
28 February 2008
4
8. The Guidance applies to all enforcement authorities in England exercising
CPE powers conferred on them by or under the TMA. The Mayor of London
should consider revising the Mayor's Transport Strategy to make the parking
aspects in it consistent with the new Regulations and this Guidance. The
Welsh Assembly will issue Statutory Guidance for Wales.

9. Authorities must have regard to this Statutory Guidance (as stipulated by
section 87 of the TMA) when exercising their functions. These functions
include developing, implementing and reviewing their CPE regimes. They
should also read this Guidance in conjunction with the more detailed
Operational Guidance (the replacement for Local Authority Circular 1/95). The
Statutory Guidance sets out the skeleton for how CPE should be operated
which is given greater depth in the Operational Guidance.

10. CPE is a legal process. Enforcement authorities should make sure that their
employees and contractors who operate CPE regimes have a clear and full
understanding of what the law requires. If enforcement authorities are
themselves uncertain about any aspects of these requirements, they should
get the appropriate legal advice.
28 February 2008
5
(II) Objectives of CPE

CPE policy objectives

11. CPE should contribute to the authoritys transport objectives. A good CPE
regime is one that uses quality-based standards that the public understands,
and which are enforced fairly, accurately and expeditiously.

12. Enforcement authorities should aim to increase compliance with parking
restrictions through clear, well designed, legal and enforced parking controls.
CPE provides a means by which an authority can effectively deliver wider
transport strategies and objectives. Enforcement authorities should not view
CPE in isolation or as a way of raising revenue

13. Enforcement authorities should design their parking policies with particular
regard to:
managing the traffic network to ensure expeditious movement of traffic,
(including pedestrians and cyclists), as required under the TMA Network
Management Duty
4
;
improving road safety;
improving the local environment;
improving the quality and accessibility of public transport;
meeting the needs of people with disabilities, some of whom will be unable
to use public transport and depend entirely on the use of a car; and
managing and reconciling the competing demands for kerb space.

CPE financial objectives

14. For good governance, enforcement authorities need to forecast revenue in
advance. But raising revenue should not be an objective of CPE, nor should
authorities set targets for revenue or the number of Penalty Charge Notices
(PCNs) they issue.

15. Enforcement authorities should run their CPE operations (both on- and off-
street
5
) efficiently, effectively and economically. The purpose of penalty
charges is to dissuade motorists from breaking parking restrictions. The
objective of CPE should be for 100 per cent compliance, with no penalty
charges. Parking charges and penalty charges should be proportionate, so
authorities should not set them at unreasonable levels. Any penalty charge
payments received (whether for on-street or off-street enforcement) must only
be used in accordance with section 55 (as amended) of the Road Traffic
Regulation Act 1984.

16. Previous guidance said that local authority parking enforcement should be
self-financing as soon as practicable. This is still a sensible aim, but compliant

4
See the TMA, Section 16.
5
CPE can only apply to privately owned car parks that are regulated by an order made under the
Road Traffic Regulation Act 1984, Section 35 and provided under any letting or arrangement made
by a local authority with some other person (such as a privately-owned company) under Section
33(4) of that Act.
28 February 2008
6
applications for CPE (see next section) 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 Secretary of State will not expect
either national or local taxpayers to meet any deficit.

28 February 2008
7
(III) Issues to consider before starting to use CPE powers

17. The detailed Operational Guidance sets out how an enforcement authority
can apply for designation as a CPE area
6
. The key criteria on which DfT will
be need to be satisfied are that:
the authority has reviewed its existing parking policies and analysed how
CPE will contribute to overall transport objectives;
the authority has consulted as required and taken account of their views in
finalising the application;
proposed penalty charges are proportionate to the scale of the traffic
management issues facing the enforcement authority;
there is consistency with neighbouring schemes so that motorists and
others affected can understand how it works; and
all Traffic Regulation Orders (TROs), traffic signs and road markings are in
compliance with legal requirements and the traffic signs and road
markings are consonant with the orders.

18. Before making an application for CPE designation to the Secretary of State,
the authority should consult:
other traffic authorities (including the Highways Agency) who may be
affected;
the emergency services;
the DVLA;
the adjudication service; and
the Traffic Enforcement Centre at Northampton County Court.

19. The TMA enables authorities with CPE power to enforce in a Special
Enforcement Area (SEA)
7
prohibitions of double parking
8
and parking at
dropped footways
9
as if they had been introduced using a Traffic Regulations
Order (Traffic Management Order in London). An SEA must be within a CEA
or cover the same area as one. An authority should consider whether to apply
for SEA designation as part of their CEA application. If they do, they will have
to apply under Schedule 10 paragraph 3 (1) (4) asking the Secretary of
State to designate the relevant part of their area as an SEA.

20. Any Special Parking Area that existed before commencement of the TMA
2004 automatically becomes an SEA
10
but authorities should ensure that the
public are aware of the new restrictions before starting enforcement.

6
In the TMA this is referred to as a Civil Enforcement Area for parking contraventions: see Schedule
8.
7
TMA, Schedule 10.
8
TMA, Section 85.
9
TMA, Section 86.
10
TMA, Schedule 10, paragraphs 1(5) and 3(5).
28 February 2008
8
(IV) Setting charges

21. The primary purpose of penalty charges is to encourage compliance with
parking restrictions. In pursuit of this, enforcement authorities should adopt
the lowest charge level consistent with a high level of public acceptability and
compliance. The enforcement authority must
11
ensure that the public knows
what charge levels have been set by publishing them well in advance of their
introduction. They must also publish any subsequent change to the charge
levels
12
. In London, charges will be set by the London local authorities acting
jointly and by Transport for London (in respect of GLA roads), with the
approval of the Mayor (and provided that the Secretary of State does not
object). Outside London, the charges must accord with guidelines set by the
Secretary of State
13
.

22. Parking in a place where it is always prohibited (such as on a red route, on
double yellow lines, or in a disabled bay without displaying a valid badge) is
considered more serious than overstaying where parking is permitted (e.g. in
a parking place). There is a perceived unfairness of receiving the same
penalty regardless of the seriousness of the contravention. For this reason,
and in order to emphasise the traffic management purposes of CPE,
enforcement authorities must
14
apply different parking penalties to different
contraventions. Outside Greater London, the current three-band system has
been reduced to two, and the higher and lower penalty charges in these
bands are specified in the Guidelines Order
15
. The full lists of contravention
codes is set out by the London Councils and reproduced in the Operational
Guidance. The higher list is specified in the Guidelines Order
16
. This Order will
be varied from time to time and enforcement authorities should check with the
London Councils and on the DfT website that they are using the most up to
date version.

23. Where an authority has to immobilise or remove a vehicle outside London, the
charges must accord with guidelines set by the Secretary of State
17
. In
London, the charges will be set by the London local authorities acting jointly,
with the approval of the Mayor (and provided the Secretary of State does not
object). The charges should be set no higher than required to meet the
reasonable costs of the immobilisation/removals procedure. They should not
generate a surplus.

11
TMA, Schedule 9 paragraphs 5 (Greater London) and 9 (outside Greater London).
12
Ibid.
13
S.I. 2007/3487 (for outside London) and Section 284 of the Greater London Authority Act 1999 (for
inside London).
14
S.I. 2007/3487, Schedule, Paragraph 1.
15
S.I. 2007/3487, Schedule, Table 1
16
17
28 February 2008
9
(V) Communicating CPE

24. It is important that the public understand why an authority has introduced CPE
and what parking restrictions are in place. Motorists and other road users
need to be aware that parking enforcement is about supporting wider
transport objectives, in particular keeping traffic moving, rather than raising
revenue.

25. It is also important that motorists and other road users understand the details
of the scheme. Unclear restrictions, or restrictions that do not comply with
regulations or with the Secretary of States Guidance, will confuse people and
ultimately undermine the operation and enforcement of the scheme overall.
Once authorities have finalised their parking enforcement policies, they should
publish and promote them openly. There should be regular communication
after CPE is introduced and when changes are made.

26. Enforcement authorities should consider the full range of media available to
them when communicating with the public. They should consider telling every
household in the CEA when they propose changes e.g. to the operation of a
scheme.

27. Enforcement authorities should try to work regularly with neighbouring
authorities to ensure a consistent approach to communication, across regions
and not just local boundaries, as well as to enforcement.

28 February 2008
10
(VI) Appraising CPE

28. Enforcement authorities should monitor their parking policies, CPE regimes
and associated regulatory framework (including penalty charge levels). They
should appraise them when reviewing their Local Transport Plans (LTP)
(known as Local Implementation Plans in London) and make
recommendations for improvements to members. If an authority does not
have an LTP/LIP, the appraisal should be part of the review of the local
development framework or community strategy.

29. Appraisals should take account of any relevant information that has been
collected as part of the parking enforcement process, in particular about the
practical effectiveness of the scheme. They will benefit from interviews with
CEOs, who are in a unique position to identify changes to parking patterns,
and with office staff, who see challenges and representations and the reasons
for them.

30. The Secretary of State recommends that enforcement authorities consult
locally on their parking policies when they appraise them. They should seek
the views of people and businesses with a range of different parking needs as
well as taking into account the views of the police.

31. The appraisal should take account of:
existing and predicted levels of demand for parking;
the availability and pricing of on- and off-street parking places;
the justification for, and accuracy of, existing traffic orders;
the adequacy, accuracy and quality of traffic signing and road markings
which restrict or permit parking within or outside a Controlled Parking
Zone;
the level of enforcement necessary for compliance;
the levels of penalty charges;
the need to resource the operation effectively and ensure that all parking
staff are appropriately trained; and
impact on traffic flow, i.e. traffic or congestion outcomes.

32. The appraisal should ensure that parking policies still apply at the right place
and time. It is particularly important to check that the policies are properly
underpinned by TROs that are valid, up-to-date and properly indicated with
traffic signs and road markings. A parking contravention is often a breach of a
provision of a TRO, which must have been made under the correct section of
the Road Traffic Regulation Act 1984 (RTRA)
18
. Flawed orders may be
unenforceable, and can damage both the aims of CPE and the public
perception of how it is managed.

18
For complete lists of parking contraventions which are civilly enforceable, please see the TMA,
Schedul e 7, Paragraphs 2, 3 and 4.
28 February 2008
11
(VII) Training and professionalism in CPE

33. Once a solid foundation of policies, legitimate TROs, and clear and lawful
signs and lines are in place, the success of CPE will depend on the dedication
and quality of the staff that deliver it. It is essential to give staff at all levels the
skills and training to do their jobs effectively if the service is to command
public confidence and respect. This should also improve the self-esteem and
job satisfaction of staff, resulting in higher retention rates. Training should be
seen as a legitimate and important aspect of CPE running costs and training
budgets should be protected from cuts.

34. The office processes involved in CPE are important and staff carrying them
out need similar levels of skill, training and professionalism as the more visible
on-street enforcement officers. Enforcement authorities should provide
enough staff for the volume of work. They should also make sure that those
staff (whether employed directly by the authority or by a contractor to deal
with informal challenges) have the skills, training, authority and resources to
give the public a high quality, professional, efficient, timely and user-friendly
service.

35. Authorities that outsource any area of parking enforcement to private
companies should ensure that the contractor fulfils all the requirements set
down for the authority itself.

Civil Enforcement Officers

36. CEOs are the public face of CPE and the way they perform their functions is
crucial to the success, and public perception, of an authoritys CPE operation.
It is recommended that all CEOs achieve minimum standards through
recognised training courses.

37. CEOs may be required to work near schools and similar sensitive areas and
be seen as a uniformed figure of authority. The Secretary of State
recommends that an applicant for a job as a CEO undergoes a Criminal
Records Bureau check.

38. The main objective of a CEO should be to ensure parking controls are
observed and enforced in a fair, accurate and consistent manner. CEO duties
will also include related activities such as the following:
inspecting parking equipment;
checking and reporting defective traffic signs and road markings;
issuing information leaflets or warning notices;
providing witness statements; and
where appropriate, appearing before a parking adjudicator.

If CEOs have the time available, the authority may wish to consider asking
them to carry out tasks such as:
informing the police of criminal parking activity;
reporting suspected abandoned vehicles;
28 February 2008
12
reporting vehicles with no valid tax disc to the DVLA;
putting in place and removing notices about the suspension of parking
places;
checking that shops selling parking vouchers have adequate stocks;
reporting on changes in parking patterns;
assisting with on-street enforcement surveys; and
checking that non-mobile objects in parking places (for example, skips) are
in compliance with the authoritys license.

It is important that these supplementary duties do not stop CEOs carrying out
their principal duties and that the authority complies with the restrictions on
the use of parking income set out in Section 55 (as amended) of the RTRA
1984
19
.

The exercise of discretion

39. The Secretary of State considers that the exercise of discretion should, in the
main, rest with back office staff as part of considering challenges against
PCNs and representations against NtOs. This is to protect CEOs from
allegations of inconsistency, favouritism or suspicion of bribery. It also gives
greater consistency in the enforcement of traffic regulations.

40. However, the enforcement authority may wish to set out certain situations
when a CEO should not issue a PCN. For example, an enforcement authority
may wish to consider issuing a verbal warning rather than a PCN to a driver
who has committed a minor contravention and is still with, or returns to, the
vehicle before a PCN has been served. The enforcement authority should
have clear policies, instructions and training for CEOs on how to exercise
such authority. These policies should form the basis for staff training and
should be published.

41. Enforcement authorities should ensure that CEOs are properly trained to
enforce parking controls fairly, accurately and consistently. As well as formal
training, it is recommended that authorities include some supervised on-street
training to familiarise CEOs with the area and any special parking provisions.
Enforcement authorities should make sure that CEOs understand all relevant
exemptions, such as those applying to diplomatic vehicles and the Blue
Badges issued to disabled people. CEOs should be aware of their powers to
inspect Blue Badges
20
and the sensitivity required should they need to
exercise them.

19
S.I. 2007/3483, Regulations 25 and 26
20
Department for Transport: Guidance on the inspection and enforcement of blue badges for police,
traffic wardens, local authority parking attendants, civil enforcement officers and issuing local
authorities.
28 February 2008
13
(VIII) On-street activities

42. When exercising prescribed functions
21
a CEO must
22
wear a uniform. The
uniform should clearly show:
that the wearer is engaged in parking enforcement;
the name of the local authority/authorities of whose behalf s/he is acting;
and
a personal identity number.

43. It is recommended that CEOs carry a photo-identity card, showing their
identification number and the name of their employer. However, to protect the
safety of staff, it is strongly recommended that the photo-identity card does
not include the CEOs name on it.

Collecting evidence of contraventions

44. The local authority must
23
provide evidence of the contravention either from a
CEOs direct observation, or from the record of an approved device
24
.

45. The PCN must
25
either be fixed to the vehicle or given to the person who
appears to be in charge of that vehicle, although there are three exceptions to
this
26
- see paragraph 47. The information that a PCN must
27
contain is set
out in the Regulations. It is recommended that the PCN also gives:
vehicle make and colour (if evident);
detailed location of vehicle (full street name);
the contravention code;
observation start and finish times;
PCN number (all PCNs should be uniquely identifiable);
CEOs identification number; and
the vehicles tax disc number and expiry date.

46. Photographs and notes by the CEO about the circumstances should be kept
as further evidence that the contravention took place and to help resolve any
disputes. Authorities should provide CEOs with the appropriate equipment,
training and guidance to collect such evidence in the circumstances that the
authority has prescribed. The use of digital cameras and similar technology is
strongly encouraged. Authorities should disclose their evidence at the earliest
possible opportunity.

47. There are three circumstances in which a PCN may be served by post
28
. One
is where the contravention has been detected on the basis of evidence from
an approved device. The second is if the CEO has been prevented, for

21
TMA, Section 78(2)(a) and (b) and Section 79, and RTRA, Section 99
22
TMA, Section 76(3)(a)
23
S.I. 2007/3483, Regulation 6
24
A device specified in S.I. 2007/3486
25
S.I. 2007/3483, Regulation 9.
26
S.I. 2007/3483, Regulation 10(1).
27
S.I. 2007/3483, Schedule, Paragraphs 1 and 2, and S.I. 2007/3482, Regulations 3(2) and 3(4).
28
28 February 2008
14
example by force, threats of force, obstruction or violence from serving the
PCN either by affixing it to the vehicle or by giving it to the person who
appears to be in charge of that vehicle. The third is if the CEO had started to
issue the PCN but did not have enough time to finish or serve it before the
vehicle was driven away and would otherwise have to write off or cancel the
PCN. In these circumstances a PCN is served by post on the owner (whose
identity is ascertained from the DVLA), and also acts as the Notice to Owner.
The Regulations set out what information must
29
be stated on a PCN sent by
post. The Secretary of State suggests that postal PCNs should be sent within
14 days of the contravention.

Enforcement using Approved Devices

48. TMA Regulations
30
give the power to authorities throughout England to issue
PCNs for contraventions detected with a camera and associated recording
equipment (approved device). The Secretary of State must
31
certify any type
of device used solely to detect contraventions (i.e. with no supporting CEO
evidence). Once certified they may be called an approved device. The
Secretary of State recommends that approved devices are used only where
enforcement is difficult or sensitive and CEO enforcement is not practical.
Approved devices should not be used where permits or exemptions (such as
resident permits or Blue Badges) not visible to the equipment may apply.

49. It is recommended that the authority sends a copy of the record of the
contravention (in the form of a still image or images) with the PCN.

50. The primary objective of any camera enforcement system is to ensure the
safe and efficient operation of the road network by deterring motorists from
breaking road traffic restrictions and detecting those that do. To do this, the
system needs to be well publicised and indicated with lawful traffic signs.

Immobilisation/ removal: general

51. Very few authorities now use immobilisation. The Secretary of State is of the
view that it should only be used in limited circumstances such as where the
same vehicle repeatedly breaks parking restrictions and it has not been
possible to collect payment for penalties, primarily because the keeper is not
registered, or is not properly registered, with the DVLA. Where a vehicle is
causing a hazard or obstruction the enforcement authority should remove
rather than immobilise. Immobilisation/removal activity should only take place
where it gives clear traffic management benefits.

52. An enforcement authority should formulate and publish clear guidelines for
CEOs on when it will be appropriate to use immobilise or remove. The
guidelines should cover the order of priority in which vehicles should be dealt
with, based on the nature of the contravention. Powers should not be used

29
S.I. 2007/3483, Schedule, Paragraph 2, and TS.I. 2007/3482, Regulation 3(4).
30
31
S.I. 2007/3486 and S.I. 2007/3483, Regulation 10.
28 February 2008
15
randomly and authorities should draw up guidelines in consultation with the
police.

53. The decision on whether to immobilise or to remove a vehicle requires an
exercise of judgement and must
32
only be taken following specific
authorisation by an appropriately trained CEO. The immobilisation/removal
operatives should not take the decision. Vehicles should not be immobilised
or removed by contractors unless a suitably trained CEO is present to confirm
that the contravention falls within the guidelines.

54. When a vehicle is parked where parking is permitted, authorities must not
33

immobilise or remove in the first 30 minutes following the issuing of the PCN,
with the exception of persistent evader vehicles (see paragraphs 65-66)
where the time limit is 15 minutes. When a vehicle has been immobilised, a
CEO must
34
affix a notice to it. The regulations set out what that notice
must
35
say. The immobilisation device may only be removed by or under the
direction of a person authorised to do so by the enforcement authority,
following payment of the release fee and the penalty charge.

55. Where a vehicle is causing a hazard or obstruction the enforcement authority
should remove rather than immobilise. If the vehicle is parked where parking
is prohibited (such as on double yellow lines), then the vehicle can be
removed as soon as a PCN has been served
36
.

56. If a driver returns to the vehicle whilst immobilisation or removal is taking
place, then unless they are a persistent evader, it is recommended that the
operation is halted, unless the clamp is secured or the vehicle has all its
wheels aboard the tow truck. If immobilisation or removal is halted the PCN
should still be enforced.

57. When a vehicle is immobilised and subsequently removed to the pound, the
driver does not have to pay the clamp release fee
37
.

58. Where vehicles are removed, enforcement authorities should contact the
police or, in London, TRACE
38
and advise them of the time, place, vehicle
registration number, and pound to attend for retrieval so they can deal with
queries from motorists who report their vehicle stolen.

59. Where a vehicle has been immobilised or removed, an authority should seek
to make it available to its owner immediately upon payment. In the case of
clamp release, enforcement authorities should set maximum times for

32
S.I. 2007/3483, Regulation 13(5)(a) and (b) and The Removal and Disposal of Vehicles Regulations
1986, Regulation 5C(2) (inserted by S.I. 2007/3484)
33
The Removal and Disposal of Vehicles Regulations 1986, Regulation 5C(3) (inserted by S. I.
2007/3484)
34
35

36
The Removal and Disposal of Vehicles Regulations 1986, Regulation 5C(3) (inserted by S. I.
2007/3484)
37
RTRA, Section 101A(1), and TMA Section 79(1)
38
TRACE is operated by the London Councils
28 February 2008
16
releasing vehicles once they have received payment. They should publish
these along with their parking policy guidelines. It is recommended that these
should be within one hour from payment being received, with a maximum time
limit of two hours. The immobilisation or removal is the penalty and further
inconvenience and potential cost from prolonged release times is not
appropriate. Enforcement authorities should publish their performance against
these targets.

60. On the release of a vehicle from a clamp or from the vehicle pound the
authority must
39
immediately inform the vehicle owner or person in charge of
the vehicle about their right to make representations and their subsequent
right to appeal against representations that are rejected. The vehicle will
already have been issued a PCN that sets out the grounds on which
representations can be made. However, the Secretary of State recommends
that the notice about representations against the immobilisation or removal
also gives full particulars of the grounds, procedure and time limit for
representations. This is particularly important when credit or debit payments
are made over the telephone.

61. Storage charges should apply for each day or part of day, reckoned from
2400 midnight on the day following removal of a vehicle.

Immobilisation and removals: special consideration for disabled badge holders
and vehicles with diplomatic registration plates

62. CEOs should be aware of special considerations in respect of valid Blue
Badge holders
40
and vehicles with diplomatic plates
41
.

63. Vehicles displaying a valid Blue Badge must not
42
be immobilised and, as a
general rule, should not be removed. In exceptional circumstances (for
example, where a vehicle displaying a Blue Badge is causing a safety
hazard), the vehicle should be moved to a safe spot nearby, where possible
within sight of its original location. The authorities should not charge a
removal fee for the relocation of vehicles displaying a Blue Badge. They
should notify the police (in London TRACE) in case the owner reports the
vehicle stolen.

64. Diplomatic vehicles have registration plates marked with a D or an X, or have
personalised plates composed of a countrys initials or an abbreviation of its
full name. In general, diplomatic vehicles should not be immobilised. The
exception is for X registered vehicles which have been identified as persistent
evaders. X registered vehicles can be removed but diplomatic vehicles with D
or personalised plates that are causing an obstruction or danger should only

39
S.I. 2007/3482, Regulation 11(2) and (3), and Regulation 8(2) and (3)
40
Further guidance can be found in the DfT Blue Badge Scheme Leaflet, Parking concessions for
disabled and blind people
41
Article 31.1 of the Vienna Convention on Diplomatic Relations; Diplomatic Privileges Act 1964;
White Paper on Diplomatic Immunities and Privileges (Cmnd 9497, April 1985)
42
S.I. 2007/3483, Regulation 13 (1)
28 February 2008
17
be repositioned close by as an extreme measure. In such a circumstance, an
enforcement authority should not try to recover the costs of removal.

Persistent evaders

65. Some vehicle owners contravene parking regulations deliberately and often,
and fail to settle the debts they incur. A vehicle owner can be classed as a
persistent evader if there are three or more recorded contraventions for the
vehicle and the PCNs for these have not been paid, represented against or
appealed against within the statutory time limits, or their representations and
appeals have been rejected but they have still not paid. Usually this is
because the vehicle keeper is not registered, or is not correctly registered, on
the DVLA database and the owner is confident that they can avoid paying any
penalty charges. Where a vehicle appears to be registered in the UK, but the
identity and address is not registered, or is not correctly registered on the
DVLA database, authorities should consider making the information available
to the police who can, if appropriate, investigate any criminal offence.

66. When parked in contravention, a persistent evaders vehicle should be subject
to the strongest possible enforcement following the issue of the PCN and
confirmation of persistent evader status. This is likely to involve immobilisation
or removal. The benefit of removal is that it requires proof of ownership and a
registered address before release of the vehicle, whereas immobilisation
prevents law abiding motorists from using valuable kerb space. If a vehicle of
a persistent evader is in a designated parking place, the TMA and regulations
made under it prohibit an enforcement authority from immobilisation or
removing the vehicle until at least 15 minutes
43
have elapsed following the
issue of a PCN. Currently, under TMA regulations an authority can only
obtain payment for the PCN of the contravention for which the vehicle is
immobilised or removed and not any other outstanding PCNs.

43
TMA, Section 79 (6); S.I. 2007/3483, Regulation 13(5)(a); The Removal and Disposal of Vehicles
Regulations 1986, Regulation 5C(4)(a) (inserted by S.I. 2007/3484)
28 February 2008
18
(IX) Policy and administrative functions

Providing a quality service

67. Enforcement authorities should make sure that their processes for recovering
outstanding penalties and handling challenges, representations and appeals
are efficient, effective and impartial. Processes must comply with all relevant
primary legislation, regulations, traffic regulation orders and local byelaws.
Authorities are encouraged to seek independent quality assurance of their
CPE processes.

68. Enforcement authorities should deal with motorists promptly and
professionally. Authorities are encouraged to set time and quality targets for
dealing with queries, in addition to any statutory time limits and those set out
in this Guidance. They should report on performance against these targets in
their annual report. Enforcement authorities must
44
use first class post for any
notice or Charge Certificate.

69. Authorities should remember that an appeal is a judicial proceeding and that
time limits for correspondence may be laid down in legislation or set using
adjudicators judicial powers. Authorities are advised to respond promptly to
contacts from the adjudicator concerning appeals.

70. Enforcement authorities should offer motorists flexible and efficient ways to
contact them, including e-mail and telephone. They should ensure there is an
adequate audit trail to rebut any accusations of unfairness.

Collecting penalty charges

71. The penalty charge is usually payable by the owner
45
of the vehicle, unless
the vehicle was hired at the time of the contravention. Enforcement authorities
should offer motorists a range of facilities for paying penalty charges. Where
they provide payment centres these should be safe and accessible.
Enforcement authorities should ensure that any payment facility (particularly
telephone and online payments) can confirm any amount outstanding if part
payment only has been received.

72. If there are unusual delays with the postal system, authorities should make
allowances for late payments made by post when considering whether a
payment was received within the statutory period. Enforcement authorities
may wish to keep the envelope that the payments came in, as the franking
can be used as evidence of the date of posting.

73. A PCN is deemed paid as soon as the payment arrives at any payment office
belonging to the enforcement authority that issued the PCN. Whether this is

44
S.I. 2007/3483), Regulation 3 (2)
45
This expression is defined by the TMA, Section 92 as follows: owner, in relation to a vehicle,
means the person by whom the vehicle is kept, which in the case of a vehicle registered under the
Vehicle Excise and Registration Act 1994 (c. 22) is presumed (unless the contrary is proved) to be
the person in whose name the vehicle is registered
28 February 2008
19
the parking payment office or another payment office, the enforcement
authority should promptly close the case. An authoritys systems should
accurately record the day on which it receives payments so that no further
enforcement action is taken.

74. Where the enforcement authority receives full payment within 14 days of the
service of the PCN, it must
46
accept the discounted amount. Unless the
Secretary of State authorises a departure from the guidelines on the levels of
penalty charges, the discount must be set at the applicable discount -
currently 50 per cent of the penalty charge
47
. The authority should then close
the case. When a PCN has been served by post using evidence from an
approved device, the discount period is 21 days from the date of service of
the notice
48
.

Issuing the Notice to Owner

75. If the penalty charge is not paid the enforcement authority may issue a Notice
to Owner (NtO). The purpose of the NtO is to ensure that the PCN was
received by the vehicle owner and to remind the vehicle owner that the PCN
is now due to be paid in full and if it is not paid within a further 28 days it may
be increased. The NtO may be issued 28 days after serving the PCN, and we
expect authorities to send them within 56 days after serving the PCN. The
ultimate time limit, in exceptional circumstances, is six months
49
from the
relevant date. There should be a very good reason for waiting that long to
serve a notice to owner
50
. The Regulations set out the information that the
NtO must
51
give. There are different requirements when the PCN acts as the
NtO (see paragraph 47).

76. Authorities must
52
specify on the NtO (or PCN when served by post) the
statutory grounds on which representations may be made. Where a
photograph or other camera evidence shows that the parking contravention
took place, authorities should send this with the NtO, as it should help to
prevent unfounded representations.

77. Where a PCN is served on a vehicle with a diplomatic registration plate but no
payment is received within 28 days, an enforcement authority should not
issue an NtO but keep a record of the unpaid penalty charge. Every year the
Foreign and Commonwealth Office will request details of all unpaid PCNs and
then seek payment from the relevant contraveners.

46
S.I. 2007/3483, Schedule, Paragraph 1(h)
47
S.I. 2007/3487
48
S.I. 2007/3483, Schedule, Paragraph 3(a)
49
50
51
S.I. 2007/3483, Regulation 19(2) and S.I. 2007/3482, Regulation 3(3)
52
S.I. 2007/3483, Regulation 19(2) Schedule, Paragraph 2, and S.I. 2007/3482, Regulation 3(3) and
3(4)
28 February 2008
20
Charge Certificate

78. The Charge Certificate tells the vehicle owner that the penalty charge has
been increased and that action will be taken to recover the amount due
through the County Court if it is not paid within 14 days. Unless the Secretary
of State authorises a departure from the guidelines, the increase in the
penalty charge must
53
be set at the applicable surcharge - currently 50 per
cent.

79. The authority may issue a Charge Certificate where an NtO has been served,
the penalty charge has still not been paid and no representation or appeal is
under consideration. This must not
54
be done before the end of 28 days
beginning with the date on which the NtO was served.

80. Where representations have been made and rejected, and no appeal has
been made, the enforcement authority must not
55
issue the Charge
Certificate before the end of 28 days beginning with the date on which the
Notice of Rejection (NoR) was served. This is to give the vehicle owner time
in which to appeal.

81. Where cases go to adjudication, authorities must not
56
issue a Charge
Certificate before all due processes have been completed. If an appeal is
made and withdrawn before the hearing the authority may, after 14 days
beginning with the date on which the appeal was withdrawn, issue the Charge
Certificate. If an authority issues a Charge Certificate before an appeal is
decided, the adjudicator may then cancel the PCN on the grounds of
procedural impropriety. The authority should cancel the void Charge
Certificate.

82. If the penalty charge has not been paid 14 days after the Charge Certificate
was served, the authority may apply to the Traffic Enforcement Centre at
Northampton County Court to recover the i ncreased charge as if it were
payable under a county court order.

53
S.I. 2007/3487, Schedule, Paragraph 1 (3)
54
55
56
S.I. 2007/3483, Regulation 21, and S.I. 2007/3482, Regulation 4(5)(b)
28 February 2008
21
(X) Considering challenges / representations / appeals

83. The vehicle owner may dispute the issuing of a PCN at three stages:
Owners may make so-called informal challenges or informal
representations against the PCN before the authority has served an NtO
(this does not apply when the PCN is issued by post as the PCN then acts
as the NtO)
57
;
Once an NtO has been served, an owner may make a formal
representation against the NtO to the authority; and
If a formal representation is rejected the owner may appeal against the
Notice of Rejection to an independent adjudicator.

84. It is in the interests of the authority and the vehicle owner to resolve any
dispute at the earliest possible stage. Authorities should take account of the
CEOs actions in issuing the PCN, but should always give challenges and
representations a fresh and impartial consideration.

85. An authority has a discretionary power to cancel a PCN at any point
throughout the CPE 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
58
and are encouraged to exercise
discretion sensibly and reasonably and with due regard to the public interest.

86. Enforcement authorities have a duty
59
not to fetter their discretion, so should
ensure that PCNs, NtOs, 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.

87. The process of considering challenges, representations and defence of
appeals is a legal process that requires officers dealing with these aspects to
be trained in the relevant legislation and how to apply it.

Challenges - also known as i nformal representations

88. It is likely that an enforcement authority will receive informal challenges
against PCNs before they issue the NtO (this does not apply to PCNs issued
by post where the PCN will act as an NtO). They are likely to receive these

57
S.I. 2007/3482, Regulation 3(2). The enforcement authority must consider representations made at
this stage but if it proceeds to serve a notice to owner after receiving such representations, then
those or other representations can be made in accordance with S.I. 2007/3482, Regulation 4
58
Failure to act in accordance with the general principles of public law may lead to a claim for a
decision to be judicially reviewed
59
Ibid
28 February 2008
22
within the 14 day discount period. Enforcement authorities should give proper
consideration and respond to these challenges with care and attention, and in
a timely manner in order to foster good customer relations, reduce the number
of NtOs sent and the number of formal representations to be considered. The
Secretary of State suggests that authorities should respond within 14 days.
Enforcement authorities should also have suitably trained staff with the
appropriate authority to deal with these challenges. If the evidence or
circumstances (including mitigating circumstances) provide grounds for
cancelling the PCN, then the enforcement authority should do so and let the
vehicle owner know. If the enforcement authority considers that there are no
grounds for cancellation, it should tell the vehicle owner and explain its
reasons.

89. If a challenge is received within the discount period and subsequently
rejected, the Secretary of State recommends that the enforcement authority
should consider re-offering the discount for a further 14 days to incentivise
payment. Authorities should always make it clear that an owner who has an
informal challenge rejected may still make a formal challenge if an NtO is
served
60
.

Formal representations

90. Many enforcement authorities contract out on-street and car park enforcement
and the consideration of informal representations. Enforcement authorities
should not contract out the consideration of formal representations.
Enforcement authorities remain responsible for the whole process, whether
they contract out part of it or not.

91. Where CPE on-street and car park enforcement and associated operations
are done by in-house staff, there should be a clear separation between the
staff that decide on the issuing and processing of PCNs and the staff that
decide on representations. This is particularly important for cases referred
back by the adjudicators. It ensures that decisions are seen to be impartial.

92. Elected members may wish to review their parking representations policies,
particularly in the area of discretion, to ensure consistency with published
policies. However, elected members and unauthorised staff should not, under
any circumstances, play a part in deciding the outcome of individual
challenges or representations. This is to ensure that only fully trained staff
make decisions on the facts presented. The authoritys standing orders should
be specific as to which officers have the authority to cancel PCNs. There
should also be a clear audit trail of decisions taken with reasons for those
decisions.

93. The grounds on which representations may be made are set out in the
Regulations
61
and must
62
be stated on the Notice to Owner. Authorities

60
S.I. 2007/3482, Regulation 3(2)
61
S.I. 2007/3482, Regulations 4, 8 and 11
62
S.I. 2007/3482, Regulation 3(3)
28 February 2008
23
must
63
consider representations made on any grounds. Representations must
be made within 28 days of service of the NtO. Authorities have the discretion
to accept late representations, and we encourage them to use this discretion
when a vehicle owner gives a valid reason for the delay and has strong
grounds for representations.

94. The enforcement authority must
64
consider representations and any
supporting evidence against a Notice to Owner or immobilisation or removal,
and serve notice of its decision on the person making the representations
within 56 days of the service of the representations. The 56 day period in the
Regulations should be seen as the maximum period and authorities should
aim to decide representations as quickly as possible. The Secretary of State
considers that all decision notices should be served within 21 days.

95. If an authority accepts a representation against a notice to owner, it must
65

cancel the NtO and refund any sum already paid. Cancellation does not
prevent the authority from serving another NtO for the same contravention to
another person
66
. Where an authority accepts a representation against
immobilisation or removal, it must refund any sums paid to release the
vehicle, except to the extent (if any) to which those sums were properly paid
67
.
Where the removed vehicle has already been sold and representations
against removal are accepted, the enforcement authority must
68
refund all the
sale proceeds to the vehicle owner. It is likely that the vehicle owner will
already have received the proceeds of the sale minus the cost of removal,
storage and sale, and if this is the case the enforcement authority must
69
at
this point refund the costs of removal, storage and sale. Any authority that
undertakes immobilisation or removal should ensure that its staff are full
familiar with the relevant legislation
70
.

96. Where a response or notice of decision is likely to be delayed for any reason,
the enforcement authority should acknowledge receipt of the representation
and explain the representation process, including when a decision notice will
be dispatched.

Notification of the outcome of representations

97. Once an authority has come to a decision about a representation, it should
promptly tell the person making the representation (usually the owner of the

63
S.I. 2007/3482, Regulation 4 (2)(b)(ii)
64
S.I. 2007/3482, Regulations 5, 9 and 12
65
S.I. 2007/3482, Regulation 5(3)
66
S.I. 2007/3482, Regulation 5(4)
67
S.I. 2007/3482, Regulation 9(4)
68
The Road Traffic Regulation Act 1994, Section 101A (2)
69
Ibid
70
The removal and disposal of vehicles by local authorities is governed by the RTRA, Sections 99 to
103, and The Removal and Disposal of Vehicles Regulations 1986 (SI 1986/183) as amended. S.I.
2007/3484 inserted a new regulation 5C into the 1986 Regulations whereby CEOs are authorised to
remove illegally parked vehicles from roads in CEAs. Representations and Appeals against charges
for removal, storage and disposal are governed by Part 4 of S.I. 2007/3482 and the setting of those
charges by Schedule 9 to the TMA and, outside London, by S.I. 2007/3487
28 February 2008
24
vehicle) what they have decided to do and why. If the person making the
representation is not the owner (but is acting officially on their behalf) then the
owner should be informed, where possible, of the decision.

98. If the authority rejects the representation, it must
71
serve a notice of rejection
(NoR) stating that it will issue a Charge Certificate unless the PCN is paid or
an appeal made to an adjudicator. The notice of rejection must
72
set out the
general form and manner in which an appeal can be made and that the
adjudicator has the power to award costs against either party. The authority
should give the owner clear and full reasons for its decision on a
representation, in addition to the minimum required information.

99. If, following an unsuccessful representation, an authority decides to offer a
new discount period for prompt payment, it should set out the dates of this
period in the Notice of Rejection.

Adjudication

100. Adjudicators are appointed jointly by all the relevant local authorities with CPE
powers, with the agreement of the Lord Chancellor, and are wholly
independent. They have a judicial position and should be treated accordingly.

101. If a local authority rejects a formal representation, the person who made the
representation has the right to appeal to an adjudicator within 28 days of the
date of service of the NoR
73
. An adjudicator has the discretion in appropriate
circumstances to consider an appeal made after 28 days. The grounds for
appeal are the same as those for formal representations and are set out in the
Regulations
74
.

102. If an adjudicator allows the appeal, s/he may direct the authority to cancel the
NtO and refund any sum already paid in respect of the penalty charge. The
authority must
75
comply with this direction without delay.

103. The adjudicators decision is final, subject to the power of adjudicators to
review a decision
76
. No further challenges can be made other than on a point
of law through an application to the High Court for judicial review. The
Governments Tribunals for Users programme emphasises the importance of
feedback to improve the representations and appeals procedure and help
prevent unnecessary appeals.

Cases referred back to the authority by the adjudicator

104. An adjudicator may only allow an appeal if one of the statutory grounds for
appeal applies. Where a contravention has taken place but the adjudicator

71
72
73
S.I. 2007/3482, egulation 7
74
S.I. 2007/3482, Regulation 13 and Schedule, Paragraphs 7 and 10
75
S.I. 2007/3482, Regulation 13 and Schedule, Paragraphs 7 and 10
76
S.I. 2007/3482, Schedule, Paragraph 12
28 February 2008
25
considers that the enforcement authority should have used its discretion to
cancel the NtO, the adjudicator may refer the case back for the
enforcement authority to reconsider
77
. Such cases should be directed to the
Office of the Chief Executive and a decision must
78
be reached within 35
days from the notice of the adjudicator's decision. If the enforcement authority
does not reach a decision within this period, it is deemed to have accepted
the adjudicator's recommendation and must
79
cancel the NtO. The
enforcement authority must
80
have regard to the reasons given by the
adjudicator for his/her recommendation. Where it does not accept
this recommendation it must
81
notify the adjudicator and the appellant of the
reasons for its decision before issuing the Charge Certificate.

105. If the enforcement authority decides to accept the recommendation of the
adjudicator, it must
82
cancel the NtO without delay and refund any sums paid
in relation to the NtO.

77
S.I. 2007/3482, Regulation 13(5) and Regulation 10(5)
78
S.I. 2007/3482, egulation 13(6) and Regulation 10(6)
79
80
81
82
28 February 2008
26
(XI) Ensuring the effectiveness of CPE

106. Enforcement authorities can improve the efficiency and effectiveness of their
CPE regimes by maintaining a regular dialogue - and undertaking joint activity
where appropriate - with their on-street contractor (if there is one), the police,
neighbouring authorities, the DVLA, the Traffic Enforcement Centre (TEC)
and representatives of road user groups.

107. In particular, authorities should maintain good relations with the police. The
police continue to have responsibility for enforcing endorsable and most types
of moving traffic offences, and for taking action against vehicles where
security or other traffic policing issues are involved. Regular liaison will help
to ensure that civil and criminal enforcement operate effectively. Good
relations between the police and an enforcement authority can also help in
tackling threats and abuse aimed at CEOs.

108. It is recommended that enforcement authorities keep abreast of developments
in neighbouring authorities CPE operations and look into the benefits of
consistent, and possibly collaborative, approaches to enforcement.

109. Authorities should develop good working relations with the DVLA, in particular
with regards local authorities receiving keeper information promptly.
Authorities should also consider helping the DVLA track down Vehicle Excise
Duty (VED) evaders by notifying them of any vehicles that are not displaying a
valid VED disc.

110. As far as possible, the performance of contractors and of staff should be
judged according to how far desired transport objectives have been achieved.
An enforcement authority should base performance measures and rewards or
penalties, wherever possible, on outcomes rather than outputs. Performance
and rewards/penalties should never be based on the number of PCNs,
immobilisations or removals. Outcome indicators might include compliance
statistics, the number of appeals, the number and length of contraventions
and the localised impact they appear to have had on road safety and
congestion. Incentives could work towards good customer service. For
example, indicators for immobilisation and removals might be based on the
release time of the vehicle after the owner has paid the appropriate fees.

111. When enforcement operations are carried out in house, there should be a
service level agreement (SLA) incorporating the specification terms and
conditions required by the client department - the same as for a contract with
an external service provider.

112. The Secretary of State recommends that enforcement authorities use a
balanced SLA or model contract, such as the one developed by the British
Parking Association
83
.

83
For further details contact the BPA ref: Parking Model Contract 2005 or go to
http://www.britishparking.co.uk
28 February 2008
27
Reporting

113. Reporting is an important part of accountability. The transparency given by
regular and consistent reporting should help the public understand and accept
CPE. Monitoring also provides the authority with management information for
performance evaluation and helps to identify where it needs to improve its
CPE regime. It provides a framework for performance comparisons between
councils.

114. Enforcement authorities should produce an annual report about their
enforcement activities within six months of the end of each financial year. The
report should be published and as a minimum it should cover the financial,
statistical and other data (including any parking or CPE targets) set out in
Annex A.

115. Enforcement authorities should make annual returns to the Government about
the number and speed of payment of PCNs. They should also advise the
appropriate adjudication service in a timely fashion how many PCNs they
have issued.

116. The income and expenditure of local authorities in connection with their on-
street charging and their on-street and off-street enforcement activities are
governed by Section 55 (as amended) of the Road Traffic Regulation Act
1984. This means that all their income and expenditure as enforcement
authorities (i.e. related to the issue of and income from PCNs) in respect of
off-street parking places is covered by section 55. London authorities must
84

keep an account of all income and expenditure in respect of designated (i.e.
on-street) parking places and their functions as enforcement authorities,
within paragraphs 2 and 3 of Schedule 7 to the TMA. English authorities
outside London must
85
keep an account of all income and expenditure in
respect of designated (i.e. on-street) parking places which are not in a Civil
Enforcement Area, designated (i.e. on-street) parking spaces which are in a
Civil Enforcement Area and their functions as an enforcement authority.
London authorities must
86
send a copy of the account to the Mayor of
London.

117. Where an authority makes a surplus on its on-street parking charges and on-
street and off-street enforcement activities, it must
87
use the surplus in
accordance with the legislative restrictions in Section 55 (as amended) of the
RTRA 1984.

84
See amendments to Section 55 Road Traffic Regulation Act 1984 in S.I. 2007/3483, Regulation 25
85
86
87
28 February 2008
28
Annex A

What enforcement authority annual reports should include

Financial

Total income and expenditure on the parking account kept under section 55 of
the Road Traffic Regulation Act 1984 as modified by regulation 25 of the Civil
Enforcement of Parking Contraventions (England) General Regulations 2007
(see paragraph 116 above).
Breakdown of income by source (i.e. on-street parking charges and penalty
charges)
Total surplus or deficit on the parking account
Action taken with respect to a surplus or deficit on the parking account
Details of how any financial surplus has been or is to be spent, including the
benefits that can be expected as a result of such expenditure.

Statistical

Number of higher level PCNs issued
Number of lower level PCNs issued
Number of PCNs paid
Number of PCNs paid at discount rate
Number of PCNs against whi ch an informal or formal representation was
made
Number of PCNs cancelled as a result of an informal or a formal
representation is successful)
Number of PCNs written off for other reasons (e.g. CEO error or driver
untraceable)
Number of vehicles immobilised
Number of vehicles removed

Performance against targets

Performance against any parking or CPE targets. Authorities should note the
recommendations throughout this Guidance on the areas where such targets
might be appropriate.

28 February 2008
29
Annex B

Abbreviations

CEA Civil Enforcement Area
CEO Civil Enforcement Officer
CPE Civil Parking Enforcement
CPZ Controlled Parking Zone
DfT Department for Transport
DPE Decriminalised Parking Enforcement
DVLA Driver and Vehicle Licensing Agency
GLA Greater London Authority
LC London Councils
LIP Local Implementation Plan
LTP Local Transport Plan
NoR Notice of Rejection
NtO Notice to Owner
PA Parking Attendant
PCN Penalty Charge Notice
PPA Permitted Parking Area
RTRA Road Traffic Regulation Act 1984
SEA Special Enforcement Area
SLA Service Level Agreement
SPA Special Parking Area
TEC Traffic Enforcement Centre
TfL Transport for London
TMA Traffic Management Act 2004
TRO Traffic Regulation Order
VED Vehicle Excise Duty
WAG Welsh Assembly Government

Code of Practice on Civil Parking and Traffic Enforcement

Part 1 Introduction

Part 2 On-street Enforcement Activities

Introduction
Parking Attendants
Penalty Charge Notices
Enforcement by CCTV
Clamping and Removal

Part 3 Processing the back office

Introduction
Payment
Challenges
Statutory Representations
Representations against Clamping or Removal
Appeals
Charge Certificates
Debt Registration
Statutory Declarations
Debt Recovery
Service of Notices

Part 4 Miscellaneous

Public relations

Appendices

1. Stages in the Enforcement System
2. Sample Documents
3. Reference Documents
4. Glossary of Terms
5. Contributors
Part 1 Introduction

Part 2 On-street Enforcement Activities

INTRODUCTION

1) Parking regulations need to be enforced, but to be enforced the authority must ensure that they are right
and they must be properly indicated.

2) Parking attendants must be readily identifiable and must wear an easily recognisable uniform. They need
to be trained and equipped to a sufficiently high standard to allow them to carry out their duties
professionally and competently.

3) Although enforcement policy is a matter for each individual authority, in order to ensure a minimum level
of satisfactory operation the duties and responsibilities of parking attendants are set down in the Parking
Attendants Handbook. This is not, however, prescriptive in every detail.

PARKING REGULATIONS, SIGNS AND LINES

4) The starting point of parking enforcement is having the proper regulations, properly indicated by lines and
signs, where appropriate. Without this, parking attendants will have a difficult task, and PCNs should not
be issued as they are likely to be invalid.

5) All regulations need appropriate legislation or have to be supported by a traffic order which details the
prohibition or restriction and the length or part of the road to which it applies.

6) The regulations need proper signs and markings which comply with the requirements of the Traffic Signs
Regulations and General Directions (unless specially authorised by the Department for Transport) and
follow the guidelines and advice provided in the Department for Transports Traffic Signs Manual.
Regulations that do not have proper markings and signs cannot be enforced. Authorities should pay
attention to the need to keep signs and lines in good order and as simple and clear as possible. A regular
signs and lines maintenance routine should be in place, as well as providing all patrol officers (e.g. PAs,
community officers, maintenance engineers and others) with the simple method of reporting problems
with signs and lines as they encounter them.

7) Where a regulation needs to be removed or changed, this should happen as a matter of urgency. Turning
a blind eye to contraventions on anything but a short, interim basis undermines enforcement in other
areas as drivers will not know whether a council takes any particular regulation seriously. This will lead to
disputes when enforcement does take place.

8) Where an authority proposes to change or amend an existing regulation it should consider enforcement
of that regulation prior to the change. Once it is clear that the council is committed to a removal of the
regulation, where the Order is suspended or a draft revocation order published and not challenged,
enforcement should be suspended as the public will have an expectation of change. The lines and signs
should then be updated as a priority to reflect the change.
PARKING ATTENDANTS

9) Parking attendants are the public face of parking control therefore it is essential that they present a
professional and efficient image. Whether the attendants are employed directly by an authority or by a
contractor, it is important that enforcement is effective, efficient and fair and, equally importantly, that it is
seen to be so.

10) Parking attendants will soon become aware of parking behaviour, often faster than it would become
apparent through other means. It is important not to underestimate their role and it is useful for authorities
to use feedback from attendants to help determine traffic and parking policy.

11) In recognition of their important front-line role, it is advisable to ensure that parking attendants are
suitably well rewarded as well as being properly managed and supported, in order to attract and retain
staff of a suitable calibre and offer the best possible standard of service to the public.

12) Before starting a patrol, parking attendants should check all issued equipment and, if using them, test
hand held computers (HHCs). It is essential that at the start of each shift the attendant produces, and
keeps for record purposes, a test PCN to ensure that the HHC is working correctly and showing the right
time. This may need to be produced in court or at the adjudicators office. HHCs will also serve to record
signing-on.

13) Attendants should be instructed to issue a PCN where they believe a contravention has occurred, and to
make notes about any possible mitigating circumstances. They should not be allowed to exercise
discretion (i.e. cancel PCNs once issued or select not to issue, unless an exemption has been identified)
as this would leave attendants more vulnerable to threats and corruption and would lead to greater
inconsistencies in application of the law. If motorists are seen, the attendant should explain the situation
to them, make notes of any conversation or observations and advise them to write to the authority. They
should explain that they cannot enter into discussions about the merits of the case.

14) Having issued a PCN, a parking attendant may identify that a vehicle is a priority for clamping or removal,
but the extra enforcement action should only take place after authorisation by another attendant, who
should be travelling with the clamping van or removal truck.

MAIN DUTIES

15) Parking attendants should:
a) patrol permitted parking places and SPAs to ensure compliance with Traffic Management Orders
(TMOs) or Traffic Regulation Orders (TROs) and other relevant legislation by the issue of PCNs.
PCNs must be fixed to the relevant vehicle or given to the person who appears to be in charge of
it;
b) inspect parking meters and pay-and-display machines to see that they are working prior to PCN
issue and, if not, place an out of order notice and report the fault. In the case of pay-and-display
machines, a PCN should only be issued if there is an alternative machine in working order nearby
that covers the same parking place;
c) keep a pocket book (either paper or electronic) to provide a full log of their daily activity and to
record evidence additional to information included on the PCN or entered into the HHC when a
PCN is issued. Such evidence may be required to prove a breach of the regulations and can be
produced if necessary in support of contested cases. The pocket book should also contain a
record of any non-enforcement activities undertaken, e.g. conversations with members of the
public or other PAs, missing lines or signs, defective meters/pay and display machines etc;
d) check signs and road markings and report any that may be incorrect or missing;
e) comply with the health and safety regulations (Health and Safety at Work Act 1974) and any other
applicable statutes or regulations;
f) recommend priority cases for clamping or removal of vehicles, in accordance with the priority
ranking.

FURTHER DUTIES

16) Parking attendants have a primary duty to enforce parking regulations efficiently, effectively and fairly and
they should not become involved in issues that do not concern them (e.g. stray dogs, defective footways,
street lighting or lost property) if such activities unduly distract them from their primary function and so
lead to ineffectual enforcement. Further activities related to stationary vehicles in the SPA which could
easily be added to the parking attendants' duties are as follows:
a) issue information leaflets. If authorities consider that issuing a PCN in every instance is not the
most appropriate way of dealing with a particular contravention, issue a warning notice. Or leave
notices on vehicles warning of an imminent suspension, particularly if there is only time for a short
notice period;
b) make a note of any invalid tax discs seen and report to base or the appropriate office that deals
with untaxed vehicles if untaxed vehicles are seen. Any activity of this kind will help to keep DVLA
records up to date and reduce future difficulties in tracing owners;
c) report suspected abandoned vehicles. As well as collecting PCNs that may not be recoverable,
these may prevent other drivers using a parking space;
d) report on changes in parking patterns to complement the authority's monitoring surveys. These
could form part of regular reviews of enforcement/compliance and support policy changes;
e) put up notices giving advanced warning of, or announcing the commencement of, suspensions of
parking places. When appropriate, they should also record registration numbers of cars in position
when the advanced warning notices are out up or the suspension starts. This may be needed
when later considering cancellation of any PCNs or the refund of clamping or removal costs;
f) report instances of criminal parking activity, e.g. dangerous parking or obstruction, where they are
not able to take action themselves;
g) assist in on-street enforcement experiments.

TRAINING

17) Comprehensive training is essential to ensure that a consistent, reliable and professional service is
provided. Additional benefits are improved staff morale, staff retention and the ability to cope with
conflicts. The standard should be the same for authority employees and contractors.

18) All parking attendants, supervisors and managers, whether authority employees or contractors, should
receive a consistent basic standard of training which should be assessed and tested. Parking attendants
should not carry out enforcement until they have achieved a satisfactory standard. This should be
supplemented by an ongoing process of updates and follow-up training.

19) Formalised qualifications exist for parking attendants, including the NVQ in parking control, a City &
Guilds (level 2) PA qualification and a BTEC for CCTV operators. Employers should ensure that all their
parking attendants secure an appropriate qualification and authorities should ensure that this is a feature
of any contracts.

HANDBOOK

20) The Parking Attendants Handbook, produced by London Councils TEP, can be used on-street or in the
office, and contains a summary of existing regulations, contravention codes and other references.

PROBATION

21) Following successful completion of training, parking attendants should be closely monitored for at least a
ten-week probationary period before being taken on permanently.

UNIFORM

22) Parking attendants must wear a clearly identifiable uniform. This should be readily distinguishable from
those worn by the police and traffic wardens, but still allow easy public recognition. Parking attendants
operating in CCTV control rooms are not required to wear uniforms.

BASIC FEATURES

23) Under the provisions of the RTA 1991, the Secretary of State (in London, the Mayor) provides regulations
governing the uniforms to be worn by parking attendants. The current requirements are:
a) clear identification that the wearer is a parking attendant;
b) clear identification of the local authority on whose behalf the parking attendant is working;
c) a personal number to identify the parking attendant. This may contain letters as well as numerals.

24) To undertake enforcement action an attendant must be clearly identifiable and in the full uniform specified
(allowing for variations according to local weather conditions). This need not necessarily include a hat.

25) When attendants are on-street but not carrying out enforcement duties (e.g. walking back to base at the
end of a shift), it is recommended that they dress down (e.g. remove hats and shoulder numbers) to
avoid giving the impression that they are ignoring illegal parking.

SPECIFICATION

26) Although uniform requirements are not specified in detail, a basic minimum standard is considered to be:
a) the words PARKING ATTENDANT, not less than 15mm high, either on the hat band or on the
shoulder of the outermost garment worn at the time;
b) on each shoulder of outer garments, a standard colour flash displaying a personal identification
number unique to that authority their PA number;
c) a badge or epaulette that clearly indicates the enforcing authority (and contractor if applicable).

27) Uniforms should be clean, neat and tidy at all times.
PENALTY CHARGE NOTICES

DETAILS TO BE COLLECTED BY A PARKING ATTENDANT ON A PCN ISSUED TO A VEHICLE

28) The following details are essential and must appear on the PCN:
a) Name of authority
b) Date of notice
c) Grounds on which the PA believes the penalty charge is payable, i.e.:
(i) Vehicle registration number (from number plates)
(ii) Location (e.g. the full name of the street or car park)
(iii) Date and time(s) of contravention e.g. at for an instant contravention or from / to
times when an observation period has taken place
(iv) Contravention code and description
d) Unique PCN number
e) Parking attendant's number
f) How much to pay (the Penalty Charge)
g) How to pay (methods of payment)
h) How long they have to pay (e.g. before the end of the period of 28 days beginning with the date of
the notice)
i) Terms of reduction for early payment (i.e. 50 per cent if payment received within 14 days)
j) Address for payment / correspondence
k) How to challenge a PCN and, in particular, that a Notice to Owner, which will set out grounds for
representations, may be served if full payment is not received before the end of the period of 28
days beginning with the date of the notice.

29) In addition as many as possible of the following details should be included:
a) Location description (e.g. meter / pay-and-display machine number, position in street)
b) Make of vehicle
c) Colour of vehicle
d) Amount of penalty time (when relevant)
e) Expiry time of pay-and-display ticket or voucher (when relevant)
f) Parking attendants signature (just initials will suffice if signature is legible and so may lead to
identification of the attendant)
g) Vehicle excise licence (tax disc) number

30) It is recommended that the following further information should, where appropriate, be collected on the
HHC, in the parking attendants notebook or on their copy of the PCN (if the PCN is completed by hand),
in order to enable validation checks to be made, disputes resolved and sufficient evidence to be provided
for adjudication. In general:
a) Postcode of street (if possible)
b) Class of licence (e.g. PLG, HGV)
c) Expiry date of excise licence (for reporting to DVLA and/or possibly abandoned vehicles team
when out of date)
d) Any permit / badge / voucher / pay and display ticket displayed (e.g. residents, HEB, disabled)
e) Foreign or diplomatic plates
f) Whether PCN spoilt
g) Details of any note displayed in windscreen
h) Parking zone
i) Observation period and type (constant/casual)
j) Tyre valve positions
k) Loading or unloading seen
l) Evidence of breakdown
m) Driver seen (time and details), or vehicle otherwise occupied
n) Conversation with driver or other occupant (time & details)
o) PCN affixed to vehicle or handed to driver or prevented from serving
p) Details of any suspension
q) Whether clamping or removal has been requested by the PA
r) Pocket book reference number
s) Pocket book page number

31) On meters/pay and display:
a) Whether "feeding" detected & details
b) If meter or machine bagged out of order
c) Display on meter / machine if not just penalty time (e.g. Out Of Order/ No parking until)
d) On pay-and-display machines, time shown on machine compared to time on PAs watch or HHC

32) In yellow / red line cases, as much information as possible should be recorded to establish the precise
location of the vehicle, especially in streets where there may be a range of different regulations in
different parts. Such information may include:
a) Details of yellow/red lines/kerb stripes (e.g. single, double line/ one, two kerb stripes)
b) Details of kerbside plates (e.g. location, times of loading and waiting restrictions)
c) Detailed location of vehicle (e.g. by / on N/S/E/W kerb; outside/opposite No.; X yards N/S/E/W of
junction with Y Road)

33) In bays/boxes:
a) Details of signs and their distance from vehicle
b) Details of vehicle location (e.g. outside / opposite no.)

34) A PCN issued on-street is the prima facie evidence of the parking contravention. It must therefore contain
all the information required to establish the case.

35) Where a vehicle is parked in contravention of more than one regulation, e.g. parked on a footway in a
restricted street during prescribed hours, only one PCN should be issued. Parking attendants should be
instructed on which contravention takes precedence in such circumstances.

36) It is also important to put the right information on any part of the PCN, which is returned with payment, in
order to be sure that the payment is assigned to the right case. This should include at least the PCN
number and the vehicle registration mark and other identifiers such as the date of issue, the time of issue
or a barcode that contains the same information. It is also a good idea for the payment slip to include the
amount of the penalty charge, so that even if the payment slip becomes detached from the notice, the
person wishing to pay knows how much is due.

37) The following should be included if applicable and practicable:
a) Powers under which PCN issued (i.e. name of relevant Act of Parliament or Statutory Instrument).
b) Telephone number / e-mail address for enquiries.
c) Website for enquiries (if available)
d) Photo evidence of contravention (if possible) especially if vehicle moving at time of
contravention (e.g. bus lane contravention)

38) It is important that authority-specific PCN numbers are used. It is therefore essential that authorities
always use the two letter prefix and the correct algorithm numbering system supplied by TEC at the
County Court. Furthermore, the numbers should not be duplicated less than 7 years after original use and
only after London Councils TEP and TEC at Northampton County Court have been notified

A STANDARD LIST OF CONTRAVENTIONS AND ASSOCIATED CODE NUMBERS

39) The current list of contravention codes and descriptions is provided in Appendix 2. Only these codes (and
any future updates provided by London Councils TEP) must be used and no authority can use any other
codes or variations without prior consent from London Councils TEP.

40) The optional suffixes further subdivide the contravention codes to give fuller information to motorists and
to aid the management process and, again, no authority should use any other suffix without contacting
and gaining permission from London Councils TEP.

41) Authorities should exclude from the list those codes that are not relevant to their operation (e.g. if there
are no free parking bays or if a particular contravention is not covered by any order in the authority's
area).

42) The motorist must be able to read and understand why the PCN was issued. The use of the code on its
own is not sufficient information.

PCN DESIGN

43) If the PCN is handwritten, two copies should be produced: one issued to the motorist and the other kept
for the records of the issuing authority. An extra copy for retention by the enforcement contractor is
optional. If produced by HHC, only one printed version of the PCN (for the motorist) is needed on the
street. The PCN issued to the motorist should be capable of being fixed securely to the vehicle (on the
windscreen if possible) and be weatherproof or able to fit into a weatherproof envelope. Enclosing a pre-
paid return envelope with the PCN is recommended as a good customer-friendly practice and to
encourage a prompt response. A model PCN is included in Appendix 2 to this Code of Practice.

WORKING PRACTICES

44) Exactly the same working practices may not always be appropriate in different areas of London, but
authorities should use consistent practices as far as possible, in order to avoid confusion in the
enforcement and adjudication procedures. This particularly applies to de minimis rules, where a technical
contravention should not be followed up. In particular, common understanding and practice is essential
on the following:
a) Interpretation of "not parked correctly within markings of bay" - at least one wheel to be wholly
outside the markings of the bay (except in cases where a long vehicle overhang is causing an
obstruction or preventing another vehicle from parking in an adjacent bay )
b) When motorists claim that they went for change - decisions by adjudicators indicate that going for
change is not necessarily a valid ground for cancelling a penalty charge notice
c) Expired permit or wrong vehicle registration number on residents' or business permits if the
permit has only recently expired (e.g. less than 7 days) or the difference on the registration
number is minor (possibly due to an error on issue) a warning notice could be issued, otherwise a
PCN should be issued but the attendant should make full note about the out of date or invalid
permit.
d) Where a pay and display machine is out of order but there is another nearby parking attendants
should issue a PCN and make a record of any note on display showing out of order machine, the
location of the faulty machine and the location of the nearest working machine, if possible.
e) Meter claimed to be out of order (other than electronic meter "out of order" contravention) -
attendants should issue a PCN and make a record of any note claiming the meter was out of
order
f) Notice or note left in car - attendants should make a record of any note left on display
g) Where incorrectly validated vouchers or permits are displayed - a PCN should be issued and all
details of any vouchers or permits on display should be recorded
h) Parked on the footway - at least one wheel should be wholly on the footway (not just partially on
the kerb)

45) More details concerning such common approaches can be found in the Parking Attendants Handbook.

OBSERVATION TIMES

46) Some contraventions are instant and a PCN can be issued immediately. These include absolute
contraventions, such as parking on the footway (where this is prohibited) and locations where there are
either no or extremely few but obvious exceptions to a general rule (such as stopping where parking,
loading and unloading are prohibited).

47) In other cases there may be sufficient exemptions to a general rule as to cause some doubt as to
whether a contravention has occurred at the time of the initial appearance of the parking attendant. A
good example is where loading and unloading on a yellow line or in a loading box / bay is allowed. In
these circumstances a period of observation can help to establish whether or not an exemption applies.
Five minutes is the generally accepted period of observation, although consideration could be given to
extending this period for commercial vehicles, where it is more likely that loading / unloading is taking
place. While a PCN may be issued before the end of the observation period, the authority will need to
have much stronger evidence to rebut an assertion that the vehicle was exempt, for example, because it
was loading, than if an observation period was included.

48) These working practices have been set out in the Parking Attendants Handbook, but will still need to be
regularly reviewed in the light of experience, decisions of the adjudicator and changes in policy,
legislation etc.

49) For every on street enforcement action the parking attendant's notes must show:-
a) Date, time of issue, time first seen (if different), VRM, location, vehicle excise licence number;
b) Whether the PCN was affixed to the vehicle, given to the person appearing to be in charge of the
vehicle, or service was prevented.
c) Where appropriate, the following should also be included:-
(i) Details of any conversation (verbatim where possible) with the driver;
(ii) Details of any notes left by the driver e.g. on the windscreen;
(iii) A diagram or photograph of how the vehicle was parked incorrectly.

SERVICE OF PENALTY CHARGE NOTICES

50) A PCN must be served by fixing it to the vehicle or handing it to the driver (the person appearing to be in
charge of the vehicle) at the time and location of the observed contravention (s.66 RTA 1991). Except as
noted below, a PCN cannot be served by post, even if the driver drives the vehicle away while the PCN is
being produced. The exceptions to this are either if the attendant is prevented from serving the PCN in
the normal way by violence or threats of violence (s.5 London Local Authorities Act 2000) or if the
enforcement is taking place following observation by CCTV (see below). In cases where a PA is
prevented from serving a PCN on street so it has to be served by post following violence or threats of
violence, the attendant should make full notes of the incident in the pocket book, including any
discussions or conversations, and the nature of the intimidation.

HAND HELD CAMERAS

51) It is recommended that hand held cameras (not subject to CCTV rules) are used by parking attendants to
provide additional evidence of a contravention and service of the PCN, preferably ones with a time and
date recording facility. They will not replace any of the other evidential rules set out above.

ENFORCEMENT BY CCTV

52) The London Local Authorities Act 2000 authorises enforcement in London to take place using CCTV. In
this case a PCN is served by post. CCTV enforcement is most appropriate in locations where parking,
loading and unloading are all prohibited. This is because an attendant observing by camera may not be
fully aware of exceptions (such as blue badge display) or details of payment in other locations.

53) The London Local Authorities Act 1996 and the Traffic Management Act 2004 allow for the decriminalised
enforcement of bus lanes. This is currently enforceable by prescribed CCTV devices only.

54) The London Local Authorities and Transport for London Act 2003 and the Traffic Management Act 2004
allow for the decriminalised enforcement of minor moving traffic offences. These will be enforced mainly
by camera and further information about enforcing them will be added in due course.

55) Full details of CCTV enforcement are included in the London Councils TEP CCTV Code of Practice,
adopted by all authorities in London carrying out CCTV enforcement.
CLAMPING AND REMOVAL

56) Clamping and removal can be used to enhance and improve the enforcement of parking regulations with
clamping providing a visible local deterrent, and removal being used to combat dangerous and
inconsiderate parking.

57) Clamping and removal can, and should, be targeted at persistent evaders, in particular those where there
are inaccurate keeper details held at DVLA. Without clamping and removal powers, incorrectly registered
vehicles can be parked illegally with impunity until such time as the register is brought up to date.

PRIMARY OBJ ECTIVES

58) There are three primary objectives:-
a) To reinforce existing transport policies - for example, by targeting vehicle removal operations in
bus lanes.
b) To reinforce the PCN system clamping and removals spread generally across a range of PCN
contraventions increase their deterrent effect. Also as an increased deterrent by targeting
particular vehicles which belong to persistent offenders who, while they may pay their PCNs,
nevertheless look on the cost as a regular business expense.
c) To assist payment of PCNs - targeting vehicles whose owners seek to avoid payment of PCNs
unless forced to pay at the same time as paying the clamping or removal fee. (Although when a
vehicle is reclaimed by the owner, only the PCN issued immediately prior to the removal has to be
paid, the authority obtains name and address details, which can be used to help recover earlier
outstanding penalty charges through the normal processing methods, if the name and address
were not previously known.)

59) Bearing in mind that immobilising or removing a vehicle, and the subsequent payment of the fee to
restore the vehicle to the driver, is meant to be sufficient penalty, it is important that there are no
unnecessary delays or other obstacles and that the vehicle is restored to the driver as soon as possible
after payment has been made. The aim should be to declamp all vehicles within two hours of payment,
with an automatic refund in cases where it takes longer than 4 hours. The RTA 1991 says that the vehicle
should be released from that device on payment which realistically means as soon as practically
possible. In cases where the declamping van is nearby, it could be considered unreasonable to take
longer than 20 minutes. Removed vehicles should be available for collection from the pound as soon as
payment has been made, except in cases when the vehicle has been relocated to an overflow pound. In
such cases the vehicle should be returned to the main pound and made available for collection within 24
hours, unless it is possible for the person collecting the vehicle to be taken to the overflow pound.

WHEN TO CLAMP OR REMOVE

60) Clamping or towing away can only take place after a PCN has been issued for a contravention at the
location where the vehicle will be clamped or from where the vehicle will be removed.

61) In most cases the choice of whether to clamp or remove will be influenced by the type of contravention
and where it is committed and then by the availability of resources or equipment. The RTA 1991 specifies
cases where clamping is not permitted.

EXEMPTIONS TO CLAMPING OR REMOVAL

62) There are certain legal exemptions from clamping and vehicles which fit into the following categories
should not be clamped or removed:
a) Vehicles displaying a current disabled person's badge. If such a vehicle is dangerously or
obstructively parked, it should be repositioned nearby, preferably within view of its previous
location. (The disabled persons badge is the blue European badge. In addition there are
sometimes reciprocal agreements with certain other countries over recognition of disabled
persons' badges, and these other badges should normally be treated in the same way as blue
badges. If there is any uncertainty about whether a reciprocal agreement exists, the vehicle
should not be clamped or removed. Even in cases where it is known that no such agreement
exists, vehicles should only be clamped or removed in the most exceptional circumstances.)
b) Vehicles in a parking place where not more than 15 minutes have elapsed since the end of any
period of paid parking.
c) Diplomatic vehicles bearing a "D" or "X" vehicle registration mark or personalised registration
plates with a "D" Vehicle Excise License. If such a vehicle is dangerously or obstructively parked,
repositioning nearby is suggested. (Legal requirement - Diplomatic Privileges Act 1964).

63) Vehicles in the following additional categories should also not normally be clamped or removed (many of
these should not even receive PCNs as they are exempt under local traffic orders):
a) Vehicles being used for Fire Brigade, Police, or Ambulance purposes.
b) Vehicles displaying a Health Emergency Badge. Whilst a display of an HEB does not confer any
special privilege or exemption from any prohibition or restriction, every assistance should be given
to holders of these badges. Spaces are provided on the badge to show:-
(i) the address at which the healthcare worker can be found; and
(ii) the serial number of the Badge.
(A vehicle displaying an HEB should not normally be clamped or removed. Before any action is taken,
an attempt should to be made to contact the user at the nearby address shown on the Badge. If no
address is shown, or misuse of the Badge is strongly suspected, the vehicle may be clamped or
removed. Full details of the circumstances leading to the action must be recorded in case of future
dispute.)
c) Public Service Vehicles whilst waiting at an authorised stopping place, terminal or turning point.
d) Local authority, Public Utility or their contractors' vehicles engaged on works in, on or over the
public highway.
e) Royal Mail vehicles engaged in delivery or collection of postal packets.

64) In addition, vehicles that have been declamped and are still in the same location awaiting the return of
the driver should not be clamped or removed within two hours of being declamped. Such vehicles should
have a declamp sticker on them (see Appendix 2).

65) Vehicles that are obviously abandoned should not normally be removed or clamped under RTA 1991
powers. Details should be passed to the relevant section of the authority to apply the proper procedures
for abandoned vehicle removal.

66) In all cases of vehicles being repositioned, either where a PCN has been issued or to clear an area in an
emergency, vehicles should preferably be relocated within view of their original position. Details of the
new location should be reported to TRACE (the London-wide removal notification system; outside
London removals should be notified to the local police) to avoid any subsequent difficulties over reports of
stolen vehicles. All vehicles must have a relocation sticker fixed to the windscreen.

CIRCUMSTANCES WHERE VEHICLES MUST NOT BE CLAMPED BUT COULD BE REMOVED

67) In the following circumstances after a PCN has been issued vehicles must not be clamped in situ. They
could be removed, although in some circumstances re-positioning may be better.
a) When the vehicle is causing a major obstruction to traffic or a danger to pedestrians or other road
users, or is parked on an operational bus lane, cycle lane, bus stop, or cab rank. Consideration
should also be given to the likely time lapse which will occur before a clamped vehicle is
declamped and moved. If such time delay is likely to extend the presence of the vehicle to a time
when it will become an obstruction, e.g. the vehicle is in a non-operational bus lane, which is due
to commence in an hour or so, then the vehicle should be removed instead of being clamped. For
cases of obstruction where or when no parking restriction is in force, no action can be taken and it
will be necessary to seek the assistance of the police.
b) When a vehicle is parked adjacent to a fire exit, across an access used by emergency vehicles or
leading to private premises.
c) When a vehicle is parked in a specially designated reserved parking bay, e.g. disabled person,
doctor, or diplomatic bay.
d) When a vehicle is parked in a suspended parking place.
e) When a vehicle is parked adjacent to a dropped footway.

ORDER OF PRIORITY FOR VEHICLE REMOVALS

68) Removals should not be carried out in an ad-hoc or uncontrolled way. The following circumstances are
suggested in priority order for authorising removal:
a) Dangerous Position when parked in contravention
(i) In a position likely to cause danger to other road users.
b) Serious Obstruction when parked in contravention
(i) Preventing access by emergency vehicles.
(ii) Causing serious obstruction to traffic or pedestrians flow.
(iii) Parked at or near a junction.
(iv) Preventing access to or from private property.
(v) On or adjacent to a footway causing obstruction to pedestrians, particularly if over or next
to dropped kerbs for assisting pedestrians crossing the road.
(vi) In a bus or cycle lane when in operation.
(vii) On a bus stop during restricted times.
c) Serious Parking Contraventions
(i) On an urban clearway during restricted times.
(ii) On a clearway where stopping is prohibited.
(iii) In a restricted street subject to and during hours of a loading ban.
(iv) In a suspended meter bay or parking place.
(v) Unauthorised vehicle in a limited availability parking place, e.g. in a disabled bay, in a
doctors bay.
(vi) Adjacent to a dropped footway when contravention code 27 applies.
d) Parking Contraventions
(i) In a restricted street when no loading or unloading is apparently taking place.
(ii) Unauthorised vehicle in a widely available parking place, e.g. in a residents parking place.
(iii) On a cab rank marked subject to a restriction.
(iv) On a footway or another part of the highway other than carriageway (e.g verge, central
reservation)
(v) In a meter bay or pay and display parking place when:
the initial charge has not been paid;
the vehicle has been left for longer than 15 minutes after the expiry of paid time;
the vehicle has returned to the parking place within one hour of having left it;
meter feeding has taken place;
the meter or associated ticket machine is "out of order" and such parking has been
made a contravention under the traffic order;
(vi) In a parking place when:
the vehicle is not in a parking bay or space (e.g. in a loading gap);
the vehicle is incorrectly parked (i.e. straddling two bays);
adjacent to a dropped footway when contravention code 27 does not apply.

ORDER OF PRIORITY FOR CLAMPING VEHICLES

69) As with removals, clamping should not be carried out in an ad-hoc or uncontrolled way. The following
circumstances are suggested in priority order for authorising clamping:
a) High priority:
(i) Vehicle identified as being used by a persistent evader or offender, when committing any
contravention except one causing an obstruction or a safety hazard.
(ii) Vehicle parked in a permitted on-street parking place in contravention and where it
appears that a PCN would be difficult to enforce due to inadequate information on the
DVLA record (e.g. the vehicle was not displaying a valid tax disk). Motorists must by law
be given 15 minutes from the end of the period paid for before their vehicle can be
clamped.
b) Medium priority:
(i) Parking in a permitted on-street parking place or off-street car park without putting the
appropriate sum in the parking meter, or without displaying a valid ticket or voucher.
(ii) "Feeding" (ie. making an additional payment to extend the stay beyond the time originally
paid for).
(iii) Parking at an out-of-order electronic meter in contravention of a TRO.
c) Low priority
(i) Overstaying at a parking meter beyond the 15 minutes during which a vehicle cannot be
clamped, or overstaying at an off-street car park.
(ii) Occupying a residents' bay without displaying a valid permit.
(iii) Parking on a single yellow line and not causing, or likely to cause, an obstruction.
(iv) Parking on the footway, verge or central reservation in contravention of a TRO (or in
contravention of section 19, RTA 1988 in the case of heavy goods vehicles), but not
causing an obstruction.
(v) Parking in a free parking bay for longer than the permitted period. - Parking again within a
hour (or other specified time) of leaving a bay in the same parking place.
(vi) Not parking correctly within the markings of a bay.
d) The following vehicles should not be clamped:
(i) Vehicles overstaying for less than 15 minutes after the expiry of the period paid for at a
parking meter, etc.
(ii) Vehicles displaying a valid disabled person's Blue Badge.
(iii) Vehicles causing, or likely to cause, a hazard or obstruction.
(iv) Vehicles within two hours of being declamped, which have not moved.
(v) Diplomatic registered vehicles.
(vi) Vehicles displaying a HEB scheme or similar badge.
(vii) Vehicles parked in contravention in a diplomat's, doctor's or disabled person's bay, or in
any suspended parking bay.
(viii) Vehicles of the emergency services at any time and public service vehicles, furniture vans,
construction vehicles, etc. whilst being used on duty.

REMOVAL OPERATIONS

70) A removal operation consists of these key stages:
a) Identification;
b) Removal truck despatch;
c) Authorisation;
d) Vehicle lift;
e) Transfer to pound;
f) Payment;
g) Return of vehicle to owner/driver.

71) The removal of the vehicle is a serious enough penalty and inconvenience in itself, and so, to minimise
any additional aggravation to the driver, it is essential that the authority has a good despatch and control
system in place so that it knows at all times the location of any removed vehicle. It is equally important
that TRACE is informed without delay (i) when a vehicle is lifted, (ii) when it arrives at a pound and (iii)
when it is released.

72) It is essential that members of the public can pay and arrange for the release of a vehicle without undue
delay or difficulty, at all times.

IDENTIFICATION OF VEHICLES

73) Vehicles which could or should be removed will normally be identified by PAs in the course of their
regular patrols. The PA would issue a PCN and notify despatch control, either directly or via their
operating base, that they have seen a vehicle which falls into one of the priority categories for removal.

74) It is important that the correct vehicle can be easily located and identified and so the information to be
transferred to and recorded by despatch control should be:
a) Location;
b) VRM (vehicle registration mark);
c) Colour;
d) Make and model;
e) PCN number and contravention code;

75) There may be other agencies (e.g. the police or other council departments) or members of the public that
notify the authority of a vehicle, which perhaps should be removed. A PA should be sent to confirm the
identification and issue a PCN before taking further action, unless either the authority is sure that the
information received is reliable enough to send the removal truck straightaway, or the removal truck
happens to be in close proximity to the location.

AUTHORISATION

76) The person to authorise the actual lifting of a vehicle should be the parking attendant who is travelling on
the removal truck (the on-board PA). The responsibility for authorisation should be completely separated
from the removal contractor in order to avoid any possible claims of acting for private profit.

77) Photographs of the vehicle should be taken before its removal in order to identify the vehicle clearly and
show it in the context of the contravention that has occurred, as well as to show any visible marks or
damage.

78) A PA who issues a PCN and identifies the vehicle as a priority for removal may attach an "Authorisation
Notice", (see Appendix 2 for an example) to the pavement side front side-window of the vehicle before
contacting the removal despatch control. However, it is the on-board PA who should make the final
decision to have the vehicle lifted.

79) In certain circumstances, particularly where the potential contravention has been reported by local
authority CCTV operators or reliable outside agencies, it may be suitable for the removal truck to be
despatched immediately to the scene. In such cases the on-board PA would assess the situation on
arrival and, if appropriate, issue the PCN and straightaway authorise the lifting of the vehicle. However it
is preferable for the on-board PA to be the second officer on the scene in order to provide a check on the
patrolling parking attendant's initial assessment of the vehicle and to check that the PCN was correctly
and justifiably issued. This provides the safeguard of having two officers independently assessing the
situation before a removal is sanctioned. If an on-board PA does issue the PCN and authorise the
removal, while the PCN is being written, the lifting cradle can be put in place but the PCN must be fixed to
the vehicle before it is lifted.

80) If the on-board PA checks the original PCN and finds that there is a mistake on it (e.g. the VRM has been
written down incorrectly), he/she should remove it from the vehicle and issue and serve a new PCN.
He/she can then authorise the removal and the vehicle can be lifted. If the on-board PA checks the
original PCN and does not believe that any contravention is being committed or the vehicle does not
warrant removal, he/she should leave the PCN on the vehicle, make notes in a pocket book about the
situation and not remove the vehicle.

81) If several vehicles are identified by patrolling PAs at the same time as potential candidates for removal,
an assessment should be made, considering contemporaneous local conditions and the different
contraventions involved and the vehicles prioritised accordingly. This assessment can be made either by
the on-board PA, or by a supervisor at the PA base.

82) When no vehicles have been reported by PAs or other agencies, the removal truck and on-board PA
could be used to patrol locations where a high incidence of serious parking infringements is known to
occur. The on-board PA could then observe contraventions, issue PCNs and authorise removals
immediately as a means to counter recognised problems. Any such activity needs to be carefully planned
and monitored in order to ensure that indiscriminate and unnecessary clamping and removal is not
allowed to take place.

VEHICLE LIFT

83) Authorities carrying out removals need to have suitable vehicles to carry out the task. In the majority of
cases "total lift" trucks should be used, which can lift most vehicles over the side, and small to medium
cars over the end. In order to provide a removal service that can be applied fairly and equally to all
vehicles, authorities should also make contingency plans for the removal of vehicles from locations where
these trucks cannot operate. Examples include when half-lift trucks, which lift only the driven wheels of
the car, may be necessary, or when specialist removal vehicles may be needed for the removal of large
lorries, coaches or motorcycles.

84) In London, removal trucks should be marked clearly with the TRACE telephone number (020 7747 4747)
and identification of the authority on behalf of which they are being used.

85) To provide a good service to the public, the whereabouts of a removed vehicle should be known centrally
(i.e. on the TRACE system) as soon as possible. It is therefore necessary to notify TRACE immediately
when a vehicle is lifted, when it arrives at the pound and when it is released. Whether this is done using a
computer link connected to the despatch control system or by sending faxes, it needs to be done without
delay.

86) If the vehicle owner returns while the vehicle is in the process of being lifted, the vehicle must be returned
to the owner if any of the wheels of the vehicle are still on the ground. (If a half-lift vehicle is being
used, the vehicle must be returned to the owner if either of the two wheels that will be raised is still on the
ground.) The PCN should still be enforced in the normal manner.

87) A comprehensive condition report of the vehicle, ideally supported by photographic evidence of any
marks or damage, must be completed before the removal operation begins (see Appendix 2 for an
example). Any damage done to the vehicle during the removal must be recorded.

88) If an authority wants to remove a vehicle that cannot be lifted, implements can be used to effect entry,
and the vehicle driven or towed to the pound. However such a removal can only be carried out by staff
with the appropriate licence and insurance and under the acceptance that the authority is prepared to pay
for the inevitable damage to the locks. Therefore such removals should only be undertaken as a matter of
last resort emergency (e.g. an obstructively positioned coach owned by a hard-to-trace persistent
evader).

89) Clamped vehicles which remain clamped after the end of the working day may also be taken to the
pound, in order to reduce the risk of illegal declamping at night time. Care should be taken not to penalise
a motorist unduly with the extra cost of removal if the vehicle was only clamped late in the day. The clamp
should be removed and the vehicle then treated like any other vehicle subject to removal (condition report
etc). The despatch control system must be updated accordingly and TRACE notified. In the event that the
owner returns to the vehicle after the clamp has been removed but before the wheels of the vehicle have
left the ground, the vehicle must be returned to the owner.

THE DESPATCH CONTROL CENTRE

90) This service to the public is very sensitive, and must provide a good, consistent, accurate source of
information. The despatch control centre must be provided immediately with information about any
change of status of all clamped and removed vehicles, and, in the case of removals, relay that
information without delay to TRACE.

91) The despatch and control system and its links to the public via the TRACE system are critical to the
operation of the removal service. Authorities must suspend their removal service if any part of this system
fails.

THE VEHICLE POUND

92) A pound must have adequate perimeter fencing and lighting to avoid the possibility of theft from or
damage to vehicles. Whatever the level of use, around 2 to 3 times the number of vehicles normally
removed in a day is desirable as the minimum total pound storage space.

93) Pounds should be carefully chosen, with good access from the area of removals, good public transport
and be well lit. Safe access to the public is essential at all times, and access to pounds must have good
lighting and signing. Local taxi circuits should also be informed of the pound's location. Evidence shows
that the majority of drivers coming to collect vehicles from the pound come by taxi or by foot.

94) There should be no unnecessary delays or inconvenience involved in the process of recovering a vehicle.
Motorists do have a right to recover their vehicles at any time. Pounds therefore need to be open as long
as possible with payment being taken at each pound during the normal operating hours. If the pound is
not open at all times, a quick and easy facility to arrange for vehicles to be recovered by motorists out of
hours must be in place.

95) Staff at the pounds must check in removed vehicles, and carry out an independent damage check to
confirm the condition report completed on street before the lifting of the vehicle. They must also perform
regular inventory checks to ensure the accuracy of the information on the despatch control system.

96) Pounds should not become cluttered with unclaimed vehicles and so, after no more than 7 days,
authorities should try to find a keeper name and address from the DVLA. If this is obtained, a letter
should be sent immediately, giving the keeper 21 days to arrange to recover the vehicle or have it
disposed of by the authority. If there is no response, a second letter should be sent 28 days after the first,
and if there has still been no response during the next 28 days, the vehicle should be disposed of
according to the authority's procedures and in accordance with the RTRA 1984 if the vehicle has a valid
tax disc, it cannot be disposed of less than 3 months after removal; if it does not have a valid tax disc, it
can be disposed of immediately after the expiry of the second 28 day period.

97) If the authority has any reason to believe that an unclaimed vehicle may be a rented vehicle, they should
try and contact the hire company as soon as possible, by applying to DVLA or otherwise, as the company
is unlikely to be aware that the vehicle has been removed.

PAYMENT

98) Motorists should only have to visit one location in order to make payment and recover their vehicle.
Pounds should therefore have on-site payment facilities. (The exception to this is where a pound is not
fully open on a 24-hour basis, in which case an out-of-hours payment may be made at an off-site
payment point and the vehicle then recovered from the pound.)

99) Payment centres must be able to receive payment by cash and other methods, including credit and debit
cards, and must be linked to the despatch control centre. The calculation of the amount due is best
handled by such a terminal, as the fee will include the PCN, the removal fee and, sometimes, several
days' storage charges.

100) Vehicles should not be released before payment has been received for the PCN, the removal fee and,
where applicable, any storage fees. It is essential that details of any payments received for PCNs are
reconciled with the authoritys main PCN processing system as soon as possible to ensure that there is
no attempt to pursue the owner of a vehicle for payment of a PCN which was paid at a pound.

101) There may be occasions where the owner of a vehicle had good reason to be unaware of its removal for
some time, for example if they were on holiday when the contravention occurred. Depending on the
circumstances, authorities may consider waiving some or all of any storage fees incurred. Pound staff
should have good knowledge of local policies in this regard.

102) Some motorists may wish to recover their vehicles without payment at the time and authorities should
give consideration to the circumstances when such requests are made. In many cases agreement will not
be justified, but in some others, such as a vulnerable person alone at night without sufficient money, it
would be irresponsible to refuse the request. In these cases the motorist should sign a promissory note,
an example of which is given in appendix 2. It should be noted that fees on such promissory notes, if
unpaid, cannot be registered at the TEC but must be followed up in the conventional fashion (e.g. small
claims court, except in London see following paragraph). Again, pound staff need to be aware of the
local policies in this regard.

103) In London, if a vehicle is released without payment, the London Local Authorities Act 2000 allows local
authorities to collect the unpaid charges (clamp, removal or storage fees as well as the penalty charge)
with the issue of a charge certificate and registration of the unpaid charges as a debt at TEC.

104) Where a part payment is accepted, and a promissory note accepted for the remainder, the payment
should be set first against the removal fee as the PCN can be pursued easily through the normal
methods of processing PCNs. However the effect of the discount period for payment of the penalty
charge should be clearly explained to the person securing the release of the vehicle.

105) Where a vehicle is released with only a part payment or no payment at all being made, the person
securing the vehicles release must be informed of their right to make representations against the issue of
the PCN and the removal, in the same way as if they had made full payment.

OWNER VERIFICATION / PROOF OF IDENTITY

106) In principle, only the owner of the vehicle is entitled to recover a vehicle from a pound. Therefore ideally a
vehicle should only be released to a person who provides evidence of ownership (the V5) supported by
proof of their identity. In the case of a vehicle which is the subject of a hiring or hire-purchase agreement,
the owner includes the person entitled to possession of the vehicle under the agreement, so evidence of
ownership would be a copy of the hire agreement. However, establishing proof of ownership may not be
easy, nor may the owner of the vehicle (where, for example, it is a leased vehicle) be available. Verifiable
forms of ID should then be sought in pounds before release of the vehicle and where the recoverer is not
the owner they should be treated as the owners agent.

Whatever is used for proof of identity should include:
a) A photograph
b) Evidence of name
c) Evidence of address

CLAMPING OPERATIONS

107) The clamping process consists of these key stages:
a) Identification
b) Clamping van despatch
c) Authorisation
d) Clamping
e) Payment
f) Declamping

108) Clamping costs less than removal both in terms of capital costs and staff time. It is also very visible so it
acts as a deterrent.

109) Clamping differs from removal in that the driver has to pay and then wait to be de-clamped: after removal,
the driver pays and then has immediate access to his or her vehicle.

110) The penalty where a vehicle is clamped is the charge paid for the removal of the clamp, plus the PCN,
and not the time taken to declamp, or the distance the driver has to travel to make payment. This has
been established in law and is followed in this Code of Practice. It is therefore essential that payment is
made as accessible as possible, in particular use should be made of telephone payments using credit
cards, to avoid the motorist having to travel to a payment centre; also declamping should be carried out
as soon as possible after payment has been received.

IDENTIFICATION OF VEHICLES

111) The Identification section on removals applies equally to clamping.

THE AUTHORISATION PROCESS

112) In general, the points made about removal authorisation also apply to clamping, especially the need to
separate authorisation from action in order to avoid any suggestion of acting for private profit. In addition,
a senior parking attendant or authorising officer should travel in the van carrying the clamps with the
person whose job it is to apply the clamps.

113) An authorising officer working directly from a clamping van can cover a large number of vehicles in a
short period of time. For wider strategic cover there should be a line of communication between patrolling
parking attendants and authorising officers. In this way, priorities can be applied and categories such as
persistent offenders can be targeted.

114) The authorisation process must include the issue of a PCN, unless the contravening vehicle has already
been issued with one. While the PCN is being written, the clamp can be applied. However, because the
PCN must be issued before the clamping, the padlock must not be closed until the PCN is fixed to the
vehicle. An A4 size adhesive label, warning the driver not to try to move the vehicle, must be placed on
the windscreen of the vehicle immediately in front of the driver's line of vision. Another notice has to be
attached to the vehicle, signed by the authorising officer, giving details of the PCN and clamping, and
instructions on the course of action available to the driver. The general format and content of these
notices are defined elsewhere as part of this Code of Practice.

115) After this, most drivers will go directly to a payment centre, but some will contact the communications
centre. This will usually be a plea for a priority declamp, and the person responsible will have to decide
whether or not to order a priority declamp. This may then require sending a declamping van directly to
that site, and may occasionally involve the waiving of the clamp charge. Each authority should establish
clear criteria for priority releases and grounds for waiving the charge, although these should be limited to
exceptional circumstances and always authorised by a suitably senior officer.

116) Authorities should apply the rule that if the driver returns to a vehicle before the padlock is closed, the
clamp must be removed and the clamping fee not charged. If the driver arrives after the clamp has been
locked, then unless there are extenuating circumstances the clamp should stay. The decision to remove
the clamp must be made by the authorising officer (subject to local policies), not the person employed to
apply the clamps, and must be recorded in the officers pocket book. There should be no authority given
to waive the PCN which was issued as part of the clamping process, as any dispute can be dealt with as
part of the representation and adjudication process.

DESPATCH CONTROL

117) As in removals, clamping and declamping must be controlled from a despatch centre, which will allocate
clamping, and declamping vans and staff. "Paid and awaiting" vehicles should not be declamped at
random. However it is also important to avoid letting a declamping van pass a "paid and awaiting" vehicle
without releasing it, as this could appear unnecessarily antagonistic.

118) The despatch controller must always be kept informed, especially of those vehicles that have paid their
charges. The aim should be to declamp all vehicles within two hours of paying.

CLAMPING / DECLAMPING VANS

119) These can be standard vehicles but must be clearly identified. When clamping, they should carry
sufficient clamps for a tour of duty before having to return to base. Authorities with a low volume of
clamping and removals may wish to consider adapting a removal vehicle so that it may be used for either
task. Clamping vans should also clearly show a telephone number for enquiries.

120) The clamps to be used must only be those which have Home Office type approval; this is a statutory
requirement under Section 82(1) of the RTA 1991.

121) The vans should have phones so that they can contact the despatch control and the communications
centre should any onboard mobile data system break down.

122) On-street payments for declamping should not be accepted.

THE DESPATCH CONTROL CENTRE

123) Once paid, the clamped vehicles will be automatically queued for release by the computer system. When
a declamper comes on duty, or calls for more work, he will be given a list of "paid and awaiting" vehicles
for his next session of declamping, in time of payment order. As each is done, he must then report that
fact to the communications centre, in order that the case record may be closed. When a vehicle is
declamped without the motorist present, a declamp sticker should be put on the vehicle to protect it from
further enforcement action so allowing time for the motorist to return from the payment centre.

124) One important area for the use of an information system is to keep a check on vehicles still clamped and
on street after a set period of time. These vehicles should be removed after being clamped for 24 hours.
Clamped vehicles which remain clamped after the end of the working day may also be taken to the pound
if there is a high risk of illegal self-declamping taking place due to being left on street overnight. The
possibility that a vehicle may be removed even after it has been clamped should be explained on the
notice left on the vehicle but care should be taken not to unduly penalise a motorist with the extra cost of
removal if the vehicle was only clamped late in the day.

PAYMENT CENTRES

125) With the following amendments, these are the same as for removals. The location of a payment centre for
clamp payments is not tied to a pound, but since there will be pounds in many locations in London, each
with a payment centre, it is obviously sensible for them to be clamp payment points as well. Telephone
payments by means of credit/debit cards should also be accepted.

CONTRACTS FOR CLAMPING

126) When employing contractors, authorities should seek tenders from companies who comply with the
British Parking Associations Code of Practice on wheel clamping and removals and as a condition of
contract should agree to abide by their Code of Practice where relevant.

127) There are advantages in having the same contractor for both clamping and removing, as some overlap in
terms of the use of the contractors resources is likely.
Part 3 Processing

INTRODUCTION

128) Processing PCNs is as important as issuing PCNs in the first place. Timely processing helps secure more
prompt payments and gives motorists wishing to challenge them a fairer opportunity to do so. This not
only generates better customer relationships but also ensures minimum exacerbation of the penalty for
the motorist. Slow or poor quality processing is both unfair to the public and makes it harder and more
expensive for authorities to collect payments due. It is essential, therefore, that authorities have robust
systems, policies and procedures and sufficient numbers of properly trained staff, to ensure the
processing operation takes place effectively.

SYSTEMS

129) A proven and effective notice processing system is essential. Authorities should ensure their system is
suitable, properly installed and tested, with adequate ongoing technical support and that staff are trained
on it before deploying it in earnest. Particular care needs to be taken when migrating from one system to
another.

STAGES IN PROCESSING

130) The flow charts in Appendix 1 show the processes and the decisions that need to be made at each stage.
Some of these stages have statutory time limits and others have time limits dictated by good practice
on the flow charts, statutory time limits are shown in capitals and others are shown on lower case.
Recommended time limits, which include allowances where necessary for service of notices, are shown
in italics.

131) In all cases it is essential to ensure that time limits are met, and to try and ensure that backlogs or delays
are not allowed to build up. It is also important that any case status changes and any associated charge
increases are not applied too soon. This will help provide a good service and improve public confidence
in the enforcement process. It is important to always allow time for delivery of documents where service is
by post as time limits usually apply to service not issue.

DATA AND MANAGEMENT INFORMATION

132) It is also vital that proper data and management information are available. As a minimum the following
are required:
a) Number of PCNs issued in any one period
b) Percentage paid at each stage
c) Percentage challenged with the outcome
d) Percentage appealed to the adjudicator with the outcome
e) Percentage subject to bailiff or follow up action to secure payment
f) Percentage cancelled (in this instance, cancelled means a specific decision by the authority that a
penalty should not be paid)
g) Percentage written off (in this instance, written off means penalties which the authority still
believes are payable but where it considers it has little or no chance of collecting the amount and
treats the sum as a bad debt)

133) These data are required by the Home Office and are subject to annual returns; in London this is done via
London Councils TEP.

134) In addition, in London, London Councils TEP requires quarterly statistics in much greater detail and an
example of the form, showing the information required, is provided in appendix 1. These statistics allow a
much closer management control of all stages of notice processing.
PAYMENT

135) An extensive range of payment options, by which penalty charges can easily be paid and vehicles quickly
released from a clamp or recovered from a pound, will serve the best interests of both authorities and
motorists.

136) If possible authorities should provide a number of payment centres distributed throughout their catchment
area, and these should be open for as long and on as many days as possible. Likewise the opportunity
for telephone payments should be available as long and on as many days as possible.

137) Obviously when siting payment centres due consideration must be given to accessibility and to the safety
and security of staff and customers both inside and in the immediate vicinity of the centre. Observance by
CCTV video cameras should be considered.

138) Where a payment has been made (e.g. when a vehicle is released from a clamp or a pound) which
subsequently needs to be refunded (e.g. following acceptable representations), it is important that the
money is refunded as quickly as possible, ideally accompanying the letter advising that a refund is due,
but always within 28 days of the decision to refund being taken.

139) Although there is a limit on the time during which payment of PCNs can be made at the discounted rate,
allowances should always be made for exceptional circumstances (e.g. unforeseeable delays due to
breakdown in postal service).

140) Where members of the public submit a payment and enclose a letter challenging the PCN and seeking
redress, the authority should always consider the challenge and, if it is unsuccessful, either:-
a) Return the cheque explaining why the challenge is unsuccessful and that the PCN cannot be
formally challenged until after the issue of an NtO, and offering another 14 days to pay the
discounted amount, or
b) Bank the cheque on suspense and write back explaining why the challenge is unsuccessful,
telling the challenger about the representations and appeals procedure and that the payment will
be accepted in final settlement unless a refund is requested, which will allow an NtO to be sent to
the registered keeper.

METHODS OF PAYMENT

141) In order to make payment as accessible as possible, authorities must make sure facilities are in place for
the following methods of payment for the settlement of PCNs
a) Cash in person
b) Personal & company cheques in person and by post*
c) Sterling travellers' cheques in person
d) Debit & credit cards by electronic terminal in person or by telephone (including using automated
phone payment systems)
e) Debit & credit cards by post or online

* In normal circumstances, personal cheques should only be accepted to the limit of a supporting
guarantee card. Unsupported personal cheques and company cheques should normally only be accepted
if the authority can be confident that they will be honoured. Any policies relating to this should be made
clear at payment points.

PAYMENT WITH CLAMPING AND REMOVALS

142) In order to minimise the creation of bad debts and provide a better service, authorities that clamp and / or
remove vehicles need a complete range of secured payment options.

143) The ability to accept payment by debit and credit cards provides a secure payment option as electronic
card readers automatically seek authorisation for values above a limit previously agreed with the card
company.

144) Authorities must make sure facilities are in place for the following methods of payment for the settlement
of PCNs, clamping and removal fees:
a) Cash
b) Personal & company cheques (subject to appropriate guarantees)
c) Sterling travellers cheques
d) Visa & MasterCard credit and Visa Delta & Switch/Maestro
e) Debit cards by electronic terminal

145) The following methods are optional:-
a) American Express and Diners Club credit cards
b) Automatic cheque print & receipt

APPEALS

146) Quite often appellants want to make immediate settlement following an unsuccessful adjudication hearing
and so a payment point is provided at the adjudication centre, with an extensive range of payment
options.

147) In London payments received at the adjudication centre are transferred to the authority via the Payment
Information Exchange (PIE) see section below.

148) The payment system is capable of accepting and processing payments for all authorities, with the ability
to transfer data in an appropriate form.

149) In instances where an adjudicator finds for the appellant, perhaps awarding costs against the authority or
necessitating the refund of PCN and clamping or removal fees, the appellant will seek and not
unreasonably expect a prompt return of any money owed. The Road Traffic Act 1991 requires moneys to
be refunded forthwith. This means that the administrative process of making the refund must be started
as soon as the authority is aware of the adjudicators decision and the refund completed as quickly as
possible thereafter, and within no longer than 28 days.

LOCATION OF PAYMENT CENTRES

150) It is essential that payment centres are readily available to the public, with easy access to facilitate the
prompt settlement of debts and minimise further customer frustration and dissatisfaction. As a minimum
requirement payment points should be provided at authority payment centres and at vehicle pounds.

151) Major payment centres at pounds should be operational at least between 08.00 and midnight Monday to
Saturday and between 09.00 & 17.00 hours on Sundays and public holidays if relevant, with an 'out of
hours' emergency service to provide a 24 hour vehicle retrieval service throughout the year. The vehicle
declamp and release policy should complement the hours and days of operation of payment centres in
order that the response time and release procedures do not constitute penalties in their own right.
Depending on the scale of the enforcement operation, at least one payment centre should be operational
within the enforcement area during the core day-time periods and the acceptance of a secured payment
should guarantee prompt retrieval of a vehicle.

TEMPORARY WAIVING OF PAYMENTS

152) A policy of temporary waiving of the payment of a PCN, together with the immobilisation or removal fee,
to address circumstances when failure to retrieve the use of a vehicle could lead to distress or expose a
motorist to unnecessary personal risk, is essential to maintain public confidence in the authorities'
enforcement operation.

153) The temporary suspension of such payments does, however, create a civil debt which can quickly
generate recovery costs. The widest range of secure payment options will minimise the exposure, but in
the event that insufficient or no funds are available the authority will become involved in a follow-up
procedure to recover the debt outstanding.

154) A draft promissory note can be found in Appendix 2.

155) The arguments for and against the acceptance of part payments should be examined on economic and
customer care grounds. Payment plans can help secure payments, particularly where large amounts are
due (for example from several outstanding PCNs). On the other hand, ensuring the debtor continues to
pay after the first instalment can be difficult.

PAYMENT INFORMATION EXCHANGE

156) The Payment Information Exchange (PIE) provides a formal arrangement whereby payments in London
destined for one authority can be accepted on account by another and then transferred. This eliminates
the need for cheques to be returned with the attendant difficulty in ensuring a second cheque is written.
PIE also handles payments made at the adjudication centre.

157) PIE works by the immediate transfer of information about 'orphaned' payments received from one
authority to another via London Councils TEP. A monthly reconciliation account is provided by London
Councils TEP to simplify financial transactions.

158) The exchange of information is as follows. On a daily basis authorities must inform London Councils TEP
of any payments they have received which are due to another authority (as long as these payments can
be ascribed positively to a specific PCN). The information needed for this exchange is:
a) the PCN number;
b) the amount received;
c) the authority which has received the money; and
d) the date received.

159) London Councils TEP will collate and transmit this information to the appropriate authorities. Where a
PCN cannot be identified positively the money should either be kept in a suspense account for a limited
time or returned to the sender immediately.

160) No money needs to change hands on a daily basis; instead London Councils TEP will provide each
authority with a monthly statement indicating how much is due from one authority to another.

161) Payments received by London Councils TEP, e.g. diplomatic payments or payments following
adjudication, will be transferred to the appropriate authorities using the PIE system.

ADDITIONAL BACKGROUND INFORMATION THAT MAY BE OF ASSISTANCE

162) The conditions of use controlling cheque guarantee cards state that a bank "guarantees in any single
transaction the payment of only one cheque" up to the card limit. The practice of accepting a series of
cheques to the card limit is considered to be fraudulent use of the card and the banks could return the
second and subsequent cheques unpaid.

163) The cheque card guarantee scheme does not apply to cheques drawn on limited company accounts.

164) The use of on-line debit and credit cards helps avoid the creation of bad debts and minimises collection
costs.
CHALLENGES

165) It is important to have a good quantity of high quality data readily available to staff who are considering
challenges to PCNs and representations. This means staff should have ready access to all original PCN
data, any photos, parking attendants notes, updated keeper details, suspension details, traffic
management orders, equipment maintenance records, records of the condition of lines and signs and any
other similar information which could help them. Where necessary, conditions of lines and signs should
be checked out on-site, and this should be done as soon as any doubt about these is raised rather than
being left, for example, until the appeals stage. This means that problems can be dealt with quickly and
the findings of such visits can be applied to other PCN cases.

166) Similarly this information should be readily available to those dealing with cases which are subject to an
appeal, so the information can be easily supplied to the adjudicator.

167) It is important for an enforcing authority to ensure that there are sufficient resources to deal promptly with
all complaints, queries and formal representations, and that all enforcement, ticket processing and
customer care staff are well trained in customer care and possess a good knowledge of the regulations
and local policies.

168) If the systems, procedures and working practices set up by the authorities to check (and if appropriate,
cancel) contested PCNs are efficient, reliable and consistent, the proportion of PCNs which result in an
appeal to the adjudicator should be small. In contrast, if the data supplied are unreliable and a large
number of PCNs can be thrown out on obvious technical grounds (e.g. invalid PCN, issued out of hours,
no suspension signing) both the adjudicator and the public will lose confidence in the authorities'
operation with a consequent increase in the proportion of PCNs being contested and taken to, and
cancelled by, the adjudicator.

REASONS FOR CANCELLING PCNS

169) A PCN must always be cancelled when satisfactory evidence is produced of any of the statutory grounds
for representations.

170) In addition authorities can always exercise discretion and consider cancelling PCNs under other
circumstances. The following paragraphs provide the basis for a consistent approach to cancelling PCNs.
It is not a definitive list and authorities will still need to consider the particular circumstances of each case
when making their decisions. PCNs should be cancelled:-
a) when the parking meter is faulty or all nearby (and easily visible) pay-and-display ticket machines
are faulty;
b) when the PCN has not been issued properly (e.g. the information on the PCN is inadequate or
incorrect due to an error by a parking attendant);
c) the vehicle was broken down at the time and reasonable steps had been taken to move it as soon
as possible;
d) where special arrangements exist whereby PCNs are waived (e.g. HEB users attending a medical
emergency);
e) where there has been an undue delay at any stage in processing of the PCN. This would certainly
be the case with any delay exceeding 6 months, but even shorter delays may be considered
unreasonable, for instance if they contribute to a motorist being unable to make detailed
representations or present a case for appeal - for example, except in extraordinary circumstances,
authorities should respond to representations within at most 60 working days. In cases where
authorities have had difficulties tracing owners, longer delays may be acceptable;
f) in cases of extenuating circumstances, authorities should establish guidelines under this category
to ensure consistency and assist management control. This should include guidance on what
evidence would be appropriate in each set of circumstances. Authorities must consider using their
discretion on all occasions if none of the statutory grounds apply, but the need to be flexible in
considering exceptional circumstances must be balanced with the need to enforce parking
controls firmly and fairly. Where there is an element of doubt, it would be reasonable to give the
motorist the benefit of the doubt for a first contravention but to be stricter on later occasions. For
this reason it is appropriate to monitor discretionary cancellations carefully to check that the same
exceptional circumstances are not being claimed on multiple occasions. At all times each case
must be considered on its merits.

HIRED VEHICLES

171) Hired vehicles are treated differently in Schedule 6 of the RTA 1991 insofar as vehicle-hire firms can
make representations that when the PCN was issued:
a) the vehicle was hired under an agreement; and
b) the person hiring it had signed a statement of liability in respect of PCNs.

172) They must give the name and address of the hirer and should enclose a copy of the hire agreement.

173) The details that need to be included on the hire agreement in order for liability to be transferable are as
follows (from Road Traffic (Owner Liability) Regulations 2000, schedule 2):

Particulars of person signing statement of liability:
a) Full Name
b) Date of birth
c) Permanent Address
d) Address at time of hiring (if different from 3 above and stay is likely to be more than two months
from date of hiring)
e) Details of driving licence:
(i) country where issued (if not UK)
(ii) serial number or driver's number
(iii) date of expiry (which should be no later than date specified in B7 below)

Particulars of hiring agreements:
a) Registration mark of vehicle hired under the hiring agreement
b) Make and model of vehicle hired under the hiring agreement
c) Registration mark of any vehicle substituted for the above during the currency of the hiring
agreement
d) Make and model of any vehicle substituted for the above during the currency of the hiring
agreement
e) Time and date of any change of vehicle
f) Time and date of commencement of original hiring period
g) Expected time and date of expiry of original hiring period
h) Time and date of commencement of authorised extension of hiring period
i) Expected time and date of expiry of authorised extension of hiring period
j) Actual time and date of return of vehicle (or when vehicle returned out of hours time and date on
which vehicle-hire firm next opened for business)
This requirement applies only to the vehicle hire firm's copy of the hiring agreement.

174) In these circumstances the hirer is deemed to be the owner (Schedule 6 - para 2(6) of the RTA 1991) and
the authority may issue a second NtO on the hirer, who is liable for payment of the penalty charge due.

175) This only applies in cases where the hire period is for less than six months.

176) In cases where an agreement lasting more than six months is involved, the registered keeper should
make representations that they were not the owner at the time and provide evidence to that effect,
although the level of detail required to be produced by the hiring/leasing company is not as high as in
short-term hire agreements.

PRE-NTO CORRESPONDENCE (CHALLENGES)

177) The public have a right to put forward, and the legislation does not stop authorities considering, requests
to cancel PCNs at any time and on any grounds including mitigation. If a pre-NtO letter provides
satisfactory evidence of one of the statutory grounds of appeal, the PCN should be cancelled at that
stage without the need to serve an NtO. Even where none of the statutory grounds is made out, the
authority must consider the mitigation and any extenuating circumstances and then decide whether to
use its discretion to cancel the PCN at this stage. Councils should not merely send a holding letter or
refuse to consider pre-NtO challenges as this approach adds costs (the council would have to consider
the challenge in any case if it came in response to the NtO) and causes ill-feeling on the part of the
motorist towards the council.

178) If pre-NtO correspondence is received within 14 days of the issue of the PCN and the authority
subsequently decides not to cancel the PCN, a further 14 days after the decision letter has been issued
should be allowed for payment at the discounted rate.

179) The NtO ensures that the owner, who is liable for the penalty charge, is in all cases made aware of the
contravention before the full charge increases and while the right to appeal remains; it also allows the
owner to make formal statutory representations. Local authorities should nonetheless treat all letters
challenging PCNs as if they were representations and investigate accordingly.

180) When rejecting a request to cancel a PCN the authoritys reply should include reasons for the decision
and explain the statutory procedure for making representations and appealing to the adjudicator.

181) Where a motorist sends in a request to cancel a PCN together with payment, the authority should always
consider the challenge and, if it is unsuccessful, either:
a) Return the cheque explaining why the challenge is unsuccessful and that the PCN cannot be
formally challenged until after the issue of an NtO, and offering another 14 days to pay the
discounted amount, or
b) Bank the cheque and write back explaining why the challenge is unsuccessful, telling the
challenger about the representations and appeals procedure and that the payment will be
accepted in final settlement unless a refund is requested, which will allow an NtO to be sent to the
registered keeper.

182) If the challenge is successful, the cheque should be returned to the sender.

183) Copies of all correspondence and notes of telephone calls, whether with council staff or contractors,
should be kept in an accessible place to enable any subsequent representations to be dealt with. In
addition, adjudicators will expect to see copies of the letters and notes if a case results in an appeal.

184) Informal challenges may be made by telephone, often during the course of an enquiry about the issue of
the PCN, but in most cases authorities should ensure they have written confirmation of the details before
agreeing to cancel a PCN. However, if it is clear that the PCN should never have been issued, without
the need for any evidence from the driver, authorities should cancel the PCN without putting the motorist
to any unnecessary inconvenience. In such cases notes detailing in full the reason for the cancellation
should be recorded on the processing system and the authority should send a letter to the challenger,
making reference to the phone call and confirming that the PCN has been cancelled.

185) Challenges may be made and should be accepted via e-mail or via the councils website.
STATUTORY REPRESENTATIONS

186) The people considering statutory representations should be independent of PCN issuing staff and the
function of considering these representations must not be contracted out. There are statutory grounds for
representations that can be made to an authority. Authorities are not constrained to these grounds and
may exercise discretion as to whether or not to cancel PCNs on other grounds and it is important that
authorities exercise their discretionary powers responsibly and reasonably. If the authority rejects their
representations, the motorist may appeal to the adjudicator. Representations should only be accepted in
writing, in order to avoid confusion, and should contain the name, address and signature of the person
making them. If representations are made electronically by email, or online, the name of the person
making them should be in the message header or in the message and can be taken to be a signature. In
such cases it is advisable to validate the message content (e.g. by sending an acknowledgement of
receipt containing a copy of the original message) so no later changes to the representations can be
made.

187) The relevant grounds for representations against an NtO defined in Paragraph 2 of Schedule 6 to the
RTA 1991 (as amended) are that:
a) the recipient was not the owner of the vehicle at the time of the event;
b) the alleged contravention did not occur, usually because the vehicle was waiting in accordance
with an exemption listed in the relevant traffic order, (e.g. there was loading or unloading taking
place)
c) the vehicle had been permitted to remain at rest in the parking place by a person who was in
control of the vehicle without the consent of the owner (e.g. the vehicle was stolen at the time);
d) the designation order is invalid;
e) the recipient is a vehicle hire firm and -
(i) the vehicle was at the time of the contravention hired from the firm under a vehicle hiring
agreement; and
(ii) the person hiring it had signed a statement acknowledging his liability in respect of any
PCN affixed to the vehicle during the period of hire;
f) the PCN charge exceeds the amount applicable in the circumstances of the case;
g) the parking attendant was not prevented from serving the PCN (in London only).

188) These grounds can be divided into two distinct categories, which result in different action being taken if
representations are accepted. The first set of grounds are those which challenge the validity of the PCN
itself, and are that:
a) the contravention did not occur 187) b)
b) the traffic order was not valid 187) c)
c) the penalty charge exceeded the amount applicable in the circumstances of the case 187) f)
d) the parking attendant was not prevented from serving the PCN 187) g)

189) The second set of grounds does not challenge the validity of the PCN itself but are raised by the owners
as a challenge to their liability. These are that:
a) the person to whom the NtO was sent was not the owner 187) a)
b) the vehicle had been taken without the owners consent 187) c)
c) the owner is a vehicle hire firm 187) e)

190) The distinction between the grounds for representations is important to ensure that the correct action is
taken in the case of representations being accepted. Successful representations on grounds that
challenge the validity of the PCN should result in cancellation of both the PCN and the NtO. Successful
representations on grounds that challenge the liability of the recipient need only result in the cancellation
of the NtO. In such cases the PCN remains a valid notice and authorities may issue a fresh NtO if they
have been supplied with suitable information to allow them to believe that liability has been transferred to
a new person. Authorities should cancel PCNs in cases where the vehicle has been taken without
consent, since there is no provision to serve a second NtO on the person who was in control of the
vehicle at the time. Furthermore, if more than one PCN was issued during the time that the vehicle was
under that other persons control, they should all be cancelled without the need for the owner to make
representations for each case.

191) Representations may be disregarded by the authority if they are received more than 28 days after service
of the NtO (2-4 working days should be allowed from posting the NtO to allow for service). PCN
processing can then continue as if no representations were received. Authorities must nevertheless
respond to the representations explaining that they have been disregarded because they were made too
late and consider the use of their discretion to cancel the PCN or mitigate the penalty. This is necessary
to prevent Statutory Declarations at a later stage. Authorities should consider any circumstances that may
have caused a representation to be made outside the 28 day period and they may wish to exercise
discretion to treat it as a valid representation, especially if a reasonable explanation for the delay has
been given. In such cases, the motorist would retain the right to appeal to the adjudicator if the
representation is rejected by the authority.

192) There is no statutory time limit for authorities to deal with representations against an NtO, but authorities
should respond speedily in order to provide a good service, to obtain due payment as quickly as possible
or to avoid the risk of prejudicing any appeal. Authorities should therefore aim to answer representations
within the same time scale allowed for general correspondence (often 10 working days) and should
certainly look at a target of answering them within a maximum of 20 working days. Even if exceptional
circumstances make this target unachievable, if any delay is longer than 60 working days, consideration
should be given to automatically accepting the representations owing to an undue delay. If the authority
does not accept the representations, the Notice of Rejection must advise the motorist of the time limit for
payment before a charge certificate will be issued and of the right to appeal to an adjudicator and an
appeal form must be attached.

193) When drivers pay PCNs and the other applicable fees to retrieve or declamp their cars they must be
advised in writing of their right to make representations to the authority concerned. Where drivers recover
their vehicles without payment, they must still be advised of their right to make representations to the
authority concerned. If the authority fails to reply to such representations within 56 days of receipt it is
deemed to accept the motorists' arguments; it must then cancel the PCN and refund the appropriate sum.
The authority can again ignore any representations which are not received in writing within 28 days of the
supply of the information about the right to make representations.

194) The need for policies to cover the use of discretion is considered below and various cancellation policies
are recommended. When a motorist accepts that the contravention did occur but argues that the PCN
should be cancelled on grounds of extenuating circumstances individual authorities will have the choice
of exercising discretion. There is nothing specifically in the RTA 1991 which allows adjudicators to
exercise similar discretion when considering appeals in such cases. The Chief Adjudicator could,
however, choose to include reference in the Annual Report to what he or she decided was over-zealous
prosecution by a particular authority if such cases became frequent. Adjudicators may also adjourn cases
and refer them back to an authority with a request that they reconsider exercising their discretion to
cancel a PCN (or NtO) where they believe they have received further and better information which may
warrant such action by the authority, or where it is not apparent that the authority has properly considered
the exercise of its discretion in the first place.

RESULTS OF REPRESENTATIONS

195) If representations against an NtO are accepted the authority should cancel either the PCN and the NtO or
just the NtO (depending on the category of the grounds of representation), and inform the person who
made the representations in writing.

196) If representations are not accepted the authority must issue a "notice of rejection" which must:
a) state the reason for rejection, dealing with and answering all points raised in the representations
and providing a clear explanation for the decision;
b) state that a Charge Certificate may be issued unless either payment is received within a further 28
days or an appeal is made to an adjudicator;
c) advise of the form in which an appeal to the adjudicator should take; and
d) indicate the nature of the adjudicator's power to award costs against either party to an appeal.

It must be remembered that the Notice of Rejection is a letter explaining that representations have not
been accepted and should not be, or appear to be, in any way be bullying or threatening.

197) An appeal application form must be included with each letter of rejection. This is important even when the
authority does not believe that the motorist is seeking to establish a formal ground of appeal. This is to
allow the appellant to attempt to establish a ground at appeal. As requested by the Parking and Traffic
Appeals Service the official use box on the back of the appeal application form should be completed with
the name of the person that the notice of rejection was sent to, the relevant PCN number(s), the vehicle
registration number and the date of rejection to assist in processing the appeal. If out-of-time
representations have been disregarded as described in paragraph 8.6 it is not necessary to send an
appeal form or explain the appeal process.

198) A Charge Certificate can be issued unless an appeal has been made to the adjudicator (or the penalty
charge paid). Appeals should be made to the adjudicator within 28 days of service of the notice of
rejection of representations but the adjudicator has discretion to accept appeals out of time. Authorities
will be informed in appropriate cases and should take steps to cancel any Charge Certificate that may
have been issued.

199) When a motorist has made representations or an appeal but accepts either the authority's or, at a later
stage, the adjudicator's decision that payment is due and then pays within 14 days of that decision, the
RTA 1991 does not require the authority to make a discount on the payment and normally an authority
would not be expected to do so. Authorities could, however, decide to do so in a few exceptional cases,
or on the recommendation of the adjudicator.
REPRESENTATIONS AGAINST CLAMPING OR REMOVAL

200) Because the RTA 1991 requires the PCN to be paid at the same time as the fee is paid for the
declamping or the release of a vehicle from a pound, special provisions have been incorporated in
Sections 71 and 72 of the RTA 1991 to cover appeals and representations against the original reason for
issuing the PCN, the amount of the penalty charge, or the amount of any additional parking charge, e.g.
removal fee.

201) The grounds for appeal are:
a) that there were no reasonable grounds for the parking attendant to believe that the vehicle had
been left in a place which caused a contravention to occur;
b) that the vehicle had been left by a person who was driving the vehicle without the owner's
consent, e.g. stolen;
c) that the place in which the vehicle was parked was not a designated parking place;
d) that the vehicle was an exempt vehicle under Section 70 of the RTA 1991; or
e) that the penalty charge or other charge exceeded the amount applicable in the circumstances of
the case.

202) The RTA 1991 requires that at the time of recovery of the vehicle the owner is informed in writing of the
right to make representations. Strict time limits are set out under which the procedure operates because
payment has already been made.

203) Representations must be received by the authority within 28 days of the date on which the owner was
informed of this right. Representations that are received after 28 days may be ignored. Authorities must
nevertheless respond to such representations, explaining that they have been disregarded because they
were made too late. Authorities should consider any circumstances which may have caused a
representation to be made outside the 28-day period and they may wish to exercise discretion to treat it
as a valid representation, especially if a reasonable explanation for the delay has been given. In such a
case, the motorist would retain the right to appeal to the adjudicator if rejected by the authority.

204) The authority must consider the representations and serve a notice on the person giving its decision
within 56 days of receiving the representation. Failure to meet this deadline is deemed as acceptance of
the representations.

205) Where the authority accepts the representations it must, at the same time that it serves notice of that
decision, refund the charge for the PCN plus any sums either paid by the owner for declamping or
removal, or deducted from the proceeds of sale if the vehicle has been sold,. It is important that the
money is refunded as quickly as possible, ideally accompanying the letter advising that a refund is due,
but always within 28 days of the decision to refund being taken

206) Where the authority does not accept the representations, it must inform the appellant of the right to
appeal to the adjudicator, giving details of the procedure, including the power of the adjudicator to award
costs against either party.

207) Where the appellant wishes to appeal to the adjudicator, he or she must do so within 28 days of the date
of service of the authority's decision notice, although the adjudicator has the power to extend this time
limit and accept late appeals, if he/she considers it appropriate to do so. If the adjudicator finds for the
appellant, the authority must process a refund of the appropriate sums as soon as they have received
notification of the adjudicators decision.

208) If an appeal is successful, at any stage, authorities or their contractors may be faced with a claim for
compensation. Such claims should be resisted unless the authority feels it is clearly at fault, in which case
reasonable compensation, covering costs and disbursements, should be offered. This does not apply to
awards of costs made by an adjudicator, which should be paid as soon as possible after the decision and
within 28 days at most. In order to limit the number of compensation claims and to minimise their validity,
it is important to ensure that vehicles are always clamped or removed lawfully and following correct
procedures.
APPEALS

209) The Road Traffic (Parking Adjudicators) (London) Regulations 1993 provide the framework for the
process and procedure governing appeals in London. The Road Traffic (Parking Adjudicators) (England
and Wales) Regulations 1999 serve the same function for appeals outside London. Whereas local
authorities may send representatives if they wish, the system has been developed so that in most cases
an authority will send documentary evidence without the need for a representative to attend.

210) The Adjudicators Regulations require that authorities send in every case:
a) a copy of the PCN;
b) a copy of the original representations; and
c) a copy of the Notice of Rejection.

211) In addition to the evidence required by the Regulations, authorities should also send:
a) a summary of the details of the case;
b) a copy of all other correspondence relating to the PCN;
c) a copy of attendant's log book (or equivalent);
d) details of signing and road markings and the hours of operation;
e) a summary of the relevant traffic order; and
f) evidence to show that the appellant is the person liable for the penalty charge. This must make
clear whether the appellant is the registered keeper or someone else whom the authority alleges
is the owner. In the latter case the authority must include evidence to show why they believe the
appellant is the owner this is not necessary for clamping and removal cases.

212) As appropriate and depending on the circumstances of the case, authorities should also send:
a) records of meter maintenance / fault checks carried out to verify meter working and accurate;
b) suspension records: dates of advance warning (if any), start and end of suspension etc;
c) statement from attendant;
d) details of ownership enquiries: when NtOs sent, what reply etc, DVLA enquiries etc;
e) details of permits: type of permit, when issued, expiry date etc;
f) clamping: time clamped, time PCN and fee paid, time declamped etc;
g) removal: time removed, time received at pound, time collected from pound, time PCN and fee
paid etc.

213) This list is not exhaustive. Authorities need to send sufficient evidence to prove their case and so have to
consider what may be necessary in each particular case.

214) Further details of the requirements of the adjudicators can be found in the Guide to the Parking and
Traffic Appeals Service.

215) PATAS sends daily reports to authorities listing new appeals, outcomes of appeals, and details of out-of-
time appeals.

216) Authorities must make sure that all necessary information is supplied to PATAS as soon as possible after
it is requested and always by the set deadlines. They should also ensure that all information and
documentation sent to the appeals service is also copied to the appellant, ensuring that it will reach the
appellant at least three clear days before the scheduled hearing date. Similarly they should receive from
the appeals service a copy of any information or documentation submitted by the appellant.

217) In London the adjudication centre is equipped with payment facilities. Details of the payment, together
with the payment itself, will then be passed to the relevant authority through the Payment Information
Exchange system.

218) Decisions made by adjudicators should normally be considered as final and any directions given by
adjudicators must be complied with immediately. Although the Adjudicators Regulations do allow for
reviews of decisions to be requested, the grounds for these are quite limited. In general a review should
only be requested where fresh evidence has become available which was not available at the time of the
original hearing.

219) Should an appellant send an appeal to an authority by mistake, it should be forwarded immediately to the
appeals service.

ELECTED MEMBERS AND CHALLENGES TO ENFORCEMENT

220) Consideration of challenges to enforcement is a quasi-judicial function and elected members of
authorities should play no part in deciding on individual representations. Their involvement should extend
no further than to ask, and receive information, about the progress of consideration of challenges and
about the eventual outcome of any challenge.
CHARGE CERTIFICATES

221) Unpaid penalty charges are increased and the Charge Certificate is the formal notification that the charge
has increased by 50%.

222) A charge certificate may be issued by an authority if:
a) neither full payment nor representations have been made to the authority within 28 days after
service of the NtO (an allowance of 35 days is recommended);
b) neither full payment nor an appeal to the adjudicator has been made within 28 days after service
of the notice of rejection when representations were made in response to the NtO (again an
allowance of 35 days is recommended);
c) full payment has not been made within 28 days after the rejection of an appeal by the adjudicator
(again an allowance of 35 days is recommended
d) full payment has not been made within 14 days after the withdrawal of an appeal by the appellant
(an allowance of 21 days is recommended); or
e) full payment has not been made within 28 days after a Statutory Declaration was reviewed by the
adjudicator in which the motorists case was rejected (again an allowance of 35 days is
recommended).

In all cases, if a part payment has been made within the timescales mentioned, a Charge Certificate may
be issued in respect of the outstanding balance.

223) The penalty charge cannot be increased until the Charge Certificate is issued.

224) If an owner contacts an authority and says that the Charge Certificate is the first notice received, the
authority should consider allowing the owner to make payment of the full PCN charge (without the
Charge Certificate increase) or make a challenge, upon receipt of which the Charge Certificate and
preceding NtO should be cancelled. If the challenge is not accepted, the owners address should be
checked and another NtO served (if within the time allowed) in order to give the owner the opportunity to
make representations. If the authority chooses not to allow either of these options, for example where an
owner frequently makes this claim, they should explain the procedure for making a Statutory Declaration
at the next stage of the process.
DEBT RECOVERY

225) The Department for Constitutional Affairs has designated a single court (Northampton County Court) to
deal with parking enforcement by authorities. The process is administered by the Traffic Enforcement
Centre (TEC), which is the bulk processing section of this court.

226) Should the Charge Certificate remain unpaid within 14 days from the date on which it was served, an
authority can register the increased charge at TEC and the moneys payable under the Charge Certificate
can then be recovered as if they were payable under a county court order. Only at this stage should the
authority consider the unpaid amount as a debt for accounting purposes.

227) The authority must certify that the Charge Certificate has been served (with the amount of the charge
specified) and that 14 days have elapsed since service.

228) If the Charge Certificate has been registered at the county court then an order of the court can be made
without the motorist being entitled to contest the court proceedings, except on the grounds detailed in the
following paragraph. A fee of 5 is charged for the registration, which is added to the amount of the
penalty charge payable.

229) Once the court makes an order, the person against whom it is made has 21 days from the date of service
of the court order in which to either pay the outstanding charge or make a Statutory Declaration that
either:-
a) the NtO / EN was not received; or
b) representations were made to the authority concerned but no Notice of Rejection was received; or
c) an appeal was made to an adjudicator against rejection by the authority of representations but no
response to the appeal was received.

230) Provided that the motorist serves such a Statutory Declaration to the Traffic Enforcement Centre, the
effect is that the court order is revoked and the Charge Certificate is deemed to have been cancelled. If
the Statutory Declaration indicates that the motorist never received the NtO, the NtO is also deemed to
have been cancelled and the authority may serve a fresh NtO. To prevent abuse of the Statutory
Declaration provisions a second NtO should be served by recorded delivery (or another means where
delivery can be demonstrated) so that a second Statutory Declaration cannot legitimately be made for the
same reason. In the case of any other Statutory Declaration the matter must be referred to the
adjudicator. Should a motorist send a Statutory Declaration to an authority by mistake, it should be
forwarded immediately to TEC.

231) There is provision for a motorist to obtain an extension of time for serving his statutory notice. If this is not
done, and no Statutory Declaration has been served within the 21 day time period, the authority can seek
to enforce the order of the court as an ordinary judgement creditor. It is anticipated that the most common
method of enforcement will be by obtaining a warrant of execution.

232) There are several general points to be made in respect of the enforcement procedures and the
registration of Charge Certificates:-
a) There are several ways of transferring data to the County Court at Northampton. The simplest is
the London Councils TEP electronic link but authorities can also send their own diskettes or hard
copies directly to the County Court. However, the County Court has asked for an electronic format
wherever possible.
b) The certificates required by the County Court must come from the authority because the
Department of Constitutional Affairs has decided that these should not be contracted out.
c) Advice from the Department of Constitutional Affairs says that selling parking enforcement debts
may not be lawful and would provide motorists a reason to challenge the validity of the
enforcement action in the County Courts. This would produce resource demands on authorities
and might also result in an unsuccessful appeal being overturned.
d) The motorist's credit rating will not be affected by the registration of a charge certificate or a
warrant of execution.

233) Some motorists have sought to use their local County Court to take action against the authority,
especially when a refund of a clamp or removal fee is demanded, instead of using the normal
representation and appeals process. Authorities should respond to this by reminding the Court that there
is an established procedure for dealing with such complaints: through the adjudicator at PATAS.

BAILIFFS

234) If the motorist has failed to pay the monies owed to an authority, then that debt may be recovered by way
of a warrant of execution. The legislation provides for use of certificated bailiffs, rather than ordinary
county court bailiffs, to pursue such execution.

235) Warrants are issued for a year. While they are in place other forms of debt recovery should not be used
directly by the authority.

236) The Department for Constitutional Affairs has brought out regulations to cover the conduct of certificated
bailiffs. In future every member of a bailiffs' firm will have to be certificated. It will be for the authorities
themselves to enter into arrangements for using bailiffs, whether in-house or contracted out. It will not be
for the county court to make these arrangements.

DEBT RECOVERY AGENCIES

237) Some authorities have used Debt Recovery Agencies (DRAs) either to supplement or as an alternative to
the use of certified bailiffs. These agencies may bring some benefits in terms of identifying keepers and
taking action at early stages of the debt enforcement process but it should be noted that their use has
some drawbacks.

238) They should not be used to entirely replace the debt registration process at TEC, as this is sometimes an
essential legitimate opportunity for people to challenge liability for the penalty charge. It is also the case
that only certified bailiffs may add debt collection charges to the amount payable and so the costs of any
other action by DRAs would have to come out of the basic penalty at Charge Certificate level.

SERVICE OF NOTICES

239) At all stages it is essential that the council takes all possible reasonable steps to ensure that the
appropriate notices are, in fact, served on the person to whom they are addressed. If the council believes
that service has not taken place then enforcement action cannot proceed. It is therefore important to have
procedures in place for dealing with returned (undelivered) post as such items have not been served.

240) It is recognised that there will be cases where service is not easy. These include cases where service is
refused or where the keeper cannot be identified. Where service is denied or refused, the authority
should consider taking other steps, such as hand delivery, to give a higher degree of likelihood of service.
Bailiffs may also be able to help in this area.

241) Where the DVLA does not have information on the keeper it may be that other sources of information
may help. RTA 1991 only makes the registered keeper the presumed keeper and if the authority has
better information this can supplant any DVLA files. Such information may come from, for example,
residents parking permit applications, bailiffs or neighbours (subject to any data protection limitations).
Councils should use all available avenues to identify a keeper, while taking care not to enforce against an
innocent party, bearing in mind the possibility of a vehicle being cloned or something similar.

242) At the end of the day, some keepers cannot be traced. In these circumstances the authority should
consider writing off the penalty as a bad debt (subject to internal rules about writing off debt) rather than
keeping such PCNs open indefinitely.

PUBLIC RELATIONS

243) Parking enforcement has always suffered from an image problem and the interaction between the
motoring public and the enforcing authorities is often described in martial terms. Not only is this
undesirable for what is an essential public service but it also hinders the efficient and effective running of
that service. Authorities should therefore do all they can to change public perceptions and to encourage
motorists, as well as non-motorists, to see parking enforcement as a beneficial and welcome service.
Although it is very unlikely that anyone will be happy to receive a parking ticket and pay a penalty charge,
it will lessen any sense of hostility if they are treated in an efficient and reasonable manner.

244) To this end, authorities should:
a) ensure that no unreasonable, unnecessary or unlawful enforcement takes place, making sure that
all parking and traffic restrictions are clearly and correctly signed and marked.
b) ensure that all staff, both on street and in the back office are trained to a suitably high standard.
c) avoid delays at any stage of the process.
d) answer all enquiries and correspondence promptly and fully.
e) give detailed but clear reasons for any decisions taken.

245) Authorities should aim to achieve recognised quality assurance accreditation, such as ISO 9000 or the
Charter Mark, to ensure and demonstrate that they have built the necessary customer focus elements
into their processes.

246) It is also important to address public perception in a wider context. Every possible opportunity should be
taken to remind the public of the reasons for the existence of parking and traffic controls and their benefit
to the local environment. Any new controls or restrictions should be introduced in tandem with a
comprehensive publicity campaign, not only explaining the need for them but also promoting their
benefits.

247) Authorities should also monitor their enforcement activities and their effectiveness in ensuring compliance
with parking and traffic regulations. The results of these monitoring programmes should be used in the
review process for existing controls, included in the publicity framework and communicated to the public.
Sharing the results of the monitoring with other authorities would also provide useful benchmarking data
and help develop best practice.

248) In addition to their own monitoring, authorities should regularly consult with road users, residents, local
businesses and other interested parties to assess their views on parking and traffic controls and the
enforcement regime. The results of such consultation should be publicised and made freely available.

249) There should be no secrecy about what happens within an enforcing regime. Details of performance,
income and expenditure should be publicised, as should the use made of any surplus to the parking
account.
Appendix 1

Flow charts

ALG TEC stats form
Appendix 2

Sample Documents

In the sample documents attached, some of the text is required by law. The remainder is for guidance and
may be amended to suit individual circumstances. Authorities are recommended to seek legal advice when
preparing their notices.

2.1 Penalty Charge Notice issued by a PA on street for a parking contravention
2.2 Penalty Charge Notice issued using CCTV for a parking contravention
2.3 Penalty Charge Notice issued using CCTV for a bus lane contravention
2.4 Waiver - notice indicating consent for an individual vehicle to park where general parking is prohibited
2.5 Notice to Owner for PA issued PCNs
2.6 Notice to Owner for CCTV parking PCNs
2.7 Enforcement Notice (equivalent to the Notice to Owner) for bus lane PCNs
2.8 Notice of rejection
2.9 Notice of acceptance (not liable)
2.10 Notice of acceptance (PCN cancelled)
2.11 Notice of acceptance (clamp/ removal)
2.12 Charge Certificate for PA issued PCNs
2.13 Charge Certificate for CCTV parking PCNs
2.14 Charge Certificate for bus lane PCNs
2.15 Clamping authorisation sticker
2.16 Clamping warning notice - telling the driver not to attempt to move the vehicle.
2.17 Declamping instruction card telling the driver how to have the clamp removed
2.18 Declamp sticker - to be used if the driver is not present when declamping occurs
2.19 Clamping release fee receipt
2.20 Removal authorisation sticker
2.21 Vehicle removal and release record
2.22 Relocation sticker
2.23 Removal release fee receipt
2.24 Promissory to pay note - for use when a vehicle is released with a promise to pay in the future.
2.25 Contravention Code List
Document 2.1 Penalty Charge Notice issued by a PA on street

PENALTY CHARGE NOTICE (PCN)
Road Traffic Act 1991 (as amended)

PCN Number: [PCN number] Date of this notice: [Issue date]

It is an offence for an unauthorised person to remove or interfere with this notice

The motor vehicle with
Registration Number: [VRM]
Make: [Make]
Colour: [Colour]

was seen at location: [Contravention location]

from: [Start time] to/at: [End time]

on: [Contravention date]

by parking attendant number: [PA number] signature:..

who believed that the following contravention was being committed: [Contravention description]

Contravention code: [Contravention code]

A Penalty Charge of [full amount] is now payable and must be paid before the end of the period of 28 days
beginning with the date of this notice. If it is paid before the end of the period of 14 days beginning with the date
of this notice the amount payable is reduced to [reduced amount]. Payment should be sent to [Payment
address].

If the Penalty Charge is not paid before the end of the 28 day period, a Notice to Owner requiring full payment
may be sent to the person appearing to the Council to be the owner of the vehicle, usually the registered keeper.
Failure to respond to the Notice to Owner may result in court action for debt recovery.

Please see overleaf for more details of how to pay and what to do if you think that this PCN should not
have been issued.

Data Protection statement
The London Borough of London will use any data collected through the issuing of this Penalty Charge Notice for the
enforcement of traffic contraventions and other associated purposes. This data may also be disclosed to London Councils
and other enforcement agencies. All processing of this data will be in accordance with the Data Protection Act 1998.
L o n d o n
HOW TO PAY

Please make cheques and postal orders payable to [Payee details] and write the penalty charge notice number
on the back. Please do not send post-dated cheques as they will not be accepted.

To pay:-
BY POST - fill in the payment slip at the bottom of this page and send it with your payment or card payment
authorisation to: [Payment address]
If you want a receipt, please enclose a stamped addressed envelope.
Please do not send cash through the post.

IN PERSON at: [Payment centre address] between [Times] on [Days]
If you pay by cash it is very important to get a receipt, in case there is any later query about your payment.

BY TELEPHONE on [Payment phone number] between [Times] on [Days] using one of the following debit or
credit cards [List of accepted cards].

Please do not send any payment if you want to challenge this penalty charge notice

HOW TO CHALLENGE

If you do not think this penalty charge notice should have been issued, you should write to us at:
[Correspondence name & address].
Please include any available supporting evidence.

If you write to us within 14 days and we do not accept your challenge, we will give you the chance to pay the
reduced rate for another 14 days from when we write back to you.

If this penalty charge notice remains unpaid, a notice will be sent to the owner of the vehicle, who will then have
28 days to make formal representations against liability for payment of the penalty charge.

If you have any query about this penalty charge notice, please telephone our helpline on [Helpline phone
number]

Payment slip please return with all payments sent by post

Penalty Charge Notice Number: [PCN number] VRM: [VRM]
issued in: [Contravention location] at: [End time] on: [Contravention date]
Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Only complete the details below if you are making payment by MASTERCARD, VISA, SWITCH or DELTA card.
Please debit my MasterCard / Visa / Switch / Delta card (delete as appropriate) Amount _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Card Number: _ _ _ _ / _ _ _ _ / _ _ _ _ / _ _ _ _ _ _ _ (Switch 19 numbers)
Card Issue Date _ _ / _ _ Card Expiry Date _ _ / _ _
Switch Issue Number: _ _ _ _ Name of Cardholder: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Signature of Cardholder: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Document 2.2 Penalty Charge Notice issued using CCTV for a parking contravention

London Local Authorities Act 2000 (as amended)

Penalty Charge Notice Number: [PCN number]

Vehicle Registration Number: [VRM]

Date of this Notice: [Issue date]

DO NOT IGNORE THIS NOTICE

The Penalty Charge of [full amount] must be paid before the end of the period of 28 days beginning with the
date of this notice. If the Penalty Charge is paid before the end of the period of 14 days beginning with the date
of service of this notice (the date that it was delivered) a reduced amount of [reduced amount] is payable.
Payment should be sent to [Payment address].

If the Penalty Charge is not paid before the end of the 28 day period, a notice (the Notice to Owner) may be
served by the council on the person appearing to them to be the owner of the vehicle. The Notice to Owner will
allow formal representations on the following grounds:
that the recipient was not the owner at the time that there was no contravention
that the charge exceeds the appropriate amount that the vehicle was on hire
that the vehicle was being used without the owners consent that the traffic order was invalid

Please see overleaf for more details of how to pay and what to
do if you think that this PCN should not have been issued.

To the right is a picture taken from the video recording of your vehicle
committing the alleged contravention

Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
The Council believes that a Penalty Charge is payable with respect to the above vehicle for the
following alleged parking contravention:

[Contravention code]

in [Contravention location] on [Contravention date] at [Contravention time]

The alleged contravention was seen and recorded by camera operator number [EO number] who was
observing real time pictures from a road side camera at the time stated.
L o n d o n
HOW TO PAY


To pay:-




HOW TO CHALLENGE



If the penalty charge remains unpaid then a Notice to Owner will be sent, which will then allow 28 days for formal
representations to be made against liability for payment of the penalty charge.

If you wish to arrange to view a recording of this alleged contravention, obtain still images from the
recording, or if you have any other query about this penalty charge notice, please telephone our helpline
on [Helpline phone number]


Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Card Number: _ _ _ _ / _ _ _ _ / _ _ _ _ / _ _ _ _ _ _ _ (Switch 19 numbers) Card Issue Date _ _ / _ _ Card Expiry Date
_ _ / _ _

Document 2.3 Penalty Charge Notice issued using CCTV for a bus lane contravention

Road Traffic Regulation Act 1984 (as amended)

Penalty Charge Notice Number:
AA12345678
Vehicle Registration Number:
A123BCD



The Penalty Charge of [full amount] must be paid before the end of the period of 28 days beginning with the
date of this notice. If the Penalty Charge is paid before the end of the period of 14 days beginning with the date
of this notice a reduced amount of [reduced amount] is payable. Payment should be sent to [Payment address].

If the Penalty Charge is not paid before the end of the 28 day period, an Enforcement Notice may be served by
the council on the person appearing to be the owner of the vehicle. The Enforcement Notice will allow formal
representations on the following grounds:
that the recipient was not the owner at the time
that there was no contravention
that the vehicle was being used without the owners consent

Please see overleaf for more details of how to pay and what to
do if you think that this PCN should not have been issued.

To the right is a picture taken from the video recording of your vehicle
in the bus lane

Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
The Council believes that a Penalty Charge is payable with respect to the above vehicle for the
following alleged traffic contravention:

BEING IN A BUS LANE

in [Contravention location] on [Contravention date] at [Contravention time]

The alleged contravention was seen and recorded by camera operator number [EO no.] who was
observing real time pictures from a road side camera at the time stated.
L o n d o n
HOW TO PAY


To pay:-




HOW TO CHALLENGE



If the penalty charge remains unpaid, an Enforcement Notice will be sent to the owner of the vehicle, who will
then have 28 days to make formal representations against liability for payment of the penalty charge.

If you wish to arrange to view a recording of this alleged contravention, obtain still images from the
recording, or if you have any other query about this penalty charge notice, please telephone our helpline
on [Helpline phone number]


Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Card Number: _ _ _ _ / _ _ _ _ / _ _ _ _ / _ _ _ _ _ _ _ (Switch 19 numbers) Card Issue Date _ _ / _ _ Card Expiry Date
_ _ / _ _

Document 2.4 - Waiver notice

Waiting and Loading and Designated Parking Places Orders

WAIVER CONSENT TO PARK AND CONDITIONS IMPOSED

All entries to be in ink

This form is only valid as shown below; it is not a general dispensation. It must be placed behind the windscreen
of the vehicle so that it can be clearly seen from the outside.

Consent is given for..........................................

of (full address)..................................................................................................

to....................................................................................................................................

using a vehicle:- registration mark ..........................
make..........................................
colour..

outside or near the premises of...............................

at (address) .................................................

between the hours of

................ and ..................... on ................
................ and ..................... on ...............
................ and ..................... on ...............
................ and ..................... on ...............
................ and ..................... on ................

The vehicle must be moved on the instructions of a police officer or Council parking attendant.

Materials or goods must not be deposited on the footway or carriageway (except immediately at the rear of the
vehicle) nor passed across any part of the footway or carriageway in such a way as to interfere with other
vehicles or pedestrians.

Signed ...................................... Name ...................................... (block caps)

I am fully conversant with the conditions of this notice.

Signature of applicant: ............................... Date: .....................

Name ...................................................... (block caps)
L o n d o n
Document 2.5 - Notice to Owner for PA-issued PCNs

NOTICE TO OWNER

Vehicle Make: [Make]


The Penalty Charge has not been paid
The penalty charge is [full amount]. So far [received payment] has been paid. Payment of [balance] is now
due.

Before the end of the period of 28 days beginning with the date that this notice was served (the date it was
delivered), you must
pay the Penalty Charge in full (see below for how to pay) or,
write and tell us why you think you should not have to pay it (see the Making Representations section
overleaf).

Do not pass this notice to the driver you need to deal with it yourself

If you have not paid or made representations before the end of the 28 day period, the charge may increase to
[full amount + 50%] and we may serve a Charge Certificate seeking payment of this increased amount.

HOW TO PAY
BY POST: using this payment slip and sending it to [Payment address]. If you want a receipt, please enclose a
stamped addressed envelope. Do not send cash through the post. Please make cheques and postal orders payable to LB
London and write the penalty charge notice number on the back. Do not send post-dated cheques as they will not be
accepted.
IN PERSON: [Address & Postcode] between 9:00am and 5:00pm on Monday to Friday. If you pay by cash it is very
important to get a receipt, in case there is any later query about your payment).
BY TELEPHONE: [Payment number] between 9:00am and 5:00pm on Monday to Friday using a debit or credit card.

Penalty Charge Notice Number: AA12345678 VRM: A123BCD
issued in: XXXX Road at: 01:01 hours on: 02 April 2004
Mr/Mrs/Miss:
Address:
Postcode:

Please debit my MasterCard / Visa / Switch / Delta card (delete as appropriate) Amount
Card Issue Date _ _ / _ _ Card Expiry Date _ _ / _ _ Switch Issue Number:

Name of Cardholder: Signature of Cardholder: Date:
Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
On [Issue date] a Penalty Charge Notice was issued by parking attendant [PA number] to the above
vehicle, for the following alleged contravention:

[Contravention description]

in: [Contravention location] At: [End time] On: [Contravention date]

L o n d o n
MAKING REPRESENTATIONS

If you believe you have a good reason not to pay the penalty charge, you should write to us explaining why.
Although there are specific legal grounds for making representations (listed below), we will consider exercising
our discretion and may cancel the penalty charge notice if there are suitable mitigating circumstances (i.e. if we
believe that there is a good enough reason).
If you think one of the grounds below applies, please indicate which one by ticking the box.
In all cases, please give details in the space provided.
I was not the owner of the vehicle at the time if you sold the vehicle before the date of the contravention or
bought it after the date, you must tell us the name and address of the person who bought it from you or sold
it to you, if you know it, and please supply evidence of the sale/purchase (e.g. a sales receipt)
The contravention did not occur please explain why you think no contravention took place
The vehicle was parked by a person who was in control of it without my consent - Please enclose evidence
(e.g. police crime report, insurance claim)
The Traffic Order was invalid - if you believe the parking restriction in question was invalid or illegal.
We are a hire firm and the person hiring the vehicle had signed a statement accepting liability please
supply a copy of the signed agreement including the name and address of the hirer
The penalty charge exceeded the amount applicable in the circumstances of the case - if you think you are
being asked to pay more than you should legally pay

Details:

(Please continue on another sheet if necessary)
Ownership details:
I was not the owner/keeper of the vehicle when the PCN (parking ticket) was issued because:
I had sold the vehicle before the contravention on:
Name of buyer / seller / hirer: ____________________
I bought the vehicle after the contravention on:
Address: ____________________________________
I never owned the vehicle.

Please make sure you sign the following declaration if you want us to consider your representations.
I confirm that the above information is correct to the best of my knowledge. I understand that making a false
statement may result in prosecution and a possible fine of up to 5,000
(signature) (date)
(name in BLOCK CAPITALS)
(position in company, if relevant)

After we have considered your representations, we will write to you. If we accept your representations, we
will cancel this Notice to Owner and, if appropriate, the PCN and you will not have to pay the penalty charge. If
we do not accept them, you will have a further 28 days to either pay the penalty charge or appeal against our
decision to the independent Adjudicator, who will reconsider the case and make a decision based on all the
evidence provided. We will tell you how to do this when we write to you.

The London Borough of London will use any data collected through the issuing of this Notice to Owner for the enforcement
of traffic contraventions and other associated purposes. This data may also be disclosed to London Councils and other
enforcement agencies. All processing of this data will be in accordance with the Data Protection Act 1998.
Document 2.6 - Notice to Owner for CCTV-issued & Prevention of Service Parking PCNs

NOTICE TO OWNER



due.

overleaf).



HOW TO PAY
accepted.

Mr/Mrs/Miss:
Address:
Postcode:


Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
On [Issue date] a Penalty Charge Notice was issued by the Council with respect to the above vehicle, for
the following alleged contravention

[Contravention description]

in: [Contravention location] At: [End time] On: [Contravention date]

L o n d o n
I was not the owner of the vehicle at the time if you sold the vehicle before the date of the contravention or
bought it after the date, you must tell us the name and address of the person who bought it from you or sold
it to you, if you know it, and please supply evidence of the sale/purchase (e.g. a sales receipt)
The contravention did not occur please explain why you think no contravention took place
The vehicle was parked by a person who was in control of it without my consent - Please enclose evidence
(e.g. police crime report, insurance claim)
The Traffic Order was invalid - if you believe the parking restriction in question was invalid or illegal.
We are a hire firm and the person hiring the vehicle had signed a statement accepting liability please
supply a copy of the signed agreement including the name and address of the hirer
The penalty charge exceeded the amount applicable in the circumstances of the case - if you think you are
being asked to pay more than you should legally pay
The parking attendant was not prevented from issuing the PCN - tick this box only if you received the penalty
charge notice through the post because the parking attendant could not issue it at the scene.

Details:

Ownership details:
Name of buyer / seller / hirer: _____________________
Address: _____________________________________

Please make sure you sign the following declaration if you want us to consider your representations.
(signature) (date)
(name in BLOCK CAPITALS)
(position in company, if relevant)

will cancel this Notice to Owner and, if appropriate, the PCN and you will not have to pay the penalty charge. If
we do not accept them, you will have a further 28 days to either pay the penalty charge or appeal against our

The London Borough of London will use any data collected through the issuing of this Notice to Owner for the enforcement
of traffic contraventions and other associated purposes. This data may also be disclosed to London Councils and other
enforcement agencies. All processing of this data will be in accordance with the Data Protection Act 1998.
Document 2.7 - Enforcement Notice
ENFORCEMENT NOTICE




due.

overleaf).



HOW TO PAY
accepted.

Mr/Mrs/Miss:
Address:
Postcode:


Keeper Name
Keeper Address 1
Keeper Address 2
Keeper Address 3
Town
County
Postcode
On [Issue date] a Penalty Charge Notice(PCN) was issued by the Council with respect to the above vehicle, for
the following alleged contravention:
BEING IN A BUS LANE
in: [Contravention location] At: [Contravention time] On: [Contravention date]

This alleged contravention was seen and recorded by a camera operator who was observing real time pictures
from a road side camera at the time stated.
L o n d o n

1. There was no breach of the bus lane regulations please explain why you think the contravention did not
occur
2. I was never the owner of the vehicle please explain any other connection to the vehicle
3. I ceased to be the owner before the date of the alleged contravention please tell us the name and address
of the person who bought it from you, if you know it, and supply evidence of the sale (e.g. a sales receipt)
4. I became the owner of vehicle the after the date of the alleged contravention please tell us the name and
address of the person who you bought it from, if you know it, and supply evidence of the purchase (e.g. a sales
receipt)
5. The person in control of the vehicle at the time of the alleged contravention was in control without my
consent please provide the crime reference number and the name of the police station where you reported the
theft, or similar details

Details:

Ownership details:
Name of buyer / seller / hirer: _____________________
Address: _____________________________________

The following declaration must be signed for your representations to be considered.
_______________________________ (signature) ___________________ (date)
_______________________________ (name in BLOCK CAPITALS)
_______________________________ (position in company, if relevant)

will cancel this Enforcement Notice and, if appropriate, the PCN and you will not have to pay the penalty charge.
If we do not accept them, you will have a further 28 days to either pay the penalty charge or appeal against our
----------------------------------------------------------------------------------------------------------------------------------------
Document 2.8 Notice of Rejection

London Borough of London
[Correspondence name & address]

Mr A B Smith
99 Any Street
Anywhere
NE1 4BO
[Letter date]

Dear Mr Smith,

Penalty Charge Notice: [PCN number]

Thank you for your letter of [Reps letter date] in which you made representations about the above
Penalty Charge Notice.

We have considered everything you said in your letter but do not feel that you have made grounds
for cancelling the Penalty Charge Notice or the Notice to Owner. This letter is issued as a formal
Notice of Rejection of your representations.

We have rejected your representations because [Reasons for rejection].

Therefore, before the end of the period of 28 days beginning with the date that this letter was served
(the date it was delivered), you must either pay the penalty charge of [amount payable]or appeal to
the independent Adjudicator.

If you want to pay, please see the How to Pay section at the end of this letter.

If you want to appeal, please read the guidance notes attached to the appeal form enclosed with this
letter, then complete the form and send it to the Parking and Traffic Appeals Service, P.O. Box
1010, Sutton SM1 4SW - please do not send the appeal form to us. The Adjudicator will consider
your appeal and make a final decision. Please note that an adjudicator cannot normally award costs
against you but may do so if he considers that you have acted frivolously, vexatiously or wholly
unreasonably. Equally the adjudicator may award costs against an authority that he considers has
act frivolously, vexatiously or wholly unreasonably.

If you do not pay or appeal before the end of the 28 day period, the penalty charge may increase by
50% to [full amount + 50%] and we may serve a Charge Certificate seeking payment of this
increased amount. At that stage, you may have missed the opportunity to appeal. If the increased
charge is not then paid within a further 14 days, we may apply to the county court to recover the
charge as if it were a debt payable under a county court order.

If you want any help or more information, please telephone our helpline on [Helpline phone number]

Yours sincerely,

Fred Quimby
Parking Services Officer

L o n d o n

HOW TO PAY

Please make cheques and postal orders payable to [Payee details] and write the penalty charge
notice number on the back. Please do not send post-dated cheques as they will not be accepted.

If you want to pay by post, please fill in the payment slip below and send it with your payment or
card payment authorisation to: [Payment address]. If you want a receipt, please enclose a stamped
addressed envelope. Please do not send cash through the post.

If you want to pay in person, please go to [Payment centre address] between [Times] on [Days]. If
you pay by cash it is very important to get a receipt, in case there is any later query about your
payment.

Or you can pay by calling our telephone payment line on [Payment phone number] between [Times]
on [Days] using one of the following debit or credit cards [List of accepted cards].


Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Please debit my MasterCard / Visa / Switch / Delta card (delete as appropriate) Amount _ _ _ _ _ _ _ _ _ _ _ _ _
_ _
Card Number: _ _ _ _ / _ _ _ _ / _ _ _ _ / _ _ _ _ _ _ _ (Switch 19 numbers) Switch Issue Number: _ _ _ _
Card Issue Date _ _ / _ _ Card Expiry Date _ _ / _ _ Name of Cardholder: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _

Document 2.9 Notice of Acceptance not liable


Mr A B Smith
99 Any Street
Anywhere
NE1 4BO
[Letter date]

Dear Mr Smith,


Penalty Charge Notice (PCN).

I am pleased to tell you that we have accepted your representations that you should not have to pay
the penalty charge and we have cancelled the (select applicable notice or notices) Notice to Owner/
Enforcement Notice/ Penalty Charge Notice. You should therefore hear no more about this matter.

If you want any help or more information, please telephone our helpline on [Helpline phone
number]

Yours sincerely,

Fred Quimby
L o n d o n
Document 2.10 Notice of Acceptance all cancelled


Mr A B Smith
99 Any Street
Anywhere
NE1 4BO
[Letter date]

Dear Mr Smith,



I am pleased to tell you that we have accepted your representations and cancelled the Penalty
Charge Notice and Notice to Owner, and that you should hear no more about this matter.

[Reasons for decision/ advice or information optional]

number]

Yours sincerely,

Fred Quimby

L o n d o n
Document 2.11 Notice of Acceptance clamp/removal


Mr A B Smith
99 Any Street
Anywhere
NE1 4BO
[Letter date]

Dear Mr Smith,



I am pleased to tell you that we have accepted your representations and cancelled the Penalty
Charge Notice.

Please find enclosed a cheque to refund the fees paid to release your vehicle. [Reasons for
decision/ advice or information optional]

number]

Yours sincerely,

Fred Quimby

L o n d o n
Document 2.12 Charge Certificate for PA issued PCNs

CHARGE CERTIFICATE

Date: [Issue date]

Penalty Charge Notice No: [PCN number]

Date of contravention: [Contravention date]
Location of contravention: [Contravention location]

We sent you a Notice to Owner on [Notice issue date] which explained that as the person we believe is the
owner (or hirer) of the vehicle, registration number [VRM], you had to pay a penalty charge, or write to us
explaining why you believed you did not have to pay it.

We are now sending you this charge certificate because (include as appropriate) [you did not respond to the
Notice to Owner / you wrote to us but we did not accept your reasons for not having to pay the penalty charge
and you did not then appeal to the adjudicator/ you appealed to the adjudicator but your appeal was rejected],
and the charge has not been paid.

As a result, the penalty charge has now increased by 50% to [full amount + 50%].

You must pay this increased amount before the end of the period of 14 days, beginning with the date this
certificate was served (the date it was delivered). See overleaf for details of how to pay.

If we do not receive payment before the end of the 14 day period, we may register the charge as a debt at the
county court and ultimately we may pass the case to bailiffs to recover the debt.

We strongly advise you to deal with this matter now as if it is passed to bailiffs they will add their costs, which will
significantly increase the amount that will need to be paid.

If you have any questions about this charge certificate, please telephone our helpline on [Helpline phone
number]
Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
L o n d o n
HOW TO PAY


If you want to pay by post, please fill in the payment slip at the bottom of this page and send it with your
payment or card payment authorisation to: [Payment address]

If you want to pay in person, , please go to [Payment centre address] between [Times] on [Days]

Or you can pay by telephone on [Payment phone number] between [Times] on [Days] using one of the
following debit or credit cards [List of accepted cards].


Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

_ _
_ _ _ _

Document 2.13 Charge Certificate for CCTV Parking PCNs

CHARGE CERTIFICATE

Date: [Issue date]



We sent you a Notice to Owner on [Notice issue date] which explained that as the person we believe is the
owner (or hirer) of the vehicle, registration number [VRM], you had to pay a penalty charge, or write to us
explaining why you believed you did not have to pay it.

We are now sending you this charge certificate because (include as appropriate) you did not respond to the
Notice to Owner / you wrote to us but we did not accept your reasons for not having to pay the penalty charge
and you did not then appeal to the adjudicator/ you appealed to the adjudicator but your appeal was rejected,
and the charge has not been paid.


You must pay this increased amount before the end of the period of 14 days, beginning with the date this
certificate was served (the date it was delivered). See overleaf for details of how to pay.

If we do not receive payment before the end of the 14 day period, we may register the charge as a debt at the
county court and ultimately we may pass the case to bailiffs to recover the debt.

We strongly advise you to deal with this matter now as if it is passed to bailiffs they will add their costs, which will
significantly increase the amount that will need to be paid.

If you have any questions about this charge certificate, please telephone our helpline on [Helpline phone
number]
Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
L o n d o n
HOW TO PAY


If you want to pay by post, please fill in the payment slip at the bottom of this page and send it with your
payment or card payment authorisation to: [Payment address]


Or you can pay by telephone on [Payment phone number] between [Times] on [Days] using one of the
following debit or credit cards [List of accepted cards].


Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _


Document 2.14 Charge Certificate for bus lane PCNs

CHARGE CERTIFICATE

Date: [Issue date]



We sent you an Enforcement Notice on [Notice issue date] which explained that as the person we
believe is the owner of the vehicle, registration number [VRM], you had to pay a penalty charge, or
write to us explaining why you believed you did not have to pay it.

We are now sending you this charge certificate because (include as appropriate) you did not
respond to the Enforcement Notice / you wrote to us but we did not accept your reasons for not
having to pay the penalty charge and you did not then appeal to the adjudicator/ you appealed to
the adjudicator but your appeal was rejected, and the charge has not been paid.


You must pay this increased amount before the end of the period of 14 days, beginning with the
date this certificate was served (the date it was delivered). See overleaf for details of how to pay.

If we do not receive payment before the end of the 14 day period, we may register the charge as a
debt at the county court and ultimately we may pass the case to bailiffs to recover the debt.

We strongly advise you to deal with this matter now as if it is passed to bailiffs they will add their
costs, which will significantly increase the amount that will need to be paid.

If you have any questions about this charge certificate, please telephone our helpline on
[Helpline phone number]
Owner Name
Owner Address 1
Owner Address 2
Owner Address 3
Town
Postcode
L o n d o n
HOW TO PAY

Please make cheques and postal orders payable to [Payee details] and write the penalty charge
notice number on the back. Please do not send post-dated cheques as they will not be accepted.

If you want to pay by post, please fill in the payment slip at the bottom of this page and send it
with your payment or card payment authorisation to: [Payment address]

If you pay by cash it is very important to get a receipt, in case there is any later query about your
payment.

Or you can pay by telephone on [Payment phone number] between [Times] on [Days] using one
of the following debit or credit cards [List of accepted cards].


Mr/Mrs/Ms/Miss: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
_
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Postcode: _ _ _ _ _ _ _ _ _ _ _ _ _
_ _

Only complete the details below if you are making payment by MASTERCARD, VISA, SWITCH or
DELTA card.
Please debit my MasterCard / Visa / Switch / Delta card (delete as appropriate) Amount _ _ _ _ _ _ _

Document 2.15 Clamping authorisation sticker


THIS VEHICLE
IS
ILLEGALLY PARKED
AND
HAS BEEN

AUTHORISED FOR
CLAMPING

DATE TIME PLACE
AUTHORISING
OFFICER
EMPLOYEE
NUMBER

L o n d o n
Document 2.16 Clamping warning notice (front)

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Document 2.16 Clamping warning notice (back)

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L o n d o n


Declamping instruction card
--------------------------------------------
Your vehicle has been clamped DO NOT try to move it while the clamp is in place.

Do not try to remove the clamp yourself as it is an offence to do so for which you could
be fined.

In order to have the clamp removed, you have to pay a fee of (This includes a
penalty charge of and a clamp release fee of )

You can make this payment either:

a) by phone call our payment line on [phone number] using one of the following debit
or credit cards [Switch, Delta, MasterCard, Visa]. Please have details of your
vehicles registration number and location with you when you make the call,

or:

b) in person take this declamping instruction card to one of the payment centres
listed below, where you can pay by cash or using a debit or credit card, or using a
cheque supported by a cheque guarantee card (provided it will guarantee cheques to
the required value).

iv. [Car pound address and opening times]
v. [Other possible payment centre address and opening times]
vi. [Further possible payment centre address and opening times]
-----------------------------------------------------------------------------------------------------
Please make payment and have the clamp removed as soon as possible as there is a
possibility that your car will be removed if it is left clamped for too long, in which case
the fee to recover your vehicle would be .

-----------------------------------------------------------------------------------------------------
For other enquiries or in case of any emergency, please phone [24 hour helpline]
-----------------------------------------------------------------------------------------------------

Please note that once you have had the clamp removed, you should move your vehicle
as soon as possible in order to avoid any other enforcement taking place.
Document 2.17 Declamping instruction card (front)

L o n d o n


OFFICIAL USE ONLY

Date/Time
VRM...
Location

PCN Contravention
Code.....
Signature of Authorising Officer
Employee number
Document 2.17 Declamping instruction card (back)

L o n d o n


VEHICLE (with VRM)
DECLAMPED AT
ON (DATE)
LOCATION

WARNING: This vehicle should be moved as soon as
possible. If it stays here, it is possible that the vehicle will
clamped a second time or removed.
Document 2.18 Declamp Sticker
Clamping release fee receipt

Received from:

Name .
Address .

CHARGES

PCN fee
Release fee

Total amount
Driver details:

Name .
Address .

Owner details:

Name .
Address .

Notes forms of ID produced etc.:
Receiving officers name .

Signature ..
METHOD OF PAYMENT

CASH

Amount recd
Change given

CHEQUE
Cheque number .
Bank sort code _ _ - _ _ - _ _
Chq. card number
.

CREDIT/DEBIT CARD

Card type .
Card number
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Expiry date _ _ / _ _
Sent by: Despatch control informed at
Time

Received by:
Comments:
Till receipt

Document 2.19 Clamping release fee receipt (front)

L o n d o n
PCN Number Vehicle Registration Mark

Code / Serial Number Contravention Code Immobilisation Date

Day Month Year
Vehicle Location

Release Date Time Amount o/s if unpaid

Paid =P
Unpaid =U
Unpaid
Reason
Day Month Year
Notice To Motorists

If you have paid at a payment centre or the car pound, you should return to your vehicle and wait for
the clamp to be removed. Although no specific time can be given, this will be done as soon as possible
and we aim to take no longer than two hours. If it takes longer than four hours, you will be entitled to a
refund of the release fee.

Once your vehicle has been released, you should remove it from an illegally parked position as soon
as possible. If it is left in the same position for more than one hour after release, it may possibly be
clamped a second time or removed.

----------------------------------------------------------------------------------------------------------------------

OBJECTION PROCEDURE

Under the provisions of the Road Traffic Act 1991, you are required to pay the cost of the Penalty
Charge Notice (PCN), as well as the release fee before your vehicle can be declamped. You do,
however, have the right to object but you must make your representations within 28 days of the date of
this receipt.

The Council will consider any objections but there are also legal grounds for representations which are
listed below:

(a) that the contravention did not occur you will need to explain why you think no contravention took
place;

(b) that the vehicle was parked by a person who was in control of it without the owners consent you
will need to enclose evidence (e.g. police crime report, insurance claim);

(c) that a current disabled persons badge was displayed on the vehicle you will need to include
details of any badge that was on display;

(d) that less than 15 minutes had elapsed after then end of paid for time please note that a parking
ticket may be issued immediately after the end of paid for time, but the vehicle cannot be clamped for
at least 15 minutes;

(e) that the penalty or other charge exceeded the amount applicable in the circumstances of the case
you will need to explain why you think the charges are too high;

(f) that the relevant traffic order was invalid - this only applies if the Councils regulations are legally
defective.

If you want to make representations, you should write to us at the following address:
[Correspondence address details]
Please quote the Penalty Charge Notice number and your vehicles registration number on all
correspondence. In all cases when you are making representations, you should provide as much
evidence as possible to support your objection.

After we have considered your representations, we will write back to you. If we accept your
representations, we will cancel the Penalty Charge Notice and refund the fees you have paid. If we do
not accept them, you will have a 28 days to appeal against our decision to the independent
Adjudicator. We will tell you how to do this when we write to you.

----------------------------------------------------------------------------------------------------------------------

If you want any more help or information, please call our help line on [helpline phone number]
Document 2.19 Clamping release fee receipt (back)

L o n d o n


THIS VEHICLE
IS
ILLEGALLY PARKED
AND
HAS BEEN

AUTHORISED FOR
REMOVAL

DATE TIME PLACE
AUTHORISING
OFFICER
EMPLOYEE
NUMBER

Document 2.20 Removal authorisation sticker

Vehicle removal and release record
Crew details .

Authorising Officer C.A.D. Ref

Signature (if in attendance): ... Crew Call Sign
Vehicle details:
Tick all
boxes
that apply
Make: .
Disabled badge
H.E.B. badge
Residents permit
Diplomatic plates
Model:
Breakdown evident
Emergency removal
Visible Property
Unlocked
Colour: ..
Vehicle entered
Driven
Towed
Lifted
Type: ..
Auto gearbox
Handbrake off
De-cant
Street to street
Vehicle condition:
OFFSIDE

FRONT

NEARSIDE REAR

Insert damage codes as applicable.

TOP
Additional details/remarks (e.g. visible property, radio etc.):
Person removing vehicle:
Signature:
Print surname:
Person completing form:
Signature:
Print surname:
Car pound reception officer Confirmed vehicle handed over in above condition
Signature: . Pound ..
Print surname: . Time Bay no.
Document 2.21 Vehicle removal and release record (front)

L o n d o n


Day Month Year
Vehicle Location

Release Date Amount o/s if unpaid

Was the vehicle previously
clamped? (Y/N)
Paid =P
Unpaid =U
Unpaid
Reason
Day Month Year
Driver returned Vehicle returned at (time) to (signature)

Authorising officer
(Print surname) .. Witness .

V.E.L. Expiry date V.E.L. number

Complete this section in block letters. Verify details and show how verified
Drivers name Tel. no.

Full address

How verified: ..
Owners name Tel. no.

Full address

How verified: ..
Please tick as appropriate:
I was the driver who left the vehicle, index no.: .at
I am claiming vehicle, index no.: . on behalf of the driver shown above.

Print surname . Signed
Document 2.21 Vehicle removal and release record (back)
Remarks:
Include name, address and phone number of claimant, and how verified (if
different from above)
CHARGES

PCN fee
Removal fee
Storage fee
(. days at /day)
Total amount ____________
Releasing officer

Signature: ...
Print surname: ...
Vehicle registration mark:

Code and Serial number

Vehicle transferred to .. pound
on (date)
Communications centre informed
at (time) . on (date) .
Received the vehicle described above at (time) ..
Print surname .
Driver/ Owner/ Claimants Signature ..
METHOD OF PAYMENT

CASH

Amount recd
Change given

CHEQUE

Cheque number .
Chq. card number
.

CREDIT/DEBIT CARD

Card type .
Card number
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

L o n d o n


THIS VEHICLE

HAS BEEN

REPOSITIONED BY
THE COUNCIL

DATE TIME PLACE TO WHICH
MOVED

AUTHORISING
OFFICER
EMPLOYEE
NUMBER

Document 2.22 Relocation sticker
Removal release fee receipt

Received from:

Name .
Address .

CHARGES

PCN fee
Removal fee
Storage fee
(. days at /day)
Total amount
Driver details:

Name .
Address .

Owner details:

Name .
Address .

Notes forms of ID produced etc.:
Receiving officers name .

Signature ..
METHOD OF PAYMENT

CASH

Amount recd
Change given

CHEQUE
Cheque number .
Chq. card number
.

CREDIT/DEBIT CARD

Card type .
Card number
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Comments:
Till receipt

Document 2.23 Removal release fee receipt (front)

L o n d o n


Day Month Year
Vehicle Location

Release Date Time Amount o/s if unpaid

Paid =P
Unpaid =U
Unpaid
Reason
Day Month Year

OBJECTION PROCEDURE

Under the provisions of the Road Traffic Act 1991, you are required to pay the cost of the Penalty
Charge Notice (PCN), as well as the removal fee before your vehicle can be released. You do,
however, have the right to object but you must make your representations within 28 days of the date of
this receipt.

The Council will consider any objections but there are also legal grounds for representations which are
listed below:

(a) that the contravention did not occur you will need to explain why you think no contravention took
place;

(b) that the vehicle was parked by a person who was in control of it without the owners consent you
will need to enclose evidence (e.g. police crime report, insurance claim);

(d) that less than 15 minutes had elapsed after then end of paid for time please note that a parking
ticket may be issued immediately after the end of paid for time, but the vehicle cannot be clamped for
at least 15 minutes;

(e) that the penalty or other charge exceeded the amount applicable in the circumstances of the case
you will need to explain why you think the charges are too high;

(f) that the relevant traffic order was invalid - this only applies if the Councils regulations are legally
defective.

If you want to make representations, you should write to us at the following address:
[Correspondence address details]
Please quote the Penalty Charge Notice number and your vehicles registration number on all
correspondence. In all cases when you are making representations, you should provide as much
evidence as possible to support your objection.

After we have considered your representations, we will write back to you. If we accept your
representations, we will cancel the Penalty Charge Notice and refund the fees you have paid. If we do
not accept them, you will have a 28 days to appeal against our decision to the independent
Adjudicator. We will tell you how to do this when we write to you.

If you want any more help or information, please call our help line on [helpline phone number]

Document 2.23 Removal release fee receipt (back)

Document 2.24 Promise to Pay

PROMISE TO PAY CLAMPING OR REMOVAL FEES
Road Traffic Regulation Act 1984
Road Traffic Act 1991

Form PTP, Serial No. ........................ Pound/Payment Centre.....................

Part A
REMOVAL OR CLAMPING OF VEHICLES - PROMISE TO PAY

Penalty Charge Notice:
Date of issue:
Location of contravention:

In consideration of the London Borough of London waiving its statutory power either to retain
custody of or to immobilise with a wheelclamp vehicle registration number............. and either
release the vehicle or remove the wheelclamp, I undertake to pay to the London Borough of
London within 7 days the statutory removal and storage charges and the penalty charge, or the
declamping charge and the penalty charge shown under Notice of Charges.

Name .......................................................
Address ....................................................
.................................................................
.................................................................

Signature.................................................. Date ........................................................

HOW TO PAY PTP, Serial No. ........................
Payment of charges arising from the enforcement action taken against the vehicle, registration
number [VRM], in connection with the Penalty Charge Notice [PCN number]issued in [Contravention
location] on [Contravention date]

BY POST using this payment slip and sending it to: LB London, PO Box [Number], LONDON [Postcode] if you want a
receipt, please enclose a stamped addressed envelope. Do not send cash through the post. Please make cheques and
postal orders payable to LB London and write the penalty charge notice number on the back. Do not send post-dated
cheques as they will not be accepted.
IN PERSON at: [Address & Postcode] between 9:00am and 5:00pm on Monday to Friday (N.B. - If you pay by cash it is
very important to get a receipt, in case there is any later query about your payment).
BY TELEPHONE on 020 1234 5678 between 9:00am and 5:00pm on Monday to Friday using a debit or credit card.

Mr/Mrs/Miss:
Address:
Postcode:

Card Number: _ _ _ _ / _ _ _ _ / _ _ _ _ / _ _ _ _ _ _ _ (Switch 19 numbers) Switch Issue Number: _ _ _ _ _
Card Issue Date _ _ / _ _ Card Expiry Date _ _ / _ _ Name of Cardholder:
Signature of Cardholder: Date:
L o n d o n

Part B
NOTICE OF CHARGES

Section 74 Road Traffic Act 1991 -Charges as determined by the Association of London
Government Transport and Environment Committee with the consent of the Mayor of London and
the Secretary of State for Transport.

i) If the vehicle was removed:

Vehicle registration mark .................................... was removed by the London Borough of London
in accordance with Section 68 of the Road Traffic Act 1991. Under the terms of the Act, any
person responsible must pay a removal charge of .....................

A storage charge of ................... must also be paid for each day or part of a day (reckoned from
12.00 midnight on the day following that on which the vehicle was removed) during which the
vehicle was in the custody of the London Borough of London.

Under Section 67 of the Act the penalty charge must also be paid before removal from the pound is
authorised.

The charge (s) payable is / are:-

removal fee .....................
storage fee ..................... ie .... per day for ....... days
penalty charge .....................
--------------------
total .....................

ii) If the vehicle was clamped:-

Vehicle registration mark .................................... was clamped by the London Borough of London
in accordance with Section 69 of the Road Traffic Act 1991. Under the terms of the Act, any
person responsible must pay a declamping charge of ...................

Under Section 69 of the Act the penalty charge must also be paid before removal the clamp can be
removed.

The charge (s) payable is / are:

declamping fee ...................
penalty charge ...................
------------------
total ..................

As this sum was not paid at the time authorisation was given for the vehicle to be returned, it must
be paid with 7 days of the vehicles release following the instructions on the payment slip overleaf.

Failure to pay the amount due within 7 days will lead to the charges being registered as a debt and
possibly the use of bailiffs to action their recovery. This may result in additional costs being
incurred.

................................(date) .............................................................................
Officer appointed for the purpose
2.25 - Contravention Code List
On-Street
Code General
suffix(es)
Description Notes
01 eoyz Parked in a restricted street during prescribed hours Suffixes y & z for bbh
only
02 aejo Parked or loading/unloading in a restricted street where waiting and loading/unloading
restrictions are in force

04 cs Parked in a meter bay when penalty time is indicated
05 cpsuv Parked after the expiry of paid for time
06 cipsv Parked without clearly displaying a valid pay & display ticket**
07 cmprsv Parked with payment made to extend the stay beyond initial time meter feeding
08 c Parked at an out-of-order meter during controlled hours Electronic meters only
09 ps Parked displaying multiple pay & display tickets where prohibited Some boroughs only
10 p Parked without clearly displaying two**** valid pay and display tickets when required Some boroughs only
11 u Parked without payment of the parking charge
13 - - - - RESERVED FOR TfL USE (LOW EMISSION ZONE) - - - -
14 Parked in an electric vehicles charging place during restricted hours without charging
15 twxyz Parked in a residents parking space without clearly displaying a valid residents parking
permit

16 bdhqstwxyz Parked in a permit space without displaying a valid permit
17 - - - - RESERVED FOR TfL USE (CONGESTION CHARGING) - - - -
18 bcdfhmprsv Using a vehicle in a parking place in connection with the sale or offering or exposing for
sale of goods when prohibited

19 iswxyz Parked in a parking place without clearly displaying the required permit or pay and
display ticket**

20 Parked in a loading gap marked by a yellow line
21 bcdfhjlmprqsu
v
Parked in a suspended bay/space or part of bay/space
22 cflmnopsv Re-parked in the same parking place
within one hour* of leaving

23 bcdfghjklprsv Parked in a parking place or area not designated for that class of vehicle
24 bcdfhmpqrsv Not parked correctly within the markings of the bay or space
25 jn Parked in a loading place during restricted hours without loading On-street loading bays
26 e Vehicle parked more than 50
cm from the edge of the carriageway and not within a

designated parking place

27 jo Parked adjacent to a dropped footway London only
30 fnou Parked for longer than permitted
31 j Entering and stopping in a box junction when prohibited London only
32 j Failing to drive in the direction shown by the arrow on a blue sign Code specific suffixes
apply. London only
33 j Using a route restricted to certain vehicles Code specific suffixes
apply. London only
34 j 0 Being in a bus lane
35 Parked in a disc parking place without clearly displaying a valid disc
36 Parked in a disc parking place for longer than permitted
37 j Failing to comply with a give way to oncoming vehicles sign London only
40 n Parked in a designated disabled persons parking place without clearly displaying a
valid disabled persons badge

41 j Parked in a parking place designated for diplomatic vehicles
42 j Parked in a parking place designated for police vehicles
45 n Parked on a taxi rank
46 jn Stopped where prohibited (on a red route or clearway)
47 jn Stopped on a restricted bus stop/stand
48 j Stopped in a restricted area outside a school***
49 j
Parked wholly or partly on a cycle track

50 j Failing to comply with a sign indicating a prohibited turn Code specific suffixes
apply. London only
51 j Failing to comply with a no entry sign London only
52 j Failing to comply with a sign indicating a prohibition on certain types of vehicle Code specific suffixes
apply. London only
53 j Failing to comply with a sign indicating a restriction on vehicles entering a pedestrian
zone
London only
54 j Failing to comply with a sign indicating a restriction on vehicles entering and waiting in a
pedestrian zone
London only
55 A commercial vehicle parked in a restricted street in contravention of the Overnight
Waiting Ban

56 Parked in contravention of a commercial vehicle waiting restriction Non- overnight waiting
restriction
57 Parked in contravention of a coach ban Non- overnight waiting
restriction
58 Using a vehicle on a restricted street during prescribed hours without a valid permit London Lorry Ban only
59 Using a vehicle on a restricted street during prescribed hours in breach of permit
conditions
London Lorry Ban only
61 124cgj A heavy commercial vehicle wholly or partly parked on a footway, verge or land
between two carriageways

62 124cgj Parked with one or more wheels on any part of an urban road other than a carriageway
(footway parking)

63 c Parked with engine running where prohibited This contravention
occurs in certain coach
bays.
99 jo Stopped on a pedestrian crossing and/or crossing area marked by zig-zags Pedestrian Crossings
London only

* = or other specified time ** = or voucher *** = optionally add during term time **** = or other number
= or lane

= or zone
= or other specified distance = optionally add and parking

disc in time limited bays

Police Use Only
64 Police removal following an accident Met Police use only
65 Police removal illegally parked - red route Met Police use only
66 Police removal illegally parked - non red route Met Police use only

Off-Street
70 Parked in a loading area during restricted hours without reasonable excuse Off-street loading areas
73 u Parked without payment of the parking charge Off-street car parks
74 prs Using a vehicle in a parking place in connection with the sale or offering or exposing for sale of goods
when prohibited
Off-street car parks
77 - - - RESERVED FOR DVLA USE - - -
80 Parked for longer than the maximum period permitted Off-street car parks
81 o Parked in a restricted area in a car park Off-street car parks
82 puv Parked after the expiry of paid for time Off-street car parks
83 Parked in a car park without clearly displaying a valid pay & display ticket** Off-street car parks
84 Parked with additional payment made to extend the stay beyond time first purchased Off-street car parks
85 btrw Parked in a permit bay without clearly displaying a valid permit Off-street car parks
86 prs Parked beyond the bay markings Off-street car parks
87 Parked in a disabled persons parking space without clearly displaying a valid disabled persons
badge

88 - - - DELETED - - -
89 Vehicle parked exceeds maximum weight and/or height and/or length permitted in the area Off-street car parks
90 psv Re-parked within one hour* of leaving a bay or space in a car park Off-street car parks
91 cg Parked in a car park or area not designated for that class of vehicle Off-street car parks
92 o Parked causing an obstruction Off-street car parks
93 Parked in car park when closed Off-street car parks
94 p Parked in a pay & display car park without clearly displaying two**** valid pay and display tickets
when required
95 Parked in a parking place for a purpose other than the designated purpose for the parking place Off-street car parks
96 c Parked with engine running where prohibited Off-street car parks - this
contravention may occur
in certain coach bays.

* = Or other specified time ** = or voucher *** = optionally add during term time
**** = or other number = optionally add or parking clock = optionally add and parking disc in time limited
spaces

Suffixes

General suffixes:
a) temporary traffic order b) business bay c) coach parking bay d) doctors bay
e) double parked/obstruction f) free parking bay g) motor cycle bay h) hospital bay
i) wrong type of voucher j) camera enforcement k) ambulance bay l) loading place
m) parking meter n) red route o) blue badge holder p) pay & display
q) market traders bay r) residents bay s) shared use bay
t) voucher/P&D ticket used in permit bay u) mobile phone parking v) voucher
w) wrong parking zone x) incorrect VRM y) obscured/illegible permit
z) out of date permit
0) local buses / trams only
Footway parking only:
1) One wheel on footway 2) Partly on footway 4) All wheels on footway
c) on vehicle crossover g) on grass verge

Moving traffic contraventions only:
32 d) proceeding in the wrong direction t) turning in the wrong direction p) passing to the wrong side of the sign w) one way traffic

33 b) buses only c) buses and cycles only e) buses, cycles and taxis only f) buses and taxis only g) local buses only
h) local buses and cycles only i) local buses, cycles and taxis only k) local buses and taxis only r) tramcars only
s) tramcars and buses only q) tramcars and local buses only

50 r) no right turn l) no left turn u) no U turn

52 v) all vehicles except non-mechanically propelled ones being pushed m) motor vehicles x) motor vehicles except solo m/cycles
s) solo motorcycles g) goods vehicles exceeding max gross weight indicated

Appendix 3

Reference Documents

The following documents are useful for reference and to provide additional depth to an understanding of parking
enforcement.

The Road Traffic Act 1991

The London Local Authorities Act 1995



Parking Attendants' Handbook.

Circular to Part II of the Road Traffic Act 1991.

Traffic Management and Parking Guidance for London, 1998.

Guidance on Decriminalised Parking Enforcement Outside London (LA Circular 1/95)

Appendix 4
Glossary of terms

ADDITIONAL PARKING CHARGES - The charges raised in addition to the initial charge for parking when
motorists do not comply with (i.e. contravene) the parking controls. They include the charges for a PCN as
well as the fees for storing, release and recovery of vehicles.

ADJ UDICATION - The second and final stage for motorists to object to a PCN. An adjudicator will consider
appeals in writing or at a hearing.

ALG TEC (Association of London Government Transport and Environment Committee) - successor to the
TCfL, the third incarnation of the joint committee incorporated further to section 73 of the RTA 1991,
subsequently renamed London Councils TEC.

APPEAL - A formal reference by a motorist to an adjudicator appealing against a PCN. An appeal can only
be made after the authority that issued the PCN has rejected a representation to them and can only be made
on a number of specified grounds.

AUTHORISATION NOTICE - The notice issued by an authorised parking attendant to indicate that a vehicle
already issued with a PCN may be clamped or removed.

CANCELLATION - The action taken to cancel a PCN and / or an NtO / EN and the need to pay any
associated additional parking charge(s) where the authority has determined that no penalty is payable by that
person, or where an adjudicator has directed it.

CENTRAL SERVICES - Services provided centrally by London Councils TEP on behalf of all London
authorities. They include provision of the TRACE service, administration and accommodation for
adjudicators, and specific duties as required by the RTA 1991.

CERTIFICATED BAILIFF - A bailiff who has been certificated as meeting the requirements for recovering
parking debts. All the bailiffs in a firm must be certificated if the firm wishes to be registered as a firm of
certificated bailiffs.

CHALLENGE An objection to the issue of a PCN sent to the issuing authority before the time when formal
statutory representations can be made.

CHARGE CERTIFICATE - A notice issued to motorists who have received PCNs but have not paid after
various stages and time limits have been passed. The notice informs them that the penalty charge has
increased by 50% and that they need to pay it within 14 days if registration of the debt is to be avoided.

CONTRAVENTION - A contravention occurs when a motorist does not comply with decriminalised parking
controls i.e. those for permitted parking and those in Special Parking Areas.

CONTROLLED PARKING ZONE (CPZ) - An area where all parking is restricted by appropriate orders in
accordance with the signs on entry to the area, except in designated parking bays or where signed
otherwise.

COUNCIL ON TRIBUNALS - The established body given responsibility for advising on the procedures to be
followed in adjudication.

DECRIMINALISATION - Under RTA 1991, the Secretary of State for Transport can make orders such that
motorists who do not comply with the parking controls covered by the orders no longer commit a criminal
offence subject to a Fixed Penalty Notice. The controls are said to have been decriminalised. Contraventions
then have to be enforced through civil procedure using PCNs.

DEPARTMENT FOR CONSTITUTIONAL AFFAIRS - The Government Department with responsibility for
determining the procedures to be used to register parking debts and to obtain warrants of execution, and the
requirements that bailiffs must meet to be certificated. The Lord Chancellor also has to approve the
appointment of adjudicators.

DESIGNATED PARKING BAYS - Bays designated by order for specified types of parking e.g. free parking,
at meters, for residents or for disabled parking. They are usually marked by white boxes but in certain
circumstances on Priority (Red) Routes by red boxes.

DESPATCH CONTROL CENTRE - The place from which removal and clamping operations are directed and
co-ordinated.

DISCOUNT - A reduction in the penalty charge due if the PCN is paid within 14 days. A discount of 50%
applies throughout London, as determined by London Councils TEC.

DISPENSATION - A general agreement relaxing parking controls for specified groups which is reached after
negotiation. The main dispensation agreed is the Health Emergency Badge.

DVLA - Driver and Vehicle Licensing Authority at Swansea.

EXEMPTION - Certain vehicles are exempt from some parking restrictions, often when carrying out activities
listed in Traffic Orders. Examples of these vehicles are those of the statutory undertakers when on
operational duty, removal lorries, vehicles involved in loading or unloading.

FALSE DECLARATION - If a statement on any of the specified documents is untrue, it is called a false
declaration and a criminal offence has been committed. Such offences will be liable to a fine of an amount
depending on the document involved.

FIRST LETTER see CHALLENGE

FIXED PENALTY NOTICE (FPN) - The notices used by the police and traffic wardens to give automatic fines
to motorists committing parking offences.

GUIDANCE - Traffic Management and Parking Guidance issued by the Secretary of State for Transport.

HAND HELD COMPUTER (HHC) - A small hand held computer which can be used to register parking
contraventions and prepare a PCN for a small printer carried by the warden or attendant.

INFORMAL REPS/REPRESENTATIONS see CHALLENGE

INITIAL CHARGE - The basic charge set for parking in a designated parking bay for the specified users for
the specified times. Each authority will set their own initial charges within the framework set out in "Traffic
Management and Parking Guidance". (See "Guidance" above).

IT - Information Technology

LOADING BAY - A specific bay, bounded by white or red markings and signed to permit loading.

LOADING GAP - A length of permitted parking place, on which waiting / parking is restricted but loading is
allowed, marked by a yellow line.

LOG/POCKET BOOK - A note book used by parking attendants to record information while on duty, in
particular records of conversations with motorists and details about contraventions additional to those
recorded on the PCNs and HHCs as supporting evidence for later use.

LONDON COUNCILS TEC (London Councils Transport and Environment Committee) - Current incarnation
of the joint committee incorporated further to section 73 of the RTA 1991, whose functions include the setting
of the level of additional parking charges in London and the provision of administrative and physical support
to the Parking and Traffic Appeals Service. Not to be confused with the Traffic Enforcement Centre at
Northampton County Court.

LPAC - The London Planning Advisory Committee

MOTORIST - The use of the word 'motorist' throughout the Code of Practice includes driver, owner or keeper
of a vehicle depending on the context.

NATIONAL PARKING ADJ UDICATION SERVICE (NPAS) - the independent adjudication service for hearing
appeals in England and Wales (except for London)

NOTICE OF ACCEPTANCE Letter sent in response to representations saying that they have been
accepted and that the NtO/EN and / or PCN has been cancelled.

NOTICE OF INTENTION TO PROSECUTE (NIP) - The notice previously used by authorities to tell motorists
committing parking offences (either in designated parking bays or on footways) that they were likely to be
prosecuted in the magistrates court. It was used because only the police and traffic wardens could issue
Fixed Penalty Notices.

NOTICE OF REJ ECTION Letter sent in response to representations saying that they have been rejected
and advising recipient that the penalty charge should be paid or an appeal made to the adjudicator.

NOTICE PROCESSING - The progression of penalty charges through the stages of the enforcement process
until payment or the authority decides to stop. The systems used are generally computer-based.

NOTICE TO OWNER (NtO) - The notice served on the likely owner of a vehicle issued with a PCN that
remains unpaid after 28 days, which allows them to make formal representations. Failure to pay within
another 28 days from service may lead to a Charge Certificate being issued.

NPAS see NATIONAL PARKING ADJ UDICATION SERVICE

PARKING AND TRAFFIC APPEALS SERVICE (PATAS) the independent adjudication service for hearing
appeals in London.

PARKING ATTENDANTS - The name given in the RTA 1991 to those engaged by authorities to issue PCNs,
whether Council or contractor staff.

PARKING COMPLIANCE - The extent to which parking controls are obeyed. Full compliance means a total
absence of contraventions.

PARKING PLACE - Any area of highway designated within a Traffic Order as a place where vehicles may be
parked.

PATAS see PARKING AND TRAFFIC APPEALS SERVICE.

PAYMENT CENTRES - Places where motorists can pay the additional parking charges they owe as a result
of PCNs being issued.

PAYMENT INFORMATION EXCHANGE (PIE) - PIE provides a formal arrangement whereby payments in
London destined for one authority can be accepted on account by another and information about the
payment passed to the second authority.

PENALTY CHARGE NOTICE (PCN) - The notice used to indicate that a contravention is believed to have
occurred.

PCfL (Parking Committee for London) - the name of the original joint committee incorporated further to
section 73 of the RTA 1991, whose functions are now carried out by the London Councils TEC.

PE2 Order for Recovery form, issued following registration of an unpaid penalty charge at the Traffic
Enforcement Centre (TEC) at Northampton County Court

PE3 Form for making a Statutory Declaration after receiving on Order for Recovery (PE2)

PERMITTED PARKING - Parking that is permitted in designated parking bays.

PERSISTENT EVADERS - Motorists who persistently do not pay PCNs.

PERSISTENT OFFENDERS - Motorists who persistently do not comply with the parking controls.

PIE - see PAYMENT INFORMATION EXCHANGE

POUND - The place to which removed vehicles are taken for storage until either they are recovered by
payment of the appropriate additional charges or they are disposed of.

PRE-NTO CORRESPONDENCE see CHALLENGE

PRIORITY ROUTES - The network of the major roads (Red Routes) specified by the Secretary of State for
Transport.

RED ROUTES - See PRIORITY ROUTES

REGISTRATION OF DEBT - The process of recording a parking debt with the County Court when a Charge
Certificate has been issued but the debt is still unpaid after 14 days from service.

REGISTERED KEEPER - The person recorded at DVLA as the keeper of the vehicle concerned and who is
presumed to be liable for penalty charges, subject to certain exemptions.

REPRESENTATIONS - Formal objection to liability for a penalty charge, provided for in legislation and made
to the authority which issued the PCN

REPS see REPRESENTATIONS

RTA 1991 - Road Traffic Act 1991.

RTRA 1984 - Road Traffic Regulation Act 1984

SCOTTISH PARKING APPEALS SERVICE - the independent adjudication service for hearing appeals in
Scotland

SPAS see SCOTTISH PARKING APPEALS SERVICE

SPECIAL PARKING AREA (SPA) - An area approved by the Secretary of State for Transport within which
parking controls have been decriminalised so that the Authority concerned can enforce them.

STATUTORY DECLARATION - A formal statement from a motorist in response to notice of debt registration
to the effect that an earlier stage in the procedure had not been completed and that the motorist was
therefore not aware of what they should have done before registration. The Charge Certificate and its
registration are cancelled and the correct earlier procedure restarted.

TCfL (Transport Committee for London) - successor to the PCfL, the second incarnation of the joint
committee incorporated further to section 73 of the RTA 1991, whose functions are now carried out by the
London Councils TEC.

TEC (1) - see LONDON COUNCILS TEC

TEC (2) - see TRAFFIC ENFORCEMENT CENTRE

TMO - See TRAFFIC MANAGEMENT ORDER

TRACE - Service operated by London Councils TEC that receives details of removed vehicles and responds
to queries from the public.

TRAFFIC ENFORCEMENT CENTRE Bulk processing section of Northampton County Court where penalty
charges are registered as debts.

TRAFFIC MANAGEMENT ORDER (TMO) - An order made under the Road Traffic Regulation Act 1984 for
controlling and regulating the movement of traffic in London.

TRAFFIC REGULATION ORDER (TRO) An order made under the Road Traffic Regulation Act 1984 for
controlling and regulating the movement of traffic.

TRO - See TRAFFIC REGULATION ORDER.

WAIVER - A temporary consent to relax particular parking controls for a specified vehicle or parker.

WARRANT OF EXECUTION - The county court authority to enforce an unpaid debt by using certificated
bailiffs.

WRITE OFF - When an authority decides that it is unable or unwilling to recover an outstanding penalty
charge and it closes the case.
Appendix 5

Contributors
Civil Traffic Enforcement
Approved Devices
Version 1 - issued 28 February 2008
Page 1 of 47

Certification of Approved Devices

This document has been notified to the European Commission and the other Member States
in accordance with Directive 98/34/EC of the European Parliament and of the Council
(OJ No. L204, 21.7.98, p. 37), as amended by Directive 98/48/EC of the European Parliament and of
the Council (OJ No. L217, 5.8.98, p. 18).

Approved Devices
Page 2 of 47

Certification of Approved Devices
Table of Contents
Chapter 1 General Introduction 3
1.1 Introduction................................................................................................................. 3
1.2 The Policy Context ..................................................................................................... 4
1.3 Scope........................................................................................................................... 5
Chapter 2 General Requirements for Certification of Systems 7
2.1 Certification Process ................................................................................................. 7
2.2 Modifications to Certified Equipment ...................................................................... 8
2.3 Certification Procedures .........................................................................................10
Chapter 3 Requirements for Attended Systems 11
3.1 Imaging Devices / Cameras...................................................................................11
3.2 Time, date and location data..................................................................................15
3.3 Transmission systems.............................................................................................15
3.4 Recording Systems .................................................................................................16
Chapter 4 Requirements for Unattended Systems 22
4.1 Introduction...............................................................................................................22
4.2 Functional Requirements........................................................................................22
4.3 Non Functional Requirements ...............................................................................29
4.4 Recommended Design Limits and Tests .............................................................30
Chapter 5 Annexes 34
5.1 Annex 1. Abbreviations and Terminology...........................................................34
5.2 Annex 2. Organisations contributing to the production of this document. .....40
5.3 Annex 3. Moving traffic contraventions within the scope of this document ...41
5.4 Annex 4. Attended Systems Check List ..............................................................42
5.5 Annex 5. Suggested Technical Construction File Contents ............................44
5.6 Annex 6. Data Security..........................................................................................45

Table of Figures
Figure 1 Typical civil traffic enforcement system showing elements subject to certification.... 6
Figure 2 Traffic Enforcement Data Flow.........................................................................................17
Figure 3 Illustrative Enforcement System Functional Block Diagram ........................................22

Approved Devices
Page 3 of 47

Chapter 1 General Introduction
1.1 Introduction
Parking restrictions, bus lane use and certain other moving traffic contraventions are
increasingly being enforced by local traffic authorities who have sought and been
granted civil enforcement powers.
Changes to legislation are harmonising the civil traffic enforcement procedures
throughout England and include provisions for the production of evidence from
Closed Circuit TV cameras and associated recording equipment. Such devices, or
parts of a device not covered by an existing recognised approval, must be certified by
the Secretary of State for Transport to show that the complete system is an
"approved device. The Vehicle Certification Agency has been appointed to do this
on his or her behalf. The "approved device" legislation applicable to the civil
enforcement of the contravention in question will indicate the extent to which any
existing approvals (including HOSDB approvals for enforcement under criminal law)
may be valid.
This document describes the certification procedures and requirements. It
underpins, and must be read in conjunction with, applicable legislation concerning
approved devices made under the Transport Act 2000 or the Traffic Management
Act 2004 as appropriate, which prescribe the fundamental requirements that must be
met. This document details the considerations which, when applied collectively, will
demonstrate whether equipment is fit for purpose and meets the statutory
requirements. (The Department for Transport and local traffic authorities will produce
guidance on other operational aspects of civil enforcement).
A device may be designed and produced by one manufacturer or may be a system
specified by a system designer incorporating sub-systems and/or equipment
produced by one or more manufacturer.
Civil enforcement reduces the burden of proof for contraventions from beyond
reasonable doubt to the balance of probability. Detection can be via equipment that
is manually controlled, or that is triggered automatically. Increasingly it uses digital
technology. This document is concerned with ensuring that the certification of such
devices or systems meets the balance of probability criterion, although some of the
requirements might go beyond this and meet the beyond reasonable doubt principle.
The overall objective is to ensure that evidence produced by devices certified in
accordance with the procedure described is defensible when taken to adjudication.
Consideration is also given to the need for all those involved to be able to
demonstrate that the operation of the certification process is transparent, fair and
ultimately defensible in law, and that the individual applications also satisfy those
criteria.
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Following this introduction there are four chapters that describe the certification
procedure:
Chapter 2 explains how applications for certification should be made and defines how
subsequent changes to the system will be dealt-with.
Chapter 3 covers the particular considerations that apply to attended systems - i.e.
those that record evidence as seen by an operator at the time a potential
contravention is observed.
Chapter 4 covers the considerations that apply to unattended systems those that
record potential contraventions automatically for subsequent review.
Chapter 5 contains annexes of abbreviations and terminology used in the document
and other supplementary material.
In order to allow for the expected range of technologies that are likely to be used and
to allow for future-proofing, some of the certification criteria are presented as
guidance. Any relaxation from the criteria specified herein will require a full
justification during certification. Of necessity, all sections of this document are not
specific about the technology to be used for contravention recording, target imaging
and evidence recording. As a result, manufacturers, test houses and purchasers
should agree how the tests in this document will be applied to the specific technology
used in individual products.
This document is the result of consideration by a number of authorities,
manufacturers, and organisations involved with the technology or in enforcement
activities generally as listed in Annex 2.
1.2 The Policy Context
The overall policy on civil traffic enforcement is derived principally from:
The 1998 White Paper A New Deal For Transport, which set out the key
themes for an integrated transport policy.
The Transport Act 2000, which provided powers to prescribe civil enforcement
arrangements for bus lanes.
The 2004 White Paper The Future Of Transport, which developed the 1998
strategy.
The Traffic Management Act 2004, Part 6 of which provides for a single
framework in England for the civil enforcement of parking, bus lanes, some
moving traffic contraventions and the London Lorry Ban. (Note: this will
replace local legislation in London, under which civil enforcement has
previously operated; and legislation on civil bus lane enforcement under the
Transport Act 2000).
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1.3 Scope
This document applies to the certification of devices used for civil traffic enforcement
under the following legislation:

Section 144 of the Transport Act 2000 - Civil penalties for bus lane
contraventions.
The Bus Lane Contraventions (Penalty Charges, Adjudication and
Enforcement) (England) Regulations 2005 - SI 2005 No. 2757; and
The Bus Lanes (Approved Devices) (England) Order 2005 - SI 2005 No. 2756
(Both these instruments will apply until such time as they are replaced by legislation
under the Traffic Management Act 2004 - see below).

Sections 72 and 73 and Schedule 7 of the Traffic Management Act 2004 - Civil
penalties for road traffic contraventions.
The Civil Enforcement of Parking Contraventions (England) General
Regulations 2007 - SI 2007 No. 3483; and
The Civil Enforcement of Parking Contraventions (Approved Devices)
(England) Order 2007 - SI 2007 No. 3486.
Legislation to implement the other provisions of these sections is being prepared. It
will cover the following:
bus lane contraventions
London lorry ban contraventions
moving traffic contraventions - as listed in Annex 3

The elements of a civil traffic enforcement system that are subject to certification by
the Secretary of State are shown in Figure 1.
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Figure 1 Typical civil traffic enforcement system showing elements subject to
certification
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Chapter 2 General Requirements for Certification of Systems
2.1 Certification Process
2.1.1 Technical Construction File
Applicants should document their systems in a Technical Construction File, which is
submitted to the Secretary of State to gain certification. The suggested contents for
the file are listed in section 5.5. There is nothing to stop the file containing more
information than is listed.
The file should be sufficiently detailed so that important aspects of the system
outlined in this document are clear and can be assessed. Essentially the file should
provide at least the necessary evidence that the design is in accordance with
relevant requirements.
The file must be maintained, with any future changes as outlined in section 2.2
recorded promptly.
2.1.2 Test House Tests
Where a test house is employed to test a new system, they must record in the
Technical Construction File compiled by the applicant details of the tests carried out.
This file must then be augmented with the site specific testing records made as a
result of on-site commissioning of the system. These site specific records must be
approved and signed-off by a competent person that may be either a representative
of a test house appropriately qualified to certify site-based testing or an experienced
and competent member of staff from the enforcing authority or its consultants or the
maintenance organisation working on that authoritys behalf.
2.1.3 Legacy Systems
Where a legacy system is to be certified, the Technical Construction File must
include documents containing the details described in paragraph 2.1.1 above.
Evidence of previous certification or approval (where available) should be included.
Upon first certification, the system must be tested and certified and the test records
included in the Ttechnical Construction File.
2.1.4 Applications to the Secretary of State
The Secretary of State will decide whether to issue a certificate of approval to the
applicant on the basis of the Technical Construction File and any other exchanges
that take place subsequently. The Secretary of State will retain the TCF and any
associated information, and, where necessary, will advise of any further steps
necessary to achieve certification.

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2.2 Modifications to Certified Equipment
This section describes the requirements for the management of changes and
modifications to certified traffic enforcement systems. All modifications (regardless of
category assessed) to certified systems should be maintained in the Technical
Construction File.
The applicant must maintain records of the serial numbers or dates of delivery of
equipment that is manufactured to a revised Technical Construction File.
2.2.1 Requirements
It is a requirement that all modifications that are made to certified system are notified
to the Secretary of State for Transport. This should be by ensuring that the Technical
Construction File is kept up to date. The method of notification is subject to
agreement by the Secretary of State.
Applicants are required to assess whether the change is a Significant Change, a
Minor Change or a Supplier Equivalent change. The three categories are defined
below.
The Secretary of State for Transport will take into account the applicants
assessment, but reserves the right to reclassify any modification at his/her sole
discretion. Further evidence may be requested to justify any classification.
Apart from "Supplier Equivalent" changes, the Secretary of State's agreement to the
classification of the proposed change and any necessary (re)certification must be
obtained prior to any enforcement activity with changed equipment.
2.2.2 Significant Change
A significant change is any modification made to an enforcement system that
increases or changes its functionality. The replacement of subsystems or
components that change the way the system performs its task are considered
significant changes. In general, these will require fairly major changes to the system
explanations and specifications in the Technical Construction File. Where such
change occurs, a full recertification is likely.
Changes of software version or variant of the enforcement application (but not
necessarily any operating system) are considered significant changes.
2.2.3 Minor Change
Changes which improve the performance of subsystems or components, but where
the function carried out within the overall system by them has not changed are
considered minor changes. This is unless an increase in overall system capacity is
achieved.
Software maintenance or upgrades where the functions carried out by the software
have not changed (or been added to) are considered minor changes. These include
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low-level driver updates and bug fixes except those responsible for any of the
following areas: Cryptography, evidence authentication, Enforcement Schedules and
secure interfaces.
In general, where a minor change is made, limited or no recertification testing will be
required. The extent of this recertification will be subject to agreement between the
body seeking equipment recertification and the Secretary of State for Transport.
2.2.4 Supplier Equivalent
A supplier equivalent change is one where a generic component of the enforcement
equipment is replaced with a functionally equivalent item from the same or another
supplier. In order to be considered functionally equivalent, the component must have
sufficiently similar performance in terms of value and tolerance. A supplier
equivalent change will not usually be subject to recertification. However, the
Technical Construction File must be maintained accordingly.
No software changes are permitted in this category unless a supplier-equivalent
change to hardware triggers a driver or operating system update in which cases the
software change may be considered a "minor change.
2.2.5 Variation
These provisions are intended to provide a rigorous control over the configuration
management of certified enforcement equipment in order to maintain confidence of
all stakeholders. It is not the intention of these requirements to restrict the Secretary
of State unduly and it remains within the discretion of the Secretary of State to
nominate a reduced level of testing wherever that is deemed appropriate. Some
examples of where this discretion could be used include (but are not limited to):
Where elements of the design being submitted have already been part of a
certified system and are used unchanged
Where elements of the design are outside the scope of a significant change and
are demonstrably unaffected by that change
Where compliance with certain requirements is intrinsic to components within
the enforcement system being certified.
In these cases, it might be acceptable for the Secretary of State for Transport to
accept a reduced level of recertification. Applications for this test scope reduction
should be agreed on a case-by-case basis before the start of certification.
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2.3 Certification Procedures
Manufacturers or designers seeking civil certification by the Secretary of State for
Transport should in the first instance contact:
The Vehicle Certification Agency.
1 The Eastgate Office Centre,
Eastgate Road,
Bristol. BS5 6XX
Telephone: 0117 951 5151
e-mail: civil-enforcement@vca.gov.uk

Web: http://www.vca.gov.uk/
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Chapter 3 Requirements for Attended Systems
3.1 Imaging Devices / Cameras

3.1.1 Image requirements
3.1.1.1 Context View (CV)
The context image must provide a clear, sharp and free of motion blur image of the
vehicle in its context within the road environment. The context image must have the
same resolution as the CCTV camera as defined in 3.1.2.1 below
3.1.1.2 Close-up View (CUV)
The close up image must provide a clear, sharp and free of motion blur image of the
VRM in its context within the vehicle committing the contravention. The close up
image must have a resolution that allows the VRM to be read unambiguously.
3.1.1.3 Frame rate
The system must record close-up and context views. The frame rate of the evidence
pack image sequence must be a minimum of 5 frames per second or equivalent with
no two images being, on average, more than 200ms apart.

3.1.2 Minimum Technical requirements for CCTV Cameras
3.1.2.1 Resolution of the CCTV Camera
The camera must be capable of recording video at the video resolution of 720 x 576
pixels. Cameras may also use a higher resolution.
3.1.2.2 Zoom Capability of the CCTV Camera
Most CCTV cameras will use an optical zoom lens to zoom in and out at the full
standard resolution for that camera. Where a digital zoom facility is used, the full
video frame obtained must not be less than the equivalent of 20% of the resolution of
the minimum resolution (i.e. 144 x 115 pixels) at the point of video capture on the
camera. This is the equivalent of a 5x digital zoom on a PAL resolution camera but
may be the equivalent of a larger digital zoom on a higher definition camera.
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3.1.2.3 Low Light Performance
The CCTV camera must be capable of producing usable video at 2.0 lux. This should
allow enforcement to be carried out even with average quality street lighting.
3.1.2.4 Environmental Operating Conditions
Attention should be given to the environmental operating range of the camera
equipment (e.g. temperature, power supply fluctuations, humidity, etc.) indicated by
the manufacturer prior to it being procured or used for traffic enforcement purposes.
Cameras must not be used for enforcement outside the manufacturers indicated
acceptable operating conditions.
3.1.2.5 Electromagnetic Compatibility
The CCTV camera must comply with the current European legislation that applies to
all apparatus liable to cause electromagnetic disturbance or the performance of
which is liable to be affected by such disturbance (currently Directives 2004/104/EC
and 2004/108/EC). That legislation prescribes the relevant protection requirements,
compliance procedures, and the technical documents and/or marking that must be
associated with the equipment.

3.1.3 Factors for consideration in relation to the procurement, siting and operation
of CCTV cameras and associated systems
The following information has been produced to assist the providers of Traffic
Enforcement systems. This is based on current best practice and user experience,
but is not a requirement for the certification of systems. Sample test procedures are
given in Section 5.4.
3.1.3.1 Imaging Device, CCTV Camera
Most current CCTV cameras are likely to employ a CCD or CMOS device to obtain
the image. Previously only inch CCDs were capable of recording adequate quality
and resolution images. However, with emerging technologies and miniaturisation,
smaller imaging devices (e.g. inch CCDs) are likely to be capable of providing high
quality images at an appropriate resolution that would meet the requirements for
enforcement.
3.1.3.2 Camera / lens arrangements
Traditionally professional quality CCTV cameras have come as two part
combinations with a camera body (including a defined lens mount such as a C or
CS mount) and a separate lens (for which many options would be available). This
arrangement allows for a wide range of camera combinations and facilities that would
be suitable for enforcement. However there are now also various miniaturised
integrated camera/lens units that can provide high specification imaging facilities and
that might meet the requirements for enforcement in a smaller sized unit that is more
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consistent with the environmental aspirations of many Local Authorities. Either
camera arrangement is acceptable in principle, subject to meeting the other
requirements for providing high quality images for use in enforcement.
3.1.3.3 Zoom Speed
The time required for a camera to zoom between the CUV and the CV should be
sufficiently low to allow satisfactory operation across the required range of the
enforcement zone. Particularly at sites where there are a large number of
contraventions, or where long enforcement zones are being monitored, fast zoom
lenses can ease the camera operators enforcement duties and might be particularly
effective in operation.
3.1.3.4 Shutter Speed
The camera might need to be capable of working at fast shutter speeds, to reduce
blurring of the video images of vehicles passing the camera. Depending on site
specific conditions, a shutter speed of between 1/250 and 1/1000 second might be
necessary to obtain clear images of VRMs - to prevent images becoming blurred
through movement of the vehicle during the exposure (of each video frame).
However this might cause problems in low lighting conditions. Therefore, for
maximum flexibility of operation, the CCTV camera should be capable of being
(remotely) switched between different shutter speed settings. Typically this may be
done using software and/or hardware activated by an operator / observer at the
CCTV control room. Large horizontal or vertical angles of view (from oblique and/or
high locations) might require video to be recorded using the faster shutter speeds
indicated. (Note whilst all cameras have a shutter speed, this generally relates to
an electronic virtual shutter not a physical camera shutter).
3.1.3.5 Stability of the CCTV camera during PTZ operations
On some cameras the quality of the video recorded whilst panning, tilting or zooming
might be reduced or become blurred. This will depend on the camera/lens
combination, the motor equipment performing PTZ operations, the stability of the
column that the camera is mounted on and other factors (such as the height of the
camera and current weather conditions). This might restrict useful images being
recorded for enforcement purposes except when the camera is virtually stationary in
the CUV and CV views. However, faster shutter speeds might resolve this problem.
3.1.3.6 Quality of the camera and lens (or the camera/lens combined unit)
Very high quality camera/lens combinations might make it possible to clearly identify
a VRM with a less zoomed-in view. Conversely, (relatively) lower quality equipment
might require longer (and possibly faster) zoom lenses to show the VRM as a higher
percentage of the frame width in order to compensate for the reduction in quality.
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3.1.3.7 Quality of other system components
In specifying a camera enforcement system, consideration needs to be given to all
the components of the system, as these could have an effect on the required
specification for CCTV cameras. Overall, the quality of the recorded video (and any
extracted still images from the video stream) will depend on the quality of the
camera/lens combinations; the communication systems and cabling between
systems; the recording equipment; and the facilities for grabbing still images from the
video stream. If there is any noticeable degradation of the video recordings when re-
played, (by comparison with the video stream as observed by an operator) or the
images grabbed, the quality of some components of the full system might need to be
re-assessed.
3.1.3.8 Electronic Enhancement of Video and Still Images
Most cameras will provide some automatic and manually operated facilities to
improve the quality of the image being viewed (and recorded) such as auto-iris
(brightness), white balance, contrast and saturation levels. Some cameras might
provide other more advanced facilities (e.g. to reduce headlight glare). Whilst video
recordings should not be adjusted or enhanced after they have been recorded, it is
normally necessary to use some additional processing (e.g. using image filtering
technology) to produce acceptable still photo images from the video stream. This is
particularly necessary for recordings from analogue video streams where some form
of de-interlacing is necessary to produce acceptable still images of moving vehicles.
3.1.3.9 Environmental Conditions
CCTV cameras might be required to operate in a wide range of operating conditions.
However temperature, humidity and other factors can affect camera operation and
the clarity and accuracy of the images produced. When procuring (or using existing)
cameras, consideration should therefore be given to the environment in which the
camera will need to work, in order to ensure that it is operated for enforcement
purposes within the manufacturers indicated operating conditions.
3.1.3.10 Maintainability
It is essential that CCTV cameras on-street are inspected and cleaned regularly, and
maintained as necessary, to ensure that clear video recordings are obtained. It might
therefore be desirable for the same or similar cameras to be used at more than one
site to increase the ease and consistency for operation and maintenance.
3.1.3.11 Other Site Related issues:
3.1.3.11.1 Height of the camera
This affects the vertical angle of view of the VRM, and its readability by an observer.
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3.1.3.11.2 Horizontal angle of view (in relation to the direction of traffic)
This affects the horizontal angle of view of the VRM, and its readability by an
observer. However it also increases the potential for the speed of a vehicle to cause
blurring of the images recorded on video. More oblique angles of view are therefore
more likely to require faster shutter speeds to obtain clear video images.
3.1.3.11.3 Proximity of the Enforcement Zone
If the enforcement zone is very close (just underneath the camera) or too far away,
there might be problems obtaining satisfactory video images. A video zone very close
to the camera might require fast combined PTZ operations particularly if the
enforced area is not directly in line with the camera - and this might be difficult for
operators to carry out. Distant observations might occasionally suffer from
mist/fog/haze reductions in visibility that could make VRMs more difficult to read.
3.1.3.11.4 Street Lighting
Where street lighti ng is poor, it might be more difficult to read a VRM and also to
identify a vehicle type (make and model) in hours of darkness or poor light which is
necessary for enforcement purposes. Improvements to street lighting and cameras
with better low light sensitivity - could overcome these problems.

3.2 Time, date and location data
The enforcement equipment must maintain a system clock that is regularly
synchronised to a nationally recognised standard clock. The system clock must, at
all times, be within 10 seconds of coordinated universal time (UTC) as disseminated
in the United Kingdom by the National Physical Laboratory using the MSF
transmitter. The system clock must be synchronised with a suitable standard clock a
minimum of once in any 14-day period. The specified synchronisation period is
based on the longest time that the MSF transmission is likely to be unavailable for
maintenance etc. Authorities are advised to be mindful of this (and the impact of
similar factors on other independent national clocks, where used) when setting their
synchronisation schedule; more frequent checks might be appropriate.
Each image within a context sequence should contain embedded data consisting of
time, date, a unique frame identifier, and, where not in a fixed location, the
enforcement location, and must be fit for purpose.

3.3 Transmission systems
Transmission systems must be demonstrably transparent to video, camera command
and telemetry signals and be reasonably immune to third party interference such that
transmitted images remain fit for purpose.
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3.4 Recording Systems
Recording systems must comply with at least one of the options described in 3.4.1,
3.4.2 or 3.4.3 below and with the EMC requirements in 3.4.4.
3.4.1 Digital Recording with no data redundancy or recovery facilities
Where recording takes place on a system with no real time data recovery or data
redundancy facilities, two simultaneous recordings onto separate storage devices
must be made at the time of capture. It is preferred, but is not a requirement, that the
two copies be made after conversion to the digital domain. In this scenario, it would
be acceptable for the second recording to be made at lower resolution and frame rate
or at higher compression settings than the first. In the case that the second
recording is made at lower resolution, frame-rate or at higher compression, then once
a decision to proceed with issuing a PCN is made, (after review of the contravention),
a further exact digital copy of the master copy of the evidence must be made on a
separate storage device or a removable storage medium.
3.4.2 Digital Recording with Data redundancy & recovery facilities
Where an enforcement system provides digital facilities for recording video data such
that the system provides Security, Integrity and Reliability, (see definitions below), it
may be considered to comply in full with the requirement for dual simultaneous
recording - as the recorded data is securely stored on a minimum of two independent
storage devices, and recovery of data should be possible even if one or more storage
devices fail.

3.4.2.1 Method for Single Recording systems
3.4.2.1.1 Initial Process
a) Record video from CCTV Matrix of a whole Enforcement session - onto a secure
server (or other high volume digital storage device) at the time of observation.
b) Identify start and end of Contraventions during enforcement session using start/end
controls - that are tagged (or otherwise identified) on the recording.
c) Clips of the Contraventions (from the start to the end point of each contravention
possibly including an additional period of video before and after each clip) are copied
to a Traffic Enforcement Video Store TEVS - (possibly with related text contravention
data) on a secure server (or other secure high volume digital storage device). The
copying process for producing these video clips must not further compress or
otherwise modify the format or quality of the original video recordings. See figure 2.

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Figure 2 Traffic Enforcement Data Flow
The data flow diagram on the next page illustrates the typical process for a PCN taken to
appeal. As such, a number of the processes may be repeated a number of times (e.g. the
review process) or may be omitted completely (e.g. the appeal and adjudication
processes if the PCN is not appealed). These principles apply to both attended and
unattended systems - i.e. irrespective of whether capture is by operator or automatic
process.
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d) Each clip is reviewed to assess if the contravention is an actual violation of the TRO(s)
at the site. If necessary, additional earlier or later video (not contained in the clips)
might be available for viewing at this time to clarify whether the apparent contravention
is an actual violation.
e) Still images of each confirmed Contravention are selected, extracted (grabbed) and
stored with (or linked to) the Contravention data records (that are likely to be in text
format) during the Contravention Review process.
f) Contravention data (including still images from the video) is sent for processing so
that a PCN can be issued to the owner / driver of the vehicle (note the PCN issuing
process is not described further here as it is outside the scope of this certification
process).
g) Video recordings of the full enforcement sessions may be deleted or overwritten after
the Contravention Review process is complete as the Contravention video evidence
is now securely stored in the TEVS.
h) If there is an appeal against the PCN, a further video copying and transfer process
is required. This is described in Section 3.4.2.1.2 below.
i) If there is no appeal, and the PCN is cleared or paid, all video, video clips, and
contravention data should be deleted after the PCN is cleared or paid (although this
should be after an appropriate archive period).
3.4.2.1.2 Where Working copies are required
The following process for creating and storing further copies of Contraventions (on
removable media or in an electronic format that may be encrypted and sent by e-
mail or by some other form of electronic transfer) is only likely to arise if there is a
request to view the video of the Contravention, or if the PCN is referred for
adjudication: -
a) The Master copy is effectively considered to be the video clip which is stored on
the TEVS. A separate Master or Working copy of the contravention would not
normally be produced on removable media.
b) Working copies of a Contravention are produced directly from the Master copy
which is held on the TEVS if and when these are required for viewing; for
sending to the adjudicator, the appellant (and/or their representatives); for use in
the adjudication hearing; or for supplying to other approved parties as determined
in local procedures and the relevant Code of Practice. Unless specifically
required (for example - for display only to authorised viewers on a web site), the
copying process for producing these working copies should not compress or
otherwise modify the format or quality of the original video recordings. The copies
may be on a removable WORM medium (CD-R, DVD-R, or similar) or a
computer file, for example for sending by e-mail (which may be encrypted) or for
use to display on a web site (to authorised persons).
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c) Once the PCN has been settled at adjudication, all video recordings, video clips,
WORM media and contravention data should be deleted or destroyed (although
this should be after an appropriate archive period in accordance with applicable
legislation).
3.4.2.1.3 Data Safeguards
As all the contravention data in this process may be held within a single digital
recording system, additional safeguards are required to protect the evidential quality
of the data. These safeguards should be the digital equivalent of the physical
safeguards used to protect contravention data on Analogue systems using
removable media. The following provisions are general requirements. Other
requirements may be determined by an adjudication service, in local system
procedures or in a relating Code of Practice.
3.4.2.1.4 Integrity
The system must provide facilities to ensure that if (image) data is amended or
altered in any way, the changes are detectable. Typical examples might include hash
functions or watermarking of the data. Where a hash function is used, a change to
the data would show up as an error, whereas a watermark would normally become
visible in some way if the data is altered. Other methods might also be viable.
3.4.2.1.5 Security
The system must provide a means to protect the data and system information so that
only people who are authorised to access, use, edit, copy or delete the data have
access to it for these purposes. Typically, this may involve a hierarchy of password
protection so that individuals are only able to carry out the activities for which they
are authorised. Physically, this might also require the systems to be located in
secure areas so that only authorised operational and maintenance personnel can get
access to these computer systems.
If the recording system is connected to a PCN processing (or other) system via a
network or the Internet, the contravention and video data must be secured so that it
is inaccessible via this connection except to authorised users and systems. This
might require the use of firewalls, data encryption and/or other measures to prevent
unauthorised access to the contravention evidence.
Where data is released from a secure environment, (e.g. to send the data to an
adjudicator), this is likely to require other forms of protection. Where data is sent
electronically (e.g. by e-mail or using FTP transfer), data encryption is likely to be
required to ensure that unauthorised persons cannot see or amend the data. Data
released on removable media should be secured in a WORM format (i.e. the DVD,
CD, etc. should be closed so that it is not possible to amend the data on the
media).
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3.4.2.1.6 Reliability
It is important that should an equipment failure occur on the computer system, or on
one or more of the storage devices, the computer systems should (so far as is
possible) continue to operate, and that enforcement data is retained or is available
on the system in some other way such that it is recoverable. Typically this might be
achieved through the use of RAID server technology. However, regular data backup
facilities might be an alternative or complementary means of achieving this objective.

It should be noted that, where suitable digital storage arrangements are made using
RAID servers or an equivalent technology, and there is a sufficient degree of data
redundancy such that data is preserved even if one or more storage devices fail, this
form of storage will be considered to provide the digital equivalent of a dual recording
capability. This is because the data is clearly stored more than once in the system
such that data recovery is still possible even if some data is lost as a result of an
equipment failure.

Power protection might also be required (e.g. Uninterruptible Power Supplies for the
system) to ensure that the computer system does not corrupt data in the event of a
sudden power failure.

3.4.3 Recordings to Removable media (e.g. video tapes and DVDs)
Where the recording system employs removable media, two recordings of the image
stream must be made on separate media (e.g. tape, flash memory or DVD disk) at
the same time. One of the resulting media will be preserved as the Master and
stored securely until no longer needed, whilst the other will be deemed to be the
Working copy and used to process the contravention and for later processes. The
recordings may be analogue or digital.

3.4.4 Electromagnetic Compatibility
The provisions of paragraph 3.1.2.5 must also be applied to recording systems.
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Chapter 4 Requirements for Unattended Systems
4.1 Introduction
It is a guiding principle of unattended systems that they only record suspected
contraventions when there are good grounds to believe that a contravention is taking
place. In meeting this principle, systems will be required to include positive
mechanisms to prevent recording at times outside enforceable hours. In the case of
mobile systems, they should include a mechanism to allow the location of the
enforcement camera to be determined with sufficient accuracy to restrict enforcement
to locations at which a contravention might be committed.
4.2 Functional Requirements
These requirements are presented as a series of statements of fitness for purpose.
In a number of cases, it has been necessary to define the requirements using
definitive limits. It should be noted that where definitive limits are given, then these
are the minimum acceptable criteria.
These requirements are presented based upon the illustrative design shown in
Figure 3. Each of the main sections of this part reflect the top level functional
groupings shown with the shaded areas of the diagram. Within each major section,
the functional elements that make up functional grouping will be described in detail.
Figure 3. Illustrative Enforcement System Functional Block Diagram

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4.2.1 Data Capture
This section covers requirements for the components of an unattended enforcement
system that are to do with the acquisition of evidence of a contravention and the
functions necessary to compile the evidence into coherent evidence packages
(hereinafter called Evidence Packs).
4.2.1.1 Imaging Services
Fundamental to the verification of the detection of a contravention is a persuasive
sequence of images. This section discusses the requirements for the images that
need to be captured in order to achieve this objective. This section describes the
fundamental requirements for the image quality, the refresh rate and the camera
operational performance
4.2.1.2 Image requirements
Imaging services must generate images that at least meet the resolution
requirements described in paragraph 3.1.2.1 and that allow an enforcement operator
to simultaneously determine the target vehicle registration mark (VRM) and to
examine the context under which the contravention took place. In this context, the
term simultaneously shall be taken as meaning that the context and close-up images
have demonstrably been taken at a point that is demonstrably between the start and
end points of the context recording. All images must, as a minimum, be marked with
location, time, date and a unique frame identifier and must be fit for purpose.
4.2.1.2.1 Context View
The provisions for attended systems in paragraph 3.1.1.1 apply to unattended
systems also.
4.2.1.2.2 Close-up View
systems also except that the close-up view is permitted to be monochrome and may,
if required, be taken with an infra red (IR) sensitive camera and illuminated with an IR
source.
4.2.1.2.3 Frame rate
The provisions of paragraph 3.1.1.3 apply to unattended systems also. It is
permissible for a single close-up view to be captured provided that this image is
demonstrably contemporaneous with the context image sequence.
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4.2.1.2.4 Low Light Performance
systems also.

4.2.2 Time and Location Services
Time and Location services provide the enforcement system with the time, date and,
where appropriate, location information that is used both to determine (when used in
conjunction the enforcement schedule) whether a contravention has taken place and
to record the same information for evidential purposes. For both these reasons, it is
imperative that both time and location information are accurate. Clock
synchronisation events must be recorded in the system operation logs and, if
unsuccessful for more than the required synchronisation period specified in
paragraph 3.2, enforcement must be suspended and an appropriate system log entry
made.
4.2.2.1 Time and date
The unattended enforcement system must maintain a reference clock as described in
paragraph 3.2.
4.2.2.2 Location
For mobile systems, the enforcement equipment must be capable of determining the
location and direction of travel of the camera with sufficient precision that an
enforcement officer viewing the resulting evidence can unambiguously identify the
place that the contravention took place. This requirement must be met for all
conditions of the built environment (including, but not limited to, urban canyons,
bridges and tunnels). The location system must update sufficiently regularly that this
requirement is met for all permitted enforcement vehicle speeds. Failure of the
location system to generate an appropriate location reference must cause
enforcement to be suspended and must be recorded in the system log.
For static and portable systems, the site commissioning procedure must be used to
enter the known location of the enforcement equipment.

4.2.3 Contravention Capture
Contravention Capture provides the mechanisms for detecting that a contravention is
possibly taking place, for determining that the detected potential contravention is
taking place at an enforceable time (and in the case of mobile systems at an
enforceable location) and recording the evidential information necessary to allow
appropriate enforcement actions to be taken.
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4.2.3.1 Contravention detection
Unattended enforcement systems must have an automatic method for detecting
possible contraventions in progress. This mechanism must not require any form of
operator intervention when in use. In operation, the contravention detection system
should seek to minimise the number of false positive contravention detections .
4.2.3.2 Enforcement Schedule
Unattended enforcement systems must incorporate a mechanism that prevents
enforcement evidence from being gathered at times that there is no valid enforceable
regulation. In the case of mobile systems, the enforcement schedule functionality
has to ensure that both the location and the time are enforceable before permitting
the gathering of evidential data. It shall be noted that it is permitted for mobile
systems to allow a positive guard-band around an enforcement zone to allow for
possible navigation system or camera orientation errors.
4.2.3.3 Evidence Recording
This component is responsible for ensuring that when a contravention is detected, an
appropriate amount of pre-trigger and post trigger image sequence is recorded to
allow an enforcement operator to determine whether a contravention took place and
that no mitigating circumstances were present. This image sequence must be
recorded with sufficient image refresh rate that it is clear that a specific action took
place.
This component of the enforcement system must comply with the image sequence
compression requirements described in note 4 to Figure 2.

4.2.4 Evidence Packaging and Transmission
In order to be useful an unattended enforcement system has to be able to get the
captured evidence back to a back office facility where the evidence is viewed and an
enforcement officer makes a decision about whether a penalty charge notice is
justified. To do this, the evidence has to be packaged and transmitted securely to
the back office.
Transmission may take place over a secure private network in which case encryption
is not required and the data merely needs protecting by means of appropriate
evidence package authentication. Where data is to be transmitted over a network
that is accessible to any third party, then both encryption and evidence package
authentication must be used. In addition, where a third party accessible network is
used, a secure interface must be used at both ends of the link. The secure interface
must reject any communications coming from any source other than an Evidence
Retrieval and Control Unit (ERCU) using a predefined schedule or protocol.
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4.2.4.1 Evidence packaging
Prior to transmission, the collected evidence for each contravention must be
packaged into a single coherent whole that can be verified as a complete package.
This evidence pack must contain, as a minimum, an image sequence showing the
context of the contravention taking place, a close up view (where appropriate, this
may be a pointer to a segment of one of the context images) and metadata relating to
the circumstances of the contravention.
4.2.4.1.1 Authentication
Once complete, the evidence pack must be authenticated using a suitable
authentication algorithm. Annex 6 provides further details of suitable authentication
techniques.
4.2.4.1.2 Cryptographic services
Cryptographic services (Encryption and decryption) are required where any part of
the data channel between the unattended outstation and the back office is carried
over a publicly accessible network (including any form of wireless communication).
Data must be encrypted using a suitable data encryption technique. Annex 6
provides further details of suitable encryption techniques.
Where data encryption is required, all data exchanged between the back office and
the unattended outstation must be appropriately encrypted. Data relating directly to
the evidence collected (evidential data) and all other (non-evidential) data must be
encrypted with different keys.
4.2.4.2 Management Functions
It must not be possible to take any kind of control over the unattended outstation
other than by the delivery of correctly authenticated system control packets (including
but not limited to: enforcement schedules, status polls and key management).
Whenever an enforcement outstation is installed on a network that is accessible to a
third party, the unattended outstation must provide a secure interface through which
only authorised traffic can pass. This interface must be demonstrably resistant to a
real time attack.

4.2.5 System Management
The unattended outstation must provide a number of management functions. These
must be responsible for the recovery and implementation (at the appropriate time) of
the enforcement schedule, the recovery and implementation of the initial keys (or key
encryption keys) and the management of system operation, including the secure
shutdown of the system in the event of any unauthorised access.
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The system management functions must also monitor the operation of the system
and suspend enforcement should any of the following conditions apply.
Local environmental parameters exceed certified limits.
Clock sync fail.
Location missing / error >30m as indicated by failure of GPS or similar locating
system to lock or as indicated by an inconsistent step in reported position.
Encryption keys out of date.
Enforcement Schedule out of date.
In the event that enforcement is suspended, the system must transmit a clear-text
alarm message indicating that it has suspended enforcement. In addition, a cipher-
text (encrypted) detailed status message describing the fault detected must be
transmitted to the back-office.
4.2.5.1 System management and Audit trail
System management functions are also responsible for the preparation of a range of
evidential support information such as audit trail information and such other data,
such as the system log, that might be useful to the enforcement operator in judging
whether an enforceable contravention has taken place. Any such management data
must be packaged as defined by the manufacturer and regularly transmitted to the
back office as an integrity protected and authenticated package. System
management information must be protected with a second set of encryption /
authentication keys. These non-evidence keys must be of similar security level to
those used to protect evidential data.
With the exception of urgent system alarms, which may be in clear-text
(unencrypted), all system management information must be protected as described
above.
4.2.5.2 User Access
System management functions are responsible for the management of user access
to the unattended enforcement system. Any attempt to access the unattended
enforcement system must be logged in the system audit trail and access to the
system shall only be permitted where the user validates their access using a
Password, Personal Identification Number or a service token. The TCF must clearly
show when security is under sufficient threat to constitute an unauthorised access, in
which case the system must inhibit any enforcement recording that is in progress and
securely delete all encryption keys or unsecured evidence packs.
Remote user access is permissible where the level of security is shown to be
sufficient for the extra risk posed by remote access.

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4.2.6 Enforcement management
The enforcement management component of the unattended enforcement system,
also known as the back office is that part of the system housed in a secure
environment (a trusted environment). The back office is made up of a number of
interlocking functions. These are: the secure interface, the evidence retrieval and
control unit, the internal secure interface and enforcement management system.
4.2.6.1 Secure interface
Where there is an external interface to the back office it must be provided with a
secure interface that mirrors the functionality of the secure interface housed in the
outstation. This secure interface must only permit the receipt of correctly formed data
packets (including but not limited to evidence packs, evidential support packages,
outstation status messages and outstation alarms).
4.2.6.2 Evidence retrieval and control unit
The Evidence Retrieval and Control Unit (ERCU) manages all communications with
the unattended enforcement systems. It is responsible to acting as a gateway for
Evidential and non evidential information being received from the unattended
enforcement systems and for enforcement control information being sent from the
back office to the outstations.
Where the ERCU is receiving evidential data from unattended enforcement systems,
the ERCU must ensure that the data received is within 24 hours of the possible
contravention taking place before writing the evidence pack to the internal secure
interface. Where the internal secure interface is an air gap, the ERCU must write the
evidence pack to Write Once Read Many (WORM) media within 24 hours of the
possible contravention being detected.
4.2.6.3 Internal secure interface
The internal secure interface (represented by a dashed line on Figure 3) isolates the
publicly accessible or external components from the secure environment that
manages the enforcement operation. Where an applicant wishes to retain
compatibility with the criminal process as documented by the HOSDB, this must be
an air-gapped interface with no direct data connection. In this case data must be
written to WORM media within 24 hours of capture to ensure that the evidence
cannot be compromised.
Where compatibility with the criminal process is not required, an appropriate
arrangement of firewalls and transfer servers may be used.
Where the enforcement management system does not provide secure and reliable
storage for evidence data, then the internal secure interface must generate WORM
media as described above.
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4.2.6.4 Enforcement management system
The operation of the enforcement management system (EMS) is not part of the
certification requirements for the system and this description is only given here to aid
reader understanding. The enforcement management system provides the system
operators the facilities to view retrieved evidence packs, to issue penalty charge
notices if appropriate, to prepare enforcement schedules and to monitor the health of
any outstations connected to it. It is an assumed requirement on the EMS that it
provides reliable and secure storage for evidence data. If this is not the case, the
internal secure interface must generate all evidence on WORM media.

4.3 Non Functional Requirements
This section is concerned with those environmental factors that could cause the
evidence generated by an enforcement system to be tainted by some question of
incorrect operation. It is not intended that this section in any way replaces the normal
environmental requirements that would be included as part of the procurement
statement of requirements. Indeed, these requirements will normally be insufficient
for procurement purposes.
4.3.1 Thermal
Unattended enforcement systems must be capable of being stored, unpowered, for
long periods under adverse conditions.
In operation, the unattended enforcement system must function correctly in all
respects over at least the ambient temperature range of -10
o
C to +40
o
C. At all
temperatures above 20
o
C, the unattended enforcement system must operate
correctly in the presence of 80% relative humidity. It should be noted that these are
the minimum requirements and manufacturers are free to seek certification of
unattended enforcement equipment to wider temperature ranges if required.
Unattended enforcement equipment must be fitted with a sensor to prevent the
equipment operating outside the temperature range certified.
4.3.2 Electromagnetic Compatibility
Unattended systems must be immune to interference from a wide variety of
electromagnetic threats in accordance with the EU legislation described in paragraph
3.1.2.5.
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4.4 Recommended Design Limits and Tests
This section will describe the design limits that are necessary to meet the fitness for
purpose requirements in sections 4.2 and 4.3 above. It also describes recommended
tests that should be carried out on any system submitted for certification. It is made
up of a number of parts. In each part, suggested test methods are provided together
with illustrative test limits. It is the responsibility of the designer seeking certification
to provide a fully worked up test procedure for the approval of the Secretary of State
for Transport. It should be noted that whilst this section is guidance, any deviations
from the limits given in this section will require a full and detailed justification before
certification will be granted.

4.4.1 Recommended Tests for Functional Requirements
4.4.1.1 Data Capture
This section covers testing of those functions that are to do with the capture of a
potential contravention and preparation of the evidence pack.
4.4.1.2 Context sequence capture
4.4.1.2.1 Image quality
The context sequence as whole, and individual images on a sample basis should be
checked and confirmed to be of adequate resolution, focus, clarity and substantially
free from motion blur and compression artefacts. The minimum resolution for the
context images should be 720 Pixels wide by 288 Pixels high.
4.4.1.2.2 Frame rate
The context image stream should comprise a minimum of 5 frames per second and
no two images should, on average, be more than 200ms apart. This should be
confirmed by counting the number of frames in each second of the context image
sequence.
4.4.1.2.3 Embedded data
In addition to the image of the context of the potential contravention, each image
within the context sequence should contain embedded data consisting of the time,
date, a unique frame identifier, and, where not in a fixed location, the enforcement
location, and be fit for purpose. It should be noted that, if compliance with the
HOSDB requirements is sought, this information should be (in the order given): the
date in days, month, and year, the time in hours, minutes, and seconds, the day of
the week, location and frame count from the beginning of the recording.
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4.4.1.3 Close-up view capture
The unattended enforcement outstation should generate an image that it is possible
to unambiguously read the contravening vehicles VRM. The close up view should
have the following minimum characteristics:
The image presented as the close-up view should have a minimum resolution
of 720 Pixels wide by 288 pixels high. (Note: this reduced image height applies
for a de-interlaced PAL video signal).
The vehicle registration mark should be represented by an area that can wholly
enclose a parallelogram 140 pixels wide by 30 Pixels high for a vehicle
displaying a one line style plate in accordance with The Road Vehicles
(Display of Registration Marks) Regulations 2001.
4.4.1.4 Time and Location
4.4.1.4.1 Time
System time accuracy should be tested by recording a number of simulated traffic
contraventions with a clock accurately synchronised to a reference time source
present in the field of view of the context camera. A number of simulated
contravention captures should be carried out. For all tests, the time recorded on the
evidence pack should be within 10 seconds of the time displayed on the reference
clock. The test should be repeated 14 days later and again the time difference
should be less than 10 seconds.
It should be noted that there are a number of possible sources for reference time and
that they may differ in the absolute time recorded by an offset that is from time-to-
time altered. The preferred reference source that should be used for traffic
enforcement is the time broadcast by the National Physical Laboratory via the MSF
transmitter.
4.4.1.4.2 Location
For mobile systems, the system should be driven around a fixed complex route over
a number of accurately surveyed datum points. The route should include a variety of
built-up environments. Simulated contraventions should be recorded at each of the
datum points and the location recorded by the enforcement system under test should
be compared with the known values for the datum point. The total error (made up
from the vector sum of the error due to movement since the last navigation fix and
the intrinsic inaccuracy of the navigation system) should be less than 30m.
4.4.1.5 Metadata
The data supplied as part of the evidence pack should be checked and should
contain, as a minimum, the following items:
Time and Date that the suspected contravention was detected.
The evidence pack unique identifier.
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The unique identifier for the equipment that captured the suspected
contravention.
The location at which the contravention was detected (for mobile unattended
enforcement systems only). (In this context, "location" means the point at which
a contravention will be first detected or the point at which the close-up view best
shows the VRM).
In addition, it should be noted that the encryption and authentication information
appended to the evidence pack prior to transmission is not treated as meta-data.
4.4.1.6 System Management
4.4.1.6.1 Key Management
The operation of the key management suite should be demonstrated for all
anticipated key operations. This includes, but is not limited to, the following items:
Receive, validate and implement new keys for both evidential and non-
evidential data.
Manage key validity periods and inhibit the generation of evidence if any keys
have expired.
Secure deletion of key data in the event of any unauthorised access to the
system.
Any operation that modifies, or has the potential to modify, a key should be logged in
the system audit log and this should be confirmed.
4.4.1.6.2 Environmental Monitoring
Unattended enforcement systems performance in the event of environmental
conditions exceeding the certified range should be demonstrated. In the minimum
case this should be the prevention of enforcement in the event that the system
temperature exceeds the certified range. This should be demonstrated for both
extremes of temperature. Where the system inhibits enforcement, this should be
logged in the system audit log.
4.4.1.6.3 System Audit Logging
The system audit log should be transmitted back to the back office regularly and
should contain a record of any significant event at the outstation. Testing should
confirm that all events identified in this document and any additional elements as
identified by the system designer are in fact recorded in the system audit log file.
Testing should also confirm that system audit logs are integrity protected and
authenticated.
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4.4.2 Recommended Tests for Non Functional Requirements
4.4.2.1 Thermal
4.4.2.1.1 Storage
The unattended outstation should be held, without power, for at least three hours at -
25C and then +70C, with low humidity. The units should then be allowed to return
to room temperature and tested to ensure correct operation.
4.4.2.1.2 Operational
The equipment should function within specification over an ambient temperature
range of at least -10C to + 40C. At all temperatures above 20C, it must operate
correctly in the presence of 80% relative humidity. The temperature should be varied
in 5C steps, and the equipment left for 30 minutes or longer to obtain thermal
equilibrium; the equipment should function correctly at each temperature step.
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Chapter 5 Annexes
5.1 Annex 1. Abbreviations and Terminology

5.1.1 ABBREVIATIONS
BLE Bus Lane Enforcement
CCD Charge-Coupled Device (see definition below)
CCTV Closed Circuit Television - is the use of video cameras to transmit video images to a
specific, limited set of monitors.
CLEF Commercial Evaluation Facility (see definition below)
CMOS Complimentary Metal Oxide Semiconductor (see definition below)
CUV Close-up View (see definition below)
CV Context View (see definition below)
DVD Digital Video Disk (various formats are available)
DVR Digital Video Recorder (generally uses hard disk or DVD)
EAL Evaluation Assurance Level (see definition below)
EBU European Broadcasting Union sets standards for video and broadcasting
EMC Electromagnetic Compatibility
EMS Enforcement Management System
ERCU Evidence Retrieval & Control Unit
FTP File Transfer Protocol (a protocol that allows users to copy files between their local
system and any system that can be reached on the network)
GPS Global Positioning System
HOSDB Home Office Scientific Development Branch
IACS International Association of Classification Societies
ISO International Organisation for Standardisation
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MSF The radio signal which broadcasts the national time standard for the UK. (The letters
do not stand for anything. MSF is simply a call sign which uniquely identifies the broadcast).
PAL Phase Alternating Line - an analogue colour video encoding system used in broadcast
television systems in large parts of the world, including UK and Europe
PCN Penalty Charge Notice (issued for Traffic contraventions under a Civil Enforcement
regime)
PTZ Pan, Tilt and Zoom standard camera controls for CCTV mechanically operated
cameras
RAID Redundant Array of Independent Disks. A method of storing data more reliably on
(computer) file servers (see definition below)
TCF Technical Construction File (see definition below)
TEVS Traffic Enforcement Video Store area of file storage (typically on a computer file
server) where video of contraventions is securely stored.
TRO Traffic Regulation Order (in London, this is referred to as a Traffic Management Order
or TMO)
VCR Video Cassette Recorder (generally uses VHS tapes)
VRM Vehicle Registration Mark as displayed on the front and rear number plates of
most road vehicles (but only on the rear of motorcycles) in accordance with applicable
legislation.
WORM (Write Once, Ready Many) - A recording medium that once written to, cannot be
amended - e.g. a (non-rewritable) CD or DVD.
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5.1.2 TERMINOLOGY
Note: some of these terms might have a more generic meaning but are explained here in
relation to Video, Camera and Recording Systems for civil traffic enforcement.
Approved Device - The combination of camera(s) and recording system which meets the
specified requirements for civil traffic enforcement in applicable legislation and guidance.
This will normally be demonstrated by certification by the Secretary of State.
Attended CCTV system - A system that relies on an operator to observe and log potential
contraventions as they happen.
Authentication (of a video signal or file) - Authentication establishes the authenticity or
credibility of a video signal or file. Typically this might be through use of Hash functions or
(digital) Watermarks.
CCTV (Video) Matrix - The core of most traditional analogue CCTV systems is the video
(hardware) matrix. This is typically an electronics rack that is situated close to the control
room. The matrix is a switch that routes video inputs from cameras to video outputs that are
fed to monitors and DVRs / VCRs or other equipment for recording as required, normally
using desk-mounted keyboard controls.

A virtual matrix runs on a data network that carries information encoded as TCP/IP
(Transfer Control Protocol / Internet Protocol). Whereas an analogue hardware matrix
switches video and PTZ (pan/tilt/zoom) controls, a virtual matrix can also handle the
processing of alarm and access control data. It can also accommodate the communications
required for VOIP (Voice over IP) and bi-directional, full-duplex audio.
Charge-Coupled Device (CCD) - This is an image sensor technology, consisting of an
integrated circuit containing an array of linked, or coupled, light-sensitive capacitors. CCDs
are used to obtain images in most CCTV cameras.
Close-Up View (CUV) - The camera should be capable of zooming in to obtain a clear close-
up view (CUV) of the VRM. In general the close-up view should be able to show a (horizontal
style) Vehicle Registration Mark (VRM) as between around 15% to 30% of the video frame
width to enable the VRM to be clearly recognised. However, depending on other factors, this
range may be extended to between around 10% and 35% of the frame width.
Context View (CV) - The camera should be capable of zooming out to show a clear context
view (CV) of the vehicle within the enforcement zone. Typically, a (horizontal style) VRM
should be displayed as between around 3% and 10% of the video frame width although it is
not necessary for the VRM to be clearly readable in this view. This view should allow an
observer to clearly identify that the vehicle is the same as that shown in the CUV image.
Commercial Evaluation Facility (CLEF) - A CLEF is a commercial evaluation facility that is
certified under the ITSEC (Information Technology Security Evaluation Criteria) scheme to
undertake testing of system security.
Complementary Metal Oxide Semiconductor Device - This is an image sensor
technology, consisting of an array of CMOS transistors. Recent developments in CMOS
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technology have produced image sensors that rival the quality of the more mature CCD
technology.
Encryption Key - An encryption key is a data string that is used by an encryption process to
convert the clear-text data into the cipher-text string for transmission. Dependent upon the
encryption method chosen, these keys may be single shared values or a matched pair of
public / private keys. In all cases, the private key or the shared key must be kept secret.
Enforcement Schedule - The enforcement schedule contains data that is used, normally by
an unattended enforcement system, to determine whether enforcement action is justified at a
particular location at a given time and if action is justified, then what types of contravention
are permitted at that time / location.
Enforcement Zone - The Enforcement zone is a component of an enforcement schedule. It
relates to a particular geographical area and dictates what contraventions can be enforced
and during what hours.
Evidence Pack - An evidence pack is a package of evidential data that is used to prove a
contravention has taken place. It will normally contain a close-up view a context image
sequence and a small amount of meta-data (such as time, date, location, contravention
number, and unit number). It will often be encrypted and authenticated. It is advisable that
the evidence pack contains the minimum information necessary to demonstrate a
contravention has taken place.
Evidence Retrieval and Control Unit - This device acts as a secure extension to the remote
contravention detection equipment. It allows the collection of contravention information at a
convenient office location. One of its main functions is to preserve the evidential integrity of
the contravention records by processing encrypted data through a pair of secure interfaces to
a public communications network. The ERCU operates on the benefit of doubt principle.
In systems that are being designed to be compatible with the criminal process or are to be
type Approved by the Home Office, the ERCU writes data to a WORM media within 24 hours
to protect data from tampering.
Evidential Data - Evidential data is only that data that is required to demonstrate to an
enforcement officer or an adjudicator that a contravention has taken place. It is considered
good practice for the evidential data to contain the minimum necessary information
Frame rate - The frame rate of an evidence package is the number of complete images
rendered by the enforcement system in any second. It should be noted that some image
encoding algorithms do not encode complete frames. For these encoders, the frame rate
requirements will be met if the encoded video provides a clear impression of scene
movement.
Hash function - An algorithm that calculates a value from the contents of a data file which
can then be used to detect alterations to the file. Similar to a checksum but with greater
security, hash functions play an important role in secure cryptographic systems, where
authentication is as important as hiding the data from third parties.
Integrity - The provision of facilities (on computer storage systems) to ensure that if data is
amended, the changes are detectable. Typical examples include hash functions and
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watermarking of the data so that if the data is amended, the hash function shows an error
or the watermark becomes visible.
Legacy System - A system that employs pre-existing equipment (either wholly or in part) and
certification is required (either wholly or in part) in order to comply with applicable legislation.
Master Copy - The original video clip of the contravention, which is held securely (usually in
the Traffic Enforcement Video Store) pending determination of any PCN procedure.
Matrix - see CCTV Matrix
Negative Guard Band - A negative guard band is one where although the reported position
of the enforcement device is within the defined enforcement zone, enforcement does not take
place because it is within the allowed error margin.
Non Evidential Data - Non Evidential Data is all data other than evidential collected or
generated by an enforcement system component. In practice this may include information
that demonstrates that the system is operating normally, logged data relating to the normal
operation of the system (such as the generation, transmission of data packets, the updating
of keys etc) and information to assist an enforcement operator in processing a contravention
record (for example the suspect vehicles VRM could be returned as non evidential data).
Positive Guard Band - A positive guard-band is one where although the reported position is
outside the enforceable area, it is within the allowed error margin so enforcement is
permitted.
RAID Server A file server using RAID technology. The acronym RAID (redundant array of
independent disks) refers to a data storage scheme using multiple hard drives to share or
replicate data among the drives. Depending on the configuration of the RAID (typically
referred to as the RAID level), the benefit of RAID is to increase data integrity, fault-tolerance,
throughput or capacity, compared with single drives. Note: RAID 0 does not provide any
form of data redundancy and should not be used in enforcement applications
Reliability The ability of (computer & similar) systems to continue to operate and retain
valuable data even if some parts of the system fail. RAID servers are a good example of this
in practice.
Salt - In cryptography, a salt comprises random bits that are used as one of the inputs to a
key derivation function. (The other input is usually a password or passphrase). A salt can
also be used as a key in a cipher or other cryptographic algorithm.
Security - The protection of data and system information (on computer storage systems) so
that only people who are authorised to access, use, copy or delete the data have access to it
for these purposes. Typically, this may involve a hierarchy of password protection so that
individuals are only able to carry out the activities that they are authorised to do. Where data
is released from a secure environment, this is likely to require other forms of protection
such as data encryption to ensure that unauthorised persons cannot see or amend the
data.
Server (File server) - A form of disk storage that hosts files within a network.
Approved Devices
Page 39 of 47

Synchronisation Period - The maximum time between successful clock synchronisation
events.
Technical Construction File - The information that describes in full the enforcement
systems design and operation. The file forms the basis of applications for certification of an
approved device to the Secretary of State and records changes made to the equipment
during its life.
Unattended CCTV system - A system that records potential contraventions automatically for
subsequent review.
Version - Software unique identifying number. An instance or a configuration of a piece of
software. Once a version is completed, it cannot be changed without creating a new version.
Once the development team considers a software version as being sufficiently mature, the
software version can be turned into a software release.
Variant - A software version that is an alternative to another version. A variant or variation is
the same version of a piece of software that meets a conflicting requirement. For instance,
the same version of software doing the same job in the same way but designed to control
different hardware.
Watermark (digital) - A Watermark is a (generally invisible) identification and authentication
mark that is embedded into a (video) signal or file that can be detected if required. It can be
used to confirm the integrity and/or source (or authorship) of the video file.
Working Copy - A video clip of a contravention either produced directly from the Master
Copy or made contemporaneously with it for the purpose of evidence review and related
procedures.
Approved Devices
Page 40 of 47

5.2 Annex 2. Organisations contributing to the production of this
document.

British Security Industry Association
Department for Transport
EMC Test Labs Association
Institution of Engineering and Technology
ITS-UK
Manchester City Council
Newham Borough Council
Nottingham City Council
Pips technology
Qinetiq
Redflex Traffic Systems Pty Ltd
Sheffield City Council
Siemens Traffic Controls
Transport for London and technical advisers Atkins
Transport Research Laboratory
TUV Product Service Ltd
Vehicle Certification Agency
Westminster City Council

Approved Devices
Page 41 of 47

5.3 Annex 3. Moving traffic contraventions within the scope of this
document
Those indicated by the following traffic signs and their permitted variants. (The number in
brackets is the sign drawing that corresponds with the description in the Traffic Signs
Regulations and General Directions 2002).
Vehicular traffic must proceed in the direction indicated by the arrow (606)
Vehicular traffic must turn ahead in the direction indicated by the arrow (609)
Vehicular traffic must comply with the requirements in regulation 15 [of Traffic Signs
Regulations and General Directions - keep to the left or right of the sign] (610)
No right turn for vehicular traffic (612)
No left turn for vehicular traffic (613)
No U-turns for vehicular traffic (614)
Priority must be given to vehicles from the opposite direction (615, 615.1)
No entry for vehicular traffic (when the restriction or prohibition is one that may be
indicated by another traffic sign subject to civil enforcement) (616)
All vehicles prohibited except non-mechanically propelled vehicles being pushed by
pedestrians (617)
Entry to pedestrian zone restricted (618.2)
Entry to and waiting in pedestrian zone restricted (618.3)
Entry to and waiting in pedestrian zone restricted (variable message sign) (618.3A)
Motor vehicles prohibited (619)
Motor vehicles except solo motor cycles prohibited (619.1)
Solo motor cycles prohibited (619.2)
Goods vehicles exceeding the maximum gross weight indicated on the goods vehicle
symbol prohibited (622.1A)
One way traffic (652)
Buses prohibited (952)
Route for use by buses and pedal cycles only (953)
Route for use by tramcars only (953.1)
Route for use by pedal cycles only (955)
Route for use by pedal cycles and pedestrians only (956)
Route comprising two ways, for use by pedal cycles only and by pedestrians only
(957)
With-flow cycle lane (959.1)
Contra-flow cycle lane (960.1)
Box junction markings (1043, 1044)
Approved Devices
Page 42 of 47

5.4 Annex 4. Attended Systems Check List
Sample Test Procedures
No Action Comments
A Observational Tests of CCTV Cameras
1
Start video recording of 'test' (or ensure that recording is running) On some (mainly server based digital) systems,
recording may be continuous
2
Pan & Tilt camera to align with 1st approach
3
Zoom camera out to Context View (CV) of approach - at the minimum viable range
4
Measure time to 'zoom in' from the CV to a Close-Up View (CUV) of a VRM on this
approach - at the maximum viable range
Zoom times may be measured to the nearest
second - using a manual or electronic stopwatch
facility
5
Ensure that the VRM is clearly readable on screen
6
If appropriate - recording of this test may be stopped
7
Repeat tests (1-6) for other enforced approaches visible from this camera
8
Repeat tests (1-7) for all enforcement cameras, for all enforced approaches visible
from each camera

B
Playback & Review tests (for recording and image grab facilities)
1
Playback the video recordings taken during tests (section A) on the Review facility Recording may be on tape, disk (typically CD or
DVD), server or other digital recording
equipment
2
Grab images of CV and CUV on each enforceable approach on each camera
Approved Devices
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3
Ensure that CV and CUV images are relatively sharp and clear, and that the VRM of
a vehicle is clearly readable in the CUV

4
Repeat 2 & 3 for all enforceable cameras and approaches

NOTES
1
Video recordings and grabbed images for all enforceable cameras and approaches should be retained (on disk) for the Technical
Construction File for the system - for approval purposes.
2
The above procedures might be more appropriate for vehicles observed from the rear, moving away from the camera. For forward
facing cameras, where vehicles approach the camera, the CUV might need to be observed at the maximum viable range, and the
CV at the minimum viable range. In these circumstances, which will be site specific - a lower zoom range might be required.
3
Whilst it is not a requirement to repeat the above procedures in varying light and weather conditions, the documentation for these
tests should indicate the lighting and weather conditions under which the tests were conducted.
4
Where a number of very similar or identical specification New or Legacy CCTV cameras require approval as a part of a System
Certification, by agreement with the Secretary of State, tests from a sample of these cameras is likely to be acceptable.
5
For cameras on mobile vehicles, a practicable target range for observing vehicles/contraventions should be set (say 50 - 100m)
and representative samples taken of (perhaps) two sites.
Approved Devices
Page 44 of 47

5.5 Annex 5. Suggested Technical Construction File Contents
These are the suggested contents of the Technical Construction File required for civil traffic
enforcement applications.
1. Name and address of applicant organisation, name of principal contact, (plus email &
phone number).
2. Name, title and qualifications and/or experience of the competent person who
commissions the system and signs test declarations. (Also name and address of any
external test house and engineer if necessary).
3. A list of all the documents enclosed in the technical file.
4. A list of all the equipment; the serial numbers of significant items of that equipment
(recording equipment, servers etc.); and a list of the software that is used in the system.
5. A description of the system architecture in full, as well as details of any significant design
elements. This should be with reference to issues discussed in the guidance. We suggest
it should include:
Software versions (and issue dates).
The number of workstations.
Camera handling capacity and planned number of cameras deployed.
Specifications for the system and ancillary equipment to demonstrate compliance
with any performance minima specified in the guidance.
6. Test reports and declarations demonstrating the required performance as applicable.
Which tests were performed and why the tests were selected or omitted.
7. Where the application relates to bus lane enforcement under the Transport Act 2000,
documentary evidence of prior home office approval or evidence of use for civil bus lane
enforcement in London prior to November 2005 as applicable.
8. A maintenance plan. Where necessary, the plan must identify what routine calibration is
required and how that will be carried out.
Approved Devices
Page 45 of 47

5.6 Annex 6. Data Security
5.6.1 INTRODUCTION
5.6.1.1 This annex describes the requirements for data security for a civil certified
enforcement system. This first generation data security annex is based upon the
requirements published by the Home Office for equipment intended to be Type
Approved under the criminal process.
5.6.1.2 Subject to the generation of an appropriate Protection Profile, it is intended that the
requirements for data security will move to implement the common criteria at
Evaluation Assessment Level 4 in accordance with ISO / IEC 14508. At that time,
this annex will be withdrawn and replaced with the required protection profile.
5.6.1.3 The integrity and full acceptance of the evidence by the public and the adjudication
service is of paramount importance. It is therefore essential this continues to be
ensured by the use of data protection methods that will themselves be recognised as
adequate by the stakeholders. The following data protection is required for devices
used for automatic unattended operation but key lengths that offer enhanced security
(e.g. 256 bit) will be permitted.
5.6.2 GENERAL REQUIREMENTS
5.6.2.1 The purpose of the data protection is to ensure that a defence based on an allegation
that the data could be tampered with by anyone accessing the network will be
implausible and have no credibility at adjudication. The standard data security
measures used by major financial institutions for the protection of financial data meet
that requirement and are specified in published international standards. It is a
requirement that data protection as used in the financial sector is applied to the
evidence data produced by all devices approved for automatic unattended use.
5.6.2.2 If the following data protection measures are adhered to, then any public or private
data network, including digital radio networks, may be used.
5.6.2.3 A financial sector data protection system provides three levels of protection:
i. Authentication
ii. Encryption
iii. Error protection.
Approved Devices
Page 46 of 47

5.6.2.4 Authentication is the principal element in establishing the integrity of the evidence. A
Message Authentication Code (MAC) comprising 4, 8, 10, 12 or 16 8-bit bytes of data
is computed and appended to the image and associated evidence data (evidence
package). The MAC is a complex function of a 112 bit, a 128 bit or a 168 bit
authentication key. The integrity of a received evidence package is verified when re-
computing its MAC using the same key produces the same answer.
5.6.2.5 Encryption transforms the evidence package into unrecognisable random data. For
the encryption, another 112 bit, 128 bit or 168 bit encryption key, chosen to be
different from the authentication key, must be used.
5.6.2.6 For any data network, standard error correction methods such as a 32 bit Cyclic
Redundancy Check (CRC) must be used to ensure no accidental errors can be
introduced during the transmission process.
5.6.2.7 The data protection process implemented in the device at the roadside site, which
must be undertaken in the following order, must be to:
i. Calculate the MAC of the whole evidence package
ii. Encrypt the evidence package
iii. Append the MAC to the encrypted evidence package
iv. Compute the CRC for each transmission segment
v. Transmit each segment
5.6.2.8 At the receiving end, the process which must be undertaken in the following order,
must be to:
i. Check each CRC and request re-transmission when necessary
ii. Decrypt the evidence package
iii. Recalculate the MAC from the decrypted evidence package
iv. Compare this MAC with the transmitted MAC
v. Accept as valid data only if they are the same.
5.6.2.9 Physical security must be provided at each site. Any unauthorised access must be
detected and must cause all security keys to be securely deleted.
5.6.2.10 Each site must have a mechanism such as back-up battery so that, on
detection of a failure of the mains supply, it can close down operations in a controlled
manner maintaining the integrity and security of the stored data and enable
operations to be automatically resumed when power is returned.
5.6.3 DATA PROTECTION STANDARDS
5.6.3.1 The data protection must be based on the following published standards.
5.6.3.2 Both the authentication and encryption process are based around any sub- process
known as a block cipher. For the traffic enforcement system the same block cipher
must be used. Systems being submitted for certification must use either AES 128 or
use the Triple Data Encryption Algorithm (TDEA) specified in NIST Special
Publication SP800-67 using either option 2 or option 3 (known as 2TDEA and 3TDEA
Approved Devices
Page 47 of 47

respectively). Option two requires two different 56 bit keys while 3TDEA requires
three different 56 bit keys. After the 1 January 2010, systems using 2TDEA must
move to AES 128 or 3TDEA. Beyond 1 January 2030, all systems must use
AES 128. However, other block ciphers recommended by NIST as providing
comparable security strengths may be used with the agreement of Secretary of State
for Transport.
5.6.3.3 The authentication process must follow that described in the draft recommendation
given in NIST Special Publication 800-38B for the CMAC Authentication Mode.
Systems must use CMAC with AES 128 and a MAC length of 64 bits. The length of
the MAC generated will be 64 bits long. In the case of the 2TDEA or the 3TDEA a
salt 64 bits long will be used. On 1 January 2010 systems using 2TDEA must move
to using AES 128 or 3TDEA and generate a 64 bit MAC, the 3TDEA systems using a
64 bit salt. Beyond 1 January 2030 all systems will use CMAC with an AES 128
block cipher and generate an 80 bit MAC with a 16 bit salt.
5.6.3.4 The encryption process for systems to be certified by the Secretary of State for
Transport must use AES 128 in Cipher Block Chaining (CBC) mode as described in
NIST Special Publication SP 800-38A. On 1 January 2010, systems using 2TDEA
must move to using AES 128 or 3TDEA in CBC mode. Beyond 1 January 2030 all
systems must use AES 128 in CBC mode.
5.6.3.5 The above data protection system requires the encryption and authentication keys to
be known at both ends of the communication link. The security depends on these
remaining unknown by any third party. Good security requires frequent changes of
the keys and different keys used at each site. All systems must generate new
encryption and authentication keys for each evidence pack generated in the road-
side equipment. A key management system must be provided as part of the back
office. It must automatically generate, store, distribute over the data network,
synchronise and destroy keys securely. It must be as transparent to users as far as
possible.
5.6.3.6 The keys generated and used in the roadside sites for data encryption and
authentication must be sent over the network encrypted using KEKs (Key Encryption
Keys). The KEKs must be manually loaded and changed no less frequently than
annually. Systems must use AES with a 192 bit or longer KEK. Systems migrating
using 2TDEA or 3TDEA must use 3TDEA and so use 3 KEKs. These higher level
Key Encrypting Keys (KEKs) do not need frequent changing and must be securely
distributed manually to each site. This distribution is part of the evidential chain.
Other methods of key encryption recommended by NIST maybe acceptable if agreed
with Secretary of State for Transport.

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This document provides good practice guidance. It supersedes the joint
Department for Transport and Welsh Ofce Circular 1/95 Guidance on
Decriminalised Parking Enforcement outside London and relevant sections
of the Mayor of Londons Transport Strategy. It sets out a policy framework
for parking policies in English local authorities. The document also advises
all English enforcement authorities of the procedures that they must follow,
the procedures to which they must have regard and the procedures that the
Government recommends they follow when enforcing parking restrictions.
www.tso.co.uk
ISBN 9780115529436
19.50

March 2008
Operational Guidance
to Local Authorities:
Parking Policy and Enforcement
Trafc Management Act 2004
March 2008
London: TSO
Great Minster House
76 Marsham Street
London SW1P 4DR
Telephone 020 7944 8300
Web site www.dft.gov.uk
Crown copyright 2008
Copyright in the typographical arrangement rests with the Crown.
This publication, excluding logos, may be reproduced free of charge in any format or medium for non-commercial
research, private study or for internal circulation within an organisation. This is subject to it being reproduced
accurately and not used in a misleading context. The copyright source of the material must be acknowledged and the
title of the publication specied.
For any other use of this material, apply for a Click-Use Licence at www.opsi.gov.uk/click-use/index.htm, or by writing
to the Licensing Division, Ofce of Public Sector Information, St Clements House, 216 Colegate, Norwich NR3 1BQ,
fax 01603 723000, e-mail licensing@opsi.x.gsi.gov.uk
This is a value added publication which falls outside the scope of the Public Sector Information Click-Use Licence.
ISBN 978 0 11 552943 6
Second impression with minor amendments May 2008
Printed in Great Britain on paper containing at least
75% recycled bre.
Published by TSO (The Stationery Ofce) and available from:
Online
www.tsoshop.co.uk

Mail, Telephone, Fax & E-mail
TSO
PO Box 29, Norwich NR3 1GN
Telephone orders/General enquiries: 0870 6005522
Fax orders: 0870 6005533
E-mail: customer.services@tso.co.uk
Textphone: 0870 240 3701
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028 9023 8451
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Fax 0870 606 5588
TSO@Blackwell and other Accredited Agents
Contents
1 Introduction 7
2 The policy context 9
National policy 9
Local policy 10
Parking provision 11
3 Objectives of civil enforcement 13
Policy objectives 13
CPE financial objectives 14
4 Appraising, ensuring the effectiveness of and reporting
on civil parking enforcement 16
Appraising CPE 16
Ensuring the effectiveness of CPE 17
Reporting 18
Parking Annual Reports: possible contents 20
Financial 20
Statistical 20
Performance against targets 21
Financial reporting 21
Returns to Government on enforcement action 22
5 Consultation and communication with the public 23
Consultation 23
Communication 24
Content of parking communications 25
6 Training and professionalism in civil parking enforcement 27
Back office and management staff 28
Civil Enforcement Officers (CEOs) 28
CEO duties 29
Discretion 31
Training 31
Probation 34
Camera operators 34
Immobilisation and removal teams 34
7 Choice and certication of devices for camera enforcement 36
Devices certified by the Secretary of State 36
Procedures for operating parking enforcement systems 37
8 Enforcement 38
Civil Enforcement Officers handbook 38
Uniforms 38
Equipment 39
Hand-held computers 39
Mobile communications 40
Digital cameras 40
Suspensions 41
Transport for Civil Enforcement Officers 41
The penalty charge 41
Differential penalty charges 42
The Penalty Charge Notice (PCN) 43
Ensuring each PCN has a unique number 43
Standard contraventions and associated code numbers 44
Other points about the Penalty Charge Notice 44
Collecting evidence of the contravention 45
Service of the PCN at the time of the contravention 45
Observation periods 47
Loading and unloading 48
Double parking and parking at dropped footways etc 49
Double parking 49
Parking alongside dropped footways etc 49
Service of a PCN by post 50
Prevention of service by force, threats of force, obstruction or violence 51
Prevention of service by drive away 53
Return of the motorist before the CEO has started to issue the PCN 55
Enforcement by approved devices 55
Immobilisation/removal 58
Special consideration for disabled badge holders and vehicles with diplomatic
registration plates 61
Persistent evaders 61
9 Exemptions, waivers and dispensations 63
Blue Badge (disabled persons parking) Scheme 63
Abuse of the Blue Badge scheme 65
Targeted surveillance operations 65
Working with the police 65
Day-to-day enforcement inspections 65
Power to inspect 66
Withdrawing badges due to repeated misuse 68
Reciprocal arrangements for disabled drivers from other countries 68
Diplomatic registered vehicles 68
Immobilisation 69
Removal 69
Recovery of unpaid PCNs 70
Application to HM forces and visiting forces 71
Waivers 71
Dispensations for professional care workers 71
Exemptions where parking places are suspended 72
Miscellaneous exemptions 73
10 Policy and administrative functions 74
Providing a quality service 74
Collecting penalty charges 74
Location of payment centres and opening hours 78
Temporary waiving of payments 78
Payments for release of a vehicle from an immobilisation device or a vehicle pound 79
Issuing the Notice to Owner 79
Information from DVLA about the registered keeper 81
DVLA record is incomplete 82
Diplomatic vehicles 83
Charge Certificate 83
Registering the Charge Certificate with the Traffic Enforcement Centre 84
Witness Statement (formerly a Statutory Declaration) 84
Warrants of Execution and Certificated Bailiffs 85
11 Challenges, representations and appeals 89
Challenges also known as informal representations 90
Formal representations 92
Representations against immobilisation or removal 95
Consideration of representations 96
Providing false information 97
Notification of the outcome of representations 97
Adjudication 98
Cases referred back to the authority by the adjudicator 99
12 Key criteria when applying for the power to enforce
parking regulations 100
Other powers received along with the power to enforce parking 100
Immobilisation and removal 100
Bus lanes 101
Special Enforcement Areas (SEAs) 101
Authorities eligible to apply for CPE power 101
Co-operation between district councils and county councils 102
Consulting other local authorities 102
Consulting other bodies 103
The continuing role of the police 103
13 What an authority should do before taking on parking
enforcement power 105
Formulating and appraising parking policies 105
Traffic Regulation Orders (TROs) 105
Pavement parking 107
Choosing the most appropriate package of enforcement measures 107
Enforcement on trunk roads and other high speed roads 107
Level of enforcement 108
Exemptions, waivers and dispensations 108
Assessment of the chosen enforcement package 108
14 Financial assessment 110
Parking charges 112
Penalty charges 113
Discounts and increases to penalty charges 114
Estimating income from penalty charges 115
Charges and income from vehicle immobilisation, removal, storage
and disposal 115
Publication of the level of penalty and other charges 116
Changes to penalty and other charges 117
VAT and penalty charge income 117
15 Application for a CEA designation order 118
Annexes
A What the civil enforcement of parking under the Traffic Management
Act 2004 involves and how it differs from decriminalised parking
enforcement under the Road Traffic Act 1991 130
B Enforcement action started under the Road Traffic Act 1991 136
C Contraventions for which the higher and the lower level penalty
charges should be made 137
D Examples of information that it may be prudent for a CEO to note 140
E Appraising the adequacy of traffic signs, plating and road markings 142
F Appraising Traffic Regulation Orders (TROs) and Traffic Management
Orders (TMOs) 144
G SIA guidance on vehicle immobilisation on private land 154
H Abbreviations used in this publication 157
Index 158
7
CHAPTER 1
Introduction
1.1 Part 6 of the Traffic Management Act 2004 (TMA) provides for the civil
enforcement of most types of parking contraventions. It replaces Part II and
Schedule 3 of the Road Traffic Act 1991 and some local legislation covering
London only.
1.2 This Operational Guidance:
sets out the policy framework within which the Government believes that all
English local authorities, both inside and outside London, should be setting
their parking policies and, if appropriate, enforcing those policies;
tells all English local authorities of the changes to parking policy and enforcement
that result from the replacement of part II of the Road Traffic Act 1991 (RTA) by
the parking provisions in part 6 of the Traffic Management Act 2004;
advises all English enforcement authorities of the procedures that they must
follow, the procedures to which they must have regard and the procedures
that the Government recommends they follow when enforcing parking restrictions;
tells those English local authorities who have not yet done so of the scope for
taking over parking regulation enforcement from the police, and how to go
about it; and
tells members of the public, as well as local authorities, about parking policies
and their enforcement.
1.3 This Operational Guidance is good practice guidance. It is not the guidance
issued under section 87 of the Traffic Management Act 2004, although it quotes
from that guidance see paragraph 1.4 below. Where it says that something
must be done, this means that it is a requirement in either primary or
secondary legislation, and a footnote gives the appropriate provision.
Where a statute imposes a duty on a local authority, a failure to comply will
constitute a breach of statutory duty. This document has no special authority
in regard to matters of legal interpretation. Where there appear to
be differences between the regulations and the Guidance, the
regulations always take precedence.
1.4 Wording in this document in bold and Comic Sans MS typeface is part
of the Secretary of State for Transports Guidance (often referred to as the
Statutory Guidance) which is published under section 87 of the Traffic
Introduction March 2008

Operational Guidance March 2008 8
Management Act 2004. section 87 of the TMA stipulates that
local authorities must have regard to the information contained
in that Guidance, which is available as a separate document.
1
1.5 This Guidance replaces the joint Department for Transport and Welsh Office
Circular 1/95 Guidance on Decriminalised Parking Enforcement outside
London and relevant sections of the Mayor of Londons Transport Strategy.
You should read it in conjunction with the Road Traffic Regulation Act 1984
(RTRA), Part 6 of the Traffic Management Act 2004, and SIs 2007/3482,
2

2007/3483,
3
2007/3484,
4
2007/3485,
5
2007/3486
6
and 2007/3487.
7
1.6 You should also read it alongside any guidance and Codes of Practice
subsequently issued by the Government (available on the DfT website), by the
Parking Adjudicators, London Councils
8
and the Local Government Association.
1.7 You should also take account of good practice guidance from organisations
such as the:
British Parking Association;
Institution of Highways and Transportation;
CSS (formerly the County Surveyors Society);
Local Government Technical Advisory Group (TAG); and
London Technical Advisors Group (LoTAG).
1.8 You should also learn from other authorities and the police.
DfT
March 2008
1 http://www.dft.gov.uk/pgr/roads/tpm/tmaportal/tmafeatures/tmapart6/betterprkstatutoryguid.pdf
2 The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations
2007 (SI 2007/3482)
3 The Civil Enforcement of Parking Contraventions (England) General Regulations 2007 (SI 2007/3483)
4 The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2007 (SI 2007/3484)
5 The Civil Enforcement Officers (Wearing of Uniforms) (England) Regulations 2007 (SI 2007/3485)
6 The Civil Enforcement of Parking Contraventions (Approved Devices) (England) Order 2007
(SI 2007/3486)
7 The Civil Enforcement of Parking Contraventions (Guidelines on Levels of Charges) (England) Order
(SI 2007/3487)
8 Formerly the Association of London Government
9
CHAPTER 2
The policy context
National policy
2.1 The Future of Transport White Paper, published in July 2004, set out a long-
term strategy for a modern, efficient and sustainable transport system backed
up by sustained high levels of investment over 15 years. Effective management
of the road network is a key part of this. The Traffic Management Act 2004
imposes an explicit duty on local authorities to manage their network so as to
reduce congestion and disruption and to appoint a traffic manager. The Act
also provides additional powers to do with parking, including increased scope
to take over the enforcement of driving and parking offences from the police.
2.2 Parking policies need to be integral to a local authoritys transport strategy.
The second edition of the Departments Full Guidance on Local Transport
Plans, published in December 2004, says that local authorities should
have policies aimed at tackling congestion and changing travel behaviour.
These could include restricting and/or charging for car parking.
2.3 Discussions about parking tend to concentrate on enforcement. But all
local authorities need to develop a parking strategy covering on- and off-
street parking that is linked to local objectives and circumstances. They then
need Traffic Regulation Orders (TROs) to put it in place and appropriate
traffic signs and road markings to show the public what the restrictions
mean. This strategy needs to take account of planning policies and transport
powers and consider the appropriate number of total spaces, the balance
between short and long term spaces and the level of charges.
2.4 Local authorities have long been responsible for managing all on-street
and some off-street parking, whether directly or indirectly. The relevant
powers are in the Road Traffic Regulation Act 1984 (RTRA). The Road
Traffic Act 1991 significantly changed the way that on-street parking
restrictions are enforced. Before 1991, the police and traffic wardens
were responsible for enforcement and income from fixed penalty notices
(FPNs) went to the Exchequer. The police service found itself increasingly
unable to resource parking enforcement and a number of forces
supported the idea of another agency taking on the responsibility.
2.5 The road safety and congestion implications of this lack of enforcement were
unacceptable, so the 1991 Act made it mandatory for London boroughs and
optional for other local authorities to take on the civil enforcement of non-
The policy context March 2008
endorsable parking contraventions. When a local authority takes over this
power from the police, staff employed directly or indirectly by them issue
Penalty Charge Notices (PCNs) and the local authority keeps the income.
2.6 The legal framework for enforcement authorities
9
in England comprises Part 6 of
the Traffic Management Act 2004 and the regulations to bring Part 6 into effect.
The TMA and the associated regulations have given to English authorities outside
London many powers already available to authorities in London, giving greater
consistency across the country while allowing for parking policies to suit local
circumstances. The framework aims to make the system fair as well as effective.
2.7 This Guidance uses the same terminology as the TMA, so it refers to:
Civil Parking Enforcement (CPE) rather than Decriminalised Parking
Enforcement;
Civil Enforcement Officer (CEO) rather than Parking Attendant; and
Civil Enforcement Area (CEA) rather than Special Parking Area/
Permitted Parking Area (SPA/PPA).
10
2.8 There are some changes to parking contraventions. These mainly affect local
authorities outside London. They are set out in Annex A. The procedures
for enforcement action started under the RTA are set out in Annex B.
2.9 CPE is a legal process. Enforcement authorities should make sure
that their employees and contractors who operate CPE regimes
have a clear and full understanding of what the law requires. If
enforcement authorities are themselves uncertain about any aspects
of these requirements, they should get the appropriate legal advice.
Local policy
2.10 Each local authority should have a clear idea of what its parking policy is and
what it intends to achieve by it. This applies whether or not an authority is
responsible for enforcement. They should appraise their policy and its objectives
regularly. When setting and appraising the policy, an authority should take
account of the:
existing and projected levels of parking demand;
availability and pricing of on- and off-street parking;
justification for and accuracy of existing Traffic Regulation Orders; and
accuracy and quality of traffic signs and road markings that restrict or
permit parking.
9 Traffic Management Act 2004, Schedule 8
10 Areas which immediately before 31 March 2008 are designated as Special Parking Areas in London
or as Permitted Parking and Special Parking Areas outside London automatically become Civil
Enforcement Areas on that date. See Traffic Management Act 2004 Schedule 8, paragraphs 2(4)
and 8(4).
11
2.11 Enforcement authorities should also set and regularly appraise the:
level of compliance with parking controls that they want to achieve;
level of enforcement necessary to get such compliance;
penalty charge bands; and
resourcing and training of parking staff.
2.12 Whether or not they have CPE powers, authorities should make sure that
their parking policies are not only appropriate in terms of place and time,
but are properly underpinned by valid, up-to-date Traffic Regulation Orders.
The restrictions need to be made clear to motorists through appropriate
and legal traffic signs and road markings. A parking contravention is
nearly always a breach of a provision of the TRO, which must have been
made under the correct section of the RTRA. A flawed or inadequately
signed order may be unenforceable and can significantly damage both
the aims of enforcement and the public perception of its management.
2.13 Authorities should consult the public on their parking policies as they formulate
or appraise them. They should seek the views of people and businesses with a
range of different parking needs as well as taking into account the views of the
police. Once they have finalised their parking policies, they should make them
available to the public. Explaining the context and the purpose of parking policies
can increase public understanding and acceptance. It can even help public
acceptance of enforcement. Where possible, neighbouring authorities should
work together to ensure a consistent approach to parking policy and its enforcement.
Parking provision
2.14 The Governments policy on parking provision is set out in Planning Policy
Guidance Note (PPG) 13 Transport. Specific policy on parking provision for
housing development is in Planning Policy Statement (PPS) 3 Housing.
2.15 The key thrust of the policy in PPG13 is that local authorities should use parking
policies alongside other planning and transport measures to promote sustainable
transport choices and reduce reliance on the car. To support this objective,
PPG13 says that local authorities should not normally require developers to
provide more spaces than the developer would want to. Authorities should also
encourage shared parking, particularly in town centres. Where appropriate, they
should control on-street parking near major developments that have limited on-
site parking but which generate lots of journeys. This will help to minimise the
displacement of parked vehicles to the streets surrounding the developments.
2.16 PPG13 says that local authorities should set maximum levels of parking
provision. Annex D of PPG13 currently sets out national maxima for a range
of developments above certain thresholds. The Government is reconsidering
the policy on car parking provision for commercial development.
The policy context March 2008

2.17 PPS3 advises local planning authorities to develop parking policies for their
plan area with local stakeholders and local communities having regard
to expected car ownership for planned housing in different locations, the
efficient use of land and the importance of promoting good design.
2.18 A good practice report by the Institution of Highways and Transportation,
supported by the Department for Transport, advises local authorities on
developing parking strategies. This includes advice on how much parking
to provide.
11
11 Parking Strategies and Management IHT August 2005
13
CHAPTER 3
Objectives of civil enforcement
Policy objectives
3.1 CPE should contribute to the authoritys transport objectives. A good CPE
regime is one that uses quality-based standards that the public
understands, and which are enforced fairly, accurately and expeditiously.
3.2 Enforcement authorities should aim to increase compliance with parking
restrictions through clear, well designed, legal and enforced parking
controls. CPE provides a means by which an authority can effectively
deliver wider transport strategies and objectives. Enforcement authorities
should not view CPE in isolation or as a way of raising revenue.
3.3 Enforcement authorities should design their parking policies with
particular regard to:
managing the traffic network to ensure expeditious movement of
traffic, (including pedestrians and cyclists), as required under the
TMA Network Management Duty:
12
improving road safety;
improving the local environment;
improving the quality and accessibility of public transport;
meeting the needs of disabled people, some of whom will be unable
to use public transport systems and depend entirely on the use of a
car; and
managing and reconciling the competing demands for kerb space of:
residents;
shops;
businesses;
visitors, especially where there are many tourist attractions and hotels;
pedestrians;
delivery vehicles;
buses, taxis, private hire vehicles and coaches;
cars;
bicycles; and
motorcycles.
12 See the Traffic Management Act 2004, section 16.
Objectives of civil enforcement March 2008

3.4 Authorities should appraise their parking policies, CPE regimes and associated
regulatory framework (including penalty charge levels) when reviewing their Local
Transport Plans (LTP). In London these are known as Local Implementation
Plans (LIP). Authorities that do not have an LTP or LIP should appraise their
parking policies when reviewing their local development framework or community
strategy. They should take account of the information they collect as part of the
parking enforcement process. It is also worth interviewing CEOs, who are in a
unique position to identify changes to parking patterns, as well as office staff
who see the challenges and representations and the reasons behind them.
3.5 Chapter 4 gives advice on appraisal.
CPE financial objectives
3.6 CPE is a means of achieving transport policy objectives. For good governance,
enforcement authorities need to forecast revenue and expenditure in
advance. But raising revenue should not be an objective of CPE, nor
should authorities set targets for revenue or the number of Penalty
Charge Notices (PCNs) they issue.
3.7 The judgement in R v LB Camden (ex parte Cran) made clear that the
Road Traffic Regulation Act 1984 is not a revenue raising Act.
3.8 Enforcement authorities should run their CPE operations (both on- and
off-street
13
) efficiently, effectively and economically. The purpose of
penalty charges is to dissuade motorists from breaking parking restrictions.
The objective of CPE should be for 100 per cent compliance, with no
penalty charges. Parking charges and penalty charges should be
proportionate, so authorities should not set them at unreasonable
levels. Any penalty charge payments received (whether for on-street
or off-street enforcement) must only be used in accordance with
section 55 (as amended) of the Road Traffic Regulation Act 1984.
3.9 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 (see Chapters 12
to 15) 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 Secretary
of State will not expect either national or local taxpayers to meet
any deficit. Any application to the Secretary of State for a scheme that
is not self-financing should be supported by a resolution of the full Council.
13 CPE can only apply to privately owned car parks that are regulated by an order made under the Road
Traffic Regulation Act 1984, section 35 and provided under any letting or arrangements made by a local
authority with some other person (such as a privately-owned company) under section 33(4)
of that Act.
15
Applying for CPE powers in conjunction with neighbouring authorities
may be one way of tackling a potential financial shortfall. But a robust
agreement on cost sharing will be needed if the partnership is to last.
Objectives of civil enforcement March 2008
CHAPTER 4
Appraising, ensuring the
effectiveness of and reporting
on civil parking enforcement
Appraising CPE
4.1 Enforcement authorities should monitor their parking policies, CPE
regimes and associated regulatory framework (including penalty charge
levels). They should appraise them when reviewing their Local Transport
Plans (LTP) (known as Local Implementation Plans LIPs in London)
and make recommendations for improvements to members. If an
authority does not have an LTP/LIP, the appraisal should be part of
the review of the local development framework or community strategy.
4.2 Appraisals should take account of any relevant information that
has been collected as part of the parking enforcement process, in
particular about the practical effectiveness of the scheme. They
will benefit from interviews with CEOs, who are in a unique position
to identify changes to parking patterns, and with office staff, who
see challenges and representations and the reasons for them.
4.3 The Secretary of State recommends that enforcement authorities
consult locally on their parking policies when they appraise them. They
should seek the views of people and businesses with a range of different
parking needs as well as taking into account the views of the police.
4.4 The appraisal should take account of:
existing and predicted levels of demand for parking;
the availability and pricing of on- and off-street parking places;
the justification for, and accuracy of, existing traffic orders;
the adequacy, accuracy and quality of traffic signing and road
markings which restrict or permit parking within or outside a
Controlled Parking Zone;
the level of enforcement necessary for compliance;
the levels of penalty charges;
17
the need to resource the operation effectively and ensure that all
parking staff are appropriately trained; and
impact on traffic flow, i.e. traffic or congestion outcomes.
4.5 The appraisal should ensure that parking policies still apply at the
right place and time. It is particularly important to check that the
policies are properly underpinned by TROs that are valid, up-to-
date and properly indicated with traffic signs and road markings.
A parking contravention is often a breach of a provision of a TRO,
which must have been made under the correct section of the Road
Traffic Regulation Act 1984 (RTRA).
14
Flawed orders, or inadequately
or incorrectly signed orders, may be unenforceable, and can damage both
the aims of CPE and the public perception of how it is managed.
4.6 As part of this appraisal, authorities should make sure that detailed operational
policies remain appropriate. They should also tell the public about any changes
to them.
4.7 As well as the day-to-day management of the in-house staff or contractors
responsible for enforcing civil parking, local authority officers are responsible
for reviewing the effectiveness of their authoritys parking policies as a whole.
Ensuring the effectiveness of CPE
4.8 Enforcement authorities can improve the efficiency and effectiveness
of their CPE regimes by maintaining a regular dialogue and
undertaking joint activity where appropriate with their on-street
contractor (if there is one), the police, neighbouring authorities, the
Driver and Vehicle Licensing Agency (DVLA), the Traffic Enforcement
Centre (TEC) and representatives of road user groups.
4.9 In particular, authorities should maintain good relations with the
police. The police continue to have responsibility for enforcing
endorsable and most types of moving traffic offences, and for
taking action against vehicles where security or other traffic
policing issues are involved. Regular liaison will help to ensure
that civil and criminal enforcement operate effectively. Good
relations between the police and an enforcement authority can
also help in tackling threats and abuse aimed at CEOs.
4.10 It is recommended that enforcement authorities keep
abreast of developments in neighbouring authorities CPE
operations and look into the benefits of consistent, and
possibly collaborative, approaches to enforcement.
14 For complete lists of parking contraventions which are civilly enforceable, see the Traffic Management
Act 2004, Schedule 7, Paragraphs 2, 3 and 4.
Appraising, ensuring the effectiveness of and reporting on civil parking enforcement

March 2008
4.11 Authorities should develop good working relations with the DVLA,
in particular with regards local authorities receiving keeper
information promptly. Authorities should also consider helping the
DVLA track down Vehicle Excise Duty (VED) evaders by notifying
them of any vehicles that are not displaying a valid VED disc.
4.12 As far as possible, the performance of contractors and of
staff should be judged according to how far desired transport
objectives have been achieved. An enforcement authority should
base performance measures and rewards or penalties, wherever
possible, on outcomes rather than outputs. Performance and
rewards/penalties should never be based on the number of PCNs,
immobilisations or removals. Outcome indicators might include
compliance statistics, the number of appeals, the number and
length of contraventions and the localised impact they appear
to have had on road safety and congestion. Incentives could
work towards good customer service. For example, indicators for
immobilisation and removals might be based on the release time
of the vehicle after the owner has paid the appropriate fees.
4.13 When enforcement operations are carried out in house, there
should be a service level agreement (SLA) incorporating the
specification terms and conditions required by the client department
the same as for a contract with an external service provider.
4.14 The Secretary of State recommends that enforcement
authorities use a balanced SLA or model contract, such as
the one developed by the British Parking Association.
15
Reporting
4.15 Reporting is an important part of accountability. The transparency
given by regular and consistent reporting should help the public
understand and accept CPE. Monitoring also provides the authority
with management information for performance evaluation and helps to
identify where it needs to improve its CPE regime. It provides a
framework for performance comparisons between councils. Reports
should include the benefits that any net parking income has helped to pay for.
4.16 Enforcement authorities should produce an annual report about
their enforcement activities within six months of the end of
each financial year. The report should be published and as
a minimum it should cover the financial, statistical and other
data (including any parking or CPE targets) set out below.
15 For further details contact the BPA ref: Parking Model Contract 2005 or go to
http://www.britishparking.co.uk
19
4.17 Enforcement authorities should make annual returns to the
Government about the number and speed of payment of PCNs.
They should also advise the appropriate adjudication service
in a timely fashion how many PCNs they have issued.
4.18 Authorities may want to include information that allows their performance to
be assessed over time and measured against that of comparable authorities.
The Secretary of State recommends that each authority should publish the
report on their website and place copies in civic offices and local libraries.
4.19 There are likely to be benefits to authorities from collecting and comparing
management information on other aspects of civil parking enforcement operations.
These could include the grounds on which representations and appeals are made,
the number of CEOs employed, and the average number of appeals per officer.
4.20 Authorities should also publish a code of practice that their CEOs must follow.
This will need to be handled with care. It may help to pre-empt criticism if the
authority makes the following points:
the authority is committed to delivering good quality public services;
the code of practice is to ensure that high quality parking enforcement is
delivered fairly and in accordance with the law;
parking restrictions are there for good reasons to improve safety, prevent
congestion, ensure a fair distribution of parking spaces, and help reduce
pollution; and
parking restrictions should be enforced efficiently, fairly and with proper regard
to the rights of the motorist.
4.21 Authorities should measure their parking enforcement performance to show that
it is just for traffic management purposes. They might include management
information such as:
cutting the number of vehicles that contravene restrictions and how long they
contravene them for;
reducing public transport journey times across the CEA;
reducing the number and severity of road traffic casualties in the area
of enforcement;
reducing congestion in the area of enforcement;
frequency of CEO patrols, especially where contraventions are high;
percentage of PCNs appealed against;
percentage of successful appeals; and
percentage of vehicles immobilised that are released within a specified time of
the declamping fee being paid; and

March 2008
percentage of representations and other correspondence answered within a
specified time. This target should be the same as, or more stretching than,
other targets that the authority has set for responding to correspondence.
4.22 Authorities could include performance against these targets in their annual
report or publicise it on their website. They might also publicise it periodically
in the local press. They should certainly make it available to anyone who
requests it. When comparable information is available, authorities should
track their performance against similar authorities. If this assessment
is not favourable, they should consider how they might improve.
4.23 Any contract to provide parking enforcement should have sufficient incentives
to achieve the targets set out in the code of practice. However, these should
not involve targets for the number of PCNs issued, or vehicles immobilised
or removed. Contractors should be rewarded for their contribution to
transport objectives safety and network management in particular.
4.24 Key stakeholders, as well as the Secretary of State, would be
pleased to receive a copy of an authoritys annual report.
Parking Annual Reports: possible contents
Financial
Total income and expenditure on the parking account kept under
section 55 of the Road Traffic Regulation Act 1984 as modified by
regulation 25 of the Civil Enforcement of Parking Contraventions
(England) General Regulations 2007 (see paragraphs 4.27 to 4.29 below);
Breakdown of income by source (i.e. on-street parking charges and
penalty charges);
Total surplus or deficit on the parking account;
Action taken with respect to a surplus or deficit on the
parking account;
Details of how any financial surplus has been or is to be spent,
including the benefits that can be expected as a result of such
expenditure.
Statistical
Number of higher level PCNs issued;
Number of lower level PCNs issued;
Number of PCNs paid;
Number of PCNs paid at discount rate;
Number of PCNs against which an informal or formal representation
was made;
Number of PCNs cancelled as a result of an informal or a formal
representation;
21
Number of PCNs written off for other reasons (e.g. CEO error or
driver untraceable);
Number of vehicles immobilised;
Number of vehicles removed.
Performance against targets
Performance against any parking or CPE targets. Authorities should
note the recommendations throughout this Guidance on the areas
where such targets might be appropriate.
Financial reporting
4.25 The income and expenditure of local authorities in connection
with their on-street charging and their on-street and off-street
enforcement activities are governed by section 55 (as amended) of
the Road Traffic Regulation Act 1984. This means that all their
income and expenditure as enforcement authorities (i.e. related to
the issue of and income from PCNs) in respect of off-street parking
places is covered by section 55. London authorities must
16
keep
an account of all income and expenditure in respect of designated
(i.e. on-street) parking places; and their functions (income and
expenditure) as enforcement authorities, within paragraphs 2 and
3 of Schedule 7 to the TMA. English authorities outside London
must
17
keep an account of all income and expenditure in respect of
designated (i.e. on-street) parking places which are not in a Civil
Enforcement Area, income and expenditure in designated (i.e. on-
street) parking spaces which are in a Civil Enforcement Area and
their functions (income and expenditure) as an enforcement authority.
4.26 The Secretary of State has included a provision in the TMA that further amends
section 55 RTRA. This provision affects any local authority that enforces civil
parking. It means that their on-street parking account is no longer limited to
permitted parking income and expenditure. The on-street parking account will
also include income and expenditure for all restricted parking contraventions
within a CEA on-street as well as off-street. Local authorities should be
able to distinguish between income from off-street and on-street penalty
charges, but will need to find a way of allocating costs between the two. The
report should cover all on-street income from and expenditure on parking
activities, including parking meters, pay-and-display machines, residents
parking permits and penalty charge notices. All enforcement authorities
in London must
18
send a copy of the account to the Mayor of
London as soon as reasonably possible after the end of the financial year.
16 See amendments to section 55 Road Traffic Regulation Act 1984 in S.I. 2007/3483, regulation 25
17 S.I. 2007/3483, regulation 25
18 S.I. 2007/3483, regulation 25

March 2008
4.27 Where an authority makes a surplus on its on-street parking
charges and on- street and off-street enforcement activities,
it must
19
use the surplus in accordance with the legislative
restrictions in section 55 (as amended) of the RTRA 1984.
4.28 The Secretary of State recommends that enforcement authorities publish this
account in their annual report.
4.29 Every local authority makes financial returns each year to Communities and
Local Government. These returns include information about parking income
and expenditure.
Returns to Government on enforcement action
4.30 Each year, enforcement authorities should tell the Government how many:
higher level PCNs they issued for parking contraventions;
lower level PCNs they issued for parking contraventions;
PCNs were paid;
PCNs were paid at the discount rate (14 or 21 days as appropriate);
representations (formal and informal) were made against PCNs;
PCNs they cancelled as a result of an informal or a formal representation;
PCNs they wrote off for other reasons (for example, CEO error or
motorist untraceable);
vehicles they immobilised; and
vehicles they removed.
4.31 The figures should cover PCNs issued and vehicles immobilised or removed
in 2007 and subsequent calendar years. The other data should also cover
the period for which the returns are requested, even though the action may
not relate to the PCN, immobilisation or removal activity in that period.
19 S.I. 2007/3483, regulation 25.
23
CHAPTER 5
Consultation and communication
with the public
5.1 Parking policies and their enforcement are complex. They can confuse the
public if they are not explained clearly. People often do not understand why we
need parking restrictions or how they help to keep traffic moving and roads safe.
Consultation and communication are the foundation of a fair and effective
parking policy. They help to ensure that the public understands and respects the
need for enforcement. Consultation should be an ongoing process that takes
place whenever an authority proposes major changes and at regular intervals
after that.
Consultation
5.2 The Secretary of State expects local authorities considering major changes to
their parking policies to consult fully with stakeholders. As a minimum, local
authorities should consult the following groups:
those involved in the implementation and operation of parking, including
the police, neighbouring local authorities, the DVLA and the Traffic
Enforcement Centre;
wider stakeholders with an interest in parking, including businesses, motoring
groups and representative organisations; and
those who will be affected, including residents, motorists and the general
public. Authorities should include socially excluded groups.
5.3 Authorities should consider setting up their own user group for wider
stakeholders such as businesses, representative organisations and the public.
This should comprise representatives of motoring organisations, local residents
and traders, socially excluded groups and others with an interest in parking
policies. This group can be used to test proposals to ensure they meet the
needs of road users.
5.4 Loading and unloading can be a recurrent and difficult problem. Authorities
should work with deliverers, local businesses and residents to tackle problems
at hotspots. They should establish dialogue with deliverers (for example through
Freight Quality Partnerships) and regularly review the delivery environment.
Authorities should have particular regard for the security and health and safety
Consultation and communication with the public March 2008

issues surrounding the handling of high value or bulky consignments. They
should consider how they can best meet the needs of those who handle such
consignments without endangering or inconveniencing other road users.
5.5 Local authorities will need to publicise their consultation document and
make it available in hard copy and on the web. They need to set a deadline
for feedback central government consultations usually allow 12 weeks. In
any broad consultation like this, local authorities will need to show that they
have made every effort to gain representative feedback from stakeholders.
5.6 After the consultation has closed, authorities should provide a public response
which outlines the feedback they received and what they have done to take this
feedback on board.
Communication
5.7 It is important that the public understand why an authority has
introduced CPE and what parking restrictions are in place. Motorists
and other road users need to be aware that parking enforcement
is about supporting wider transport objectives, in particular road
safety and keeping traffic moving, rather than raising revenue.
5.8 It is also important that motorists and other road users understand
the details of the scheme, including the areas covered by CPZs and
enforcement times. Unclear restrictions, or restrictions that do
not comply with regulations or with the Secretary of States
Guidance, will confuse people and ultimately undermine the operation
and enforcement of the scheme overall. Once authorities have
finalised their parking enforcement policies, they should publish
and promote them openly. Communications can never substitute for
clear traffic signs and road markings. But informing the public of what an
authority is trying to achieve through CPE should increase both understanding
and compliance. Advance warning is particularly important where a local
authority proposes introducing immobilisation or vehicle removal operations.
5.9 Enforcement authorities should consider the full range of
media available to them when communicating with the public.
They should consider telling every household in the CEA when
they propose changes e.g. to the operation of a scheme.
5.10 Authorities are likely to get a relatively large number of queries or complaints when
CPE is first introduced and need a comprehensive communication plan. The
Cabinet Office
20
gives guidelines on communication with the public. This covers:
media campaigns on plans for CPE;
email/direct mail to key stakeholders;
20 www.cabinetoffice.gov.uk/regulation/consultation
25
briefing events;
public speaking opportunities;
one-to-one meetings with key organisations; and
public events and engagement opportunities for staff.
5.11 Authorities need to let people know at least four weeks before introducing
CPE, and explain what it will mean in practice and the benefits of the system.
Local authorities may choose to use the following sorts of activity.
Leaflets and posters these are effective as they can reach people where they
make decisions about parking on the street, in car parks, or even when they
have just received a PCN. They can also be distributed through shops, local
councils, parishes and libraries.
Website useful for communicating complex information about parking
enforcement. Material on websites will still need to be available in other formats
so that partially sighted people and those without internet access are not
disadvantaged.
Local press and broadcast media a good way to communicate to a broad
cross-section of the community.
Public forums and other local events a good opportunity to speak to people
face-to-face and to keep them informed about local parking issues.
Paid-for advertising should complement communications activity as part of
an integrated, long-term programme.
Electronic updates developing an e-community of interested stakeholders
makes it easy to keep people informed about parking enforcement. A regular
newsletter coupled with e-updates has worked well for some local authorities.
Direct communications such as phone and e-mail to answer queries correctly
and promptly.
5.12 There should be regular communication after CPE is introduced and
when changes are made.
5.13 Enforcement authorities should try to work regularly with neighbouring
authorities to ensure a consistent approach to communication, across
regions and not just local boundaries, as well as to enforcement.
Content of parking communications
5.14 Authorities should cover the following subjects:
changes to parking enforcement including what people will experience and
how the system will differ (where relevant);
the benefits of CPE and what it will mean for people;
Consultation and communication with the public March 2008

where motorists can park, both on-street and off;
exemptions, waivers and dispensations;
when vehicles might be immobilised or removed;
PCNs and how to avoid getting one do not assume that people know what a
PCN is or that they know all the parking rules;
a succinct summary of the representations and appeals process;
how to pay a PCN, including contact numbers; and
where to get more information.
5.15 Communicate with the public in plain English. Follow the
Plain English Campaigns Crystal Mark guidelines.
21
21 www.plainenglish.co.uk
27
CHAPTER 6
Training and professionalism
in civil parking enforcement
6.1 Once a solid foundation of policies, legitimate TROs, and clear
and lawful signs and lines are in place, the success of CPE will
depend on the dedication and quality of the staff that deliver
it. It is essential to give staff at all levels the skills and training
to do their jobs effectively if the service is to command public
confidence and respect. This should also improve the self-esteem
and job satisfaction of staff, resulting in higher retention rates.
Training should be seen as a legitimate and important aspect of CPE
running costs and training budgets should be protected from cuts.
6.2 The office processes involved in CPE are important and staff carrying
them out need similar levels of skill, training and professionalism
as the more visible on-street enforcement officers. Enforcement
authorities should provide enough staff for the volume of work. They
should also make sure that those staff (whether employed directly
by the authority or by a contractor to deal with informal challenges)
have the skills, training, authority and resources to give the public a
high-quality, professional, efficient, timely and user-friendly service.
6.3 Authorities that outsource any area of parking enforcement to
private companies should ensure that the contractor fulfils all
the requirements set down for the authority itself. The British
Parking Association with the help of the Department for Transport has
produced a model contract for employing civil enforcement contractors.
The Secretary of State recommends that local authorities use this or a
similar document if they contract out their parking enforcement. If their own
staff carry out enforcement, they should use the same sort of performance
and management provisions as those set out in the model contract.
6.4 Authorities should make sure that all Civil Enforcement Officers (CEOs),
back office staff, supervisors and managers are trained to provide accurate,
fair and consistent enforcement. The training needs to take place before
they start work and at regular intervals perhaps every other year during
their career. This requirement applies whether the authority employs
CEOs directly or through a contractor. It is the authoritys responsibility
to ensure that an appropriate training programme is in place.
Training and professionalism in civil parking enforcement March 2008
Back office and management staff
6.5 Authorities can sometimes overlook the importance of good-quality, well-
trained back office and management staff. They are just as important for a fair
and effective CPE regime. All civil enforcement staff should be trained in general
enforcement procedures and any special requirements of the authority. Most,
but not all, aspects of general (or core) training will be relevant to all authorities.
For instance, some authorities may not use parking vouchers or meters.
6.6 In addition, supervisory and managerial staff will need training in:
Government transport policy and objectives;
the role of parking regulations and enforcement;
the legal framework for civil parking enforcement;
applying the authority's published policies;
parking contravention codes and descriptions, and their use;
challenges and representations; and
mitigation.
Civil Enforcement Officers (CEOs)
6.7 CEOs are the public face of CPE and the way they perform their
functions is crucial to the success, and public perception, of an
authoritys CPE operation. Authorities and their service providers should
carefully consider the skills and attributes that CEOs need. They should
set out assessment criteria that will allow them to recruit or contract
suitable personnel.
6.8 CEOs need to be professional and efficient, sometimes in difficult
circumstances. The public needs to see them this way too. CEOs need
firmness, sensitivity and tact coupled with common sense and patience. And
they need to think clearly and react sensibly under pressure. CEOs who lack
these qualities should get appropriate training and development opportunities.
6.9 Under the TMA 2004, enforcement authorities are responsible for considering
any representations against PCNs. Consistently high enforcement standards
should keep the number of representations down. Authorities should make
it clear to CEOs that their job is to enforce the controls fairly with a view to
achieving high levels of compliance. In practice this means that authorities
need to ensure that all CEOs, whether employed or contracted, are:
competent and willing;
supervised effectively; and
properly trained and clearly instructed about their conduct.
29
6.10 CEOs may be required to work near schools and similar sensitive areas
and be seen as a uniformed figure of authority. The Secretary of
State recommends that an applicant for a job as a CEO undergoes
a Criminal Records Bureau check. There should also be regular checks of
CEOs once employed. The enforcement authority can check criminal records itself,
as can another organisation that employs CEOs, or an umbrella organisation, as
long as they meet the conditions of registration. These are that the organisation
is entitled to ask exempted questions under the Rehabilitation of Offenders Act
1974 Exceptions Order 1975, and is a registered body or uses the services of
a registered umbrella body. Further information is on the CRB website.
22
CEO duties
6.11 The main objective of a CEO should be to ensure parking controls
are observed and enforced in a fair, accurate and consistent
manner. CEOs must comply with the national legislation that applies to all
local authority staff, even if they are employed through a contractor.
6.12 The main duties of a CEO on patrol are:
enforcing parking regulations by serving PCNs where vehicles are parked in
contravention of the restrictions. They may complete a PCN by hand or using
a hand-held computer (HHC). A PCN must be fixed to the vehicle or given to
whoever appears to be in charge of it. Besides the information which must be
recorded on the PCN, it is important that CEOs use their HHC or a separate
pocket book to note any other relevant information. This may be needed when
considering representations and appeals. Increasingly, CEOs also record
evidence using a digital camera (See Chapter 8); and
logging all their daily activity in their HHC or pocket book. The log should
record any evidence additional to that on the PCN or entered into the HHC or
their pocket book when a PCN is issued and non-enforcement activities, such
as conversations with members of the public or other CEOs, noting missing
lines or signs, or defective meters or pay-and-display machines.
6.13 CEO duties will also include related activities such as the following:
Helping the public and acting as the first point of contact on minor parking
enquiries and enforcement matters;
Inspecting parking equipment. Checking that parking meters and pay-and-
display machines are working before issuing a PCN. CEOs may be able to fix
minor faults, but if not they should put an out of order notice on the meter or
machine and report the fault. In the case of pay-and-display machines, CEOs
should only issue a PCN if there is an alternative machine in working order
nearby that covers the same parking place;
22 www.crb.gov.uk

Checking and reporting defective traffic signs and road markings.
This includes signs that are obscured, damaged, or deliberately spun round,
and broken or faded road markings. Defective or missing signs or lines may
make the Traffic Regulation Order (TRO) that they indicate unenforceable, in
which case CEOs should not issue a PCN;
Issuing information leaflets or warning notices;
Providing witness statements for the line manager when reporting that they
were unable to serve a PCN because they were obstructed, threatened with
violence or the vehicle was driven away;
Providing witness statements for a parking adjudicator when deciding on
a written appeal from a motorist. These should only be needed in exceptional
circumstances;
Where appropriate, appearing before a parking adjudicator. This is
not expected to be a normal or frequent part of the duties of an effective CEO.
Authorities need to consider whether a CEO who regularly issues PCNs that are
appealed against needs to improve his or her performance;
Recommending priority cases for immobilisation or removal of vehicles, in
accordance with priority ranking and local policies. However, another civil
enforcement officer who has received extra training should actually authorise
the immobilisation or removal (see Chapter 8); and
Reporting suspected Blue Badge abuse.
6.14 The TMA encourages authorities to take a comprehensive approach to traffic
management and use parking policies and their enforcement as part of this
rather than an isolated activity. Any parking attendant appointed under section
63A of the Road Traffic Regulation Act 1984 by an enforcement authority
becomes a CEO in relation to parking contraventions. They may be appointed
a CEO in relation to other road traffic contraventions for which they are the
enforcement authority
23
. The TMA does not repeal section 63A. section 63A
provides that parking attendants (now CEOs) shall also have such other
functions in relation to stationary vehicles as may be conferred by or under any
other enactment. The Secretary of States view is that CEOs should only be
used for duties related to those road traffic contraventions that their authority
is responsible for enforcing. If CEOs have time, the authority may wish
to consider asking them to carry out tasks such as the following:
informing the police of criminal parking activity;
reporting suspected abandoned vehicles;
reporting vehicles with no valid tax disc to the DVLA;
putting in place and removing notices about the suspension of
parking places;
checking that shops selling parking vouchers have adequate stocks;
23 TMA, section 76(5)
31
reporting on changes in parking patterns;
assisting with on-street enforcement surveys; and
checking that non-mobile objects in parking places (for example,
skips) are in compliance with the authoritys licence.
6.15 It is important that these supplementary duties do not
stop CEOs carrying out their principal duties and that the
authority complies with the restrictions on the use of parking
income set out in section 55 (as amended) of the RTRA.
24
Discretion
6.16 The Secretary of State considers that the exercise of discretion
should, in the main, rest with back office staff as part of considering
challenges against PCNs and representations against a Notice to Owner
NtOs. This is to protect CEOs from allegations of inconsistency,
favouritism or suspicion of bribery. It also gives greater consistency in
the enforcement of traffic regulations.
6.17 However, the enforcement authority may wish to set out certain
situations when a CEO should not issue a PCN. For example,
an enforcement authority may wish to consider issuing a verbal
warning rather than a PCN to a driver who has committed a
minor contravention and is still with, or returns to, the vehicle
before a PCN has been served. The enforcement authority
should have clear policies, instructions and training for CEOs
on how to exercise such authority. These policies should form
the basis for staff training and should be published.
Training
6.18 Authorities should recognise the importance of their role in ensuring that their
contractor recruits suitable personnel and gives them the appropriate training,
equipment, guidance and supervision.
6.19 Enforcement authorities should ensure that CEOs are properly trained
to enforce parking controls fairly, accurately and consistently. As
well as formal training, it is recommended that authorities include
some supervised on-street training to familiarise CEOs with the
area and any special parking provisions. Enforcement authorities
should make sure that CEOs understand all relevant exemptions,
such as those applying to diplomatic vehicles and the Blue Badges
issued to disabled people. CEOs should be aware of their powers
24 lS.I.2007/ 3483, regulations 25 and 26

to inspect Blue Badges
25
and the sensitivity required should they
need to exercise them. It is recommended that all CEOs achieve
minimum standards through recognised training courses.
6.20 There are formal qualifications for CEOs. The national qualifications for CEOs are
the S/NVQ in parking control and the City and Guilds Level 2 Certificate for Civil
Enforcement Officers (Parking).
26
It is recommended that CEOs hold the level 2
nationally accredited qualification. This is listed on the national qualification
framework (or future equivalents) and cross-referenced to the national
occupational standard in parking control.
6.21 Authorities should ensure that training equips CEOs with the interpersonal,
conflict resolution and oral communication skills they need to perform
their jobs effectively and without undue stress or personal danger. They
should have regular refresher training. Training may be based on existing
qualifications or similar ones, but authorities should always supplement
these with further training relevant to local needs and policies.
6.22 General training for CEOs should cover issues that all the staff and contractors of
the authority need to know, plus:
introduction to the role and duties of CEOs;
understanding the legal foundation and objectives of CPE;
how the system works in practice;
types of permitted and restricted parking;
the role of the police and the parking offences that remain their
sole responsibility;
types of civil parking contraventions;
the PCN, including the information it must contain, standard contravention
codes and optional suffixes and additional details for use by the authority if a
penalty charge is disputed;
the difference between higher and lower level PCN contraventions;
waivers, exemptions and dispensations;
exemptions for vehicles displaying a Blue Badge, how the Blue Badge scheme
works, the reciprocal arrangements for disabled drivers from outside the
United Kingdom, and an awareness of the problems faced by disabled people;
provisions on loading and unloading;
provisions on picking up and setting down;
the vehicle registration system, including foreign and diplomatic registrations;
25 Department for Transport: Guidance on the inspection and enforcement of Blue Badges for police,
traffic wardens, local authority parking attendants, civil enforcement officers and issuing local authorities.
26 Details at www.city-and-guilds.co.uk
33
use of pocket books, including use of standard characters and how to deal
with erasures, lost pages, crossings out, etc;
use of hand-held computers, including daily test routines, recording data
accurately and rectifying common faults;
use of PCN printing equipment, whether integrated with the HHC or a separate
unit, including changing paper and batteries and minor maintenance on a shift;
use of digital cameras, whether integrated with the HHC or separate units, and
how to take digital pictures that are relevant and good enough to be used as
supporting evidence;
use of communication devices and the phonetic alphabet;
requirements concerning uniforms;
PCNs not served because of violence, threat of violence, obstruction or
drive-aways;
use of verbal warnings;
patrol methods, including both general principles and specific advice on
enforcing different types of parking control (such as loading only restrictions,
permitted parking at parking meters);
dealing with the general public, including conflict management and
aggressive motorists;
emergency procedures, including CEO responsibilities, use of communication
devices, and personal security;
the need to operate within the law and, in particular, not to break traffic
regulations whilst enforcing them;
the adjudication service, including the preparation of witness statements; and
on-street practice of techniques.
6.23 CEOs will also need training in the procedures drawn up by their employing
authority, including:
discretionary exemptions, waivers and dispensations (see Chapter 9);
other special exemptions, for example any period of grace between permitted
parking time elapsing and issue of a PCN;
observation periods;
'mitigating circumstances' and other matters which require CEOs to use
their judgement;
liaising with other parts of the enforcement operation, such as immobilisation
or removal teams, or the PCN processing unit;
liaising with the police and traffic wardens to deal with illegally parked vehicles;
complaints by members of the public; and

other aspects of enforcement specific to the authority, such as type of HHC
used, standards expected of CEOs, and type of voucher, parking meter and
pay-and-display machine used.
6.24 CEOs will need further training if they work for an authority that operates a
vehicle immobilisation or removal service, as will the vehicle immobilisation and
removal staff themselves (see below). This should deal with the criteria and
procedures that a CEO should apply when recommending vehicles for
immobilisation or removal. Senior enforcement officers or other selected CEOs
who will authorise immobilisation or removals will need extra training. You can
find advice on the procedures for recommending and authorising immobilisation
or removal in Chapter 8.
6.25 Organisations representing disabled people, freight hauliers and motorists
may be happy to contribute to sections of a course in which they have a
special interest.
Probation
6.26 Following training, CEOs should serve a probationary period of at least four
weeks, during which they should be closely supervised. CEOs should not patrol
unaccompanied until they have been assessed as competent to do so to the
authoritys satisfaction.
Camera operators
6.27 Where enforcement is based on CCTV surveillance, authorities should
make sure that operators have specialised training. Current guidance is for
operators to achieve the BTEC qualification. You can find further advice in
the Code of Practice for Operation of CCTV Enforcement Cameras
27
and
A code of practice for bus lane camera enforcement using attended CCTV
equipment for approved English Local Authorities Outside London.
28
Immobilisation and removal teams
6.28 Members of immobilisation and/or removal teams should be fully trained in legal
requirements, public relations and the need to advise vehicle owners of their right
to make representations and appeals.
6.29 The Home Office set up the Security Industry Association (SIA) under
the Private Security Industry Act 2001. The SIA regulates the private
security industry in England and Wales. It licenses vehicle immobilisers
who carry out their activities on private land against a release fee. If an
27 Available at www.londoncouncils.gov.uk
28 Available at http://www.manchester.gov.uk/site/scripts/download_info.php?fileID=4429
35
authority uses a firm that also works on private land, they should make
sure that all of the companys operatives hold licences. You can find the
SIA guidance for vehicle immobilisers on private land at annex G.
6.30 Vehicle owners may be unsure whether the firm that has immobilised or removed
their vehicle is working on private or local authority-owned land, or on the public
highway. The confusion is likely to be greatest on private roads. Enforcement
authorities may wish to require their immobilisation or removal teams to wear
uniforms that clearly identify the authority on whose behalf they are working and
which also carry a personal identification number. Authorities may consider using
liveried vans and (if used) immobilisation devices to avoid confusion with
operators on private land.
CHAPTER 7
Choice and certification of devices
for camera enforcement
7.1 Devices used to enforce parking contraventions must
29
be certified by the
Secretary of State. Devices used for enforcement in London before 31 March
2008 may be used for a transitional period of 12 months until 30 March 2009.
After that, they too must either be certified by the Secretary of State or replaced.
The Vehicle Certification Agency
30
(VCA) certifies devices on behalf of the
Secretary of State.
Devices certified by the Secretary of State
7.2 All devices used to enforce parking restrictions have to meet the requirements of
paragraphs 2 to 6 of the Schedule of SI 2007/3486. These apply to fully automatic
systems and those that need a CCTV operator.
7.3 A device may be designed and produced by one manufacturer. Alternatively, it
may be specified by a system designer and incorporate sub-systems and/or
equipment produced by one or more manufacturer.
7.4 You can find detailed information about how the legal requirements will be assessed,
and how to apply for certification in Civil Traffic Enforcement Certification of
Approved Devices.
31
This includes guidance on the choice and operation of
suitable equipment. You can get further advice about the procedure from:
Vehicle Certification Agency
1 The Eastgate Office Centre
Eastgate Road
Bristol
BS5 6XX
01179 515151
www.vca.gov.uk
29 S.I. 2007/3486
30 VCA is an executive agency of the Department for Transport. It is the United Kingdoms national
approval authority for new road vehicles, agricultural tractors and off-road vehicles.
31 http://www.dft.gov.uk/pgr/roads/tpm/tmaportal/tmafeatures/tmapart6/certapproveddevices.pdf
37
Procedures for operating parking
enforcement systems
7.5 Each enforcement authority must have procedures in place to preserve the
integrity of evidence from CCTV cameras and handle and store it securely.
The procedures should satisfy the community over the competence
and honesty of the system and its operators. They should also reassure
the community over the privacy of private areas and domestic buildings
and comply with the requirements of the Data Protection Act 1998.
7.6 The organisation London Councils has produced a code of practice covering
the operation of CCTV cameras, to ensure consistency of enforcement across
London. Elements of this code could act as a guide to authorities outside
London. You can get copies of this code of practice from London Councils.
32
7.7 You can get advice on the requirements of the Data Protection Act 1998 and
any subsequent amendments from the Information Commissioners website.
33
7.8 The CCTV User Group
34
also provides members with general advice and model
documents on the use of all types of CCTV systems. These model documents
include CCTV User Group Code of Practice and Model Procedures Manual.
7.9 Authorities should develop procedures for operating all parking enforcement
systems in consultation with the manufacturer(s).
32 www.londoncouncils.gov.uk
33 www.informationcommissioner.gov.uk
34 www.cctvusergroup.com
Choice and certification of devices for camera enforcement March 2008
CHAPTER 8
Enforcement
8.1 The public and the press are likely to judge parking enforcement by how it is
carried out on the streets and in car parks. It is, therefore, important that authorities
enable CEOs to do their job properly by giving them the right training (Chapter 6)
and up-to-date equipment.
Civil Enforcement Officers handbook
8.2 The local authority should produce a handbook for CEOs. This should be based
on the training given to CEOs and could be used both as part of that training and
as a guide to procedures for officers on duty. The handbook should explain the
different types of parking contravention. Many authorities that already have civil
parking enforcement powers, and service providers, have handbooks which can
be used as a model.
8.3 An authority could prepare a handbook alongside the specification for tenderers
wishing to provide CEO services. Alternatively, an authority could require the
contractor to provide a suitable handbook. The authority should check that the
instructions in any handbook produced by a contractor comply with the law and
this Guidance.
Uniforms
8.4 When exercising prescribed functions
35
a CEO must
36
wear a uniform.
The uniform should be readily distinguishable from those worn by the police
and traffic wardens, and clearly show:
that the wearer is engaged in parking enforcement;
the name of the local authority/authorities of whose behalf s/he is
acting; and
a personal identity number.
8.5 The specified functions to which the requirement to wear a uniform applies
are the issuing of PCNs on the street and authorising or carrying out the
immobilisation or removal of vehicles within a CEA. Where someone acting
under the direction of a CEO actually immobilises or removes the vehicle, that
person is not obliged to wear a uniform in compliance with this Guidance.
35 TMA, section 78(2)(a) and (b) and section 79, and Road Traffic Regulation Act 1984, section 99
36 TMA, section 76(3)(a)
39
However, if an authority carries out immobilisations or removals, it may wish
to ensure that the operatives wear uniforms that show clearly a personal
identity number and the enforcement authority.
37
This should help prevent
confusion with operatives working on private land, for the police or for DVLA.
8.6 If appropriate headgear, such as a hat, is part of the uniform, the civil enforcement
officer should wear it at all reasonable times, unless unable to do so for religious
reasons. It may be sensible to make headgear optional in certain circumstances
so that a PCN is valid even if issued by a CEO not wearing a hat.
8.7 It is recommended that CEOs carry a photo-identity card, showing
their identification number and the name of their employer. However,
to protect the safety of staff, it is strongly recommended that
the photo-identity card does not include the CEOs name on it.
8.8 Staff working in CCTV control rooms do not have to wear uniforms, but an
authority may prefer them to.
Equipment
Hand-held computers
8.9 The Secretary of State recommends that CEOs use a hand-held computer
(HCC) to issue PCNs. However, to ensure business continuity, they should still
be able to write them by hand if necessary. The advantages of HHCs over
handwritten PCNs are:
they can transfer information quickly and cheaply to other computers for
further processing or storage;
PCNs do not have to be cancelled because of illegible handwriting;
they can be programmed to correct common mistakes such as inputting the
wrong contravention code, street name or officer identification number;
additional information such as details of a conversation with a driver
can be typed into the HHC, making it easily available when considering
representations and appeals;
details of vehicles used by persistent evaders or non-payers, or vehicles with
invalid permits, can be downloaded from a central database to HHCs at the
start of each shift;
some HHCs can list repeat contraveners or non-payers who frequently park in
particular streets;
information about the number and location of different parking contraventions
and the performance of different CEOs can be collected quickly and cheaply.
Analysis of this information should help make on-street enforcement more
efficient; and
37 S.I. 2007/3485
Enforcement March 2008

some HHCs transmit information directly between CEOs and their base,
eliminating the need for a separate radio.
8.10 Authorities should choose an HHC that can transmit and receive data readily
to and from other systems used elsewhere in the enforcement process
including, where necessary, systems used by other enforcement authorities.
8.11 The CEO or a manager should check the internal clock in HCCs at least daily to
ensure accuracy. They should synchronise them with the clocks on pay-and-
display machines.
8.12 If a CEO needs to test an HHC before preparing a PCN, they should be
careful which vehicle registration number they input. The test could access
a live record held by DVLA, and a PCN could accidentally be issued to an
innocent motorist. Personal data from DVLA records must be used for fair
and lawful purposes and its use for anything other than an actual parking
contravention could break data protection rules. They should not use ABC
123, as this is an actual registration number. Authorities should test HHCs
using the registration number of a vehicle whose owner works in the parking
department and who knows what to do if the test PCN is not deleted.
8.13 HHCs vary significantly in price and performance, depending on the quality
and sophistication of the software. An authority planning to buy or lease HHCs
needs to consider the purchase or hire costs, plus maintenance and the cost of
consumables such as ribbons and paper rolls. The most important consideration
is that the HHC should have enough memory to include the authority's street
index and any databases used for enforcement purposes. It is also important
to check that the batteries will last for the length of an entire beat or patrol.
Mobile communications
8.14 An authority or contractor will have greater control over the movement of
CEOs if they are issued with mobile phones or radios. This means that, for
example, complaints from the public can be dealt with quickly. CEOs will also
be able to contact senior staff for advice, or request help (for example, if they
are being threatened). A mobile phone will allow CEOs to tell the police about
criminal parking offences, or request a police presence. Direct communication
between CEOs and the despatch controller is highly desirable if not
essential where a vehicle is to be immobilised or removed (see below).
Digital cameras
8.15 Photographs from digital cameras help reduce the potential for disputes
about facts. They reduce the likelihood of an appeal and if an appeal is held,
they improve the speed and quality of justice. They are particularly useful in
cases where, for example, a vehicle is not parked correctly within a bay or one
or more of its wheels contravenes a parking order. They can also be useful
to rebut claims that a PCN was not attached to a vehicle. However, digital
photographs are not necessary to prove that a contravention took place.
41
8.16 Given the greater cost and inconvenience of removal, the Secretary of
State recommends that all vehicles are photographed before they are
moved, so that any later dispute about their position or condition can be
resolved. Authorities operating vehicle removals should consider issuing
digital cameras to CEOs authorising removals, or to removal operatives.
8.17 Digital images need to be good quality, clearly display the nature of the
contravention and the surrounding environment and show the date and
time stamps.
Suspensions
8.18 Civil enforcement officers on enforcement duty sometimes have to suspend
parking bays, meters and the like. They need a minimum amount of
standard equipment to do this. All cones, tape, bags for meters or pay-
and-display signs, and cover over signs for bay signs should clearly
identify the enforcement authority and, if appropriate, the contractor.
Transport for Civil Enforcement Officers
8.19 CEOs may spend some of their time walking to and from their beats. Local
traffic conditions will determine whether this lost time can be reduced by
providing them with transport.
The penalty charge
8.20 The penalty charge is usually payable by the owner of the vehicle, except
if the vehicle was hired at the time of the contravention. The legislation
gives the owner the right to make a representation against the Notice to
Owner. They also have the right to appeal to an independent adjudicator
if dissatisfied with the authoritys decision to reject a representation. If an
owner has not made a representation or appeal, or they have made one
but it was rejected, and they have still not paid the PCN, the authority
may issue a Charge Certificate. This means that the penalty charge is
recoverable through the Traffic Enforcement Centre as a civil debt due
to the authority. This is enforceable through a streamlined version of the
normal civil debt recovery process. See also Chapters 10 and 11.
8.21 Although London enforcement authorities set the levels of penalty
charges applicable in Greater London, the Mayor of London has to
approve them. The Secretary of State has reserve power to object if s/
he considers that some or all of the charge levels are excessive. The
Mayor also determines how the levels of charges should be published
by Transport for London and the London local authorities.
8.22 Each enforcement authority outside London must
38
set its own level of
penalty charges. The level of those charges must
39
follow the guidelines
set out in the Schedule to the Guidelines on Levels of Charges Order.
40

When authorities outside London change the levels of their penalty
charges they must
41
publish these new charges in at least one local
newspaper 14 days or more before the new charges come into effect.
Differential penalty charges
8.23 The Secretary of State and the Mayor of London have agreed that authorities
must set two levels of penalty charges with the higher level applying to the more
serious contraventions. Differential penalty charges were introduced in London in
July 2007 and outside London on 31 March 2008. Parking in a place where
it is always prohibited (such as on a red route, on double yellow lines,
or in a disabled bay without displaying a valid badge) is considered
more serious than overstaying where parking is permitted (e.g. in a
parking place). There is a perceived unfairness of receiving the same
penalty regardless of the seriousness of the contravention. For this
reason, and in order to emphasise the traffic management purposes of
CPE, enforcement authorities must
42
apply different parking penalties
to different contraventions. Outside Greater London, the current
three-band system has been reduced to two, and the higher and
lower penalty charges in these bands are specified in the Guidelines
Order.
43
The full lists of contravention codes is set out by the London
Councils and reproduced in Annex C. The higher list is specified in the
Guidelines Order.
44
This Order will be varied from time to time and
enforcement authorities should check with the London Councils and on
the DfT website that they are using the most up-to-date version.
Table 8.1: PCN levels outside London from 31 March 2008
Band Higher level penalty charge Lower level penalty charge
1 60 40
2 70 50
38 TMA, Schedule 9, paragraph 7
39 TMA, Paragraph 8
40 S.I. 2007/3484
41 TMA, Schedule 9, Paragraph 9
42 S.I. 2007/3487.
43 S.I. 2007/3487, Schedule
44 S.I. 2007/3487, Annex of the Schedule
43
Table 8.2: PCN levels In London

from July 2007
Band Higher level penalty charge Lower level penalty charge
A 120 80
B 100 60
C 80 40
8.24 The Secretary of State will review the bands of penalty and other charges
from time to time and will consult interested parties. Authorities outside
London will be told when the Secretary of State changes the bands and
levels outside London. Up-to-date figures will be published on the DfT
website. When new penalty charge levels are introduced, authorities need
to advise the public at least 14 days before they come into force.
8.25 A joint committee of all the local authorities reviews the levels of penalty
charges in London. Transport for London reviews the levels of charges on
roads for which the Greater London Authority (GLA) is responsible. Any
proposed changes are subject to the approval of the Mayor of London
and may not be introduced if the Secretary of State has objected. You can
find up-to-date figures on the levels of penalty charges in London on the
London Councils website in the Parking Enforcement Explained section.
The Penalty Charge Notice (PCN)
Ensuring each PCN has a unique number
8.26 All Penalty Charge Notice (PCN) numbers should be unique and must have
10 characters.
8.27 The first two characters of each number should be unique to a particular
authority. An authority seeking CPE power should contact the manager
of the Traffic Enforcement Centre (TEC), Northampton County Court at
an early stage to request a prefix that has not already been allocated (see
Chapter 10 for the Centres address and a description of its role).
8.28 The next seven digits uniquely identify the PCN within the authoritys area. This
means that each authority can have up to 9,999,999 numbers before having to
start again.
8.29 The final character of each PCN number will be a check digit. This is designed
to validate the PCN number (for example, by detecting typing errors when
numbers are being processed). The Traffic Enforcement Centre can advise
on the formula to use for calculating the check digit. No PCN number should
ever be reused without the prior consent of the Traffic Enforcement Centre.
Standard contraventions and associated code numbers
8.30 There is a single, nationwide list of contraventions and associated code numbers
and suffixes. This enables statistics on the operation of the powers in different
authority areas to be collected consistently. It also makes the system easier for
motorists who commit contraventions in more than one area to understand, and
should help authorities using common systems to co-operate. A parking
adjudicator dealing with cases from two or more authorities will find it easier
to interpret the standard contravention descriptions and codes.
8.31 The standard contravention codes are numbers (01, 02, and so on). Gaps
have been left at the end of each category so that further contraventions
can be added. Authorities can add optional suffixes (b, d, p, etc.) to clarify
the contravention, depending, for example, on the types of parking bays
it uses. The Traffic Enforcement Centre des not see optional suffixes.
8.32 The driver should be able to read the PCN and understand why it was issued.
The code on its own is not enough.
8.33 The contravention codes are now divided into two lists. One sets out the codes
of contraventions to which the higher level penalty charge applies and the other
sets out the contraventions to which the lower level penalty charge applies.
8.34 The Secretary of State expects all applications for designation orders to
confirm that the enforcement authority will use the standard contravention
code list issued by the London Councils. This is revised from time to time
and available on their website. All authorities operating CPE will be told of
any changes or additions, as long as they have given London Councils their
contact details.
45
Authorities need to make sure that they keep London Councils
up-to-date with their contact details. Authorities should exclude from their
list any codes that are not relevant to their area (for example, because they
have no free parking bays, or a particular contravention is not covered by any
order in the authoritys area). They should not change the code numbers.
Other points about the Penalty Charge Notice
8.35 Authorities should not issue PCNs when traffic signs or road markings are
incorrect, missing or not in accordance with the TRO. These circumstances
may make the Order unenforceable. If a representation against a PCN shows
that a traffic sign or road marking was defective, the authority should accept
the representation because the adjudicator is likely to uphold any appeal.
An enforcement authority may be acting unlawfully and may damage its
reputation if it continues to issue PCNs that it knows to be unenforceable.
45 parking@londoncouncils.gov.uk
45
Collecting evidence of the contravention
8.36 The local authority must
46
provide evidence of the contravention
either from a CEOs direct observation, or from the record of an
approved device.
47
Service of the PCN at the time of the contravention
8.37 The PCN must
48
either be fixed to the vehicle or given to the person
who appears to be in charge of that vehicle, although there are
three exceptions to this
49
(see paragraph 8.63 below). The CEO should
be clearly visible at all times when issuing a PCN. If an authority serves a
PCN by post because the CEO was threatened or the vehicle owner drove
away (see below), they will need to ensure that their standard procedures
enable them to refute allegations that the CEO was not clearly visible.
8.38 The vehicle owners copy of the PCN should be fixed to the windscreen, so
it must be weatherproof or able to fit a weatherproof envelope. It should be
fixed in such a way that it cannot easily be removed by wind or passers-by.
8.39 Hand-held computers can transfer details of PCNs electronically to a central
database. This system should prevent any changes to the data once the PCN
is issued. A second printed copy can be produced automatically at any time,
so the CEO does not need to produce one when serving the PCN. Details
recorded this way are admissible in proceedings before an adjudicator, but
need to be a copy of the original in the sense of reproducing all of the text
exactly. If the PCN is written by hand, the CEO needs to produce two copies.
One is served and the other kept by the authority for monitoring payment and
dealing with representations, including any which go before an adjudicator.
8.40 A PCN served on the vehicle or to the person who appears to be in charge of
the vehicle (a regulation 9 PCN) must contain
50
the following information:
the date on which the notice is served;
the name of the enforcement authority;
the registration mark of the vehicle involved in the alleged contravention (that
is, the number plate);
the date and time at which the alleged contravention occurred;
the grounds on which the CEO serving the notice believes that a penalty
charge is payable;
46 S.I. 2007/3483, regulation 6
47 A device specified in S.I. 2007/3486
48 S.I. 2007/3483, regulation 9
49 S.I. 2007/3483.regulation 10(1)
50 S.I. 2007/3483, Schedule, Paragraphs 1, and S.I. 2007/3482 , regulation 3(2)

the amount of the penalty charge;
The manner in which the penalty charge must be paid;
that the penalty charge must be paid not later than the last day of the period
of 28 days beginning with the date on which the PCN was served;
that if the penalty charge is paid not later than the last day of the period of 14
days beginning with the date on which the notice is served, the penalty charge
will be reduced by the amount of any applicable discount currently 50 per cent;
that if the penalty charge is not paid before the end of the period of 28 days
beginning with the date on which the PCN was served, a notice to owner
(NtO) may be served by the enforcement authority on the owner of the vehicle;
that a person on whom an NtO is served will be entitled to make representations
to the enforcement authority against the penalty charge and may appeal to an
adjudicator if those representations are rejected;
that, if representations against the penalty charge are received at such
address as may be specified for the purposes before an NtO is served:
those representations will be considered;
but that, if an NtO is served not withstanding those representations,
representations against the penalty charge must be in the form and manner
and at the time specified in the NtO.
8.41 It is recommended that the PCN also gives:
observation start and finish times (where appropriate);
CEOs identification number;
the vehicles tax disc number and expiry date (give reason if not recorded);
amount of penalty time (when relevant); and
serial number and expiry time of pay-and-display ticket or voucher (when relevant).
8.42 Permitted parking places can be identified on the PCN by meter number, parking
place or bay number or the name of the car park. Describing the location in
terms of street name only is unlikely to be enough if there is permitted and
prohibited parking along it. The location should be clearly and unambiguously
described using the HHC.
8.43 Photographs and notes by the CEO about the circumstances should be
kept as further evidence that the contravention took place and to help
resolve any disputes. Authorities should provide CEOs with the
appropriate equipment, training and guidance to collect such evidence
in the circumstances that the authority has prescribed. The use of
47
digital cameras and similar technology is strongly encouraged.
Authorities should disclose their evidence at the earliest
possible opportunity.
8.44 The CEO should record any additional information on their copy of the PCN
or on the HHC. This allows the authority to make validation checks, resolve
disputes, evaluate representations and respond to appeals. Annex D sets
out the sort of additional information that it may be prudent to note.
8.45 A vehicle may be parked in contravention of more than one restriction. For
example, it may be parked partly on a yellow line and partly in a marked bay with
an inadequate parking ticket. In these circumstances the CEO should issue only
one PCN. CEOs should be instructed on which contravention takes precedence.
8.46 If two or more PCNs are issued within 24 hours for the same contravention,
that is, to a vehicle that has not been moved, it is current practice to cancel
the second PCN. It may be sensible to review both PCNs and cancel the one
with the least robust evidence. For instance, if the digital photograph for one
was taken in the daytime and the other at night, the one taken in the light may
well be clearer. If one PCN is at the higher rate and the other at the lower rate,
the lower rate PCN should normally be considered first for cancellation.
8.47 It is important to put relevant information on the PCNs payment slip so that
payment is assigned to the correct case. This should include the PCN number
and the vehicle registration mark, plus other identifiers such as the date and time
of issue, or a barcode that contains that same information. It is recommended
that the payment slip states the amount of the penalty charge, so that even if
it becomes detached from the notice, the recipient knows how much is due.
Observation periods
8.48 CEOs need to observe a vehicle for a time to ascertain whether certain
contraventions are taking place. How long depends on the type of contravention.
Authorities need to set these observation periods and make sure that their
CEOs follow them. In the interests of open government, authorities may wish to
publish the observation periods. Neighbouring authorities covering a continuous
urban area should consider setting the same observation periods, as drivers
may not know exactly where one local authority area ends and another starts.
8.49 There are two types of observation: casual and continuous. For casual observation,
the standard procedure is for the CEO to note vehicle details when they first see
a possible contravention taking place and to return a short while later or at
intervals to see whether there is any sign of loading or unloading. If not, the CEO
will issue a PCN.
8.50 For continuous observation, the standard procedure is for the CEO to
note the vehicle details when they first see a possible contravention
taking place and stay next to or near the vehicle, keeping it in sight at
all times, for a set period (usually at least five minutes) to see if there is
any sign of loading or unloading. If not, the CEO will issue a PCN.
8.51 A period of continuous observation, without any sign of the activity, provides
better evidence that loading or unloading was not taking place. However it
should not be considered conclusive proof, even after a relatively long
observation period, as there are circumstances which could prevent the CEO
from seeing the loading or unloading. Casual observation allows the CEO more
freedom of movement and lets them cover a larger area, which may be more
useful at busy times.
8.52 An observation period is not a grace period. A grace period is a period of time
where a contravention is taking place but the authority chooses not to enforce.
Loading and unloading
8.53 Parking restrictions vary from area to area and so visitors may not be familiar
with them. This is why it is important for traffic signs and road markings to
indicate the restrictions clearly. Delivery drivers may be among those who are
genuinely unfamiliar with the restrictions. They may also fail to comply with
restrictions that they think do not take account of what they see as their
legitimate need to load and unload. This does not justify committing a contravention,
but authorities should include local businesses and representatives of logistics
companies in their consultations and, as far as possible, consider their needs
when developing parking and enforcement policies. They should also establish
regular dialogue with deliverers (for example through Freight Quality Partnerships).
8.54 Authorities should ask applicants seeking planning permission for new commercial
developments or, where appropriate, changes to or within commercial use, to
provide adequate loading and unloading facilities. This should help cut the
number of parking contraventions.
8.55 The rules for loading and unloading differ from those for other parking activities.
Traffic orders that restrict or prohibit waiting in a street usually exempt the
loading or unloading of goods. The precise nature of such an exemption will
depend on the terms of the order. Some authorities designate on-street parking
places just for loading. Where waiting for the purpose of loading is prohibited or
restricted, the traffic signs and road markings must show the extent of the
prohibition or restriction.
8.56 Loading or unloading must be continuous while the vehicle is parked in
restricted areas. It is therefore important to clarify to CEOs that loading or
unloading includes taking goods to where the recipient may reasonably
be taken to require them in the premises, waiting for them to be checked,
getting delivery or collection documents signed and returning to the vehicle.
Delivery staff are expected to secure their vehicle when they are not with it
49
and a vehicle can legitimately be locked during some of these stages. Once
the delivery process is complete, however, the driver must move the vehicle
even if it is within the maximum period allowed for loading or unloading.
Double parking and parking at dropped footways etc
8.57 The TMA enables authorities with CPE power to enforce in a Special
51
52
and
parking at dropped footways
53
as if they had been introduced using a
Traffic Regulation Order (Traffic Management Order in London). Any
Special Parking Area that existed before commencement of the TMA
2004 automatically becomes an SEA
54
but authorities should ensure
that the public are aware of the new restrictions before starting
enforcement. In most authorities the area covered by their SPA was the same
as their PPA, and so the area of the SPA will be the same as their CEA.
8.58 There are various exceptions to the prohibitions, set out in the TMA. Principally
they cover:
vehicles parked wholly within a designated parking place or any other part of
the carriageway where parking is specifically authorised;
vehicles used by the fire, ambulance or police services; and
loading and unloading.
8.59 The provisions in the Act mean that an authority can introduce such a prohibition
without a TRO/TMO, but that outside London traffic signs or road markings must
show where the prohibitions apply. Many such prohibitions are already indicated
for instance, at street corners. Authorities can get guidance on appropriate
indicators from the Signs Branch in DfT. Restrictions on the situations in which
an authority can use these powers means that they may be more suitable for
tackling persistent problems than occasional ones. An authority that decides to
use the power should publicise when they will or will not do so before using it.
Double parking
8.60 The contravention of double parking applies when a vehicle parks on any
part of the carriageway and no part of the vehicle is within 50 cm of the
edge of the carriageway, subject to the exemptions in part 6 of the TMA.
Parking alongside dropped footways etc
8.61 The Highway Code advises drivers DO NOT stop or park where the kerb
has been lowered to help wheelchair users and powered mobility vehicles, in
front of an entrance to a property or where you would obstruct cyclists use
51 TMA, Schedule 10.
52 TMA, section 85.
53 TMA, section 86.
54 TMA, Schedule 10, paragraphs 1(5) and 3(5).

of cycle facilities ... except when forced to do so by stationary traffic. The
contravention of parking adjacent to a dropped footway applies where a vehicle
parks on the carriageway next to a place where the footway, cycle track or verge
has been lowered to the level of the carriageway (or where the carriageway
has been raised to the level of the footway, cycle track or verge) to assist:
pedestrians crossing the carriageway;
cyclists entering or leaving the carriageway; or
vehicles entering or leaving the carriageway across the footway, cycle track
or verge.
8.62 The contravention does not apply to specified exemptions, such as the
emergency services, alighting, unloading, building works, road works, and the
like. Nor does it apply where a vehicle is parked outside residential premises
with the occupiers consent (but it does apply if that consent has been paid
for). This exception does not apply in the case of a shared driveway. This
exception suggests that authorities should not take enforcement action
where a vehicle is parked outside residential premises unless the occupier
has asked the enforcement authority to do so. Authorities will need to
check that the individual making such a request is entitled to do so.
Service of a PCN by post
8.63 There are three circumstances in which a PCN (a regulation 10 PCN)
may be served by post:
55
where the contravention has been detected on the basis of evidence
from an approved device;
if the CEO has been prevented, for example by force, threats
of force, obstruction or violence, from serving the PCN either by
affixing it to the vehicle or by giving it to the person who appears
to be in charge of that vehicle; and
if the CEO had started to issue the PCN but did not have enough
time to finish or serve it before the vehicle was driven away and
would otherwise have to write off or cancel the PCN.
8.64 In any of these circumstances a PCN is served by post on the
owner (whose identity is ascertained from the DVLA), and also acts
as the Notice to Owner. The Secretary of State suggests that
postal PCNs should be sent within 14 days of the contravention.
55 S.I. 2007/3483, regulation 10.
51
Prevention of service by force, threats of force, obstruction or violence
8.65 A PCN may be served by post if someone intervenes to stop the CEO from
serving it. This includes situations where the person who appears to be in
charge of the vehicle is abusive, intimidatory or threatens or uses actual
physical force. Authorities should contact the police about serious cases.
8.66 In these circumstances, the actual PCN issued by the CEO on patrol
cannot be served by post because it does not give enough information.
The authority should cancel the regulation 9 PCN prepared by the CEO and
serve a regulation 10 PCN by post. Enforcement authorities should make
sure that they have sufficient primary and supporting evidence to deal with
any subsequent representations and appeals and any police action against
the person who prevented service. They will also wish to obtain a witness
statement from the CEO. Back-office staff should trace the registered
keepers address via the DVLA. In these circumstances the owner gets
14 days discount period for payment of the PCN. The PCN, which serves
also as the NtO, must be served by first class post.
56
It must state:
57
the date of the notice, which must be the date on which it is posted;
the registration mark of the vehicle involved in the alleged contravention;
the manner in which the penalty charge must be paid;
the grounds on which the enforcement authority believes that a penalty
charge is payable;
of 28 days beginning with the date on which the PCN is served;.
that if the penalty charge is paid not later than the last day of the period of
14 Days, beginning with the date on which the PCN was served, the penalty
charge will be reduced by any applicable discount currently 50 per cent;
that if after the last day of the period of 28 days beginning with the date on
which the penalty charge notice is served, no representations have been
made in accordance with regulation 4 of the Representations and Appeals
Regulations (regulation 4), and the penalty charge has not been paid, the
enforcement authority may increase the penalty charge by the amount of
any applicable surcharge currently 50 per cent and take steps to enforce
payment of the charge as so increased;
the amount of the increased penalty charge;
56 S.I. 2007/3483, regulation 3 (1)
57 S.I. 2007/3483, Schedule 1, paragraph 2 and S.I. 2007/3482, regulation 3(4)

that the PCN is being served by post because a CEO attempted to serve
a PCN by affixing it to the vehicle or giving it to the person in charge of the
vehicle but was prevented from doing so by some person;
that representations on the basis specified in regulation 4 may be made to the
enforcement authority against the imposition of the penalty charge but that
representations made outside the period of 28 days, beginning with the date
on which the PCN is served may be disregarded;
the nature of the representations which may be made under regulation 4;
the address (including, if appropriate, any e-mail address or fax telephone
number, as well as the postal address) to which representations must be sent;
the form in which they (the representations) must be made;
that if representations which have been made within the representation
period or outside the period but not disregarded, are not accepted by the
enforcement authority the recipient of the PCN may appeal against the
authoritys decision to an adjudicator.
CEOs identification number; and
the vehicles tax disc number and expiry date (give reason if
not recorded);
amount of penalty time (when relevant);
8.68 The regulations set out how an authority must
58
calculate the date of
service of a postal PCN. Unless proved otherwise, service is taken to have
been on the second working date after posting. A working day excludes
a Saturday, a Sunday, New Years Day, Good Friday, Christmas Day and
any other English bank holiday. The date of posting is not necessarily the
same as the date on which the back office staff prepare the PCN, and
authorities should make sure that their procedures take account of this.
58 S.I. 2007/3483, regulation 3(2) and regulation 3(3)
53
Prevention of service by drive away
8.69 A PCN may also be served by post if the CEO had begun to issue it i.e. has
completed his/her observations and had either started to write the PCN or put
the data into the HHC and would, in other circumstances, have to cancel the
PCN but the vehicle was driven away before the CEO had time to finish or
serve the PCN.
8.70 In such circumstances, the actual PCN issued by the CEO on patrol cannot be
sent by post because it does not give enough information. The authority should
cancel the regulation 9 PCN prepared by the CEO and serve a regulation 10
PCN by post. Enforcement authorities should make sure that they have sufficient
primary and supporting evidence to deal with any subsequent representations
and appeals. They will also wish to obtain a witness statement from the CEO.
The Secretary of State recommends that the CEO records the vehicles licence
number and tells the driver of the contravention before they drive away. Back-
office staff should obtain the registered keepers home address from DVLA. In
these circumstances the motorist gets a 14 day discount period. The PCN, which
serves also as the NtO, must be served by first class post.
59
It must state:
60
charge is payable;
of 28 days beginning with the date on which the PCN is served;.
59 S.I. 2007/3483, regulation 3(1),
60 S.I. 2007/3483, Schedule 1, paragraph 2 and S.I. 2007/3482, regulation 3(4)
Enforcement May 2008

that the PCN is being served by post because a CEO had begun to prepare
a PCN for service in accordance with regulation 9 (by affixing it to the vehicle
or giving it to the person in charge of the vehicle) but the vehicle was driven
away from the place in which it was stationary before the CEO had finished
preparing the PCN or had served it in accordance with regulation 9;
authoritys decision to an adjudicator.
CEOs identification number;
the vehicles tax disc number and expiry date (give reason if not recorded);
amount of penalty time (when relevant); and
8.72 The regulations set out how an authority must
61
a Saturday, a Sunday, New Years Day, Good Friday, Christmas Day and
any other English bank holiday. The date of posting is not necessarily the
same as the date on which the back office staff prepare the PCN, and
authorities should make sure that their procedures take account of this.
55
8.73 Even if service is prevented, CEOs should try to collect information and
photographic evidence as usual. Authorities should provide CEOs with the
equipment, training and guidance to collect such evidence, bearing in mind
that they may find this harder where service is being prevented. Authorities
should disclose their evidence at the earliest possible opportunity.
8.74 If the keeper recorded on the DVLA database was not the keeper at the time of
the contravention, the authority may issue a second postal PCN/NtO to the
person who was the actual owner at the time.
62
8.75 Authorities will wish to record which CEOs ask for regulation 10 PCNs to be
issued. If they find that some officers experience more drive aways than others,
they may wish to consider whether there is anything in the way that these
officers work that contributes to this.
Return of the motorist before the CEO has started to issue the PCN
8.76 CEOs should continue to issue a PCN once they have started. If this causes the
vehicle owner difficulties, the CEO should show them the procedures set out on
the PCN for lodging representations.
8.77 A PCN may not
63
be served by post if the motorist returns to the vehicle
before the CEO has started to issue it. A CEO has not started to issue a PCN
if s/he is observing a vehicle or jotting down some details. It is only when
the CEO starts to create the PCN and would otherwise have to cancel it that
they have started to issue it. If the driver returns before the CEO has started
to issue the ticket, the CEO should establish whether the vehicle is parked in
contravention (for example, if loading or unloading is taking place). If the vehicle is
in contravention, the CEO should ask the driver to comply with the restrictions.
Enforcement by approved devices
8.78 TMA regulations
64
give the power to authorities throughout England
to issue PCNs for contraventions detected with a camera and
associated recording equipment (approved device). The Secretary
of State must
65
certify any type of device used solely to detect
contraventions (i.e. with no supporting CEO evidence) as described
in Chapter 7. Once certified they may be called an approved device.
Motorists may regard enforcement by cameras as over-zealous and
authorities should use them sparingly. The Secretary of State recommends
that authorities put up signs to tell drivers that they are using cameras to
detect contraventions. Signs must comply with TSRGD
66
or have special
authorisation from DfT. The Secretary of State recommends that
62 S.I. 2007/3483, regulation 10(5) combined with S.I. 2007/3482, regulation 4(4)
63 S.I. 2007/3483, regulation 10(2)
64 S.I. 2007/3483, regulation 10
65 S.I. 2007/3486 and S.I. 2007/3483, regulation 10
66 Diagrams 878 and 879
approved devices are used only where enforcement is difficult or
sensitive and CEO enforcement is not practical. Approved devices
should not be used where permits or exemptions (such as resident
permits or Blue Badges) not visible to the equipment may apply.
8.79 The primary objective of any camera enforcement system is to
ensure the safe and efficient operation of the road network
by deterring motorists from breaking road traffic restrictions
and detecting those that do. To do this, the system needs to
be well publicised and indicated with lawful traffic signs.
8.80 Authorities should make sure that they have procedures to stop the service of
two PCNs one at the time of the contravention and one by post with evidence
from an approved device.
8.81 Authorities should design a system so that fully trained staff are able to:
monitor traffic in accordance with a Code of Practice;
identify the registration number, colour and type of a vehicle contravening
traffic restrictions;
support the serving of a PCN to the registered keeper of a vehicle
contravening the restrictions;
record evidence of each contravention to ensure that representations and
appeals can be answered fully;
produce timed and dated pictorial evidence of any unauthorised driving or
stopping to be produced as information to the registered keeper and for any
subsequent representations or appeals; and
immediately despatch a CEO and removal truck for targeted enforcement of
vehicles contravening traffic restrictions.
8.82 An essential and integral part of any system is a code of practice. This sets out
the objectives of the system and the rules it will follow. Authorities should ensure
that they produce (or adopt) and follow a code of practice. The code should
make sure that staff deal properly with issues such as privacy, integrity and
fairness. It should set minimum standards to help ensure public confidence in
the scheme.
8.83 Authorities must
67
give a discount period currently 21 days for a PCN
issued on the basis of evidence from an approved device. This is because the
PCN also serves as the Notice to Owner, so the motorist does not have the
opportunity to make representations against it. The 21 day discount period for
PCNs sent by post using evidence from approved devices is longer than that
for PCNs sent by post for bus lane contraventions and certain moving traffic
contraventions (the latter power is only available in London at the moment).
The Government intends to consult on bringing the two periods into line.
67 S.I. 2007/3483, Schedule 1, Paragraph 3
57
8.84 PCNs for contraventions detected by an approved device cannot be placed on
the vehicle or handed to the person who appears to be in charge of the vehicle.
They are sent by post to the keeper using data from DVLA. The PCN sent by
post on the basis of evidence produced by an approved device serves also as a
Notice to Owner. It must
68
state:
charge is payable;
of 28 days beginning with the date on which the PCN is served;
that the PCN is being served by post on the basis of a record produced by an
approved device;
authoritys decision to an adjudicator;
68 S.I. 2007/3483, Schedule 1, Paragraph 2
Enforcement May 2008

the recipient of the PCN may, by notice in writing to the enforcement authority,
request it to make available at one of its offices specified by him/her, free of
charge and at a time during normal office hours so specified, for viewing by
him/her or by his/her representative, the record of the contravention produced
by an approved device pursuant to which the penalty charge was imposed; or
to provide him/her, free of charge, with such still images from that record as, in
the authoritys opinion, establish the contravention.
amount of penalty time (when relevant).
8.86 It is recommended that the authority sends a copy of the record
of the contravention (in the form of a still image or images) with
the PCN. The authority must
69
comply within a reasonable time to requests
to see the record of the contravention or send a copy of the still images.
8.87 The regulations set out how authorities must
70
Saturdays, Sundays, New Years Day, Good Friday, Christmas Day and
any other English bank holidays. The date of posting is not necessarily
the same as the date on which the back office staff prepare the PCN.
Authorities should make sure that their procedures take account of this.
Immobilisation/removal
8.88 Very few authorities now use immobilisation. The Secretary
of State is of the view that it should only be used in limited
circumstances such as where the same vehicle repeatedly breaks
parking restrictions and it has not been possible to collect payment
for penalties, primarily because the keeper is not registered, or is
not properly registered, with the DVLA. Where a vehicle is causing
a hazard or obstruction the enforcement authority should remove
rather than immobilise. Immobilisation/removal activity should only
take place where it gives clear traffic management benefits.
69 S.I. 2007/3482, regulation 3(6)
59
8.89 An enforcement authority should formulate and publish clear
guidelines for CEOs on when it will be appropriate to immobilise
or remove. The guidelines should cover the order of priority
in which vehicles should be dealt with, based on the nature
of the contravention. Powers should not be used randomly and
authorities should draw up guidelines in consultation with the
police. Immobilisation and removal guidelines should consider the:
inconvenience that immobilisation causes drivers;
potential obstruction or loss of parking space that results; and
effect of immobilisation and removal on public perception and acceptance
of CPE.
8.90 Immobilisation and removal are particularly discouraged when it will cause
disproportionate inconvenience and potential danger to vulnerable drivers, such
as very late at night.
8.91 The decision on whether to immobilise or to remove a vehicle requires
an exercise of judgement and must
71
only be taken following specific
authorisation by an appropriately trained CEO. The immobilisation/
removal operatives should not take the decision. Vehicles should not be
immobilised or removed by contractors unless a suitably trained CEO is
present to confirm that the contravention falls within the guidelines.
8.92 When a vehicle is parked where parking is permitted, authorities must
not
72
immobilise or remove in the first 30 minutes following the issuing
of the PCN, with the exception of persistent evader vehicles (see
paragraphs 8.105 to 8.107 below) where the time limit is 15 minutes.
When a vehicle has been immobilised, a CEO must
73
affix a notice
that says:
an immobilisation device has been fitted;
no attempt should be made to drive the vehicle or otherwise put it in motion
until it has been released from that device;
specifying the steps to be taken in order to secure its release; and
warning that unlawful removal of an immobilisation device is an offence.
8.93 The CEO should attach this notice to the drivers side windscreen or door glass.
8.94 The immobilisation device may only be removed by or under the
direction of a person authorised to do so by the enforcement authority,
following payment of the release fee and the penalty charge.
71 S.I. 2007/3483, regulation 13(5)(a) and (b) and The Removal and Disposal of Vehicles Regulations 1986,
regulation 5C(2) (inserted by S.I. 2007/3484)
72 The Removal and Disposal of Vehicles Regulations 1986, regulation 5C(2) (inserted by S.I. 2007/3484)
73 S.I. 2007/3483, regulation 12

8.95 Where a vehicle is causing a hazard or obstruction the enforcement
authority should remove rather than immobilise. If the vehicle is
parked where parking is prohibited (such as on double yellow lines),
then the vehicle can be removed as soon as a PCN has been served.
74
8.96 If a driver returns to the vehicle whilst immobilisation or removal
is taking place, then, unless they are a persistent evader, it is
recommended that the operation is halted, unless the clamp is
secured or the vehicle has all its wheels aboard the tow truck. If
immobilisation or removal is halted, the PCN should still be enforced.
8.97 When a vehicle is immobilised and subsequently removed to the pound,
the driver does not have to pay the clamp release fee.
75
8.98 Where vehicles are removed, enforcement authorities should contact
the police or, in London, TRACE
76
and advise them of the time, place,
vehicle registration number, and pound to attend for retrieval so they
can deal with queries from motorists who report their vehicle stolen.
8.99 Where a vehicle has been immobilised or removed, an authority
should seek to make it available to its owner immediately upon
payment. Authorities should remember that owners have a right to recover
their vehicles 24 hours a day. In the case of clamp release, enforcement
authorities should set maximum times for releasing vehicles once
they have received payment. They should publish these along with
their parking policy guidelines. It is recommended that these should
be within one hour from payment being received, with a maximum
time limit of two hours. The immobilisation or removal is the
penalty and further inconvenience and potential cost from prolonged
release times is not appropriate. Enforcement authorities should
measure and publish their performance against these targets.
8.100 On the release of a vehicle from a clamp or from the vehicle
pound the authority must
77
immediately inform the vehicle owner
or person in charge of the vehicle about their right to make
representations and their subsequent right to appeal against
representations that are rejected. The vehicle will already have been
issued a PCN that sets out the grounds on which representations
can be made. However, the Secretary of State recommends
that the notice about representations against the immobilisation
or removal also gives full particulars of the grounds, procedure
and time limit for representations. This is particularly important
when credit or debit payments are made over the telephone.
74 The Removal and Disposal of Vehicles Regulations 1986, regulation 5C(2) (inserted by S.I. 2007/3484)
75 RTRA, section 101A(1) and (3), and TMA, section 79(1)
76 TRACE is operated by the London Councils
77 S.I. 2007/3482, regulation 11(2) and (3), and regulation 8(2) and (3)
61
8.101 Storage charges should apply for each day or part of day, reckoned
from 2400 midnight on the day following removal of a vehicle.
Special consideration for disabled badge holders and vehicles with
diplomatic registration plates
8.102 CEOs should be aware of special considerations in respect of valid
Blue Badge holders
78
and vehicles with diplomatic plates.
79
See also
Chapter 9.
8.103 Vehicles displaying a valid Blue Badge must not
80
be immobilised
and, as a general rule, should not be removed. In exceptional
circumstances (for example, where a vehicle displaying a Blue Badge
is causing a safety hazard), the vehicle should be moved to a safe
spot nearby, where possible within sight of its original location.
The authorities should not charge a removal fee for the relocation
of vehicles displaying a Blue Badge. They should notify the police
(in London TRACE) in case the owner reports the vehicle stolen.
8.104 Diplomatic vehicles have registration plates marked with a D or an X,
or have personalised plates composed of a countrys initials or an
abbreviation of its full name. In general, diplomatic vehicles should
not be immobilised. The exception is for X registered vehicles which
have been identified as persistent evaders. X registered vehicles can
be removed but diplomatic vehicles with D or personalised plates that
are causing an obstruction or danger should only be repositioned close
by as an extreme measure. In such a circumstance, an enforcement
authority should not try to recover the costs of removal.
Persistent evaders
8.105 Some vehicle owners contravene parking regulations deliberately
and often, and fail to settle the debts they incur. A vehicle owner
can be classed as a persistent evader if there are three or more
recorded contraventions for the vehicle and the PCNs for these
have not been paid, represented against or appealed against within
the statutory time limits, or their representations and appeals
have been rejected but they have still not paid. Usually this is
because the vehicle keeper is not registered, or is not correctly
registered, on the DVLA database and the owner is confident that
they can avoid paying any penalty charges. An authority should not treat
a vehicle owner as a persistent evader unless bailiffs have failed to recoup the
outstanding and unchallenged penalty charges. Where a vehicle appears
78 see DfTs Blue Badge scheme leaflet Parking concessions for disabled and blind people
79 Article 31.1 of the Vienna Convention on Diplomatic Relations; Diplomatic Privileges Act 1964; White
Paper on Diplomatic Immunities and Privileges (Cmnd 9497, April 1985)
80 S.I. 2007/3483, regulation 13 (1)
to be registered in the UK, but the identity and address is not
registered, or is not correctly registered on the DVLA database,
authorities should consider making the information available to the
police who can, if appropriate, investigate any criminal offence.
8.106 When parked in contravention, a persistent evaders vehicle should
be subject to the strongest possible enforcement following the issue
of the PCN and confirmation of persistent evader status. This is
likely to involve immobilisation or removal. The benefit of removal
is that it requires proof of ownership and a registered address
before release of the vehicle, whereas immobilisation prevents law
abiding motorists from using valuable kerb space. If a vehicle of
a persistent evader is in a designated parking place, the Traffic
Management Act 2004 and regulations made under it prohibit an
enforcement authority from immobilisation or removing the vehicle
until at least 15 minutes
81
have elapsed following the issue of a
PCN. Currently, under TMA regulations an authority can only obtain
payment for the PCN of the contravention for which the vehicle
is immobilised or removed and not any other outstanding PCNs.
8.107 London Councils has set up a persistent evader database and all English
authorities may use it. Alternatively, authorities may wish to maintain a
database themselves, or in conjunction with neighbouring authorities.
81 TMA, section 79 (6); S.I. 2007/3483, regulation 13(5)(a); The Removal and Disposal of Vehicles
Regulations 1986, regulation 5C(4)(a) (inserted by S.I. 2007/3484)
63
CHAPTER 9
Exemptions, waivers
and dispensations
9.1 Authorities should take account of the exemptions, waivers and
dispensations set out below when formulating their parking and
enforcement policies and adopt those that are required.
Blue Badge (disabled persons parking) Scheme
9.2 section 49A of the Disability Discrimination Act 1995 (DDA), as inserted by
section 3 of the Disability Discrimination Act 2005, requires (among other things)
that all public authorities, in carrying out their functions, must have due regard to:
eliminate discrimination and harassment that is unlawful under the DDA;
the need to promote equality of opportunity between disabled persons and
others; and
the need to provide for people with disabilities, even if that involves treating
disabled persons more favourably.
9.3 The Secretary of State attaches particular importance to catering for older
and disabled people. Around 10 per cent of the adult population has
some form of disability, and taking other factors into account, many more
people have some sort of mobility problem. It is therefore an important
part of Government policy that disabled people or those with mobility
problems should be able to travel with the minimum of difficulty.
9.4 The Blue Badge Scheme provides a range of national on-street parking
concessions for disabled people, with severe mobility problems, who have
difficulty using public transport. The Scheme is designed to help severely
disabled people to travel independently, as either a driver or passenger, by
allowing them to park close to their destination. However, the Blue Badge
scheme concessions do not apply to four central London boroughs:
City of London;
City of Westminster;
Royal Borough of Kensington and Chelsea; and
part of the London Borough of Camden.
Exemptions, waivers and dispensations March 2008

9.5 The parking concessions available to Blue Badge
82
holders continue to apply
automatically when civil parking enforcement is introduced. The regulations
broadly require that all TROs should exempt Blue Badge holders, allowing them
to park:
free of charge and without time limit at on-street parking meters and pay-and-
display spaces;
as long as they wish where others may park only for a limited time, unless
there is an Order in place specifically time-limiting parking for Blue Badge
holders; and
on single or double yellow lines for up to three hours except where there is a
ban on loading and unloading.
9.6 Blue Badge holders, like other road users, must obey the Highway Code. For
example, they are not entitled to park:
in loading bays during the hours of operation;
on pedestrian crossings (including zigzag area);
on bus stop clearways; and
on school 'keep clear' markings during hours of operation.
9.7 They should also not park where it would endanger, inconvenience or obstruct
pedestrians or other road users. This includes on a bend, close to a junction or
where the kerb has been lowered or the road raised for wheelchair users. You
can find further information in the DfT booklet The Blue Badge Scheme: rights
and responsibilities.
83
9.8 Vehicles displaying a valid Blue Badge must not
84
be immobilised in CEAs. This
recognises the difficulties which many disabled people would have in getting to a
payments centre and the risk of injury or undue suffering if forced to wait for their
vehicle to be released. Police constables and enforcement officers (such as traffic
wardens and civil enforcement officers) have the power to inspect Blue Badges.
85
9.9 Holders of a valid Blue Badge do not have statutory exemption from removal
action as they do from clamping. However, disabled people frequently rely
heavily or completely upon their vehicles and removal can cause them great
inconvenience. The Secretary of State recommends that vehicles displaying a
valid Blue Badge are only removed if there is an emergency, security or ceremonial
reason, or the vehicle is causing a serious safety hazard or obstruction.
82 Local Authorities Traffic Orders (Exemptions for Disabled Persons) (England) Regulations 2000
(SI 2000/683).
83 available quoting ref T/INF/1214 from DfT Free Literature. Tel: 0870 1226 236
84 TMA, section 79(5)
85 TMA, section 94
65
9.10 If removal of a vehicle displaying a Blue Badge is absolutely necessary and
the driver cannot be found within a reasonable time, the police move the
vehicle to a position nearby where it will not cause a hazard or obstruction.
Whenever possible, they leave a message for the driver telling, them where the
vehicle is. The Secretary of State recommends that authorities do the same.
Abuse of the Blue Badge scheme
9.11 There are several ways in which Blue Badges can be misused. These include:
use of a badge that is no longer valid;
misuse of a valid badge by a friend or relative, with or without the badge
holders knowledge or permission;
use by the holder of a badge that has been reported lost or stolen possibly
to obtain another badge for a friend or relation; and
use of a stolen or copied badge by the thief, forger or someone who has
acquired it from them.
Targeted surveillance operations
9.12 The most common form of abuse tends to be misuse of the badge by the
friends and family of the holder. Where this is a clear problem (and there is a
business case for tackling it) DfT strongly recommends that authorities set up
a specialist Blue Badge enforcement team to carry out undercover surveillance
work. The team can identify suspected systematic abuse and apply for
permission to carry out undercover surveillance
86
in order to build up evidence
that can later be used to prosecute the individual in the Magistrates Court.
Working with the police
9.13 Local enforcement teams may identify Blue Badge abuse hot spots, such as
those around football stadiums, schools, shopping centres or entertainment/
sports facilities. Under the power to inspect legislation (see text box below)
parking enforcement officials have powers to inspect badges, but only police
officers have the power to seize and confiscate lost, stolen, fraudulent,
invalid or misused badges. Inspection swoops by local authorities and the
police on hot spot areas can have a big impact on levels of badge abuse.
Day-to-day enforcement inspections
9.14 Parking enforcement officers play an important part in identifying lost, stolen
and fraudulent badges. Whenever a CEO suspects misuse or abuse of a
badge, they need to deal with the badge holder in a sensitive manner. They
should not make any assumption or ask any questions about why the holder
has been issued with a badge, as this is not the enforcement officers role.
In addition, some disabilities may not be immediately visible. We strongly
recommend that enforcement officers receive disability awareness training.
86 Regulation of Investigatory Powers Act 2000 (RIPA)

9.15 From 15 October 2007, a gender marker has been added to the TSO serial
number, prefixed by an x for male badge holders and a y for female.
The marker has been added to help identify obvious cases of misuse.
9.16 Authorised officers can check the badge through the windscreen and, if
necessary, ask to see it under the power to inspect (see below). They can then
check the detailed information and verify the photograph of the badge holder on
the back.
Power to inspect
section 94 of the Traffic Management Act 2004 introduced the power to inspect Blue Badges
for police officers, traffic wardens, local authority parking attendants and civil enforcement
officers (authorised officers as defined in section 76 of the Act).
This Act makes it an offence for an individual to fail to produce a badge when asked to by any
of these authorised persons. However, this power can only legally be exercised when a person
is in the vehicle or when they are leaving or returning to a vehicle displaying a badge.
Only a police officer has the power to seize a Blue Badge where it is required as evidence in a
criminal prosecution, so authorities often need to work in partnership with the police.
9.17 Table 9.1 summarises the powers available to tackle different types of Blue
Badge abuse. You can find detailed guidance on the enforcement of the Scheme
in DfTs The Blue Badge Scheme Local Authority Guidance (England).
87
Table 9.1 Summary of powers available to tackle different types of Blue Badge abuse
Abuse Application Powers Relevant legislation
Acquisition of
badge by false
representation
Where a badge holder
provided false
information in order to
qualify for a badge.
Local authority can
require return of the
badge if they are
satisfied that it has
been obtained by false
representation.
Regulation 9(2)(b) of
the Disabled Persons
(Badges for Motor
Vehicles) (England)
Regulations 2000
(SI 2000/682)
Misuse of badge
in certain
circumstances
is using a badge for
which they no longer
qualify due to a
change in their
circumstances.
is using an expired
badge.
is using a badge which
is no longer legible.
If found guilty, person
could face fine of up to
1,000 on conviction.
Authority could issue a
Fixed Penalty Notice
or a Penalty Charge
Notice if a parking
offence has occurred.
The police can also
seize the badge as
evidence.
Section 21 (4B) of the
Chronically Sick and
Disabled Persons Act
1970.
Parking offences
under the Road Traffic
Regulation Act 1984
Section 19 of the
Police and Criminal
Evidence Act 1984
(general power of
seizure etc.).
87 January 2008
67
Abuse Application Powers Relevant legislation
Systematic
misuse of valid
badge by holder
or other person using
a badge with the
holders consent has
misused the badge,
leading to at least
three relevant
convictions.
Local authority can
withdraw a badge and
require its return (on
account of its misuse
leading to at least
three relevant
convictions).
Authority could issue
or a Penalty Charge
Notice if a parking
Regulation 9(2)(a) of
the Disabled Persons
(Badges for Motor
Vehicles) (England)
Regulations 2000 (SI
2007/682).
Parking offences
Misuse of badge
by a non-badge
holder
Where a non badge
holder is using a
badge (with or without
the badge holders
permission) and the
badge holder is not
present.
If found guilty, person
could face a fine of
1,000 on conviction.
Authority could issue a
or a Penalty Charge
Notice if a parking
The police can also
seize the badge as
evidence.
Section 117 of the
Road Traffic
Parking offences

section 19 of the
Police and Criminal
Evidence Act 1984
(general power of
seizure etc).
Refusal to
produce a badge
for inspection
when requested
by an authorised
person
Where the police or
enforcement officer
has asked to inspect
the badge.
This can include
instances where they
believe the badge has
been stolen, forged,
fraudulently altered or
is not being used by
the badge holder.
The police and
enforcement officers
have the power to
inspect badges when
displayed on the
vehicle and a person
is either in the vehicle,
or appears to have
been in or is about to
get into the vehicle.
It is an offence for a
badge holder without
reasonable excuse to
fail to produce a
badge when asked
and a person can be
fined up to 1,000 if
convicted.
The police can also
seize the badge as
evidence.
Section 21(4ba) of the
chronically sick and
disabled persons act
1970.

Section 21(4bd) of the
chronically sick and
disabled persons act
1970.

Section 19 of the
police and Criminal
Evidence Act 1984
(general power of
seizure etc.).
Withdrawing badges due to repeated misuse
9.18 Local authorities can withdraw a badge if the holder has had at least three relevant
convictions for misuse.
88
Local Authorities can also request the return of a badge if
they are satisfied that it was falsely obtained.
9.19 DfT strongly recommends that authorities should issue a warning notice to a badge
holder who is misusing a badge, or allowing their badge to be misused, before
considering withdrawing the badge.
Reciprocal arrangements for disabled drivers from other countries
9.20 Following the introduction of a common European disabled persons parking
card (the Blue Badge), the UK now has reciprocal arrangements with all
European Union Member States. These give badge holders the right to parking
concessions provided in the host country by displaying a badge issued under
their own national scheme.
9.21 CEOs should treat vehicles displaying the Blue Badge of a participating
country as if it were displaying a UK Blue Badge. However, the concessions
that badge holders are entitled to vary from country to country.
89
9.22 If a vehicle displays a Blue Badge equivalent from a country without
reciprocal arrangements, then the Blue Badge exemptions need not
apply unless the local authority has agreed to recognise badges from that
country. However, the general obligation in the DDA still applies if a vehicle
is believed to be used by a disabled person. Enforcement authorities
should take great care to ensure that they meet their obligations.
Diplomatic registered vehicles
9.23 Special arrangements apply to diplomatic registered vehicles. Authorities should
accurately follow the procedures used by the police when dealing with diplomatic
registered vehicles. Where a CEO comes across a diplomatically registered
vehicle parked in contravention of a parking restriction, they should contact
a manager or supervisor who should follow the procedures set out below.
9.24 Diplomatic registered vehicles will have one of three types of plate:
D registration plates (e.g. 123 D 321) may be carried by vehicles belonging to
diplomats, members of the administrative and technical staff of missions and
certain senior staff of international organisations. They may also be carried by
official vehicles of diplomatic missions. They show that the owner is entitled to
diplomatic immunity;
88 Disabled Persons (Badges for Motor Vehicles) (England) (Amendment) Regulations 2000 section 9(2)
89 European Parking Card for People with Disabilities How, When and Where to Use it in 29 Countries
available at: http://www.iam.org.uk/motoringtrust/advice/parking/bluebadgeuserparkingineurope.htm
69
Personalised diplomatic registration plates may, for example, indicate
a countrys initials or an abbreviation of its full name. They are sometimes
issued for the official cars of Heads of Diplomatic Missions, who have full
diplomatic immunity; or
X registration plates (e.g. 987 X 789) may be used by certain consular staff
or staff of international organisations. They show that the owner is entitled to
limited diplomatic immunity.
9.25 The UK is a party to Article 31.1 of the Vienna Convention on Diplomatic
Relations, which gives accredited diplomats immunity from the criminal
jurisdiction of the host nations law. The Article is given the force of law in
the United Kingdom by section 2 of, and Schedule 1 to, the Diplomatic
Privileges Act 1964. Issuing PCNs is not considered an exercise of criminal
jurisdiction within the terms of Article 31.1 of the Convention, nor is the
removal of diplomatic vehicles as a last resort to relieve obstruction or
danger when the driver cannot be found quickly. However, immobilising
or removing those vehicles in other circumstances is considered to be an
exercise of such jurisdiction and is therefore ruled out. The White Paper
on Diplomatic Immunities and Privileges
90
commits the Government to
ensuring that agencies enforcing parking controls follow these principles.
9.26 The TMA provides for non-endorsable parking contraventions to be enforceable
by local authorities in a Civil Enforcement Area. But the immobilisation or removal
of vehicles sometimes associated with the enforcement of these controls still
constitutes the exercise of criminal jurisdiction within the meaning of the Vienna
Convention. The Diplomatic Privileges Act 1964 continues to exempt diplomatic
vehicles from such enforcement.
Immobilisation
9.27 Authorities should not immobilise vehicles carrying D registration plates or
registration plates personalised for the country anywhere on public roads.
Vehicles carrying X registration plates may be immobilised in the same way as
vehicles without diplomatic immunity and authorities may require owners or
persons in charge of such vehicles to pay the PCN and a release fee. However,
the Secretary of State recommends that local authorities treat X-plated vehicles as
D-plated unless they are persistent evaders. Authorities should never immobilise
an X-plated vehicle where it is parked if it is causing a serious road safety or
congestion hazard, even if they could justify doing so. They should move it to a
place nearby or take it to the vehicle pound.
Removal
9.28 Authorities should only remove vehicles carrying D registration plates or
registration plates personalised for the country as a last resort to relieve
obstruction or danger to other road users and where the driver cannot
be found quickly. In these cases, the vehicle should be removed to a
90 Cmnd 9497, April 1985

more suitable location within the immediate vicinity and, where possible,
a message left indicating where it can be found. Authorities should
avoid moving vehicles to a car pound but if there is no viable alternative,
charges should be waived as diplomats are under no obligation to pay
removal or storage charges. If an authority does demand a charge and it
is paid, the Embassy will appeal to the Foreign and Commonwealth Office
(FCO) to recover the charges, or will appeal direct to the authority.
9.29 As with immobilisation, authorities may remove vehicles carrying X registration
plates in the same way as those without any diplomatic immunity, and require
the owners to pay the PCN and any associated removal, storage and disposal
charges. The Secretary of State recommends that authorities treat X-plated
vehicles as D-plated unless they are causing a serious road safety or congestion
hazard or are persistent evaders.
Recovery of unpaid PCNs
9.30 Although the owners of diplomatic registered vehicles are required to pay
PCNs, authorities should not serve an NtO if they do not pay within 28 days.
The NtO would trigger procedures which could ultimately lead to action in
a county court to recover the unpaid debt. Many diplomats are not subject
to civil jurisdiction and there is no practical way for local authorities to
distinguish between those who are and those who are not. Local authorities
should therefore follow existing police practice. Instead of issuing an NtO,
they should record the unpaid charge. The FCO will ask for details of all
unpaid PCNs annually and will pursue the contraveners for payment.
9.31 The Government may ask for diplomats who persistently disregard the
controls and refuse to pay the penalties to be withdrawn from duty in
the United Kingdom. The FCO will also report once a year to Parliament
on the number of outstanding PCNs issued in respect of diplomatically
registered vehicles and break down the contraveners by country.
9.32 Authorities should send details of the appropriate contact in the authority to the
FCO so they can collect information each year about the outstanding penalties
in respect of diplomatically registered vehicles. Details should be sent to:
Team 1
Diplomatic Missions and International Organisations Unit
Protocol Directorate
Room 1/61
Old Admiralty Building
London
SW1A 2AH
Telephone 020 7008 0975
71
Application to HM forces and visiting forces
9.33 When a local authority is given CPE powers, they must not use them against
any vehicles
91
that:
are being used or appropriated for use by HM forces; or
belong to, or at the relevant time is being used or appropriated for use by
visiting forces (such as the United States Visiting Forces).
9.34 These vehicles will generally bear identification plates rather than registration
plates. This is because they are not required to be registered under regulations
made under the Vehicle Excise and Registration Act 1994. The net effect is
that vehicles used by Her Majesty's army, navy and air force, or vehicles used
by visiting armed forces, will not be subject to civil parking controls in CEAs.
Waivers
9.35 There are some circumstances where vehicles need to be parked in such a
way that they cannot comply with the regulations, for example removal vehicles
or scaffolding lorries. Authorities should issue special waivers (also called
dispensations) to allow these vehicles to park without attracting penalties. It
is important that authorities establish their own policies and procedures for
granting waivers and provide for them in their TROs. Policies need to balance the
importance to businesses of accessible parking in special circumstances with
the need to keep roads clear, and ensure that the use of waivers is not excessive.
Dispensations for professional care workers
9.36 The London Health Emergency Badge (HEB) scheme allows doctors, nurses,
midwives and health visitors engaged in urgent or emergency health care in
(but not routine visits to) a patients home to park where there is no alternative:
without payment;
in residents or other reserved parking bays; and
on yellow lines where loading and unloading is not prohibited (as long as there in
not a serious obstruction or other endorseable offence).
9.37 Enforcement authorities should consult with health trust(s) in their area about
introducing a similar scheme that permits parking by professional health care
workers making emergency or urgent health calls in areas where controls
are in force. If an authority does not provide such a scheme the health trust
may be unable to provide the public with these services. Authorities should
tell professional health care workers in their areas about any permit scheme
they plan to introduce before civil parking enforcement begins. They should
also tell them about any subsequent changes to the arrangements.
91 TMA section 90

9.38 The Secretary of State recommends a number of conditions to help prevent
abuse of such a scheme. The authority should issue health workers with badges,
signed by the badge holder and a council official. The badge should show:
its purpose, for example 'Waiting and loading and designated parking place
orders: waiver consent to park and conditions imposed';
the name of the issuing local authority;
the name and contact details of the badge holder (if appropriate);
92
the registration number of the vehicle (if appropriate);
93
that the vehicle should be moved on the instructions of a police officer, traffic
warden or CEO; and
the expiry date.
9.39 The badge should be displayed on or inside the windscreen so that it can be
seen clearly from outside. It should only be used when the badge holder is away
from his or her base and directly involved in patient care, and where there are no
legal parking places available.
9.40 If a CEO suspects misuse of the badge, they may issue a PCN or the vehicle
may be immobilised or removed. A vehicle displaying a valid badge should not
normally be immobilised, removed or served with a PCN before an attempt is
made to contact the driver at the address shown on the badge. If frequent or
regular misuse occurs, the authority may withdraw the badge. Dispensations do
not apply if the vehicle is causing a serious obstruction or has been left for an
excessive time in the same place.
Exemptions where parking places are suspended
9.41 Authorities may suspend parking places for a number of reasons. TROs
may permit certain vehicles to park in suspended places (for example,
cranes and lorries where a bay is suspended for building work or highway
maintenance; vans for furniture removals; hearses for funerals). Similarly,
TROs may allow parking bays to be reserved for a doctor, Blue Badge holder,
diplomat or resident, if that persons usual parking bay is suspended. Such
exemptions are a matter for local authorities. However, it is important that
suspended and reserved parking bays are clearly signed, so that motorists
can easily see whether and when they are permitted to park there.
92 In London the HEB is issued to the practice to be shared among staff who need to use it rather than
to a specific individual or vehicle. There is space for the user to enter on the badge the address they
are visiting
93 Ibid
73
Miscellaneous exemptions
9.42 TROs invariably exempt vehicles being used for fire service, ambulance or police
purposes, or being used to remove an obstruction (such as a broken down
vehicle). TROs usually also exempt service vehicles, but only when they are being
used to carry out certain activities (for example, telecommunications vehicles when
laying lines, or vehicles of a universal postal service provider delivering mail). These
are not general exemptions for vehicles of a certain type, irrespective of use.
9.43 Drivers of vehicles benefiting from such exemptions should already know which
parking controls they are exempt from. CEOs should also know the local
exemptions so they do not issue PCNs. The exact extent of exemptions will
depend on the precise terms of the traffic order.
CHAPTER 10
Policy and administrative functions
Providing a quality service
10.1 Enforcement authorities should make sure that their processes for
recovering outstanding penalties and handling challenges, representations
and appeals are efficient, effective and impartial. Processes must
comply with all relevant primary legislation, regulations, traffic
regulation orders and local byelaws. Authorities are encouraged to
seek independent quality assurance of their CPE processes. Authorities
should use IT systems that facilitate speedy and accurate processes.
10.2 Enforcement authorities should deal with motorists promptly and
professionally. Authorities are encouraged to set time and quality
targets for dealing with queries, in addition to any statutory time
limits and those set out in the Statutory Guidance. They should report
on performance against these targets in their annual report.
Enforcement authorities must
94
use first class post for any notice or
Charge Certificate.
10.3 Authorities should remember that an appeal is a judicial proceeding
and that time limits for correspondence may be laid down in legislation
or set using adjudicators judicial powers. Authorities are advised to
respond promptly to contacts from the adjudicator concerning appeals.
10.4 Enforcement authorities should offer motorists flexible and efficient
ways to contact them, including e-mail and telephone. They should
ensure there is an adequate audit trail to rebut any accusations
of unfairness.
Collecting penalty charges
10.5 The penalty charge is usually payable by the owner
95
of the vehicle,
unless the vehicle was hired at the time of the contravention.
94 S.I. 2007/3483, regulation 3 (4)
95 This expression is defined by the Traffic Management Act 2004 section 92 as follows: owner, in relation
to a vehicle, means the person by whom the vehicle is kept, which in the case of a vehicle registered
under the Vehicle Excise and Registration Act 1994 (c. 22) is presumed (unless the contrary is proved)
to be the person in whose name the vehicle is registered.
75
10.6 No criminal proceedings may be instituted and no Fixed Penalty Notice
may be served in respect of any parking contravention occurring in a CEA
except to enforce a prohibition on vehicles stopping on or near pedestrian
crossings.
96
If the enforcement authority and the police both take enforcement
action, the criminal action takes precedence and the PCN must be cancelled.
If the PCN has already been paid, the authority must
97
refund it.
10.7 The successful introduction of civil parking enforcement requires convenient
and up-to-date facilities for the payment of penalty and other parking charges.
Motorists may be more likely to pay penalty charges if it is quick and easy to do
so. Vehicles that have been immobilised or removed should be returned to the
owner as soon as possible. An efficient and secure system for collecting penalty
charge revenue will improve an authoritys financial performance by minimising
bad debts and the time-consuming and costly actions needed to collect them.
10.8 Enforcement authorities should offer motorists a range of facilities
for paying penalty charges. Where they provide payment centres
these should be safe and accessible. Payment centres should be
an integral part of the system for processing PCNs, so that the financial
transactions can be recorded immediately and any further action cancelled.
Enforcement authorities should ensure that any payment facility
(particularly telephone and online payments) can confirm any
amount outstanding if part payment only has been received.
10.9 The choice of payment methods for penalty and other charges needs
to balance ease of settlement for the motorist with security of payment
and cost-effectiveness for the authority. The range of payment methods
should reflect the scale of each authoritys enforcement operations,
including the number of penalty charges to be collected and payments
arising from any vehicle immobilisation or removal operations.
10.10 It is important that authorities do not introduce a system that inadvertently
discriminates against some sections of the population. The system should allow
motorists to pay by whatever method is most convenient to them, including:
cash;
cheque sent by post without cheque guarantee card;
cheque supported by a cheque guarantee card presented at a payments centre;
Sterling travellers' cheque; and
debit or credit card, in person, by phone or via the internet.
96 TMA Schedule 7 paragraphs 3 (2)(c) and (h)(i), and 4(2)(c) and (i)(i)
97 S.I. 2007/3483, regulation 7
Policy and administrative functions March 2008

10.11 If a penalty is paid or purports to have been paid and is later withdrawn or
cancelled the time in which enforcement action may be taken is extended
see paragraph 10.37.
98
10.12 Some cheques received through the post will inevitably be made out to the
wrong payee (for example, to a neighbouring authority). If this happens regularly,
authorities may wish to consider establishing a payment exchange. Cheques
endorsed A/C Payee Only and Not Negotiable terms which are invariably
pre-printed on company cheques and often on personal cheques cannot be
made over to other parties. An authority could return a cheque endorsed in this
way to the drawer. An authority could either return it directly, if they know the
address, or via the drawers bank, with an instruction to make it payable to the
correct payee. Alternatively, the authority could transfer the cheque to the named
payee, in return for a cheque for a corresponding sum made payable to it.
10.13 It is important that authorities deal with any misdirected cheques promptly and
write to drawers explaining how their cheques have been handled and why. They
should not acknowledge unsecured cheques until they have cleared. It may be
helpful to advise people sending payment through the post to record key details
(PCN or car registration number) on the back of the cheque to minimise the risk
of matching errors.
10.14 Authorities will need procedures to deal with cases where payment is made
within the discount period but subject to conditions or in envelopes that are not
stamped. It may be better to refuse payments made on conditions.
10.15 Authorities will also need to establish procedures for dealing with overpayments,
underpayments and unidentified payments. Enforcement authorities should
credit unidentified payments to the correct PCN record as soon as possible.
10.16 Where a local authority is immobilising or removing vehicles, the amount
which a motorist will need to pay, allowing for the outstanding penalty charge,
may exceed the limit of a cheque guarantee or debit card. The conditions
governing their use may state that the bank only guarantees payment of a
single transaction up to the card limit. Accepting a series of payments up
to the card limit is considered fraudulent use of the card, and banks could
return the second and subsequent cheques unpaid. A more secure payment
method than a partially secured cheque will therefore minimise bad debts.
10.17 Paying by online debit and credit cards is convenient for many motorists and
is more secure for local authorities. The electronic card readers 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.
98 S.I. 2007/3483, regulation 20 (2)(c)
77
10.18 Payment of a penalty charge by credit or debit card on the telephone or over the
internet has many advantages for authorities and for motorists. It is particularly
effective for collecting release fees for immobilised vehicles. The card holder
can give authority to debit the account by telephone, subject to the agreement
of the credit or debit card companies. It may be worth reminding motorists that
even if they do not have internet access at home, they can make payments from
a local library or internet caf. There may be a case for providing a terminal in
the authoritys customer contact centre or (if they have one) parking shop.
10.19 Authorities which see significant numbers of foreign visitors may wish to
take payment in foreign currency, particularly for immobilisation or removal.
They should use a bureau de change to quote the days exchange rate.
It may be more difficult to detect forged foreign currency. Authorities also
need to consider who will pay any currency conversion charges. Visitors
may claim that they have been unfairly penalised if they are asked to pay
the conversion charge, but the authority might otherwise risk becoming a
cost-effective way for residents to exchange unused foreign currency.
10.20 A PCN is deemed paid as soon as the payment arrives at any
payment office belonging to the enforcement authority that issued the
PCN. Whether this is the parking payment office or another payment
office, the enforcement authority should promptly close the case.
An authoritys systems should accurately record the day on which it
receives payments so that no further enforcement action is taken.
10.21 If there are unusual delays with the postal system, authorities should
make allowances for late payments made by post when considering
whether a payment was received within the statutory period.
Enforcement authorities may wish to keep the envelope that the
payments came in, as the franking can be used as evidence of the
date of posting.
10.22 Where the enforcement authority receives full payment within 14
days of the service of the PCN, it must
99
accept the discounted
amount. Unless the Secretary of State authorises a departure from
the guidelines on the levels of penalty charges, the discount must be
set at the applicable discount currently 50 per cent of the penalty
charge.
100
The authority should then close the case. When a PCN
has been served by post using evidence from an approved device, the
discount period is 21 days from the date of service of the notice.
101
99 S.I. 2007/3483, Schedule, regulation 1(h)
100 S.I. 2007/3487
101 S.I. 2007/3483, Schedule, regulation 3(a)
Location of payment centres and opening hours
10.23 Where immobilisation and removals are not part of an authoritys enforcement
regime, most motorists are likely to pay by phone, post and, when possible,
on-line. Where a motorist wishes to pay in person it may be most efficient to
provide payment facilities at a town hall, civic centre or other places where the
public makes payments to the local authority. Alternatively, where a contractor is
being used, it may be possible to allow payment where enforcement operations
are based. Enforcement without immobilisation or vehicle removals does not
deprive a motorist of the use of his or her vehicle, so there is less need for
payment centres to be open outside normal office hours. However, authorities
may wish to consider extending opening hours if this is likely to encourage
prompt payment.
10.24 Where an authority immobilises or removes vehicles, it is particularly important
that payment methods are convenient and accessible. A payment centre should
be an integral part of the pound to which vehicles are removed, so that motorists
can pay the charges and reclaim their vehicle at the same time. If the vehicle
pound is inconveniently situated, the authority should provide one or more
payment centres in or near the areas where immobilisation commonly occurs for
motorists who wish to pay release fees in person rather than over the phone.
10.25 The vehicle pound payment centre and any payment centre intended primarily
for paying immobilisation charges should be open during the hours that
immobilisation and removal take place. If this is not feasible, they should be
open between 8am and midnight, Monday to Saturday, and between 9am and
5pm on Sundays and public holidays. Longer opening hours may be necessary
at certain times, such as summer weekends and bank holidays at seaside
resorts. There should also be an out of hours emergency service. Authorities
will need to coordinate payment and release procedures to ensure that vehicles
can always be released a reasonable time after payment (see Chapter 8).
Temporary waiving of payments
10.26 There will be circumstances where a motorist will be unable to pay the charges
to release his or her vehicle from an immobilisation device or pound, but there
are strong compassionate grounds for releasing the vehicle. For example, the
person reclaiming the vehicle is a vulnerable person with no immediate means of
payment and it is late at night. Local authorities should formulate policies for the
release of vehicles in such circumstances. Before releasing the vehicle, the
authority should ask the motorist to sign a promissory note to pay the
outstanding debt.
10.27 One way to minimise bad debts where vehicles are released on compassionate
grounds is to accept part payments on the spot. It is arguable that accepting
part payment would make the recovery of small debts uneconomic and the
practice could become an unofficial discount. On the other hand, whilst debt
recovery through the County Court is unlikely to prove economic if viewed in
isolation, the deterrent effect of instigating proceedings to recover all bad debts
may keep non-payment levels down and outweigh the cost of proceedings.
79
10.28 Authorities that decide to accept part payments should first seek payment
of immobilisation, removal, storage or disposal charges. This is because
unpaid penalty charges can be recovered using less expensive procedures.
10.29 In cases of proven hardship, local authorities may wish to consider allowing
outstanding penalty or other charges to be paid in instalments.
Payments for release of a vehicle from an immobilisation device or
a vehicle pound
10.30 After full or part payment or the waiving of the appropriate charges, the release
of a vehicle from an immobilisation device or vehicle pound should be properly
documented. The motorist must immediately be given written advice about their
rights to make representations and, if that is rejected, an appeal
102
and the
grounds upon which they can be made.
10.31 Many motorists whose vehicles have been immobilised will pay the release fee
by phone rather than at a payment centre. Authorities will need to establish
procedures for handling payments and issuing written advice about representations
and appeals that comply with the law.
Issuing the Notice to Owner
10.32 If the penalty charge is not paid the enforcement authority may issue
a Notice to Owner (NtO). The purpose of the NtO is to ensure that
the PCN was received by the vehicle owner and to remind the vehicle
owner that the PCN is now due to be paid in full and if it is not paid
within a further 28 days it may be increased currently by 50 per cent. It
also gives the owner an opportunity to make formal representations against the
penalty charge. The NtO may be issued 28 days after serving the PCN,
and we expect authorities to send them within 56 days after serving
the PCN. The ultimate time limit, in exceptional circumstances, is six
months
103
from the relevant date. There should be a very good reason
for waiting that long to serve a notice to owner. The relevant date is
usually the date on which the PCN was served. It may also be the date on which:
a district judge serves written notice in response to a witness statement;
an earlier NtO relating to the contravention is cancelled in response to
representations; or
the authority is notified that payment (or purported payment) of a PCN has
been cancelled or withdrawn.
102 S.I. 2007/3482, Part 3
103 S.I. 2007/3482, regulation 20

10.33 The NtO must
104
state:
the date of the notice, which must be the date on which the notice is posted;
the name of the enforcement authority serving the notice;
the amount of the penalty charge payable;
the date on which the PCN was served;
The grounds on which the CEO who served the PCN under regulation 9
believed that a penalty charge was payable with respect to the vehicle;
that the penalty charge, if not already paid, must be paid within the period
of 28 days beginning with the date on which the notice is served (the
payment period);
that if, after the payment period has expired, no representations have been
made under regulation 4 of SI 2007/3482 (regulation 4) and the penalty charge
has not been paid, the enforcement authority may increase the penalty charge
by the applicable surcharge currently 50 per cent;
that representations on the basis specified in regulation 4 against payment of
the penalty charge may be made to the enforcement authority, but that any
representations made outside the payment period may be disregarded;
the address (including if appropriate any e-mail address or fax telephone
number as well as the postal address) to which representations must be sent;
the form in which representations must be made;
that if representations which have been made within the payment period, or
outside the payment period but not disregarded, are not accepted by the
enforcement authority the recipient of the notice may appeal against the
authoritys decision to an adjudicator; and
In general terms, the form and manner in which an appeal may be made.
10.34 The regulations set out how the date of service of an NtO must
105
be
calculated. Unless proved otherwise, service is taken to have been on the
second working date after posting. A working day excludes a Saturday,
a Sunday, New Years Day, Good Friday, Christmas Day and any other
English bank holiday. The date of posting is not necessarily the same as
the date on which the back office staff prepare the NtO, and authorities
should make sure that their procedures take account of this.
10.35 There are different requirements when the PCN has been
served by post and so acts as the NtO (see Chapter 8).
104 S.I. 2007/3483, regulation 19(2) and S.I. 2007/3482, regulation 3(3)
81
106
specify on the NtO (or PCN when served by
post) the statutory grounds on which representations may be made.
Where a photograph or other camera evidence shows that the
parking contravention took place, authorities should send this with
the NtO, as it should help to prevent unfounded representations.
10.37 If payment of a penalty charge has been made or has been purported
to have been made (for example by cheque or credit card) and the
payment has been cancelled after the limitation period has expired, the
regulations permit the enforcement authority to serve an NtO.
107
Information from DVLA about the registered keeper
10.38 In order to issue an NtO, the enforcement authority will need to know the
name and address of the registered keeper of the vehicle at the time the
unpaid PCN was served. Authorities can get this information from DVLA.
108

Parking contractors may approach DVLA direct for this information,
provided that each request is supported by a letter of authority from the
enforcement authority on whose behalf they are working. The letter must
never be dated more than three months before the request is made.
10.39 Authorities preparing their applications to enforce civil parking should
contact DVLA at an early stage to discuss methods of transmitting data
and other technical requirements.
109
They should also check whether
the IT provider they propose to use already has a DVLA interface.
10.40 An authority should request the name and address of the registered keeper
from DVLA at least seven days before the NtO is due to be served. For
each unpaid PCN, the local authority needs to provide DVLA with the
vehicle registration number and the date of the contravention. Requests
may be submitted via dedicated, secure electronic links or established
paper channels. DVLA tries to process data sent by electronic link
during the following night if received before 5pm. Requests processed
during the night will usually be returned by 7 am the next day.
10.41 The information returned to a local authority in response to each request
will comprise:
vehicle registration mark (that is, number plate);
name and address of the registered keeper;
date for which the results are provided;
vehicle make, mode and colour; and
106 S.I. 2007/3483, regulation 19(2) Schedule, Paragraph 2, and S.I. 2007/3482, regulation 3(3) and 3(4).
107 S.I. 2007/3483, regulation 20(2)(c)
108 Non-fee paying enquiries, Driver and Vehicle Licensing Agency (DVLA), Longview Road, Swansea SA6 7JL
109 Queries to Data Sharing and Protection Policy, Policy and External Communications Directorate, DVLA,
Longview Road, Swansea, SA6 7JL

other indicators that the vehicle has been scrapped, stolen, etc (only via the
electronic route).
10.42 The information from DVLA should be cross-referenced with the details recorded
by the CEO to ensure that the make, model and colour matches that recorded at
the roadside. The authority should weed out any recording or keying errors to
avoid generating an incorrect NtO.
10.43 The authority will need to check the information it receives from DVLA to
identify vehicles which are registered in the name of a corporate body. In these
cases, the authority will need to send the NtO specifically to the secretary or
clerk of the body corporate and it is unlikely that DVLA will have a record of
their name. Where a vehicle is registered in the name of a partnership, the
authority can serve the notice on any of the partners at the address which
carries out the business. A sole trader is in the same position as any individual,
whether or not s/he works under a business name or his or her own name. The
authority can send the notice to the sole trader's home or business address.
DVLA record is incomplete
10.44 Where requests for information from DVLA are unsuccessful it may be that
the vehicle is a new one and has still to be registered (the vehicle registration
number will indicate whether this is likely), or that the new keeper of a used
vehicle has not yet notified DVLA. The authority should check whether it sent
the correct vehicle details to DVLA and processed the request properly. The
authority should send a further request to DVLA with any incorrect details
amended. If this second enquiry is unsuccessful, the authority should add
details of the vehicle and contravention to its list of untraceable owners.
When a vehicle on this list is parked in contravention and has three or
more unpaid and unchallenged PCNs recorded against it (see Chapter 8)
the authority may immobilise or remove it faster than other vehicles.
10.45 The initial information will be taken from DVLAs vehicle record, but will include
a marker to indicate cases where there is an enforcement history file which may
contain a more recent address. Where the vehicle record data does not enable
a vehicle owner to be traced, the authority will then be able to request name and
address details from the enforcement history file. Authorities should note that this
information is the last known name and address of the last alleged contravener
or (in the case of criminal matters) offender. It should not be taken as
confirmation that the current owner is responsible for the outstanding penalties.
10.46 Many authorities currently operating CPE provide DVLA with information
about vehicles without a valid VED disc that have been issued with a PCN,
thus helping DVLA to track down VED evaders and improve the accuracy of
their records. DVLA will establish similar relations with other local authorities
preparing to introduce civil parking enforcement. Authorities should contact
the Vehicle Customer Services, eVRE section, DVLA, for more details.
83
Diplomatic vehicles
10.47 Where a PCN is served on a vehicle with a diplomatic registration
plate but no payment is received within 28 days, an enforcement
authority should not issue an NtO but keep a record of the unpaid
penalty charge. Every year the Foreign and Commonwealth Office will
request details of all unpaid PCNs and then seek payment from the
relevant contraveners.
Charge Certificate
10.48 The Charge Certificate tells the vehicle owner that the penalty
charge has been increased and that action will be taken to recover
the amount due through the County Court if it is not paid within
14 days. Unless the Secretary of State authorises a departure
from the guidelines, the increase in the penalty charge must
110

be set at the applicable surcharge currently 50 per cent.
10.49 The authority may issue a Charge Certificate where an NtO has
been served (this includes where a regulation 10 PCN has been served) the
penalty charge has still not been paid and no representation or appeal
is under consideration. This must not
111
be done before the end of
28 days beginning with the date on which the NtO was served.
10.50 Where representations have been made and rejected, and no
appeal has been made, the enforcement authority must not
112

issue the Charge Certificate before the end of 28 days beginning
with the date on which the Notice of Rejection (NoR) was served.
This is to give the vehicle owner time in which to appeal.
10.51 Where cases go to adjudication, authorities must not
113
issue a
Charge Certificate before all due processes have been completed. If
an appeal is made and withdrawn before the hearing the authority
may, after 14 days beginning with the date on which the appeal
was withdrawn, issue the Charge Certificate. If an authority issues
a Charge Certificate before an appeal is decided, the adjudicator
may then cancel the PCN on the grounds of procedural impropriety.
The authority should cancel the void Charge Certificate.
10.52 Where an appeal is made but refused, the authority must not issue a
Charge Certificate before the end of 28 days beginning with the date
on which the adjudicators decision was served on the appellant.
114
110 S.I. 2007/3487, Schedule, regulation 2(2)
111 S.I. 2007/3483, regulation 21
112 S.I. 2007/3483, regulation 21
113 S.I. 2007/3487, regulation 21, and S.I. 2007/3482, regulation 4(5)(b)
114 S.I. 2007/3483, regulation 21
10.53 If the penalty charge has not been paid 14 days after the Charge
Certificate was served, the authority may apply to the Traffic
Enforcement Centre at Northampton County Court to recover the
increased charge as if it were payable under a county court order.
Registering the Charge Certificate with the Traffic
Enforcement Centre
10.54 The Traffic Enforcement Centre (TEC) at Northampton County Court
processes requests to register Charge Certificates and requests for authority
to enforce orders to recover unpaid parking penalty charges. The TECs
Code of Practice for authorities describes the procedures where a penalty
charge has not been paid following service of a Charge Certificate. The Code
of Practice is specified within the TECs rules of membership and is issued
to all prospective CPE authorities who register via the TEC their intention to
enforce PCNs in accordance with Part 75 of the Civil Procedure Rules.
Witness Statement (formerly a Statutory Declaration)
10.55 Where a Charge Certificate has been served but the penalty charge not
paid after 14 days, the authority may apply to the TEC to register the Charge
Certificate and recover the increased penalty charge as if it were payable under
a County Court order. A fee of 5.00
115
is payable for the registration of each
Charge Certificate. The authority must allow 21 days from the date that the
Charge Certificate was posted before registering it. Once registered, the TEC
will send the enforcement authority a sealed authority to issue an order for the
recovery of the amount outstanding the unpaid penalty charge, any costs
awarded against the motorist by an adjudicator, plus the registration fee.
10.56 Within seven days the enforcement authority must then send an order informing
the motorist that, within a further 21 days from receipt of the order, s/he must
either pay the amount outstanding or send to the TEC a Witness Statement
(formerly a Statutory Declaration) to refute the need to pay the penalty charge
and that the registration of the unpaid penalty charge should be revoked.
10.57 The Witness Statement can be made on one of the following grounds:
116
s/he did not receive the NtO in question;
s/he made representations to the enforcement authority about the penalty
charge and did not receive a rejection;
s/he appealed to the parking adjudicator against the enforcement authority's
decision to reject his/her representation but either received no response to
the appeal; the appeal had not been determined by the time that Charge
Certificate had been served; or the appeal was determined in his/her favour; or
115 As at 01/08/07. Please check the figure on the TEC website www.hmcourts-service.gov.uk
116 S.I. 2007/3483, regulation 23 (2)
85
s/he paid in full the penalty charge to which the Charge Certificate relates.
10.58 A valid witness statement automatically revokes the order for the recovery
of the unpaid penalty charge and the Charge Certificate. Where the
motorist has declared that s/he did not receive the NtO to which the
Charge Certificate relates, the NtO is also deemed to have been cancelled.
The enforcement authority must therefore address the procedural error
specified in the motorist's Witness Statement and decide whether it intends
to continue to press for payment of the outstanding penalty charge.
10.59 If the motorist claims that s/he did not receive the NtO it is advisable that the
enforcement authority serves a second NtO personally by a process server.
10.60 If the motorist claims that s/he paid the penalty charge or made
representations to the enforcement authority about the penalty charge and
did not receive a rejection the authority must
117
refer the case to a parking
adjudicator who may give such direction as s/he considers appropriate.
10.61 If the motorist claims that s/he appealed to the parking adjudicator against the
enforcement authoritys decision to reject the representation but received no
response to the appeal the enforcement authority must
118
refer the case to a
parking adjudicator, who may give such direction as s/he considers appropriate.
10.62 Issuing a Charge Certificate prematurely or, for instance, before a decision
about a representation or an appeal has been notified is a procedural irregularity
(see Chapter 11). It is one of the grounds on which an adjudicator may now
consider an appeal. Authorities should ensure that their systems are not
programmed to send out Charge Certificates regardless of circumstances.
10.63 Authorities should note that some of the information above may change
following the review of Part 75 of the Civil Procedure Rules.
Warrants of Execution and Certificated Bailiffs
10.64 Where the motorist has been served with an order for recovery of the
unpaid penalty charge and fails to pay the penalty charge or to complete
the Witness Statement, the authority can ask the TEC for authority to
prepare a Warrant of Execution. This authorises a certificated bailiff
to seize and sell goods belonging to the motorist to the value of the
outstanding amount plus the cost of executing the warrant.
10.65 A local authority can ask the TEC for authority to prepare a Warrant of Execution
if all of the following criteria are met:
21 days have elapsed since service of the registration order was effected;
full payment has not been received;
117 S.I. 2007/3483, regulation 23(7)
118 S.I. 2007/3483, regulation 23(2)(d)

86
no Witness Statement has been filed;
no time extension for making a Witness Statement has been approved; and
the motorist lives in England or Wales.
10.66 Registration with the TEC can be transferred to the Sheriffs Court in
Scotland so that enforcement can be carried out against a motorist whose
vehicle is registered at an address in Scotland.
119
However, registration
against a motorist whose vehicle is registered at an address in the Isle of
Man, the Channel Islands or a foreign country cannot be enforced.
10.67 The authority must produce a warrant within seven days of receipt of the
authorisation to do so from the TEC. A copy of the warrant should be given to
a certificated bailiff for execution (i.e. a bailiff who holds a general certificate
granted by the Lord Chancellors Department under the Distress for Rent
Rules 1988, as opposed to a bailiff employed by the county court). It will
be for each local authority to obtain the services of certificated bailiffs, as
necessary, either by employing in-house staff or contracting out the work.
10.68 The certificated bailiff will seek to execute the warrant in broadly the same way
that a court order would be executed, but with the following differences:
a modified schedule of fees, charges and expenses is to be used in
calculating bailiffs' costs, and new specimen notices are to be used by bailiffs
when executing a warrant of execution;
120
and
other modifications to the statutory provisions concerning the enforcement of
civil court judgments and orders are to apply.
121
10.69 Sections 82 and 83 of the TMA make equivalent provision to section 78 of the
RTA 1991. The secondary legislation made under section 78
122
, sections 82(5)
and 83(4) carry these instruments over, so that they have effect as if made
under the 2004 Act. The warrant of execution must be carried by the certificated
bailiff when s/he visits a person or premises with a view to enforcing it. S/he
must produce it on demand to anyone who has reasonable grounds to see
it. However, if the name on the warrant is incorrect, this would suggest that
the order for recovery also gave the incorrect name. If so, the order must be
re-served before the authority can ask for permission to prepare a warrant.
10.70 Authorities should instruct their bailiffs to liaise with them before taking
this action. If the name or address on the county court order Warrant was
incorrect the name or address on the Notice to Owner and the Charge
119 Order 35 of the County Court Rules 1981 (SI 1981/1687)
120 The Enforcement of Road Traffic Debts (Certificated Bailiffs) regulations 1993 (SI 1993/2072 (L.17))
121 sections 85 to 104 and 125 of the County Courts Act 1984, the County Court (Amendment No. 2) Rules
1993 (SI 1993/2150 (L.24)) and the Enforcement of Road Traffic Debts Order 1993 (SI 1993/2073 (L.18))
122 Enforcement of Road Traffic Debts Order 1993 (S.I.1993/2073 amended by SI 2001/1386) and the
Road Traffic Debts (Certified Bailiffs) regulations 1993 (SI 1993/2072 amended by SI 1998/1351 and
2003/1857))
Operational Guidance May 2008

87
Certificate may also have been incorrect, and neither have been served on
the motorist. If the NtO and/or the Charge Certificate were never served the
Warrant of Execution should not be served. An NtO (or Charge Certificate)
should be served to the name or the address established by the bailiff.
10.71 If the NtO and the Charge Certificate were served, the order should be re-served.
A Warrant of Execution has a lifespan of 12 months only and cannot be reissued.
If the authority has failed to recover the charge by means of a warrant within this
time and wishes to pursue this means of enforcement, it must ask the TEC for
authorisation to prepare another warrant.
10.72 A Warrant of Execution is the normal means of collecting unpaid debts. However,
there are circumstances in which an authority can use other means to collect the
amount owing:
if an execution against goods has been attempted, but the bailiff has been
unable to seize goods because access to the premises was denied, or the
goods had already been removed;
if the value of the goods seized would not meet the outstanding amount, plus
the costs of execution;
if the value of the goods to be seized would not cover the cost of their removal
and sale; and
if an authority has reason to believe that execution against goods will fail to
raise the outstanding debt and the costs of execution.
10.73 Other means of recovering the sum owed cannot be used simply because the
motorist has ceased to occupy the premises stated in the warrant of execution.
The certificated bailiff has authority to levy against the respondent's goods
irrespective of address and the bailiff can therefore amend the details of the
address on the warrant and seek to enforce the warrant at the motorist's
new address.
10.74 The other means of enforcement are:
an attachment of earnings order an order deducting money from the
motorist's earnings to discharge the amount outstanding;
a Third Party Debt order preventing the motorist withdrawing any money
from his or her bank or building society account until the outstanding debt is
paid and requiring the bank or building society to discharge the debt using
money in the motorist's account; and
a charging order preventing the motorist selling his or her house or land
unless the outstanding debt is paid.
10.75 An authority can also ask the defendant's local County Court to issue an oral
examination. An oral examination is a way of finding out about the motorist's
income and expenses in order to decide on the most appropriate means of
enforcement.

10.76 If it wishes to issue an Order to Obtain Information from a Judgement Debtor or to
enforce judgement using one of the methods set out in this chapter, an authority
must ask the TEC to transfer the case to the motorist's local County Court.
10.77 A motorist's credit rating will not be affected by enforcement proceedings, as
the debts will not be entered in the Register of County Court Judgements, either
while the case is at the TEC or on transfer to another County Court for non-
warrant enforcement.
10.78 Authorities should note that some of the terminology and information
above will change when the Tribunals, Courts and Enforcement Act 2007
is implemented. Warrants of Execution will be known as Warrants of
Control, Bailiffs will be known as Enforcement Agents, and goods will
no longer be seized but taken into control. In addition there will be a new
certification process for enforcement agents, issued under the 2007 Act
and its underpinning regulations rather than the Distress for Rent Rules.
89
CHAPTER 11
Challenges, representations
and appeals
11.1 The vehicle owner may dispute the issuing of a PCN at three stages:
Owners may make so-called informal challenges or informal
representations (or pre NtO letters) against the PCN before the
authority has served an NtO (this does not apply when the PCN is
issued by post as the PCN then acts as the NtO);
123
Once an NtO has been served, an owner may make a formal
representation against the NtO to the authority; and
If a formal representation is rejected the owner may appeal against
the Notice of Rejection to an independent adjudicator.
11.2 Once a regulation 10 PCN has been served, there are only two stages at which
the vehicle owner may dispute it formal representations (after the PCN, which
is also the NtO) has been served and an appeal against a Notice of Rejection.
11.3 It is in the interests of the authority and the vehicle owner to resolve
any dispute at the earliest possible stage. Authorities should take
account of the CEOs actions in issuing the PCN, but should always
give challenges and representations a fresh and impartial consideration.
11.4 An authority has a discretionary power to cancel a PCN at any
point throughout the CPE 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
124
and are encouraged to exercise discretion sensibly
and reasonably and with due regard to the public interest.
11.5 Enforcement authorities have a duty
125
not to fetter their
discretion, so should ensure that PCNs, NtOs, 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
123 S.I. 2007/3482, regulation 3(2). The enforcement authority must consider representations made at this
stage but if it proceeds to serve a Notice to Owner after receiving such representations, then those or
other representations can be made in accordance with S.I. 2007/3482, regulation 4
124 Failure to act in accordance with the general principles of public law may lead to a claim for a decision to
be judicially reviewed
125 Ibid
Challenges, representations and appeals March 2008

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.
11.6 The process of considering challenges, representations and defence
of appeals is a legal process that requires officers dealing with these
aspects to be trained in the relevant legislation and how to apply it.
It is recommended that they are well versed in the collection, interpretation
and consideration of evidence; writing full, clear but concise responses to
challenges, enquiries and representations; presenting the authoritys case to
adjudicators; and relevant government guidance. Recognised training courses,
such as those provided by the British Parking Association, will help officers
achieve minimum standards.
11.7 Authorities should ensure that their legal departments are involved in establishing
a processing system that meets all the requirements of the law. They should also
consult them about complex cases.
126
use first class post for all notices. The regulations say
may but this means must as authorities may not use second class post.
The term first class post does not imply only using the service provided by
the Post Office.
127
The Secretary of State recommends first class post for all
out-going documents. Authorities should ensure that the date of service of a
notice or a Charge Certificate shall, unless the contrary is proved, be taken to
have been effected on the second working day after the day of posting.
128
11.9 It is for the authority to decide the media that may be used to make an informal
or a formal representation (for example, writing, e-mail, telephone). Authorities
will need to assure themselves that the ways chosen protect social inclusion and
allow the person making the representation to make his/her case clearly and
coherently and that there is an adequate audit trail to show what was said if the
decision is questioned.
Challenges also known as informal representations
11.10 Statutory representations cannot be made until an NtO has been served but
many motorists are likely to write to authorities before then if they do not believe
that a PCN is merited. These objections are known as informal representations
or challenges. They can be made at any time up to the receipt of the NtO. It is
likely that an enforcement authority will receive informal challenges
126 S.I. 2007/3483, regulations 3(1)
127 Postal Services Act 2000, Schedule 8, paragraph 4(1)
128 S.I. 2007/3483, regulation 3(2).
91
against PCNs before they issue the NtO and authorities must
129
consider
them (the concept of informal challenge does not apply to PCNs issued
by post where the PCN will act as an NtO). Authorities are likely
to receive these within the 14 day discount period. Enforcement
authorities should give proper consideration and respond to these
challenges with care and attention, and in a timely manner in order
to foster good customer relations, reduce the number of NtOs sent
and the number of formal representations to be considered. The
Secretary of State suggests that authorities should respond within
14 days. Enforcement authorities should also have suitably trained
staff with the appropriate authority to deal with these challenges.
11.11 There is no legal requirement for informal challenges to be dealt with
by the authoritys directly employed staff as opposed to the staff of the
enforcement contractor, if there is one. But it may help the authority to
make it transparent that it deals with challenges fairly and independently
if they are considered in-house. If enforcement is carried out by in-house
staff, there should be a clear separation at all but the most senior levels
between the CEOs and their managers and staff dealing with challenges.
11.12 The consideration should take into account the grounds for making
representations and the authoritys own guidelines for dealing with extenuating,
or mitigating, circumstances. An authority may wish to provide on their
website and in Council offices a form on which the motorist can say why s/
he thinks that the penalty charge is not merited, with supporting evidence.
As with statutory representations, it is vital to ensure that, whatever ways
are available to lodge an informal representation, there is an adequate
audit trail of the case, showing what decision was taken and why.
11.13 If the evidence or circumstances (including mitigating circumstances)
provide grounds for cancelling the PCN, then the enforcement
authority should do so and let the vehicle owner know. They should
refund promptly any money that has already been paid.
11.14 An authority must decide what constitutes satisfactory evidence and it may be
beneficial to give a motorist the benefit of the doubt on the first occasion but
question the circumstances more closely if there are any subsequent challenges
to a different PCN. Authorities should examine with particular care the alleged
circumstances of a challenge that appears to be based on guidance from
websites or lobby groups. If a number of motorists have parked their vehicles at
the same site in the mistaken belief that this is permitted, the authority should
consider what can be done to make the restrictions clearer to the public.
11.15 If the enforcement authority considers that there are no grounds for
cancellation, it should tell the vehicle owner and explain its reasons.
They should also make clear that:
129 S.I. 2007/3482, regulation 3(2)(b)
if the penalty charge is not paid they will issue an NtO that enables the vehicle
owner to make a formal representation;
the authority must consider any representations, even where it has previously
concluded that the evidence does not merit cancellation of the PCN;
if the authority rejects the owner's formal representation s/he will be able to appeal
to an independent parking adjudicator, who will be able to consider whether the
motorist's case falls within any of the statutory grounds for appeal; and
it is not possible to appeal to a parking adjudicator without going through the
process of making a formal representation to the local authority.
11.16 If a challenge is received within the discount period and subsequently
rejected, the Secretary of State recommends that the enforcement
authority should consider re-offering the discount for a further 14
days to incentivise payment. Authorities should always make it clear
that an owner who has an informal challenge rejected may still make a
formal challenge if an NtO is served.
130
11.17 If the challenge is received after the 14 day discount period and it is rejected,
the authority should consider re-offering the discount if circumstances have
adversely affected the ability of the motorist to challenge within 14 days.
11.18 Many enforcement authorities contract out on-street and car park
enforcement and the consideration of informal representations.
Enforcement authorities should not contract out the consideration of
formal representations. Enforcement authorities remain responsible for
the whole process, whether they contract out part of it or not, and
should ensure that a sufficient number of suitably trained and authorised officers
are available to decide representations on their merits in a timely and
professional manner.
11.19 Where CPE on-street and car park enforcement and associated
operations are done by in-house staff, there should be a clear
separation between the staff that decide on the issuing and
processing of PCNs and the staff that decide on representations.
This is particularly important for cases referred back by the
adjudicators. It ensures that decisions are seen to be impartial.
11.20 Officers dealing with formal representations should be familiar with all
aspects of civil parking enforcement, particularly the legal nature of the
process, so that they can judge whether or not a representation falls
within the statutory grounds
131
or the authoritys guidelines for exceptional
cases. Fair and efficient systems for carrying out this work should ensure
130 S.I. 2007/3482, regulation 3(2)
131 S.I. 2007/3482, regulation 4(4)
93
that the number of cases going to an adjudicator is minimised so
saving the authority time and expense without allowing motorists who
have committed a contravention to evade the appropriate penalty.
11.21 Elected members may wish to review their parking representations
policies, particularly in the area of discretion, to ensure consistency
with published policies. However, elected members and unauthorised
staff should not, under any circumstances, play a part in deciding the
outcome of individual challenges or representations. This is to ensure
that only fully trained staff make decisions on the facts presented.
The authoritys standing orders should be specific as to which officers
have the authority to cancel PCNs. There should also be a clear
audit trail of decisions taken with reasons for those decisions.
11.22 The grounds on which representations may be made are set out in
the regulations
132
and must
133
be stated on the Notice to Owner.
Representations must be to either or both of the following effects:
that, in relation to the alleged contravention on account of which the NtO was
served, one or more of the grounds specified below apply; or
that, whether or not any of those grounds apply, there are compelling reasons
why, in the particular circumstances of the case, the enforcement authority
should cancel the PCN and refund any sum paid on account of it.
11.23 The grounds are:
That the alleged contravention did not occur.
This is likely to be the most common ground for representations. It includes
cases where a vehicle was allegedly loading or unloading in accordance with a
TRO, where a PCN was allegedly issued too early by the CEO, or where a
vehicle was allegedly displaying a valid permit, ticket, voucher or badge.
That the recipient:
never was the owner of the vehicle in question;
had ceased to be its owner before the date on which the alleged
contravention occurred; or
became its owner after that date.
Where a recipient makes representations under the second or third
circumstances above, he or she is legally obliged to include a statement of
the name and address of the person to whom the vehicle was disposed of (or
from whom it was acquired, as the case may be), if they have that information.
That the vehicle had been permitted to remain at rest in the place in question
by a person who was in control of the vehicle without the consent of the owner.
132 S.I. 2007/3482, regulations 4, 8 and 11
133 S.I. 2007/3482, regulation 3(3)

This ground for representations covers stolen vehicles, and vehicles which
were not stolen but which were used without the owners consent. It may
apply in limited circumstances where a vehicle was being used by a member
of the owners family without the owners consent, such as where the family
member has no permission to use the vehicle and has taken the keys without
the owners knowledge.
That the recipient is a vehicle-hire firm
134
and:
the vehicle in question was at the material time hired from that firm under a
vehicle hiring agreement;
135
and
the person hiring it had signed a statement of liability acknowledging
his liability in respect of any PCN served in respect of any contravention
involving the vehicle.
The Secretary of State suggests that the NtO requests that the hire-firm supply
to the authority the name and address of the person hiring the vehicle at the
material time and a copy of the statement of liability. This information should be
used to issue a second NtO on the person hiring the vehicle (who is deemed
to be the owner of the vehicle for the purposes of processing the PCN).
That the penalty charge exceeded the amount applicable in the circumstances
of the case.
That there has been a procedural impropriety on the part of the
enforcement authority.
The regulations define a procedural impropriety as a failure by the enforcement
authority to observe any requirement imposed on it by the TMA or the TMA
regulations in relation to the imposition or recovery of a penalty charge or other
sums. It includes, in particular, the taking of any step, whether or not involving
the service of a document and the purported service of a Charge Certificate in
advance of the time scale set out in the regulations.
136
This will also be ground
for a representation against a PCN that has been served if a fixed penalty
notice, as defined by section 52 of the Road Traffic Offenders Act 1988, has
been given in respect of that conduct, or the conduct constituting the parking
contravention in respect of which the penalty charge notice has been given is
the subject of criminal proceedings. This is only likely to be the case on or near
pedestrian crossings.
That the Order which is alleged to have been contravened in relation to the
vehicle concerned is invalid.
137
This ground is only available in limited circumstances, because it does not
apply to orders to which Part VI of Schedule 9 to the RTRA 1984 applies.
134 vehicle-hire firm has the same meaning as in section 66 of the Road Traffic Offenders Act 1988
135 hiring agreement has the same meaning as in section 66 of the Road Traffic Offenders Act 1988
136 S.I. 2007/3482, regulation 4(5)
137 This does not apply to Orders to which Part VI of Schedule 9 of the Road Traffic regulation Act 1984
applies, as they can only be questioned in proceedings set out in paragraph 35 of Schedule 9
95
In the case where a PCN was served by post on the basis that a CEO was
prevented by some person from fixing it to the vehicle concerned or handing it
to the owner or person in charge of the vehicle, that no CEO was so prevented.
That the NtO should not have been served because the penalty charge had
already been paid in full or by the amount reduced by any discount set
138

within the period set.
139
consider representations made on any grounds.
Representations must be made within 28 days of service of the NtO.
Authorities have the discretion to accept late representations, and we
encourage them to use this discretion when a vehicle owner gives a
valid reason for the delay and has strong grounds for representations.
Representations against immobilisation or removal
11.25 The grounds on which representations (and appeals) against the immobilisation
or removal of a vehicle can be made differ in some respects to those against the
serving of a PCN.
140
11.26 The grounds against immobilisation are that:
the vehicle had not been permitted to remain at rest in a CEA in circumstances
in which a penalty charge was payable under regulation 4 of S.I. 2007/3483;
the vehicle had been permitted to remain at rest in the place where it was by a
person who was in control of the vehicle without the consent of the owner;
the place where the vehicle was at rest was not in a CEA;
in accordance with limitations on the power to immobilise vehicles set out
in S.I. 2007/3483, there was in the circumstances of the case no power to
immobilise the vehicle at the time at which it was immobilised or at all;
the penalty charge or other charge paid to secure the release of the vehicle
exceeded the amount applicable in the circumstances of the case; or
there was a procedural impropriety on the part of the enforcement authority.
11.27 The grounds against removal are that:
the vehicle had not been permitted to remain at rest in a CEA for parking
contraventions in circumstances in which a penalty charge was payable under
regulation 4 of S.I. 2007/3483;
a CEO had not, in accordance with regulation 9 of S.I. 2007/3483, fixed a
PCN to the vehicle or handed such a notice to the person who appeared to
him/her to be in charge of the vehicle, before the vehicle was removed;
138 The discount must be in accordance with TMA, Schedule 9
139 S.I. 2007/3482, regulation 5 (2)(b)(ii)
140 S.I. 2007/3482, Parts 3 and 4

at the time the vehicle was removed, the power to remove the vehicle conferred
by regulation 5C of the Removal and Disposal of Vehicle Regulations 1986
was, by virtue of paragraph 3 of that regulation, not exercisable;
the vehicle had been permitted to remain at rest in the place where it was by a
person who was in control of the vehicle without the consent of the owner;
the place where the vehicle was at rest was not in a CEA for parking
contraventions;
the penalty charge or other charge paid to secure the release of the vehicle
exceeded the amount applicable in the circumstances of the case; or
there was a procedural impropriety on the part of the enforcement authority.
Consideration of representations
11.28 The enforcement authority must
141
consider representations and any
supporting evidence against a Notice to Owner, regulation 10 PCN or
immobilisation or removal, and serve notice of its decision on the
person making the representations within 56 days of the service of
the representations whether or not it accepts that the ground in question
has been established. The 56 day period in the regulations should be
seen as the maximum period and authorities should aim to decide
representations as quickly as possible. The Secretary of State
considers that all decision notices should be served within 21 days.
11.29 If an authority accepts a representation against a Notice to Owner,
it must
142
cancel the NtO and inform the person concerned that it has
done this. It must refund any sum already paid. The PCN should also be
cancelled, except where the recipient of the NtO proves s/he was not the owner of
the vehicle at the time of the alleged contravention or the owner was a vehicle hire
company. Cancellation (of an NtO) does not prevent the authority from
serving another NtO for the same contravention to another person.
143
11.30 Where an authority accepts a representation against immobilisation or
removal, it must refund any sums paid to release the vehicle, except
to the extent (if any) to which those sums were properly paid.
144

Where the removed vehicle has already been sold and representations
against removal are accepted, the enforcement authority must
145

refund all the sale proceeds to the vehicle owner. It is likely that the
vehicle owner will already have received the proceeds of the sale
minus the cost of removal, storage and sale, and if this is the case
the enforcement authority must
146
at this point refund the costs of
141 S.I. 2007/3482, regulations 5, 9 and 12
142 S.I. 2007/3482, regulation 5(3)
143 S.I. 2007/3482, regulation 5(4)
144 S.I. 2007/3482, regulation 9(4)
145 RTRA, section 101A (2)
146 RTRA, section 101A(2)
97
removal, storage and sale. Any authority that undertakes immobilisation
or removal should ensure that its staff are fully familiar with the
relevant legislation.
147
11.31 Where a response or notice of decision is likely to be delayed for any
reason, the enforcement authority should acknowledge receipt of the
representation and explain the representation process, including when
a decision notice will be dispatched.
Providing false information
11.32 A person who recklessly or knowingly makes a representation to the authority or
an adjudicator which is false in a material particular is guilty of an offence. On
summary conviction they may be liable to a fine not exceeding level 5 on the
standard scale (currently 5,000).
Notification of the outcome of representations
11.33 Once an authority has come to a decision about a representation, it
should promptly tell the person making the representation (usually the
owner of the vehicle) what they have decided to do and why. If the
person making the representation is not the owner (but is acting
officially on their behalf) then the owner should be informed, where
possible, of the decision.
11.34 If the authority rejects the representation, it must
148
serve a Notice
of Rejection (NoR) stating that it will issue a Charge Certificate
unless the PCN is paid, or an appeal made to an adjudicator. The
notice of rejection must
149
set out the general form and manner in
which an appeal can be made and that the adjudicator has the power
to award costs against either party.
11.35 The Notice of Rejection may contain such other information as the local authority
considers appropriate. This could include the effect of the Charge Certificate to
increase the penalty charge. The authority should give the owner clear
and full reasons for its decision on a representation, in addition to
the minimum required information. This is not just a courtesy to the motorist.
Failure to explain such a decision might be seen as maladministration and
experience suggests that the provision of relevant information reduces the number
of cases taken to adjudication. Moreover, where disputes do go to an adjudicator,
147 The removal and disposal of vehicles by local authorities is governed by sections 99 to 103 of the Road
Traffic Regulation Act 1984 and the Removal and Disposal of Vehicles Regulations 1986 (S.I. 1986/
183 as amended. See in particular S.I. 2007/3484 which inserts a new regulation 5C into the 1986
regulations whereby civil enforcement officers are authorised to remove illegally parked vehicles from
roads in civil enforcement areas). Representations and Appeals against charges for removal, storage
and disposal are governed by Part 4 of S.I. 2007/3482 and the setting of those charges by Schedule 9
to the Traffic Management Act 2004 and, outside London, by S.I. 2007/3482
148 S.I. 2007/3482, regulation 6
149 S.I. 2007/3482, regulation 6
the local authoritys case will rely to quite a large extent on the notice of rejection,
so it is in the authoritys interest to set out in sufficient detail its reasons for rejecting
a motorists representations. Authorities may wish to attach to the Notice of
Rejection a separate form on which the recipient can make his or her appeal.
11.36 If, following an unsuccessful representation, an authority decides to
offer a new discount period for prompt payment, it should set out the
dates of this period in the Notice of Rejection.
Adjudication
11.37 Adjudicators are appointed jointly by all the relevant local authorities
with CPE powers, with the agreement of the Lord Chancellor, and are
wholly independent. They have a judicial position and should be
treated accordingly.
11.38 If a local authority rejects a formal representation, the person
who made the representation has the right to appeal to an
adjudicator within 28 days of the date of service of the NoR.
150

An adjudicator has the discretion in appropriate circumstances
to consider an appeal made after 28 days. The grounds for
appeal are the same as those for formal representations and
are set out in the regulations
151
(see paragraphs 11.23 to 11.27).
11.39 If an adjudicator allows the appeal, s/he may make such directions to
the authority s/he considers appropriate, most usually to cancel the PCN,
the NtO and refund any sum already paid in respect of the penalty
charge. The authority must
152
comply with this direction without delay.
11.40 The adjudicators decision is final, subject to the power of
adjudicators to review a decision
153
. No further challenges can be
made other than on a point of law through an application to the
High Court for judicial review.
11.41 The Governments Tribunals for Users programme emphasises
the importance of feedback to improve the representations and
appeals procedure and help prevent unnecessary appeals.
11.42 Persistently losing cases at appeal is time wasting and expensive. It also
undermines public confidence in the process that the authority is administering.
If an authority is losing a noticeably larger proportion of appeals than comparable
authorities, they should consider the possible reasons for this. Consultation with
comparable authorities and stakeholders may help to identify factors. There may be
simple changes that can be made to ensure that the situation does not continue.
150 S.I. 2007/3483, regulation 7
151 S.I. 2007/3483, regulation 13 and Schedule, Paragraphs 7 and 10
152 S.I. 2007/3483, regulation 13 and Schedule, Paragraphs 7 and 10
153 S.I. 2007/3483, Schedule, Paragraph 12
99
11.43 Authorities should ensure that they have in place a mechanism by which
general lessons are learnt from the decisions of adjudicators on their own
cases and the cases of other authorities. Those lessons should be built into
the practices of the authority and the decisions taken on representations.
Cases referred back to the authority by the adjudicator
11.44 An adjudicator may only allow an appeal if one of the statutory
grounds for appeal applies. Where a contravention has taken place
but the adjudicator considers that the enforcement authority should
have used its discretion to cancel the NtO, the adjudicator may refer
the case back for the enforcement authority to reconsider.
154
This
power covers appeals against immobilisation or removal as well as against NtOs.
Such cases should be directed to the Office of the Chief Executive to
ensure that the case is given proper consideration on the facts presented
without preconceptions. It should not be dealt with by the team who considered
the original representation.
11.45 A decision must
155
be reached within 35 days from the notice of the
adjudicators decision. If the enforcement authority does not reach a
decision within this period, it is deemed to have accepted the
adjudicators recommendation and must
156
cancel the NtO. The
enforcement authority must
157
have regard to the reasons given by the
adjudicator for his/her recommendation. Where it does not accept
this recommendation it must
158
notify the adjudicator and the appellant
of the reasons for its decision before issuing the Charge Certificate.
11.46 If the penalty charge is not paid after 28 days beginning with the date on which
the authority notified the appellant that it does not accept the adjudicators
recommendation, the authority may issue a Charge Certificate.
11.47 If the enforcement authority decides to accept the recommendation
of the adjudicator, it must
159
cancel the NtO without delay and refund
any sums paid in relation to the NtO. Refunds in relation to immobilised or
removed vehicles must
160
be made within 35 days of the adjudicators direction.
154 S.I. 2007/3483, regulations 7(4), 10(5) and 13(5)
155 S.I. 2007/3482, regulations 7(5), 10(6) and 13(6)
160 S.I. 2007/3483, regulations 10(9) and 13(9)
CHAPTER 12
Key criteria when applying
for the power to enforce
parking regulations
12.1 The key criteria on which DfT will be need to be satisfied are that:
the authority has reviewed its existing parking policies and analysed
how CPE will contribute to overall transport objectives;
the authority has consulted as required and taken account of their
views in finalising the application;
proposed penalty charges are proportionate to the scale of the
traffic management issues facing the enforcement authority;
there is consistency with neighbouring schemes so that motorists
and others affected can understand how it works; and
all Traffic Regulation Orders (TROs), traffic signs and road
markings are in compliance with legal requirements and the traffic
signs and road markings are consonant with the orders.
12.2 Before making an application for CPE designation to the Secretary of
State, the authority should consult:
other traffic authorities (including the Highways Agency) who may
be affected;
the emergency services;
the DVLA;
the adjudication service; and
the Traffic Enforcement Centre at Northampton County Court.
Other powers received along with the power to
enforce parking
Immobilisation and removal
12.3 When an authority receives the power to enforce parking it will also receive
the power to immobilise or remove vehicles parked in contravention. The
Secretary of State does not expect authorities to use the immobilisation
power except for persistent evaders. But s/he accepts that authorities
may have to remove vehicles in order to keep traffic moving.
101
Bus lanes
12.4 When an authority applies to the Secretary of State for the power to enforce
parking under part 6 of the Traffic Management Act 2004 the Secretary of State
expects them also to apply for the power to enforce bus lanes under the Transport
Act 2000. The Secretary of State currently intends that once the provisions in
Part 6 of the TMA covering bus lanes are in place, the same procedure will apply.
The provisions with respect to certain moving traffic matters may be different.
The Secretary of State recommends that an authority new to civil enforcement
familiarise itself with the concepts by enforcing parking before undertaking the
enforcement of bus lanes and certain moving traffic contraventions.
Special Enforcement Areas (SEAs)
12.5 The TMA enables authorities with CPE power to enforce in a Special
161
162
and
parking at dropped footways
163
as if they had been introduced using
a Traffic Regulation Order (Traffic Management Order in London).
An SEA must be within a CEA or cover the same area as one. An
authority should consider whether to apply for SEA designation as
part of their CEA application. If they do, they will have to apply
under Schedule 10 paragraph 3 (1) (4) asking the Secretary of
State to designate the relevant part of their area as an SEA.
Authorities eligible to apply for CPE power
12.6 The authorities eligible to apply for designation orders are county councils,
metropolitan district councils (either singly or jointly), unitary authorities and
the Council of the Isles of Scilly (that is, the traffic authorities for local roads).
12.7 Metropolitan district councils should apply for orders covering the whole of
their area (or their areas, in the case of joint applications). County councils
and the Council of the Isles of Scilly may apply for orders covering all or
part of their area. Where a county council is considering civil enforcement,
it is preferable if the application includes all the boroughs and districts
with a single commencement date. However, if this is not possible the DfT
is prepared to consider staggered applications, but no more than three
tranches within a county area. District, borough, unitary and metropolitan
district councils should apply for orders covering the whole of their
administrative area. The Order will not cover military roads in the CPE area.
12.8 The Secretary of State will not be able to prioritise a request for small
changes to the area covered by an existing CEA, so authorities should
carefully consider the area to be included in the original designation.
161 TMA, Schedule 10
162 TMA, section 85
163 TMA, section 86
Key criteria when applying for the power to enforce parking regulations March 2008
Co-operation between district councils and
county councils
12.9 Non-metropolitan district councils in England will not be able to apply for
designation orders. It is important that there should be very close co-operation
between districts and their county. The district might lead in preparing an
application and, under an agency agreement, carrying out enforcement on
behalf of the county.
12.10 The civil enforcement of off-street parking restrictions within CEAs reinforces the
need for co-operation. The Secretary of State is aware that in most areas with
two tiers of local government it is the district councils that own and operate most
local authority off-street car parks. Where these districts also act as agent for
their county, there should be significant efficiency gains in having a unified civil
parking enforcement operation.
12.11 In some cases the county council carries out on-street parking enforcement
directly and districts enforce off-street parking. This approach seems likely to be
less efficient than having one enforcing authority. County councils may wish to
consider allowing their districts to carry out on-street enforcement under
agency agreements.
12.12 The county council would need to indicate in their application if it proposed
to exclude some or all off-street car parks from the designation order and
use the RTRA 1984 for off-street enforcement. The Secretary of State will
only consider allowing this in very exceptional circumstances. This is to
make the new arrangements easier for the public to understand. It also
helps make parking enforcement cost-effective by unifying restricted,
permitted and off-street operations in the same area. The Secretary of
State recommends that a CPE application is delayed if a district or borough
is not prepared to include its off-street car parking within a CEA.
12.13 District councils in England that would like responsibility for parking enforcement
should approach their county council as soon as possible to check that
the county would be willing to apply for orders in respect of the district. All
district councils will need to check that their county council would enter into
an agency agreement enabling the district council to use the powers.
Consulting other local authorities
12.14 The Secretary of State expects local authorities to consult neighbouring
authorities before applying for designation orders. The consultation
should cover the proposed levels of penalty charges. It should also cover
opportunities for co-operation, in the form of shared facilities or services,
immediately or in the longer term. If a county council applies in respect
of one or more of its districts, it should consult the adjacent district
councils within the county, as well as any adjacent authorities outside the
county likely to be affected or with which it might want to co-operate.
103
12.15 It is recommended that the authority explain its proposals to representatives of
any parish, town or community councils in its area.
12.16 Consultation is particularly important where authorities share a common
built-up area or there are heavy traffic flows across the boundaries.
12.17 Authorities should consider the following:
improved enforcement by one authority, but not by its neighbour, can transfer
a parking problem from one authority to another;
where possible, neighbouring authorities should use parking charges and
parking penalty charges that are similar, to ensure consistency for road users;
the public should be clear about which authority is responsible for parking
policy and for parking enforcement. The Traffic Signs Regulations 2002 allow
the name of the traffic authority to appear on parking place signs but where
the enforcement authority is not the traffic authority, DfT would have to give
special authorisation to include the name of the district or borough council on
signs; and
neighbouring CPZs should harmonise their hours of operation to reduce
confusion, although this may not be practical if parking demand patterns vary
significantly in adjoining areas, or where short duration controls are used to
deter commuter parking. The extent and duration of CPZ controls should be
clear to the public.
Consulting other bodies
12.18 Authorities applying for CPE powers need to make an agreement with DVLA
about information provision. They should approach DVLA about this before
making their fornal application. See paragraphs 10.37 to 10.42 above.
The continuing role of the police
12.19 When an authority receives CPE power the police service is specifically excluded
from yellow line parking enforcement. But the police retain sole responsibility
for certain non-yellow line parking offences in a civil enforcement area:
enforcing certain non-yellow line parking offences, principally endorsable
offences such as dangerous parking, obstruction, and failure to comply with
police 'no parking' signs placed in emergencies;
enforcing the full range of moving traffic offences and infringements;
acting against any vehicle where security or other traffic policing issues are
involved, including the need to close roads or set up diversions; and
enforcing all parking restrictions on roads outside CEAs.
Key criteria when applying for the power to enforce parking regulations March 2008
12.20 The TMA gives authorities the power, among other things, to enforce prohibitions
on vehicles stopping on or near pedestrian crossings.
164
This is the only
area subject to civil parking enforcement where the police have retained the
power of enforcement.
165
If the enforcement authority and the police both take
enforcement action, the criminal action takes precedence and the PCN must
be cancelled. If the PCN has been paid, the money must
166
be refunded.
12.21 The Secretary of State is under a statutory duty to consult the appropriate chief
officer of police before making any designation orders to create CEAs. Local
authorities should discuss their proposals to introduce civil parking enforcement
with the police at an early stage and act on the advice of the police. Matters
discussed should include the proposed timetable and geographic boundaries and
whether the enforcement regime will include immobilisation and/or removals.
Consultation should specify a plan for a smooth and orderly transfer of responsibilities.
164 TMA Schedule 7 paragraphs 3 (2)(c) and (h)(i), and 4(2)(c) and (i)(i)
165 S.I. 2007/3483, regulation 7
166 S.I. 2007/3483, regulation 7
105
CHAPTER 13
What an authority should
do before taking on parking
enforcement power
Formulating and appraising parking policies
13.1 Before applying to the Secretary of State for orders creating CEAs, a local
authority should appraise its parking policies and the way those policies are
being implemented, to see which traffic management objectives are being met
and where improvements are needed. Unless the authority has regularly
appraised its parking policies, this can be a major task. The authority needs to
allow sufficient time and resources for the results to be of value.
13.2 If an authority has not already done so, it should develop parking policies
that are consistent with and contribute to their overall transport policy. These
should have particular regard to the provisions in Chapters 2 and 3.
13.3 Where an authority has already formulated its parking policies, it should appraise
these, taking account of Chapter 4. This review should cover the matters set out
in Chapter 4.
13.4 The Secretary of State strongly recommends that the public should have easy
access to an authoritys parking policies, including its enforcement policies and
priorities. This makes the authority more accountable and should also help it to
counter accusations that enforcement is being carried out arbitrarily or unfairly.
13.5 If the authority does not already monitor the effectiveness of its parking policies,
it should put in place procedures for doing so as early as possible before
introducing CPE, so they can judge its impact on road safety and congestion.
Traffic Regulation Orders (TROs)
13.6 The appraisal of parking policy should include the scope and relevance of
all existing on-street and off-street TROs. It should include how they need
to change to meet the authoritys parking policy objectives. The review of
the TROs should check whether the restrictions indicated by traffic signs
and road markings are the same as those authorised by the TRO and make
What an authority should do before taking on parking enforcement power March 2008
them consistent if they are not. The Secretary of State will not sign an Order
until a senior official of the authority has confirmed in writing that all existing
and new TROs, traffic signs and road markings in the proposed CEA:
have been reviewed;
are in line with Government regulations
167
and guidance in relevant chapters of
the Traffic Signs Manual or have special authorisation from DfT;
are consistent with each other; and
are in a good state of repair.
13.7 It is recommended that this confirmation is based on an independent audit
by a qualified consultant. An adjudicator may uphold appeals against PCNs
issued where parking controls are not properly indicated with traffic signs
and/or road markings. Annex E gives advice on appraising the adequacy of
traffic signs, plating and road markings and Annex F on appraising TROs.
13.8 The authority will need to consider whether TRO restrictions should
apply beyond the normal working day and/or at weekends. The authority
should examine the scope for relaxing or removing any redundant
parking controls. Unnecessary restrictions are very quickly identified
when the authority takes over responsibility for their enforcement
and this can result in complaints from motorists and bad publicity.
It is better to deal with them before starting civil enforcement.
13.9 Local authorities may also wish to consider placing all their TROs on a
geographical information system and on their website, so that they can
supply their contractors with accurate, up-to-date maps, and the public
can find out where and when parking is permitted and not permitted.
13.10 As part of their appraisal of TROs, authorities should identify the technical
changes needed to comply with the Traffic Management Act 2004. For
example, amendments will be needed to reflect the switch from traffic offence
provisions to the new system of penalty charges and civil liabilities. Existing
on-street and off-street parking orders will need to be amended to reflect
the removal of initial and excess parking periods. Ideally this changeover
should be when CPE comes into force. If this is not possible, authorities may
include a provision, valid for no more than three months from the introduction
of CPE, so that CEOs can serve a penalty charge when the excess charge
flag or display is showing. They may need to make similar provision in off-
street car park orders where parking meters are used. This will give them
time to replace obsolete excess charge indicators on parking meters.
13.11 The authority may wish to retain in their TROs a provision relating to anything
done with the permission or at the direction of a police constable in uniform to
cover emergency situations.
167 Principally the Traffic Signs Regulations and General Directions 2002 (S.I. 2002/3113) or subsequent
editions substituted
107
13.12 Once an authority has CPE, their TROs should not cover the means of
enforcement or the level of penalty charges. National legislation covers these.
Pavement parking
13.13 Parking a heavy goods vehicle (HGV) on the footway contravenes section 19 of
the Road Traffic Act 1988 and can be enforced by a Civil Enforcement Officer
in a CEA. Pavement parking by all motorised vehicles is banned throughout
London (except where expressly permitted) and in some other parts of England
by local Acts of Parliament. In these circumstances the ban does not need to
be signed but compliance may be better if it is. Any authority may introduce a
ban on pavement parking in a CEA with a TRO and their CEOs may enforce
it. Such a ban must be indicated with traffic signs authorised by DfT.
168

Physical measures such as high kerbs and bollards will increase compliance.
13.14 During the appraisal of their parking policies, an authority should consider
whether pavement parking is a problem in any part of its area. If it is, and it is not
covered by an existing TRO, the authority may wish to consider amending their
TROs, or making new ones.
169

13.15 The Secretary of State recommends that if an authority wants to prohibit
pavement parking, it publicises the provisions of the ban, the reasons for it and
the date of introduction.
Choosing the most appropriate package of
enforcement measures
13.16 Once an authority has appraised its parking policies, capacity, controls, usage
and enforcement, it should decide whether it needs to adjust the policies and
what changes, if any, it needs to make to achieve its objectives. In particular,
it will need to consider what type of enforcement regime would achieve an
acceptable level of compliance. The type of enforcement regime available to
local authorities can be varied according to local circumstances. It is important
that authorities consider the factors in paragraphs 13.17 to 13.23 below.
Enforcement on trunk roads and other high speed roads
13.17 It has, in the past, been considered inappropriate for local authorities to
use their enforcement powers on high speed roads (including trunk roads)
because of the dangers to CEOs. However, the power given in the TMA to use
approved devices, which are best suited for use in situations such as on high
168 Copies of working drawings NP 428.1 and 428.2 can be obtained on request from
traffic.signs@dft.gsi.gov.uk
169 sections 2(3), 6(3)(a) and 126 of the RTRA 1984 give the power to make a TRO in respect of any part of
the width of a road.
speed roads where stopping and parking are banned, makes local authority
enforcement of parking on these roads more practical. Some authorities may
now wish to include some high speed roads in their designation orders.
13.18 TMA does not preclude an authority from enforcing parking on a trunk
road within a CEA just because its traffic authority is the Secretary of
State. If the police and the Highways Agency agree, such applications
will be considered because it may be sensible for parking on the trunk
road and on surrounding roads to be subject to civil enforcement. If such
enforcement by an authority is not feasible or desirable the trunk road would
be excluded from the Order and enforcement would continue to be carried
out by the police service. The authority would need to agree this with the
police and the Highways Agency before submitting the CPE application.
13.19 When a local authority is considering applying to the Secretary of State for
orders creating a CEA, the appropriate regional office of the Highways Agency
should always be consulted at an early stage.
Level of enforcement
13.20 The level of enforcement required may not be the same throughout the
proposed CPE area. To minimise accusations of favouritism, the relative
levels of enforcement throughout the CEA should be based clearly on the
authoritys policy objectives as well as the extent and nature of the parking
problems. For example, an authority may decide to target roads where
parking problems frequently occur to improve traffic flow, or to target footway
parking where this is prohibited to improve the amenity of pedestrians.
Exemptions, waivers and dispensations
13.21 When preparing its application for the Orders creating a CEA, a local authority
should consider its policies on parking exemptions, waivers and dispensations
for special categories of vehicle user, or vehicle users in special circumstances.
These are described in Chapter 9. In some cases, exemptions are statutory
and the local authority must honour them. But in other cases there is some
scope for authorities to adopt policies to suit local circumstances.
Assessment of the chosen enforcement package
13.22 Once the authority has chosen the most suitable enforcement package, it should
assess it against the authoritys parking policy objectives. The assessment should
cover both the proposed enforcement package itself and any complementary
changes (for example, to TROs or to off-street parking charges). The
assessment needs to consider:
whether the enforcement package and associated changes will achieve a level
of compliance with parking controls which the authority finds acceptable;
where motorists who previously offended will park in future;
whether parking problems in one area will be displaced to another;
109
whether the enforcement package and its consequences will be acceptable to
the public, and, in particular, to motorists, local businesses and residents;
what the effects will be on users of public transport, pedestrians and cyclists;
whether there is adequate provision for special categories of driver, such as
disabled people, professional carers, drivers delivering or collecting goods, or
drivers of statutory undertakers' vehicles (see Chapters 3 and 9); and
the expected financial results (see Chapters 3 and 14).
13.23 The enforcement package should be adapted to tackle any weaknesses that the
assessment reveals.
CHAPTER 14
Financial assessment
14.1 When preparing its application for Orders creating CEAs, a local authority
should complete a thorough assessment of the expected costs of and
revenues from all aspects of on-street and off-street parking operations. They
should draw on in-house or outside expertise, as necessary. The assessment
should consider both direct and indirect financial implications. For example,
it is unlikely that income from PCNs will cover all new costs, but effective
enforcement should result in an increase in income from paid on-street and
off-street parking. Authorities should carry out the financial assessment in
conjunction with the policy assessment described in Chapters 12 and 13.
14.2 An authority should assess costs, taking account of both start-up costs and
running costs once civil parking enforcement is under way. As with all types of
financial assessment, it is important that the estimated figures are as realistic
as possible.
14.3 Enforcement costs will vary greatly from authority to authority, according to
local circumstances. Authorities considering taking on the power to enforce
parking should consult authorities who have already done so and the British
Parking Association for up-to-date information on likely costs and benefits.
Income this should include existing income sources, such as off-street car
parks, on-street (for example pay-and-display and meter parking, and residents
parking permits), off-street parking operated by the authority on privately owned
land,
170
as well as any new income from enforcement. Most local authorities
will already have figures for on-street and off-street parking income and will
only need to consider the impact that effective enforcement will have on the
demand for paid parking. Authorities should note that all income from penalty
charges is subject to the restrictions on usage in section 55 of the RTRA.
Income from immobilisation and vehicle removal, storage and disposal activities
should be assessed separately, as these activities should not make a surplus.
Expenditure this should include all expenditure on in-house staff, contractors
(if any), installation, renewal and maintenance of equipment, signs and lines on
the highway, and equipment to issue and record parking charges and penalty
charges. Even if an authority contracts out enforcement work, it will need to
employ back office staff. Authorities should not forget the relevant time that will
be required of staff in their legal and Chief Executives departments to
170 CPE can only apply to privately owned car parks that are regulated by an order made under the Road
Traffic Regulation Act 1984, section 35 and provided under any letting or arrangements made by a local
authority with some other person (such as a privately-owned company) under Section 33(4) of that Act.
111
successfully implement CPE. In-house staff costs should include overheads as
well as salaries. Authorities should only include the proportion of staff time spent
on parking matters.
Client management, publicity and policy review the cost of these activities
will depend to some extent on the enforcement package chosen by the
authority and how many functions (if any) are contracted out. However, the
authority will always remain responsible for monitoring the effectiveness of civil
parking enforcement, and it will need to ensure that sufficient resources are
devoted to maintaining and improving quality of service and value for money.
Civil Enforcement Officers the cost of providing a CEO will vary with
geographical location. Authorities should consult the British Parking Association
and authorities similar to themselves with CPE powers to get an idea of likely
costs. Authorities that already employ staff to issue Excess Charge Notices
will have a good idea of costs in their area. These authorities are likely to find
that their existing workforce is well placed to carry out CPE enforcement.
PCN processing this activity can be contracted out or undertaken in-house.
If undertaken in-house, authorities may need to invest in new IT equipment.
Immobilisation and removals fees are set by the Secretary of State
or the Mayor of London (see Chapters 8 and 14) based on likely costs.
These operations should not generate revenue and so do not affect
the financial performance of an authoritys enforcement regime.
Dealing with representations authorities should not contract out the
responsibility of dealing with formal representations against PCNs. This
is a quasi-legal task and should, where necessary, involve input from the
legal department and the Chief Executives department. It is impossible to
estimate the number of representations an authority might receive, but the
more accurate the on-street performance, the fewer there are likely to be.
Cases going to adjudication this is another area where authorities need to
ensure that there is adequate input from the legal department and the Chief
Executives department. On average, less than 1 per cent of all PCNs issued
have gone to adjudication but it is higher in some authorities. Authorities
should ensure that their cost estimates include the annual payments that
will need to be made to the adjudication service as well as the staff and
legal costs involved in responding to an appeal. Authorities should not think
that the way in which the adjudication service is funded makes it cheaper
to let a case go to appeal than deal properly with a representation.
Contract management if any of the tasks are contracted out, the authority will
need to devote enough in-house time to ensure that contractual duties and
service level agreement (SLA) terms are met.
Training authorities should take into account the training that will be required
before CPE is introduced and afterwards for continuing professional development.
Financial assessment March 2008
Other costs the assessment should include the initial costs of reviewing all
relevant TROs, signs and lines and putting them into a good state of repair, as
well as installing any new signing, plating and road markings required for parking
enforcement purposes. If the authority uses in-house enforcement, the assessment
will need to take account of the cost of their uniforms and equipment. The
assessment also needs to include the costs of replacing and maintaining
uniforms and equipment and of collecting cash from parking meters or pay-and-
display machines.
14.4 Any income from and expenditure on enforcement by the authority on other land
in their ownership such as housing estates should not be included unless they
are included in the designation order.
Parking charges
14.5 The setting of charges for parking on-street or off-street in designated areas is a
matter for the authority in accordance with the provisions of the Road Traffic
Regulation Act 1984. Authorities should review charges periodically and take
account of their effectiveness in meeting policy objectives and the criteria in the
above paragraphs.
14.6 Local authorities can vary their parking charges using a simplified procedure of
public notices under the Local Authorities Traffic Orders (Procedure) (England
and Wales) Regulations 1996. The Secretary of State recommends that authorities
set charges at levels which are consistent with the aims of the authoritys
transport strategy, including its road safety and traffic management strategies.
14.7 Authorities should never use parking charges just to raise revenue or as a
local tax. However, where the demand for parking is high, the delivery of
transport objectives with realistic demand management prices for parking
may result in surplus income. In such cases local authorities must
171
ensure
that any on-street revenue not used for enforcement is used for legitimate
purposes only and that its main use is to improve, by whatever means,
transport provision in the area so that road users benefit. The authoritys
auditor may decline to certify the accounts of a local authority that has
used on-street parking income (and all enforcement income) in a way that
is not in accordance with the provisions of section 55 of the RTRA.
14.8 When setting charges, authorities should consider the following factors:
parking charges can help to curb unnecessary car use where there is
adequate public transport or walking or cycling are realistic alternatives, for
example, in town centres;
171 RTRA, section 55
113
charges can reflect the value of kerb-space, encouraging all but short-term
parking to take place in nearby off-street car parks where available. This
implies a hierarchy of charges within a local authority area, so that charges at
a prime parking space in a busy town centre would normally be higher than
those either at nearby off-street car parks or at designated places in more
distant residential areas. Such hierarchies should be as simple as practicable
and applied consistently so that charge levels are readily understandable and
acceptable to both regular and occasional users;
charges should be set at levels that encourage compliance with parking
restrictions. If charges are set too high they could encourage drivers to risk
non-compliance or to park in unsuitable areas, possibly in contravention of
parking restrictions. In certain cases they could encourage motorists to park in
a neighbouring local authority area which may not have the capacity to handle
the extra vehicles. In commercial districts this may have a negative impact on
business in the area; and
if on-street charges are set too low, they could attract higher levels of traffic
than are desirable. They could discourage the use of off-street car parks and
cause the demand for parking spaces to exceed supply, so that drivers have
to spend longer finding a vacant space.
14.9 Local authorities need to decide on a desirable occupancy rate for paid on-street
parking spaces. High occupancy rates may in the long term encourage the use
of alternative forms of transport (if available) or diversion to another destination.
But they may increase congestion in the short term as vehicles search for
available spaces. Lower occupancy rates may result in a less efficient use of the
limited kerb space available.
14.10 The Secretary of State has received complaints from utility companies about the
substantial variation in the charges made by authorities for suspending parking
places. Authorities should ensure that these charges are realistic and their basis
can be explained to the utility company.
Penalty charges
14.11 Authorities should read Chapter 8 and decide which band of penalty charge to use.
14.12 The primary purpose of penalty charges is to encourage compliance
with parking restrictions. In pursuit of this, enforcement authorities
should adopt the lowest charge level consistent with a high level
of public acceptability and compliance. The enforcement authority
must
172
ensure that the public knows what charge levels have been
set by publishing them well in advance of their introduction. They
must also publish any subsequent change to the charge levels.
173

In London, charges will be set by the London local authorities
acting jointly and by Transport for London (in respect of GLA
172 TMA, Schedule 9 paragraphs 5 (Greater London) and 9 (outside Greater London)
173 Ibid

roads), with the approval of the Mayor (and provided that the
Secretary of State does not object). Outside London, the charges
must accord with guidelines set by the Secretary of State.
174
14.13 Local authorities outside London may choose between one of two bands of
penalty charge. In London there are three bands. Authorities should chose
the lowest band that will help achieve a high degree of compliance with the
parking regulations while meeting the objective of producing a system of
civil parking enforcement that is self-financing. It should be readily accepted
and understood by regular and occasional users. This will encourage
payment and minimise the cost of recovering unpaid penalty charges.
14.14 In London the levels of penalty charges may be changed by the London local
authorities or, as appropriate, Transport for London, subject to the approval of
the Mayor of London and no objection to the changes being expressed by the
Secretary of State. You can find up-to-date figures on the levels of penalty
charges in London on the London Councils website in the Parking Enforcement
Explained section.
14.15 The Secretary of State considers that a variety of penalty charge bands, either
between authorities or within an individual authoritys area, would not be
appropriate. In most cases, it will be more effective to tailor an authoritys level
of enforcement according to the seriousness of non-compliance with parking
controls. For example, they may introduce more frequent patrols, immobilisation
or removals, rather than to use variable levels of penalty charges. In general,
therefore, the Secretary of State would expect a uniform band of penalty charges
throughout an authoritys area. Where there is more than one penalty charge
band within an authoritys area it is important that the reason for the variation
can be easily understood and accepted by motorists. Variations which appear
to be arbitrary (for example along the centre line of a road) may attract criticism.
Discounts and increases to penalty charges
14.16 To encourage prompt payment, the regulations provide
175
for the motorist
to receive a discount if the penalty charge is paid within 14 days of the
service of the PCN. The discount is currently 50 per cent. Because the
motorist does not have the benefit of an informal as well as a formal challenge
period, the discount period is 21 days for PCNs sent by post on the basis
of evidence from an approved device. Collection costs and the number
of representations and appeals to the parking adjudicator can be cut if
authorities send prompt and considered replies to informal challenges
received within the discount period and offer a further 14 days to pay at the
discounted rate if the authority rejects their informal representation. If the
penalty is unpaid and no successful representation or appeal is made within
the framework and timescales of the statutory process, regulations provide
for the penalty charge to increase currently by 50 per cent.
174 S.I. 2007/3487 (for outside London) and section 284 of the Greater London Authority Act 1999 (for
inside London)
175 S.I. 2007/3487, Schedule
115
Table 14.1: PCN amounts outside London payable according to the time within which
it is paid
Level of PCN Paid within
14 days
Paid between
15 days and
service of a
Notice to
Owner
Paid between
issue of Notice
to Owner and
service of
Charge
Certificate
Paid after
service of
Charge
Certificate
PCN 40 20 40 40 60
PCN 60 30 60 60 90
PCN 50 25 50 50 75
PCN 70 35 70 70 105
Estimating income from penalty charges
14.17 When assessing likely income from penalty charges (not including immobilisation
or removal fees) for their CPE application, authorities will need to estimate the
proportion of PCNs that will be:
at the higher and lower level;
paid within the discount period;
paid in full;
paid after the charge certificate is served; and
cancelled or go to adjudication.
14.18 There is currently no information to guide authorities on the proportion
of PCNs that are likely to be at the higher and lower levels.
14.19 Authorities need to bear in mind that about 50 per cent to 55 per cent
of PCNs are paid at the discount rate and 12 per cent are paid at the full
rate. The remainder incur additional costs for the authority either from
action to pursue payment or to deal with representations and appeals.
Charges and income from vehicle immobilisation,
removal, storage and disposal
14.20 Where an authority has to immobilise or remove a vehicle outside
London, the charges must accord with guidelines set by the Secretary
of State.
176
In London, the charges will be set by the London local
authorities acting jointly, with the approval of the Mayor (and provided
176 S.I. 2007/3487

the Secretary of State does not object). The charges should be set
no higher than required to meet the reasonable costs of the
immobilisation/removals procedure. They should not generate a surplus.
Table 14.2 Charges set for vehicle immobilisation, removal, storage and disposal
outside London
177
Type of charge Amount of charge
Vehicle immobilisation 40
Vehicle removal 105
Vehicle storage 12 for each day, or part of day, during which the vehicle is
impounded
Vehicle disposal 50
Table 14.3: Charges in London
178
Type of charge Level of charge
177
Vehicle immobilisation 70
Vehicle removal 200
Vehicle storage 40 a day
Vehicle disposal 70
14.21 Authorities should not apply storage charges for removed vehicles until midnight
on the day following removal, because it is a harsh additional penalty for
motorists who recover their vehicles relatively quickly.
Publication of the level of penalty and other charges
14.22 The level of penalty charges and, where applicable, charges relating to
vehicle immobilisation or removal should be properly publicised before civil
parking enforcement is introduced and whenever they are changed. Before
the CEA designation order is made, the Secretary of State requires an
authority to publish in at least one local newspaper notice of the charges it
plans to impose. Such notices need to be published at least 14 days before
the charges are due to come into force. A list of intended charges will also
need to be placed on deposit at council offices in the area concerned.
14.23 Authorities should note that this is a minimum legal requirement. They should
consider other means of publicity to ensure that motorists are made aware of
the levels of penalty and other charges. One option is that shortly before or
following the introduction of enforcement, the authority should issue warning
notices rather than PCNs to vehicles that are in contravention of restrictions.
177 as at 31 March 2008
178 as at 1 July 2007
117
Changes to penalty and other charges
14.24 Local authorities outside London must choose between the 60/40 band and
70/50 band of penalty charges. Any subsequent change to the charge band
must accord with guidelines given by the Secretary of State and be publicised as
set out above. Any departure from the Guidelines requires the Secretary of
States permission.
179
VAT and penalty charge income
14.25 HM Revenue and Customs advise that penalty charges fall outside the scope
of VAT, whether the PCN is issued for a contravention on-street or off-street.
179 TMAt, Schedule 9 paragraph 8(3)
CHAPTER 15
Application for a CEA
designation order
15.1 If an authority wishes to introduce civil parking enforcement in all or part of its
area, it must apply to the Secretary of State for one or more appropriate
designation orders on the form at the end of this chapter. Chapter 12 describes
the authorities that are eligible to apply, and the types of order they may apply
for. If the Secretary of State is satisfied with an authoritys application, s/he will
make an order, or orders, that, if approved by Parliament, would enable the
relevant contraventions to be enforced by the authority rather than the police
service either throughout the authoritys area, or in a specified part or parts of it.
15.2 It is essential that authorities keep the Department for Transport informed
of their plans from the time they decide they would like to apply for these
powers. Such liaison should identify and tackle problems at an early stage,
so that applications can be processed without delay. If the authority gives
DfT no prior warning of an application, there may be delays in processing it.
15.3 Local authorities in England should send their correspondence and applications to:
Traffic Management Division
Zone 2/06
Great Minster House
76 Marsham Street
London
SW1P 4DR
15.4 They may also e-mail them to Parking.queries@dft.gsi.gov.uk
15.5 Authorities considering applying for CPE power should first contact
officials in DfTs Traffic Management Division
180
to discuss the proposed
commencement date and any issues relating to the content of the
application form (below). The Secretary of State recommends that a county
council obtains the agreement of the relevant district/borough council(s)
to the introduction of civil parking enforcement before submitting the
application. The authority will also need to provide evidence in the formal
application that it has consulted with neighbouring traffic authorities, the
police, Highways Agency, TEC, DVLA, and the Adjudication service.
180 Write to Traffic Management Division branch 1, Zone 2/06 Great Minster House, London SW1P 4DR or
ring 020 7944 6483, 020 7944 2484 or 020 7944 3155.
119
15.6 Authorities should include in their formal application a clear and accurate
definition in plain English of the roads that will be excluded from the CEA/
SEA. If a county council is applying on behalf of all of its districts, or for
more than one district, a list of all the districts should be listed on the front
cover of the formal application. The legal names of the county council
and all of the district councils should be provided in the application.
15.7 The Secretary of State will consider each application and is under a statutory
duty
181
to consult the appropriate chief officer of police before deciding whether
to make the requested designation order. S/he also consults the Council for
Tribunals and the Highways Agency. The Secretary of State will not consider the
application unless all the authorities covered by it are in agreement. Authorities
should be prepared to answer questions about their application and provide
additional information.
15.8 Once the application has been made the local authority will need to make
the necessary minor amendments to its existing TROs so that they can be
enforced from the proposed commencement date (see Chapter 13). However,
authorities are strongly advised to review their TROs, road signs, lines and
markings at least 12 months prior to the proposed commencement date.
regulation 21 of The Local Authorities Traffic Orders (Procedure) (England
and Wales) Regulations 1996 provide a simplified and streamlined procedure
for consolidation and minor orders. Substantive changes to TROs will
take longer to make and procedures for any changes that need to come
into force on the commencement of civil parking enforcement will need
to be initiated at a suitably early date. Annex F gives further guidance.
15.9 The Secretary of State will not submit the designation order to Parliament
for approval unless s/he has received six weeks before its commencement
date an undertaking signed by a senior council official confirming that
all TROs, traffic signs and road markings in the proposed CEA/SEA
have been reviewed and are now lawful, consistent and in good order.
Details of the confirmation required is set out in the form at the end of
this Chapter. The designation order will then be made and laid before
Parliament at least 21 days before it is due to come into force.
15.10 When the Secretary of State is satisfied with the information from the
applicant authority and has completed consultations, s/he will signal
whether the application is acceptable in principle and s/he is minded
to make an appropriate order, subject to the satisfactory completion of
outstanding tasks by the authority. The Secretary of State will aim to give
his/her agreement within 20 weeks of receiving a formal application.
15.11 Publicity and notice of the proposed level of penalty charges need to have
been completed at least 14 days before the commencement date.
181 TMA, Schedule 8 paragraph 2(3)
Application for a CEA designation order March 2008
Table 15.1 Twelve-step application procedure for Civil Parking Enforcement (CPE) powers
The following 12 steps outline the processes that must be completed before
Parliament grants an authority decriminalised parking enforcement (CPE) powers.
Step
1) Initial contact
a) The local authority notifies the Department of an impending
application and the proposed CPE commencement date.
2) Troubleshooting
a) At this stage the local authority may seek advice on any issues
or if appropriate seek to arrange a meeting/video conference
with the Department to discuss these issues in more depth.
3) Application submission 20 weeks prior to
commencement date
a) The local authority submits their formal application in electronic
format or 6 hard copies in post.
4) Application processing
a) The Department processes the application and responds to
the local authority with any comments.
b) The local authority addresses concerns raised by
the Department.
5) Legal order drafting
a) The Department drafts a legal order for the requested powers.
6) Application and legal order consultation
a) The Department asks for comments from consultees on both
the application and draft legal order.
b) The Department informs the local authority of any issues that
need to be resolved as a result of any comments on the
application/legal order and asks for any issues to be resolved.
7) Legal order checking
a) The Department runs a second legal check on the draft order.
b) The TRO Confirmation statement will be required at this stage.
8) Order signing 6 weeks prior to
commencement date
a) The Department submits the legal order to the Secretary of
State for signing.
9) Proofing, printing and arrangements for laying of the legal order
a) The Department sends the legal documents for proofing and
printing and arranges for the laying of the order.
10) Laying of the order before Parliament At least 21 days
(including weekends)
121
Step
11) MPs/Council Leader/Determination letters
a) The Department sends an electronic Determination letter to the
local authority confirming the provision of the new powers and
the Minister writes to the local MPs and the Leader of the
Council informing them of the date when the powers will come
into effect.
12) The CPE powers come into effect.
Application for Civil Parking Enforcement
and Bus Lane Enforcement
**** Council
**** on behalf of **** Council
**** month/year ****
Introduction
State here whether the Council intends to use these powers from the outset of civil
enforcement coming into effect.
This document represents the formal application from **** Council **** on behalf of ****
Council **** for civil parking enforcement (CPE) powers under the provisions of Part Six
of the Traffic Management Act 2004.
The Council wishes to apply for a Civil Enforcement Area (CEA) and a Special
Enforcement Area (SEA).
This document also represents the Councils application for bus lane enforcement
powers under the provisions of the Transport Act 2000.
Proposed commencement date
State proposed commencement date. Council should first seek agreement from an
official at the Department for Transport of the proposed CPE date.
Definition of CEA/SEA and excluded roads
Provide in plain English a clear and accurate description of the area excluded from
the CEA /SEA and also explain the area that is included within the CEA.
Confirmation required that all off-street car parks owned by the district(s)/
borough(s) council(s) are included within the proposed CEA/SEA.
If military roads are not defined within the excluded routes the Department requires
confirmation that this is the case.
123
Map
Include a detailed map of the proposed CEA/SEA and all of the excluded roads
at Appendix A.
TRO confirmation
Formal confirmation of the state of the TROs, signs, lines and road markings
MUST be confirmed by a senior Council official six weeks prior to the CPE
commencement date. A formal letter to the Department should be drafted along
the following lines:
1) A complete review of the Traffic Regulation Orders (TROs), traffic signs and road
markings within the councils entire proposed Civil Enforcement Area/Special
Enforcement Area has taken place in order to highlight any deficiencies.
2) Any deficiencies highlighted as part of this review have been rectified.
3) As a result of this work, all TROs, traffic signs and road markings within the entire
proposed CEA/SEA conform to the legislation and are consistent with one another.
4) This requirement extends to all TROs, traffic signs and road markings with no
exceptions and therefore includes existing, new and replacement TROs, traffic signs
and road markings.
Signed: ____________________________________
Printed: ___________________________________
Position: ___________________________________
Dated: ___________________________________
Alteration of equipment
The Council should ensure that all pay-and-display equipment, including all
parking meters, are altered to use the term penalty instead of initial or excess
no later than six months after the introduction of CPE.
Parking management strategies and policies
Provide a summary of the Councils parking management strategy as set out in the
Councils LTP.
Parking management review
Outline the scope of the parking management review that has taken place as a
result of current enforcement problems and the impending introduction of CPE.
Civil Parking Enforcement
Explain the current level of parking provision in place for both on and off-street.
The enforcement picture after the introduction of CPE
Explain why the introduction of CPE will help to improve parking management
within the Councils administrative area.
Include a paragraph here outlining the projected levels of parking provision both on
and off-street in the five year period that will follow the introduction of CPE.
Financial assessment
Provide confirmation here that the Council has considered the financial implication
of CPE.
A full financial assessment should be included at Appendix B and this should
incorporate an assessment of income and expenditure during the first five years
of CPE. Any significant changes in financial performance expected in the following
years should also be noted.
Documentation
Explain here who will be responsible for providing and designing the necessary
documentation (i.e. forms, notices, letters, PCNs, NtOs and Charge Certificates).
Notice processing
Who will be responsible for processing the notices?
Contravention codes
Which version will be implemented?
125
PCN numbering system
Confirm the PCN numbering system
Civil Enforcement Officers
Explain how many CEOs will be required and how they will be deployed on
and off-street.
Training
Include a section here detailing the extent of the training that will be provided for
existing and newly recruited Civil Enforcement Officers.
Uniforms
Describe what type of uniform will be worn by CEOs, how will CEOs be identified
from other CEOs and confirm whether they will be carrying or wearing an ID.
Equipment
Describe the equipment that CEOs will be provided with for the purposes
of communication.
PCNs
Penalty Charge levels
Include a description of the Penalty Charge levels that will be used from the outset
of the Councils CPE scheme. This should include the penalty charge level that
is applicable at all of the stages after the PCN is first issued, and whether any
variable charge levels will apply.
Payment methods
Include a bullet point section here detailing the range of payment facilities that will
be available to customers.
Exemptions and dispensation notices
What type of vehicles or group of individuals will be eligible for exemptions?
Include descriptions here of how the system of exemptions/dispensation notices
will work in practice for each vehicle type/group of individuals.
Pavement parking
What plans, if any, does the Council have to enforce pavement parking contravention.
Dropped-kerb parking
Explain the Councils plans to enforce parking contraventions at dropped kerbs (if any).
Double parking
Explain the Councils plans to enforce parking contraventions more than 50 cm
from the kerb (if any).
Vehicle immobilisation and removals
Explain the Councils policy on the practice of vehicle immobilisation as a measure
for enforcing parking contraventions and at what stage is the Council intending
to implement immobilisation. State whether the Council will comply with TMA
regulations and guidelines.
Explain whether the Council intends to use vehicle removal as an enforcement
measure from the outset of the introduction of CPE. Also state whether the Council
will comply with current TMA regulations and guidance accordingly.
Representations and appeals
Informal representations
Council are now obliged to consider informal representations and should set out
how they propose to deal with them, including the processes associated with this
form of appeal.
127
Detail the format in which formal representations will be accepted and handled (i.e.
whether representations will be dealt with by post/and or electronically).
Adjudications
Confirm whether the Council has joined the Traffic Penalty Tribunal (TPT) and
applied for the necessary powers to undertake adjudications.
Confirm the venue/venues that will be used for carrying out adjudication services
and provide evidence that TPT have approved the venue.
PCN recovery
Provide evidence that the Council has liaised with both the Driver Vehicle and
Licensing Agency (DVLA) and the Traffic Enforcement Centre (TEC), and append
consultation responses confirming that both agencies are content with the Councils
arrangements for the requesting of information on registered vehicle keepers and
for requesting the registration of charge certificates and the granting of authority to
prepare warrants of execution.
Publicity
Describe in bullet form the different elements that will be included within the
publicity programme for the implementation of CPE. When will the publicity be
conducted and for what length of period.
Consultation
List all the consultees with regard to the introduction of CPE Powers.
The following MUST be consulted:
Neighbouring local authorities
Police
Highways Agency
DVLA and TEC
Government Office
Traffic Penalty Tribunal (TPT)
Statistics collection
The Council must confirm that it will report annually to the Secretary of State on
the financial results of civil parking enforcement, and any action the Council takes
in respect of any deficit or surplus on the on-street parking account.
Legal documentation
The Council must supply evidence of its current legal name(s) along with the legal
names of the borough(s)/district(s) where CPE will be introduced.
Appendix A Map
Attach a detailed map of the entire area covered by the CEA/SEA here, including a
list of all the excluded roads.
Appendix B Financial assessment
Attach a copy of the Councils full financial assessment here.
Appendix C Consultation
Attach copies of consultation documents here. All consultation responses should
indicate that the party consulted is content with the Councils application and that
any contentious issues have been fully resolved.
Consultation responses from the DVLA, TPT and the TEC should all include details
of the arrangements that have been made/need to be made between the Council
and the relevant body prior to the introduction of CPE.
Appendix D Legal name(s)
Confirm the Councils legal name here and include a copy extract from the
appropriate legal instrument or resolution that grants the Council its name in law.
Where a county council is applying on behalf of one or more borough or district
councils, confirm the legal names and include copy extracts from the appropriate
legal instruments or resolutions for all of these councils.
Attach a copy of the Councils resolution to take up CPE powers here. Where a
county council is applying on behalf of one or more borough or district councils,
include copies of the appropriate resolutions for all of the councils.
129
Appendix E Contact details
Insert the contact details (i.e. telephone numbers and email addresses) for the
officials who have commented on this application form:
Police
The Highways Agency
Government Office
Insert the postal address details for the Leader of the Council and all of the local
MPs here (these officials will be sent confirmation letters once the proposed
commencement date has been fixed).
Annex A March 2008
ANNEX A
What the civil enforcement of parking under the
Traffic Management Act 2004 involves and how it
differs from decriminalised parking enforcement
under the Road Traffic Act 1991
What CPE involves
A1 The regulations made under Part 6 of the Traffic Management Act 2004 enable
an authority in England, once they have been given the relevant power by the
Secretary of State, to enforce parking contraventions within a particular
geographical area.
Enforcement primarily becomes the responsibility of the authority but the
police remain responsible for endorseable offences such as dangerous
parking, obstruction, failure to comply with police 'no parking' signs placed in
emergencies, and any vehicle where security or other traffic policing issues
are involved, including the need to close roads or set up diversions. Stopping
offences at pedestrian crossings or zigzag lines may be enforced by the police
or the authority, but police action takes precedence.
Civil Enforcement Officers (CEOs) employed directly or indirectly by the local
authority place Penalty Charge Notices (PCNs) on vehicles contravening
parking restrictions and, when appropriately trained and entitled, can authorise
the immobilisation or removal of vehicles.
If the penalty charge remains unpaid after the relevant time and processes, it
becomes a civil debt due to the authority and enforceable through a streamlined
version of the normal civil debt recovery process in the county court.
A motorist wishing to contest liability for a penalty charge may make
representations to the authority and, if these are rejected, may have grounds
to appeal to an independent adjudicator. The adjudicator's decision may be
reconsidered by another adjudicator but there is no right of further appeal
through the courts except to the High Court on an application for judicial
review of the adjudicators decision.
The enforcement authority keeps any proceeds from penalty charges, which
finance the enforcement and adjudication systems. Authorities must only use
any financial surpluses from on-street parking charges and on- and off-street
penalty charges for the purposes set out in section 55 (as amended)
182
of the
RTRA and authorities need to keep separate accounts of PCN income from
on-street enforcement and from off-street enforcement.
182 S.I. 2007/3482, regulations 25 and 26
131
The system of 'initial' and 'excess' charges for paid parking that are used by
local authorities when on-street parking is enforced by the police service do
not apply.
Outside the areas where authorities are responsible for civil parking
enforcement all parking offences will remain subject to the criminal law.
A2 The main advantages of civil parking enforcement are:
authorities can ensure that their parking policies are implemented effectively,
with improved traffic flow, better management of overall traffic levels, fewer
accidents, a fairer distribution of available parking places and a more pleasant
environment;
integration of enforcement and parking policy responsibilities should provide
better monitoring of the effectiveness and value of parking controls, so that
parking provision becomes more responsive to the public's needs; and
authorities may use any revenue from parking charges and penalty charges
to fund enforcement activities. They can use any surpluses to improve off-
street parking, or, where this is unnecessary or undesirable, for certain other
transport-related purposes and environmental schemes.
Civil Enforcement Areas
A3 Schedule 8 of the Traffic Management Act 2004 enables an eligible local
authority to apply to the Secretary of State for an order creating a Civil
Enforcement Area (CEA). CEAs replace the Permitted Parking Areas (PPAs)
and Special Parking Areas (SPAs) created under the Road Traffic Act 1991.
All existing PPAs/SPAs automatically become CEAs under the TMA.
A4 Within a CEA, contraventions of Orders designating permitted on-street
parking places, such as meter bays, residents and disabled persons bays
and free parking bays, are subject to civil enforcement by the local authority.
A5 There is a civilly enforceable parking contravention in relation to a vehicle if the
vehicle is stationary in a parking place anywhere in Greater London and:
(a) the vehicle has been left;
(i) otherwise than as authorised by or under any order relating to the parking
place; or
(ii) beyond the period of parking that has been paid for;
(b) no parking charge payable with respect to the vehicle has been paid; or
(c) there has been, with respect to the vehicle, a contravention of any provision
made by or under any order relating to the parking place.
For this purpose parking place means:
Annex A March 2008

(a) a parking place designated by an order made under section 6, 9 or 45 of the
Road Traffic Regulation Act 1984 (c. 27); or
(b) an off-street parking place provided under section 32(1)(a) of that Act.
A6 The following contraventions are also civilly enforceable if committed in a civil
enforcement area in Greater London in relation to a stationary vehicle:
(a) an offence under section 15 of the Greater London Council (General Powers)
Act 1974 (parking on footways, verges, etc.);
(b) an offence under section 8, 11, 16(1) or 16C of the Road Traffic Regulation
Act 1984 (contravention of certain traffic orders) of contravening:
(i) a prohibition or restriction on waiting of vehicles; or
(ii) provision relating to any of the matters mentioned in paragraph 7 or 8 of
Schedule 1 to that Act (conditions for loading or unloading, or delivering
or collecting);
(c) an offence under section 25(5) of the Road Traffic Regulation Act 1984 of
contravening regulation 18 or 20 of the Zebra, Pelican and Puffin Pedestrian
Crossings Regulations and General Directions 1997 (S.I. 1997/2400)
(prohibition on stopping vehicles on or near pedestrian crossings);
(d) an offence under section 35A(1) of the Road Traffic Regulation Act 1984
(contravention of orders relating to parking places provided under section 32
or 33 of that Act);
(e) an offence under section 61(5) of the Road Traffic Regulation Act 1984
(parking in loading areas);
(f) an offence under section 19 of the Road Traffic Act 1988 (parking of HGVs
on verges, central reservations or footways);
(g) an offence under section 21 of the Road Traffic Act 1988 (offences relating to
cycle tracks) of parking a vehicle wholly or partly on a cycle track;
(h) an offence under section 36(1) of the Road Traffic Act 1988 (failure to comply
with traffic sign) of failing to comply with a sign of a type referred to in:
(i) regulation 10(1)(b) of the Traffic Signs Regulations and General Directions
2002 (S.I. 2002/3113) (zig-zag lines relating to certain crossings); or
(ii) regulation 29(1) of those regulations (bus stop or bus stand markings).
A7 Outside Greater London the following contraventions are civilly enforceable if
committed in relation to a stationary vehicle:
(a) an offence under section 64(3) of the Local Government (Miscellaneous
Provisions) Act 1976 (c. 57) of causing a vehicle to stop on part of a road
appointed, or deemed to have been appointed, as a hackney carriage stand;
133
(b) an offence under section 5, 11, 16(1) or 16C of the Road Traffic Regulation
Act 1984 (c. 27) (contravention of certain traffic orders) of contravening a
prohibition or restriction on waiting, or loading or unloading, of vehicles;
(c) an offence under section 25(5) of the Road Traffic Regulation Act 1984 of
contravening regulation 18 or 20 of the Zebra, Pelican and Puffin Pedestrian
Crossings Regulations and General Directions 1997 (S.I. 1997/2400)
(prohibition on stopping vehicles on or near pedestrian crossings);
(d) an offence under section 35A(1), 47(1) or 53(5) or (6) of the Road Traffic
Regulation Act 1984 (offences in connection with parking places);
(e) an offence under section 61(5) of the Road Traffic Regulation Act 1984
(parking in loading areas);
(f) an offence under section 6(6) of the Essex Act 1987 (c. xx) of leaving a
vehicle on any land in contravention of a prohibition under that section
(prohibitions relating to verges and certain other land adjoining or accessible
from highway);
(g) an offence under section 19 of the Road Traffic Act 1988 (parking of HGVs
on verges, central reservations or footways);
(h) an offence under section 21 of the Road Traffic Act 1988 (offences relating to
cycle tracks) of parking a vehicle wholly or partly on a cycle track;
(i) an offence under section 36(1) of the Road Traffic Act 1988 (failure to comply
with traffic sign) of failing to comply with a sign of a type referred to in:
(i) regulation 10(1)(b) of the Traffic Signs Regulations and General Directions
2002 (S.I. 2002/3113) (zig-zag lines relating to certain crossings), or
(ii) regulation 29(1) of those regulations (bus stop or bus stand markings).
A8 In accordance with regulation 7 of the Civil Enforcement of Parking Contraventions
(England) General Regulations 2007 (S.I. 2007/3483), with one exception, no
criminal proceedings may be brought and no fixed penalty notice may be given
in respect of any of these contraventions. The exception is a pedestrian crossing
contravention, that is one of the offences referred to in subparagraph (c) or (h)(i)
of paragraph A6 or subparagraph (c) or (i)(i) of paragraph A7. If criminal proceedings
are started or a fixed penalty notice is given for one of those offences then no
penalty charge is payable under the Traffic Management Act 2004 or regulations
made under it and, if a penalty charge is paid, it must be refunded as soon as
reasonably practicable after the circumstances come to light.
Annex A March 2008
Special Enforcement Areas
A9 The TMA enables authorities with CPE power to enforce in a Special Enforcement
Area (SEA)
183
184
and parking at dropped footways
185

as if they had been introduced using a Traffic Regulation Order (Traffic Management
Order in London). Any Special Parking Area that existed before commencement
of the TMA 2004 automatically becomes an SEA
186
and outside London the
restrictions need to be indicated with traffic signs or road markings. In London the
provisions remain in force in local Acts of Parliament that mean traffic signs and
road markings are not required. Authorities should make sure that the public are
aware of the new restrictions before starting enforcement.
How CPE differs from DPE
A10 The arrangements under Part 6 of the Traffic Management Act 2004 largely
replicate and update those under Part II of the Road Traffic Act 1991.
Presentational
Decriminalised Parking Enforcement to be called Civil Parking Enforcement.
Parking Attendants to be called Civil Enforcement Officers.
Special Parking Areas and Permitted Parking Areas to be called Civil
Enforcement Areas.
Changes to regulations (and, therefore, to Guidance)
All English authorities:
Different parking penalties depending on the seriousness of the contravention.
Details of procedures for representations and appeals on PCN.
Power to serve PCNs by post if CEO has started to issue it but motorist leaves
with the vehicle before it can be served.
Enforcement cameras ('approved devices') to be certified by the Secretary
of State.
21 day discount for PCNs sent by post with evidence from an approved device.
Authorities must not immobilise within 30 minutes of the issue of a PCN in a
parking place, with the exception of persistent evaders who may be clamped
after 15 minutes of the issue of the PCN.
Authorities must consider informal representations.
Procedures to reissue Notices if payments cancelled after payment.
Authorities must decide representations within 56 days.
183 Traffic Management Act 2004, Schedule 10
184 Ibid, section 85
186 Ibid, schedule 10, Paragraphs 2(5) and 3(5)
135
Adjudicators have the power to decide cases where procedural irregularity has
taken place (for example, where a Charge Certificate has been issued before
an appeal has been decided).
Adjudicators have the power to refer back to the authority for reconsideration
cases where a contravention took place but in mitigating circumstances.
New powers and duties for authorities outside London currently only held by
those in London enable them to:
send PCNs by post with camera evidence;
send PCNs by post when prevented from serving by violence;
enforce dropped footways in an SEA;
enforce double parking in an SEA; and
place a six month time limit on authorities serving a Notice to Owner.
Changes to Guidance
Authorities no longer need to demonstrate to the Secretary of State that
parking enforcement would be self-funding.
Authorities should publish parking policies.
In situations where a contravention has occurred but in mitigating
circumstances authorities should make and publish guidelines on their use of
discretion which should be applied flexibly.
Stronger emphasis on staff training.
Authorities are encouraged to use photographic evidence obtained by CEOs
as additional evidence that the contravention has occurred.
Discouragement to immobilise vehicles except those of persistent evaders.
Where a vehicle is parked in contravention and in an obstructive manner the
vehicle should be removed rather than immobilised.
Where an informal challenge made against a PCN within the 14 day 50 per
cent discount period is rejected, authorities encouraged to re-offer discount.
Authorities should review their parking policies on a regular basis in
consultation with local stakeholders and, once finalised, these should be made
publicly available in an annual report.
Authorities should publish certain items of financial and statistical information.
More emphasis on monitoring.
Annex A March 2008

ANNEX B
Enforcement action started under the
B1 Until 2400 hours on Sunday 30 March 2008, enforcement action should be
taken using the powers in the Road Traffic Act 1991 or other relevant legislation.
From 00.00.01 hours on Monday 31 March 2008 enforcement action should be
taken under the Traffic Management Act 2004 and the associated regulations.
B2 Any enforcement action in respect of a parking contravention observed or
detected before 2400 hours on Sunday 30 March 2008 must be taken using
the powers in RTA 1991 and other legislation. For instance, the PCN for a
contravention in London at 2200 hours detected with cameras and served
on 31 March must be served under the legislation that was in force when the
contravention took place. Further action (NtO, NoR, Charge Certificate, appeals,
etc.) in respect of a PCN issued under the RTA 1991 or other legislation must be
taken using the RTA 1991 or the legislation under which the PCN was served.
B3 This means that enforcement authorities, the TEC, bailiffs and the adjudicators
must run two systems until there is no possibility of subsequent action being
taken in respect of a PCN served under the RTA 1991 or the other legislation that
is repealed.
137
ANNEX C
Contraventions for which the higher and the lower level
penalty charges should be made
* = or other specified time **** = or other number
= or other specified distance

Higher level contraventions
On-street
Code Description
01 Parked in a restricted street during prescribed hours
02 Parked or loading/unloading in a restricted street where waiting and loading/unloading
restrictions are in force
12 Parked in a residents or shared use parking place without clearly displaying either a
permit or voucher or pay and display ticket issued for that place
14 Parked in an electric vehicles charging place during restricted hours without charging
16 Parked in a permit space without displaying a valid permit
18 Using a vehicle in a parking place in connection with the sale or offering or exposing for
20 Parked in a loading gap marked by a yellow line
21 Parked in a suspended bay/space or part of bay/space
23 Parked in a parking place or area not designated for that class of vehicle
25 Parked in a loading place during restricted hours without loading
26 Vehicle parked more than 50 centimetres from the edge of the carriageway and not
within a designated parking place
27 Parked adjacent to a dropped footway
40 Parked in a designated disabled persons parking place without clearly displaying a
valid disabled persons badge
41 Parked in a parking place designated for diplomatic vehicles
42 Parked in a parking place designated for police vehicles
45 Parked on a taxi rank
46 Stopped where prohibited (on a red route or clearway)
47 Stopped on a restricted bus stop or stand
48 Stopped in a restricted area outside a school
49 Parked wholly or partly on a cycle track
Annex C May 2008
138
Code Description
55 A commercial vehicle parked in a restricted street in contravention of the overnight
waiting ban
56 Parked in contravention of a commercial vehicle waiting restriction
57 Parked in contravention of a coach ban
61 A heavy commercial vehicle wholly or partly parked on a footway, verge or land
between two carriageways
62 Parked with one or more wheels on any part of an urban road other than a carriageway
(footway parking)
99 Stopped on a pedestrian crossing and/or crossing area marked by zig-zags
Off-street
70 Parked in a loading area during restricted hours without reasonable excuse
74 Using a vehicle in a parking place in connection with the sale or offering or exposing for
81 Parked in a restricted area in a car park
85 Parked in a permit bay without clearly displaying a valid permit
87 Parked in a disabled persons parking space without clearly displaying a valid disabled
persons badge
89 Vehicle parked exceeds maximum weight and/or height and/or length permitted in
the area
91 Parked in a car park or area not designated for that class of vehicle
92 Parked causing an obstruction
Lower level contraventions
On-street
Code Description
04 Parked in a meter bay when penalty time is indicated
05 Parked after the expiry of paid for time
06 Parked without clearly displaying a valid pay-and-display ticket or voucher
07 Parked with payment made to extend the stay beyond initial time
08 Parked at an out-of-order meter during controlled hours
09 Parked displaying multiple pay-and-display tickets where prohibited
10 Parked without clearly displaying two**** valid pay-and-display tickets when required
11 Parked without payment of the parking charge
19 Parked in a residents or shared use parking place or zone displaying an invalid permit,
an invalid voucher or an invalid pay-and-display ticket
22 Re-parked in the same parking place within one hour* of leaving
139
Code Description
24 Not parked correctly within the markings of the bay or space
30 Parked for longer than permitted
35 Parked in a disc parking place without clearly displaying a valid disc
36 Parked in a disc parking place for longer than permitted
63 Parked with engine running where prohibited
Off-street
73 Parked without payment of the parking charge
80 Parked for longer than the maximum period permitted
82 Parked after the expiry of paid for time
83 Parked in a car park without clearly displaying a valid pay-and-display ticket or voucher
or parking clock
84 Parked with additional payment made to extend the stay beyond time first purchased
86 Parked beyond the bay markings
90 Re-parked within one hour* of leaving a bay or space in a car park
93 Parked in car park when closed
94 Parked in a pay-and-display car park without clearly displaying two****
valid pay-and-display tickets when required
95 Parked in a parking place for a purpose other than the designated purpose for the
parking place
96 Parked with engine running where prohibited
Annex C March 2008
ANNEX D
Examples of information that it may be prudent
for a CEO to note
Postcode of street (particularly if more than one street with the same name in
an area or if a common street name).
Confirmation that PCN affixed to vehicle, handed to motorist or to be posted
(this information may be useful in case a motorist subsequently denies
knowledge of the PCN). If CEOs have a digital camera, a picture of the vehicle
with the PCN attached will be useful evidence if the motorist claims that it was
not served. Such a claim is not likely to be made in many cases but it may be
prudent to take such photographs in areas or on occasions when the removal
of PCNs by strangers from vehicles is prevalent.
Numbers of any other PCNs to prevent more than one PCN being issued on
the same day when the vehicle has not been moved.
Any permit, badge, voucher or pay-and-display ticket displayed.
Pocket book reference number and page number (if applicable).
Tyre valve positions and whether off side or near side.
Whether clamping or removal has been requested by the CEO.
Class of VED licence (for example, PLG, HGV).
Expiry date of excise licence (for reporting to DVLA and/or possibly
abandoned vehicles team when out of date).
Whether PCN spoilt and whether it was re-issued.
Taking photos before and after serving the PCN if CEO likely to serve ticket
Loading or unloading
Loading or unloading seen (for example, if loading seen earlier in day, but not
taking place when PCN issued, or if loading taking place when prohibited).
Length of observation period and whether continuous or casual.
Foreign or diplomatic plates
Foreign or diplomatic plates (to highlight use of special procedures for
processing diplomats' PCNs).
Conversation with motorist, breakdowns, drive aways etc
Driver seen (time and other details) or vehicle otherwise occupied.
Description of person who appeared to be in charge of the vehicle if seen.
141
Conversation with driver or other person with/in the vehicle (time and
other details).
Details of any note displayed on windscreen.
Evidence of any breakdown.
Prohibited parking
Details of yellow/red lines/kerb stripes (for example single, double line/ one,
two kerb stripes).
Details of kerbside plates (for example position relative to the vehicle, times of
loading and waiting restrictions).
Detailed location of vehicle (for example by/on N/S/E/W kerb; outside/
opposite No.; X yards N/S/E/W of junction with Y Road).
In yellow/redline cases, CEOs should record as much information as possible
to establish the precise location of the vehicle, especially in streets where there
may be a range of different regulations in different parts.
Permitted parking
Expiry time of pay-and-display ticket or voucher (if appropriate).
Parking zone/parking place identifier.
Details of signs and their position relative to the vehicle.
Details of vehicle location (for example, outside or opposite an address).
If prohibited, whether meter feeding detected and details.
If meter or machine out of order.
Display on meter/machine if not just penalty time (for example Out Of Order/
No parking until).
On pay-and-display machines, time shown on machine compared to time on
PA's watch or HHC.
Details of any suspension.
Inadequate markings or signs etc.
Details of any inadequacies in road markings.
Details of any damage to kerbside plates or missing plates.
Damaged street furniture or any other heath and safety issues.
Annex D March 2008

ANNEX E
Appraising the adequacy of traffic signs, plating
and road markings
E1 All local authorities are responsible for the accuracy and condition of the traffic
signs and road markings that identify parking restrictions in their area. The traffic
signs and road markings must conform strictly to the relevant regulations
(currently the Traffic Signs Regulations and General Directions 2002 TSRGD
and subsequent amendments) or have special authorisation from DfT. They
should also conform to the guidance set out in Chapters 3 and 5 of the Traffic
Signs Manual.
E2 PCNs may not be valid if they are issued where traffic signs and road markings
are incorrect or in poor condition. Representations demonstrating this should be
accepted. If such representations are not accepted, any subsequent appeal may
be successful. Authorities should, therefore, have the services of an employee or
contractor who is capable of reading and applying TSRGD 2002 and the Traffic
Signs Manual. When the Institute of Highway Engineers (IHIE) qualification in
traffic sign design is in place, the employee or contractor should have achieved
at least practitioner level.
E3 Before applying for the new powers, as part of their review of existing TROs (see
Chapter 13), authorities should ensure that the relevant traffic signs and road
markings are present and:
consistent with TSRGD;
in a good state of repair; and
that their meaning will be clear to visitors as well as local people.
E4 Authorities will have to confirm in writing that this has been done before the
Secretary of State will ask Parliament to give them enforcement powers.
E5 The Secretary of State's view is that motorists cannot reasonably be expected
to read, understand and remember the parking restrictions at the entrance to
a Controlled Parking Zone that covers an area of more than a dozen streets.
CPZs rely solely on zone entry signs to give times of operation and to remove
the need for time plates within the zone, except on lengths of road where the
restrictions apply at different times to the rest of the zone. The area of a CPZ
should, therefore, be restricted to, for example, a town centre shopping area.
A single zone covering a whole town, or suburb of a conurbation, would be
much too large. Conventional time plate signing, without zone entry signs,
should accompany the yellow sign markings where large areas have waiting
restrictions. Time plates are not necessary where there are double yellow lines.
143
E6 Where CPZ (or Restricted Parking Zone RPZ where authorised) signing is
to be used, care should be taken when siting the zone entry signs to ensure
that they are clearly and safely visible to motorists. Unless unavoidable, they
should not be close to junctions on busy roads, where motorists are likely
to be concentrating on direction signs, traffic lights and other directional
manoeuvring. Locations where the zone entry signs are likely to be obscured
by large vehicles (for example, delivery vans, or buses at bus stops) should
also be avoided. Local authorities will also need to ensure that they do not
become obscured by vegetation or street furniture, including other traffic signs.
E7 In areas of the greatest sensitivity there may be ways of balancing the need for
clear signs against visual intrusion.
Maintenance of signs, meters, and the like
E8 Chapter 6 says that CEOs may be given the task of checking and reporting
on the state of signs, plating, markings, parking meters, pay-and-display
machines, and the like as one of their patrol duties. It might also be appropriate
for officers to carry out certain minor repairs to meters and pay-and-display
machines. However, it will be for the authority concerned to arrange for
any major defects to be rectified, either by its own staff or a contractor.
Annex E March 2008
ANNEX F
Appraising Traffic Regulation Orders (TROs) and
Traffic Management Orders (TMOs)
F1 The foundation of an effective parking enforcement regime is lawful and
up-to-date Traffic Regulation Orders (TROs). In London, these are called
Traffic Management Orders (TMOs) and can be made for a slightly wider
range of purposes. The Road Traffic Regulation Act 1984 gives local traffic
authorities wide powers to make TROs or TMOs on the roads for which they
are responsible. The Secretary of State has similar powers for trunk roads.
F2 This annex summarises the generally applicable requirements and procedures
for making orders and the specific arrangements for review when adopting civil
enforcement powers. This guidance is based on the current legislation as
described in the footnotes.
Permanent TROs
F3 A TRO may only be made for the following purposes:
187
avoiding danger to persons or traffic (including for anti-terrorist purposes);
preventing damage to the road or to buildings nearby (including for
anti-terrorist purposes);
facilitating the passage of traffic;
preventing use by unsuitable traffic;
preserving the character of a road especially suitable for walking or horse riding;
preserving or improving amenities of the area through which the road runs; and
for any of the purposes specified in paragraphs (a) to (c) of the Environment
Act 1995 (air quality).
F4 To meet one or more of the above, a TRO may prohibit, restrict or regulate
the use of a road or any part of the width of a road by vehicular traffic
of any class. It may have effect at all times or at specified periods or
times. Specific classes of traffic may be excepted. A TRO can:
188
require all or specified classes of vehicular traffic to proceed in a specified
direction or prohibit it from so proceeding;
specify the part of the carriageway to be used by such traffic proceeding in a
specified direction;
187 Road Traffic Regulation Act 1984, section 1(1)
188 Ibid, section 2
145
prohibit or restrict the waiting of vehicles or the loading and unloading of vehicles;
prohibit the use of roads by through traffic;
prohibit or restrict overtaking.
F5 A TRO can specify through routes for heavy vehicles, or prohibit or restrict
their use in specified roads or zones in order to preserve or improve amenities
in the area.
F6 A TRO can regulate the use of a road by pedestrians
189
but must not have
the effect of preventing pedestrian access at any time, or preventing vehicular
access for more than 8 hours in 24, to premises on or adjacent to the road.
However, the restriction on vehicular access does not apply if the local
authority states in the order that they are satisfied that it should not so as to:
avoid danger to persons or other traffic using the road to which the order
relates or any other road;
prevent the likelihood of any such danger arising;
prevent damage to the road or buildings on or near it;
facilitate the passage of vehicular traffic on the road; and
preserve or improve the amenities of an area by prohibiting or restricting the
use on a road or roads in that area of heavy commercial vehicles.
Permanent TMOs
F7 In London, an authority can also make a TMO in the following circumstances:
190
For prescribing the routes to be followed by all classes of traffic, or by any
class or classes of traffic, from one specified point to another, either generally
or between any specified times.
For prescribing streets which are not to be used for traffic by vehicles, or by
vehicles of any specified class or classes, either generally or at specified times.
For regulating the relative position in the roadway of traffic of differing speeds
or types.
For prescribing the places where vehicles, or vehicles of any class, may not
turn so as to face in the opposite direction to that in which they were proceeding,
or where they may only so turn under conditions prescribed by the order.
For prescribing the conditions subject to which, and the times at which,
articles of exceptionally heavy weight or exceptionally large dimensions may
be carried by road.
189 Ibid, section 3
190 Ibid, section 6 and Schedule 1
Annex F March 2008

For prescribing the number and maximum size and weight of trailers which
may be drawn on streets by vehicles, or by vehicles of any class, either
generally or on streets of any class or description, and for prescribing that a
man should be carried on the trailer or, where more than one trailer is drawn,
on the rear trailer for signalling to the driver.
articles may be loaded on to or unloaded from vehicles, or vehicles of any
class, on streets.
vehicles, or vehicles of any class, delivering or collecting goods or
merchandise, or delivering goods or merchandise of any particular class, may
stand in streets, or in streets of any class or description, or in specified streets.
vehicles, or vehicles of any class, may be used on streets for collecting refuse.
For prescribing rules as to precedence to be observed as between vehicles
proceeding in the same direction, in opposite directions, or when crossing.
horses, cattle, sheep and other animals may be led or driven on streets within
Greater London.
For requiring the erection, exhibition or removal of traffic notices, and as to the
form, plan and character of such notices.
Broken down vehicles.
Vehicles, or vehicles of any class, when unattended.
Places in streets where vehicles, or vehicles of any class, may, or may not,
wait, either generally or at particular times.
Cabs and hackney carriages not hired and being in a street elsewhere than on
a cab rank.
For restricting the use of vehicles and animals, and sandwich-board men and
other persons, in streets for the purposes of advertisement of such a nature
or in such a manner as is to be likely to be a source of danger or to cause
obstruction to traffic.
The lighting and guarding of street works.
The erection or placing or the removal of any works or objects likely to
hinder the free circulation of traffic in any street or likely to cause danger to
passengers or vehicles.
Queues of persons waiting in streets.
Priority of entry to public vehicles.
For enabling any police, local or other public authority to do anything which
under the order a person ought to have done and has failed to do, and to
recover from the person so in default, summarily as a civil debt, the expenses
of doing it.
147
Experimental orders
F8 A traffic authority may test a scheme of traffic control, normally for up to
18 months, using an experimental traffic order before deciding whether to make
it permanent.
191
F9 An authority should put robust arrangements in place to measure the traffic
situation before and after introduction of the experimental measure and monitor
its effect. This should help avoid accusations that the authority has used an
experimental order to avoid the procedure requirements of a permanent one.
Substantial capital investment in the measures introduced by an experimental
TRO is likely to undermine public confidence in its investigative nature.
Parking designation orders
F10 Local authorities may, for the purpose of relieving or preventing congestion of
traffic, provide suitable parking places on a highway for vehicles or vehicles of
any class.
192
Similarly, they can designate highway parking places for vehicles of
any class (and subject to conditions of use) for which a charge may be made
when used.
193
Traffic signs and devices used to control
waiting restrictions
F11 TROs and TMOs may specify authorised traffic signs to identify the traffic
regulation involved.
194
F12 A TRO or TMO that imposes any restriction on the use by vehicles of a road, or
the waiting of vehicles in a road, may include provision with respect to the issue
and display of certificates or other means of identification of vehicles which are
exempted from the restriction.
195
F13 A TRO or TMO may include provisions on the issue, display and operation of
devices for indicating the time at which a vehicle arrived at, and the time at
which it ought to leave, any place in a road in which waiting is restricted.
196
191 Ibid, section 9
194 Ibid, sections 4(1) and 7(1)
Annex F March 2008
TROs for special areas in the countryside
F14 TROs can be made for roads in special areas of the countryside (such as
National Parks) for the purposes of conserving or enhancing the natural beauty
of the area or of affording better opportunities for the public to enjoy its
amenities, including for recreation or the study of nature.
197
Temporary prohibitions and restrictions
F15 Where a traffic authority is satisfied that traffic on a road should be restricted
or prohibited:
because works are being or are proposed to be executed on or near the road; or
because of the likelihood of danger to the public, or of serious damage to the
road, which is not attributable to such works; or
for the purpose of litter clearance and cleaning in accordance with
section 89(1)(a) or (2) of the Environmental Protection Act 1990
it may, by temporary order, restrict or prohibit the use of the road, or of any part
of it, by vehicles of any class, or by pedestrians, as they consider necessary.
198
F16 A temporary restriction cannot normally remain in force for more than six
months if it is in respect of a footpath, bridleway, cycle track or byway open
to all traffic, and for more than 18 months in any other case. (The 18-month
limit does not apply where an authority is satisfied, and it is stated in the order
that it is satisfied, that works in question will take longer, provided that the
authority then revokes the order as soon as the works have been completed).
F17 The authority must consult the National Park authority for any National Park
which would be affected by the order.
F18 Where the traffic authority is satisfied that the works, danger, or litter clearance
should come into force without delay, the temporary restriction or prohibition
may be imposed by notice.
Special events
F19 If the traffic authority is satisfied that traffic should be restricted or prohibited
in connection with a sporting event, social event or entertainment which
is held on a road, it may by order restrict or prohibit temporarily the use of
that road to such extent and subject to such conditions or exceptions as
they consider necessary or expedient.
199
(Such regulation is permitted to:
facilitate the holding of the event; or enable members of the public to watch
199 Ibid, section 16A
149
the event; or to reduce the disruption to traffic likely to be caused by the
event). Before making such an order, the authority must be satisfied that it
is not reasonably practicable for the event to be held otherwise than on a
road; and the authority must have regard to the safety and convenience of
alternative routes suitable for the traffic which will be affected by the order.
F20 This sort of order cannot be made in relation to any race or trial falling within
subsection (1) of section 12 of the Road Traffic Act 1988 (motor racing on
public ways); nor in relation to any competition or trial falling within subsection
(1) of section 13 of that Act (regulation of motoring events on public ways)
unless the competition or trial is authorised by or under regulations under
that section; nor in relation to any race or trial falling within subsection (1) of
section 31 of that Act (regulation of cycle racing on public ways) unless the
race or trial is authorised by or under regulations made under that section.
F21 In London there are specific provisions and procedures for imposing temporary
waiting prohibitions in connection with such an event and the holding of funerals.
200
F22 Unlike for permanent orders and certain other types of temporary TRO,
there are no statutory requirements (except for those in London mentioned
above) on the procedure for making special events orders. Further
guidance is, however, given on the Department for Transports website.
Procedure for making permanent and experimental
TRO/TMOs
F23 The procedures for making permanent and experimental TROs/TMOs (that is,
including those made under sections 1,6,9, 32 and 45 of the RTRA) are set out
in the Local Authorities Traffic Orders (Procedures) (England and Wales)
Regulations 1996.
Consultation
F24 Before making an order, there must be consultation on the proposals as shown
in Table F1.
200 London Local Authorities Act 1995, section 9
Annex F March 2008
Table F1 Consultation necessary before making an order
Circumstances Consultee(s)
Where the order relates to, or appears to the
order-making authority to be likely to affect
traffic on a road for which another authority is
the highway authority or the traffic authority
The other authority
traffic on, a Crown road
The appropriate Crown authority (usually,
the Highways Agency)
traffic on, a road subject to a concession
The concessionaire
traffic on, a road on which a tramcar or trolley
vehicle service is provided
The operator of the service
traffic on a road outside Greater London which
is included in the route of a local service
The operator of the service
traffic on a road in Greater London which is
included in the route of a London bus service
The operator of the service and Transport
for London
Where it appears to the authority that the order
is likely to affect the passage on any road of
ambulances
The chief officer of the appropriate NHS trust
Where it appears to the authority that the order
is likely to affect the passage on any road of fire-
fighting vehicles
The fire and rescue authority
All cases (a) The Freight Transport Association
(b) The Road Haulage Association
(c) Such other organisations (if any)
representing persons likely to be affected by
any provision in the order as the order-making
authority thinks it appropriate to consult
Publicity
F25 Before making a permanent order, the traffic authority must publicise the
proposals by publishing them as follows:
a notice of intention to make the order in the local press and by such other
means it considers appropriate (for example, roadside notices and letters
to premises);
a period of at least 21 days must be allowed for objections to the consultation
and notice to be made.
151
Public inquiry
F26 A traffic authority must hold a public inquiry if:
a bus operator objects to an order that prohibits or restricts the passage of
public service vehicles; or
there is an objection to a prohibition on the loading or unloading of vehicles of
any class on any day of the week:
at all times;
before 07.00 hours;
between 10.00 and 16.00 hours; or
after 19.00 hours.
F27 A traffic authority may hold a public inquiry in other circumstances.
F28 These publication and objection provisions do not apply to experimental
orders. However, an experimental order cannot come into force for at least
seven days after a notice of making it has been published. The authority
must also comply with the requirements in the procedures regulations
for making deposited documents available for public inspection.
Modifications prior to making an order
F29 A traffic authority may modify an order, whether in consequence
of any objections or otherwise, before it is made provided the
modification does not alter a form already approved by the Secretary
of State. If the changes to the order are substantial, the authority
must
201
carry out further consultation. The authority should:
tell people likely to be affected by the modifications;
give them an opportunity of making representations; and
consider any such representations.
Orders applicable to trunk roads
F30 The procedures are similar in principle to those for orders for other roads and are
prescribed in the Secretary of States Traffic Orders (Procedure) (England and
Wales) Regulations 1990.
Procedure for making temporary TROs/TMOs
F31 Temporary orders made under section 14 of the Road Traffic Regulation Act 1984
as described above are subject to the Road Traffic (Temporary Restrictions)
Procedure Regulations 1992. These are the principal requirements.
Not less than seven days before making an order, the traffic authority shall
publish notice of its intention to make the order in newspaper(s) circulating in
the area, and explain its effect.
201 S.I. 1996/2489, regulation 14(4)
Annex F March 2008

The traffic authority shall, on or before the day on which the order is made,
give notice:
to the Chief Officer of Police of any police area in which any road to which
the order relates is situated;
where the traffic authority is not the fire authority for the area in which any
road to which the order relates is situated, to the chief officer of the fire
authority for that area;
to any other traffic authority affected by the order; and
to any concessionaire directly affected.
Within 14 days after making the order, the traffic authority shall publish a
notice of the making of the order in newspaper(s) circulating in the area.
When the order has been made but before the instrument comes into force,
the traffic authority shall place traffic signs to give road users adequate
information as to its effect (and the covering or removal of other signs). Such
signs must be maintained as long as the measures are in force.
Review of TRO/TMOs before adoption of CPE powers
F32 The traffic authority should review all existing TRO/TMOs before adopting CPE
powers and consider how they should change to meet its parking policy
objectives. The review should check whether the restrictions indicated by the
signs and road markings are the same as those authorised by the order. The
Secretary of State will not sign an Order granting CPE until the local authority
has confirmed in writing that:
it has completely reviewed the Traffic Regulation Orders (TROs), traffic signs
and road markings within its entire proposed Civil Enforcement Area/Special
Enforcement Area in order to highlight any deficiencies;
it has rectified any deficiencies highlighted as part of this review;
as a result of this work all TROs, traffic signs and road markings within the
entire proposed CEA/SEA conform to the legislation, are consistent with one
another and are in a good state of repair; and
this requirement extends to all TROs, traffic signs and road markings with no
exceptions and therefore includes existing, new and replacement TROs, traffic
signs and road markings.
F33 Parking controls that are not backed by valid TRO/TMOs may be unenforceable
and it is likely that any appeals against PCNs will succeed where TRO/TMOs are
not valid.
F34 The local authority will need to consider whether restrictions should apply beyond
the normal working day and/or at weekends. The authority should examine the
scope for relaxing or removing any redundant parking controls. Unnecessary
restrictions are very quickly identified when the authority takes over responsibility
for their enforcement and this can result in complaints from motorists and bad
publicity. It is better to deal with them before civil enforcement commences.
153
F35 Local authorities may also wish to consider placing all their TRO/TMOs on a
graphical information system and on their website so that, for example, they can
supply their contractors with accurate, up-to-date maps and inform the public.
Other changes to TRO/TMOs required before
taking on CPE power
F36 As part of their review of TRO/TMOs, local authorities should also identify
the technical changes which would be needed to comply with the Traffic
Management Act 2004. For example, amendments will be needed to reflect
the switch from traffic offence provisions to the new system of penalty charges
and civil liabilities. Existing on-street and off-street parking orders will need to
be amended to reflect the removal of initial and excess parking periods.
F37 If an authority will not removing excess charge flags when introducing CPE,
it should include a provision, valid for no more than three months from the
introduction of civil parking enforcement, to enable civil enforcement officers
to impose a penalty charge when the excess charge flag or display is showing
on parking meters (see section below). Similar provision may be needed in
off-street car park orders. Once an authority has CPE power, its TRO should
not set out the penalty charges, as the Secretary of State sets these.
F38 It would also be expedient for TROs to retain a provision relating to anything
done with the permission or at the direction of a police constable in uniform in
order to cover emergencies.
F39 Attention is drawn to regulations 21 of The Local Authorities Traffic Orders
(Procedures) (England and Wales) Regulations 1996, which dis-applies most of
the normal consultation and making procedures for:
'consolidation' orders to re-enact existing provisions without any changes of
substance other than those listed in Part 1 of Schedule 4 to the regulations; and
'minor' orders in this context, also listed in Schedule 4.
F40 The definition of 'minor' order is not being amended as a consequence of
the Traffic Management Act and its subsidiary legislation. This is because
TROs/TMOs should not contain matters covered by national legislation.
Parking meters
F41 Local authorities enforcing parking will no longer be using the system of initial
and excess parking charges. They will therefore have to remove the excess
charge indication from parking meters in CEAs. This change cannot be made
overnight, but the Secretary of State believes that all affected meters should be
converted within three months of the start of the new penalty charge system in a
local authoritys area. Meanwhile, an authority should fix notices to unconverted
meters stating that it can impose a penalty charge when the excess charge flag or
display is showing. These changes will need to be provided for in the relevant TROs.
Annex F March 2008

ANNEX G
SIA guidance on vehicle immobilisation on private land
G1 For the purposes of the following paragraphs, private land is defined as land
other than a road within the meaning of the Road Traffic Act 1988.
GI2 Licensing for vehicle immobilisers on private land came into effect across
England and Wales on 3 May 2005.
G3 It is now a criminal offence to work as a Vehicle Immobiliser in England
and Wales without an SIA licence. If you do work without a licence
(or breach the conditions on which your licence was granted) you
will be committing a criminal offence, punishable on conviction by
a fine of up to 5,000 or six months imprisonment or both.
G4 An exemption to working without a licence is applicable only where the employer
or company you work for has been granted Approved Contractor status by the
SIA and the other conditions of section 4(4) of the Private Security Industry Act
2001 have also been met. Every condition must be met for this section to apply.
G5 In addition to holding a valid SIA licence and meeting general licence
conditions, vehicle immobilisers must observe the following requirements.
1. A vehicle must not be immobilised/ blocked/ towed if:
a valid disabled badge is displayed on the vehicle;
it is a marked emergency service vehicle which is in use as such.
2. Any licence holder who collects a release fee must provide a receipt, which
must include the following:
the location where the vehicle was immobilised or towed;
their own name and signature;
their licence number;
the date.
Who needs a licence?
G6 You need a Vehicle Immobilisers licence if you undertake any of the following:
a. move a vehicle by any means;
b. the restriction of the movement of a vehicle by any means (including the
immobilisation of a vehicle by attaching a device to it);
155
c. the release of a vehicle which has been so moved or restricted, where release
is effected by returning the vehicle to the control of the person who was
otherwise entitled to remove it, by removing any restriction on the movement
of the vehicle by removing the device or by any other means; or
d. the demanding or collecting of a charge as a condition of any such release of
or for the removal of the device from a vehicle.
G7 Vehicle immobiliser activity only applies to activities carried out:
for the purpose of preventing or inhibiting the removal of a vehicle by a person
otherwise entitled to remove it;
where it is proposed to impose a charge for the release of the vehicle;
in relation to a vehicle while it is elsewhere than on a road within the meaning
of the Road Traffic Act 1988.
G8 The requirement to hold a licence when carrying out the immobilisation,
restriction or removal activity defined in the Act applies to anyone, e.g.
land occupiers, in-house employees, staff supplied for the purposes
of or in connection with any contract to a consumer or volunteers.
G9 There are certain exclusions mentioned within the Private Security
Industry Act 2001. The Act (paragraphs 2 and 3A of Schedule 2) should
be referred to for full details of when a licence is not required.
G10 SIA licensing of vehicle immobilisers does not apply to Scotland.
G11 There are two types of SIA licence:
A front line licence is required if undertaking licensable activity, other than key
holding activities (this also covers undertaking non-front line activity). A front
line licence is in the form of a credit card-sized plastic card that must be worn,
subject to the licence conditions.
A non-front line licence is required for those who manage, supervise and/
or employ individuals who engage in licensable activity, as long as front line
activity is not carried out this includes directors* or partners. A non-front line
licence is issued in the form of a letter that also covers key holding activities.
*For the purposes of the Private Security Industry Act 2001, director
means executive and non-executive directors, shadow directors, parent
company directors and corporate entities holding a directorship.
Reporting vehicle immobilisers
G12 The SIA welcome any information relating to vehicle immobilisers operating
without a licence or in breach of the licensing conditions. This can be reported
via the SIAs website at www.the-sia.org.uk.
Annex G March 2008

G13 This information will help the SIA to ensure compliance with the Private Security
Industry Act 2001 and thus improve standards in the vehicle immobiliser
sector. Please note that the SIA cannot provide feedback on any actions
they may take as a result of the information you provide. Please also note
that the SIA are unable to pursue cases on behalf of specific individuals.
G14 There are some areas of vehicle immobiliser operations that the SIA do not regulate:
size of the release fee;
time taken to release a vehicle;
adequacy of signage around the site warning that vehicles may be
immobilised.
G15 If you feel that you have been treated unfairly you should take this up with
the vehicle immobiliser concerned or their employer. If this is not possible
or you remain dissatisfied you may wish to consider engaging the services
of a solicitor and taking civil legal action. Your local Citizens Advice Bureau
or Trading Standards office may be able to offer advice on this.
G16 If a vehicle immobiliser uses threatening behaviour or intimidation
they may be committing a criminal offence and the SIA would
recommend that you report such instances to the police.
G17 Please note that vehicle immobilising is a legitimate business. If you park on
private land without permission you are running the risk of your car being legally
clamped, blocked in or towed away.
G18 For more information on vehicle immobilisation on private land visit the SIA
website at www.the-sia.org.uk.

157
ANNEX H
Abbreviations used in this publication
CEA Civil Enforcement Area
CEO Civil Enforcement Officer
CPE Civil Parking Enforcement
CPZ Controlled Parking Zone
DPE Decriminalised Parking Enforcement
FCO Foreign and Commonwealth Office
FPN Fixed penalty notice
GLA Greater London Authority
HEB Health emergency badge
HGV Heavy goods vehicle
HHC Hand-held computer
IHIE Institute of Highway Engineers
LC London Councils
LIP Local Implementation Plan
LTP Local Transport Plan
NoR Notice of Rejection
NtO Notice to Owner
PA Parking Attendant
PPA Permitted Parking Area
RTRA Road Traffic Regulation Act 1984
SEA Special Enforcement Area
SIA Security Industry Association
SLA Service Level Agreement
SPA Special Parking Area
TEC Traffic Enforcement Centre
TfL Transport for London
TMA Traffic Management Act 2004
TMO Traffic Management Order
TRO Traffic Regulation Order
VED Vehicle Excise Duty
Annex H March 2008
Index
abandoned vehicles, 6.14
adjudication, 11.3711.47, 12.2, 14.3
Charge Certificates, 10.51
grounds for appeal, 10.62
Penalty Charge Notices, 4.17
adjudicators, 10.3, 11.3711.47
Civil Enforcement Officers, 6.13
Codes of Practice, 1.6
advance notice, 5.85.9, 5.115.13, 8.24
advertising, 5.11
agency agreements, 12.1012.13
aggressive motorists, 6.21, 8.63
see also violence
annual reports, 4.16, 4.18, 4.24, 4.28 see also
reporting
annual returns, PCNs, 4.17
appeals
allowed, 11.39
evidence, 8.9, 8.158.16
grounds for, 8.66, 8.70, 11.38
immobilisation or removal, 8.100
Notice of Rejection, 11.1, 11.34
Notice to Owner, 8.40
Penalty Charge Notices, 4.21
in progress, 10.6110.62
refused, 10.52
statutory grounds for, 11.44
time limits, 10.3, 11.38
appraisal
Civil Parking Enforcement (CPE), 4.14.7
enforcement, 2.11
approved devices, 7.17.9, 8.788.87
codes of practice, 8.818.82
detection of contravention, 8.63
digital cameras, 6.12, 6.21, 8.158.16, 8.43
high speed roads, 13.17
audit trail, 10.4, 11.9
representations, 11.12, 11.21
back office staff see office staff
bailiffs see certificated bailiffs
benefits, of CPE, 5.14
bicycles see cyclists
Blue Badge Scheme Local Authority Guidance
(England), 9.17
Blue badges see disabled badges
borough councils, 12.8
British Parking Association, 1.7, 4.14, 6.3, 11.6,
14.3
bus lanes, 8.83, 12.4
businesses, consultation with, 2.13, 3.3,
8.538.54
byelaws, 10.1
cameras see also approved devices; digital
cameras
certification of, 8.78
digital, 6.12, 6.21
evidence from, 8.158.16
cancellation of payment, 8.46, 11.15, 11.29
care workers, 9.369.40
casualties, road accidents, 4.21
CCTV, 6.27, 7.57.6, 7.8, 8.8
CEA see Civil Enforcement Areas (CEAs)
CEO see Civil Enforcement Officers (CEOs)
certificated bailiffs, 10.64, 10.6710.68
terminology change, 10.78
certification, devices of enforcement, 7.17.4
challenges see representations, informal
Channel Islands, 10.72
Charge Certificates, 8.20, 10.5110.54
county court orders, 10.53
registration of, 10.55, 10.65
witness statements, 10.5610.58
charging consistency, 12.17, 14.10
charging order, 10.74
cheque payments, 10.10, 10.1210.13, 10.16
Chief Executive Officer, 11.44
City and Guilds qualifications, 6.20
civil debt, 8.20
Civil Enforcement Areas (CEAs), 2.7, 4.25,
Annex A
application procedures, 15.115.8
changes to, 12.9
levels of enforcement, 13.20
Civil Enforcement of Parking Contraventions
(England) General Regulations 2007, 4.24
Civil Enforcement of Parking Contraventions
(Guidelines on Levels of Charges)
(England) Order 2007, 8.23
159 Index March 2008
Civil Enforcement Officers (CEOs), 2.7,
6.116.17, 8.37, 14.3, Annex D
CRB checks, 6.10
dangers to, 6.21, 8.63, 8.66, 13.17
equipment, 8.28.3, 8.148.15
exemptions awareness, 9.43
identification of, 8.4, 8.7
immobilisation and removal, 6.13, 8.89,
8.918.93
performance information, 8.9
probation period, 6.26
qualifications for, 6.20
regulation 10 PCNs, 8.70
security of, 4.9
skills and attributes, 6.76.9, 6.20
training, 2.11, 4.4, 6.1, 6.4, 6.186.24
disability awareness, 6.25, 9.14
transport for, 8.19
uniforms, 8.48.8
Civil Parking Enforcement (CPE), 2.7, 2.9,
4.14.14, 5.14, Annex A
application for, 12.112.2
HM forces vehicles, 9.339.34
objectives, 3.13.4, 3.63.9
powers under, 12.312.5
reporting, 4.154.28
Civil Procedure Rules, Part 75, 10.63
clamping see immobilisation
codes of practice, 4.20
CCTV operation, 6.27, 7.6
for CEOs, 4.20
devices of enforcement, 8.818.82
Traffic Enforcement Centre, 10.54
communication, 5.14
between CEOs, 8.9
on charging, 14.23, 15.11
neighbouring authorities, 5.13
with public, 5.85.12, 12.17, 13.4
Communities and Local Government
Department, 4.29
community councils, 12.17
compassionate grounds, temporary waiving of
payments, 10.2610.28
compliance, parking regulations, 4.4, 6.9, 14.8
congestion, 4.21, 9.27, 9.29
consultation, 4.8, 5.15.6
between authorities, 12.912.17
with businesses, 2.13, 3.3, 8.53
with Civil Enforcement Officers, 3.4, 4.1
with DVLA, 12.9
with public, 2.13, 4.3
contractors, 4.7, 4.8, 4.12, 4.23
costs, 14.3
informal representations, 11.18
model contract, 6.3
registered keeper information, 10.38
contravention codes, 8.23, 8.308.34, Annex C
contraventions, 8.9, 8.368.47, Annex C
observation period, 8.488.51
Controlled Parking Zones (CPZs), 2.10, 4.4, 5.8
harmonisation of hours, 12.17
costs of enforcement, 14.3
Council for Tribunals, 15.7
Council of the Isles of Scilly, 12.7
county councils, 12.912.13, 15.5
County Court, 10.27
County Surveyors Society, 1.7
CPE see Civil Parking Enforcement (CPE)
CPZ see Controlled Parking Zones (CPZs)
CRB see Criminal Records Bureau
credit rating, 10.77
criminal activity, 6.14. 13.20
criminal proceedings, 4.9, 10.6
Criminal Records Bureau, 6.10
Crystal Mark guidelines, 5.15
CSS, 1.7
customer service, 4.12
cyclists, 3.3, 8.65
Data Protection Act 1998, 7.5, 7.7
date of service, 11.8
postal PCNs, 8.68, 8.72, 8.87
debt recovery, 8.20, 10.27, 10.6410.70
Decriminalised Parking Enforcement (DPE), 2.7
see also Civil Parking Enforcement (CPE)
defective equipment, 6.12
Department for Transport, communication with,
15.215.4
designation orders, 15.115.7
devices of enforcement see approved devices
digital cameras, 6.12, 6.21, 8.158.17, 8.43
diplomatic immunity, 9.25
Diplomatic Privileges Act 1964, 9.259.26
diplomatic vehicles, 6.18, 9.23
charges required, 9.279.29
recovery, 9.309.32
immobilisation, 8.102, 8.104, 9.259.27
Notices to Owner, 9.30, 10.47
160
parking tickets, 9.259.26
plate types, 9.24
removal, 8.102, 8.104, 9.259.26, 9.289.29
Disability Discrimination Act 1995, 9.2
Disability Discrimination Act 2005, 9.2
disabled badges
abuse, 6.13, 9.119.19
Civil Enforcement Officers (CEOs), 9.14
police involvement, 9.13, 9.169.17
Blue Badge Scheme, 9.4, 9.7, 9.17
exemptions, 6.21
gender marker, 9.15
hazard, 8.103
holders of, 8.102, 9.59.6, 9.9, 9.209.22
immobilisation or removal, 8.1028.103,
9.99.10
inspection, 6.18, 9.8
parking concessions, 9.5
reciprocal arrangements, 9.21
responsibilities of holders, 9.69.7
withdrawal of, 9.17, 9.189.19
disabled people, 3.3, 6.25, 9.29.4
Disabled Persons (Badges for Motor
Vehicles) (England) Regulations 2000, 9.179.18
discount periods, 8.40, 8.66, 8.70, 8.83, 10.22,
14.16 see also Penalty Charge Notices;
penalty charges
after Notice of Rejection, 11.36
communication within, 14.16
informal representations, 11.16
discount rate, penalty charges, 14.19
discretion, 6.166.17, 11.411.5
adjudicators, 11.38
dispensations, 9.1, 9.35, 13.21
disposal charges, 14.20
Distress for Rent Rules, 10.78
district councils, 12.912.13
double parking, 8.578.59, 8.60, 12.5
drive aways, 8.63, 8.698.75
Driver and Vehicle Licensing Authority (DVLA),
4.8, 4.11
cooperation with local authorities,
10.4510.46, 12.2
information provided from, 10.4410.46, 12.19
registered keeper information, 10.3810.42
use of personal data, 8.12
dropped footways, 8.578.59, 8.618.62, 12.5
DVLA see Driver and Vehicle Licensing
Authority (DVLA)
e-mail contact, 10.4
earnings order, 10.74
elected members, local authorities, 11.21
emergency services, 8.58, 8.62, 9.42, 12.2
endorsable offences, 4.8, 12.19
enforcement agents, 10.78
enforcement authorities, 1.2, 2.8, 10.110.4,
11.411.7
adjudicators recommendation, 11.4411.46
annual return, PCNs, 4.17, 4.304.31
appeals process, 11.39, 11.4111.43
choice of measures, 13.16, 13.2213.24
costs, 14.214.3
objectives, 3.23.4
payment methods, 10.810.10, 10.1710.20
enforcements, civil court judgments, 10.68
enquiries, from public, 5.10, 6.13
environment, 3.3, 4.20
European disabled badge holders, 9.21
evidence
approved devices, 8.81
cases of drive away, 8.70, 8.73
cases of violence, 8.66
of contravention, 8.36, 8.43
digital cameras, 8.158.17
disabled badges, 9.17
integrity of, 7.5
excess charge, 13.10
exemptions, 5.14, 9.1, 9.43, 13.21
Blue Badge scheme, 6.21
Civil Enforcement Officers, 6.18, 6.22
emergency vehicles, 8.58, 9.42
footways and kerbs, 8.58, 8.62
HM forces vehicles, 9.339.34
loading and unloading, 8.55
service vehicles, 9.42
suspension of parking places, 9.41
expenditure, 3.6, 4.24, 14.314.4
false representation, 9.17, 11.32
financial information
annual reports, 4.24
costs, 14.214.4
expectations of CPE, 3.63.9, 13.22, 14.1
reporting, 4.254.29
first class post, 8.66, 8.70, 10.2, 11.8
Fixed Penalty Notices (FPNs), 2.4
forces personnel vehicles, 9.339.34
161
Foreign and Commonwealth Office (FCO),
9.309.32
unpaid PCNs, 10.47
foreign visitors, 10.19, 10.72
disabled badges, 9.209.22
formal representations, 11.1811.23
FPNs see Fixed Penalty Notices (FPNs)
freight hauliers, 5.4, 6.25
Freight Quality Partnerships, 8.53
Full Guidance on Local Transport Plans, 2.2
Future of Transport White Paper, 2.1
garnishee order, 10.74
grace periods, 8.52
Guidance on Decriminalised Parking
Enforcement outside London, 1.5
Guidelines Order, 8.23
hand held computers (HHC), 6.12, 6.21,
8.98.13
handbooks, for CEOs, 8.28.3
headgear, 8.6
health and safety, 5.4
health care workers see care workers
heavy goods vehicles, 13.13 see also loading
and unloading
high speed roads, 12.8, 13.1713.18
Highway Code, 8.61, 9.6
Highways Agency, 12.2, 13.1813.19, 15.5
hired vehicles, 10.5, 11.2
HM forces, 9.339.34
identification numbers, 6.30, 8.4, 8.7, 8.9, 8.71
immobilisation, 8.888.100
authorisation, 6.13, 6.23
charges, 14.20
clamping, 8.96, 9.9
costs, 14.3
CPE powers, 12.3
diplomatic vehicles, 8.102, 8.104, 9.259.27
disabled badges, 8.1028.103
fees, vehicle release, 10.18, 10.24, 14.17
operatives, 6.296.30, 8.5, 8.91
output indicators, 4.12, 4.21
payment, 8.99, 8.101, 10.24
private land, 6.296.30, 8.5, Annex H
training for, 6.23, 6.28
in-house staff, 4.13
income and expenditure see also revenue
expectations, 14.3
penalty charges, 14.17
recording, 4.254.28
surplus income, 14.7
informal representations, 11.1, 11.1011.16
Institution of Highways and Transportation,
1.7, 2.18
internal clock, 8.11
internet payments, 10.18, 10.23
Isle of Man, 10.72
IT systems, 10.1, 10.39, 14.3
judicial review, 11.40
kerb space management, 3.3
legal interpretation, 1.3
legal processes, 11.611.7, 11.30, 14.3
legal requirement, publication of charges, 14.23
LIP see Local Implementation Plans (LIPs)
loading and unloading, 5.4, 6.21, 8.538.56
local Acts, 13.13
local authorities, 2.12.2, 2.42.5, 12.1, 12.712.9
collaboration, 3.9, 4.10, 5.13, 12.1
consultation, 12.2, 12.1412.18, 15.5
enforcement appraisal, 2.11
parking policies, 2.10, 2.12, 2.15, 2.18
Local Authorities Traffic Orders (Procedure)
(England and Wales) Regulations 1996,
14.5, 15.8
Local Government Association, Codes of
Practice, 1.6
Local Government Technical Advisory Group
(TAG), 1.7
Local Implementation Plans (LIPs), 3.4, 4.1
Local Transport Plans (LTPs), 3.4, 4.1
location of vehicle, identification of, 8.42
London see also Local Implementation Plans
(LIPs)
approved devices, 7.1
Blue Badge Scheme, 9.4
immobilisation and removal charges, 14.20
local legislation, 1.1
parking enforcement, 2.6
pavement parking, 13.13
penalty charges, 8.21, 8.23, 8.25, 14.1214.13
London Councils
CCTV operation, 7.6
charges publicity, 8.21
Codes of Practice, 1.6, 7.6
Index March 2008
contravention codes, 8.34
financial reporting, 4.25
London Health Emergency Badge, 9.36
London Technical Advisors Group (LoTAG), 1.7
LoTAG see London Technical Advisors Group
LTP see Local Transport Plans (LTPs)
magistrate court, 9.11
management, staff training, 6.56.6
Mayor of London, 1.5, 8.21, 8.25
media, for communication, 5.9, 5.10, 10.4, 11.9
metropolitan district councils, 12.712.8
military roads, 12.8
misuse, disabled badges, 9.17
mitigating circumstances, 6.22
mitigation, 6.6
mobile telephones, 8.14
mobility see disabled people
model contracts, 4.14, 6.3
monitoring, 4.15, 14.3 see also reporting
motorcycles, 3.3
motorists, vulnerable, 8.90, 10.26
moving traffic, 4.4, 12.19
multiple PCNs within 24 hours, 8.46
neighbouring authorities, 3.9, 4.10, 5.12, 12.1
Network Management Duty, 3.3
non-payees see persistent evaders
Northampton County Court see Traffic
Enforcement Centre (TEC)
Notice of Rejection, 10.50, 11.1, 11.3411.36
Notice to Owner (NtOs) see also Penalty
Charge Notices (PCNs)
appeals, 8.20, 8.40
cancellation of, 11.29
corporate bodies, 10.43
diplomatic vehicles, 9.30, 10.47
limitation period, 10.11, 10.32
must state, 10.33
not received, 10.5810.59
payment cancelled, 10.37
Penalty Charge Notices, 8.63, 8.66, 8.70,
8.84, 10.35
purpose, 10.32
registered keeper information, 10.3810.42
representations, 6.16, 10.33, 10.36, 11.1
service of, 10.34, 10.35, 11.8
notices see Notice of Rejection; Notice to
Owner; Penalty Charge Notices
NtO see Notice to Owner
NVQs, parking control, 6.20
objectives
Operational Guidance, 1.2
parking policy, 13.22
observation periods, 8.488.52, 8.77
occupancy rates, 14.9
off-street parking, 4.25, 12.12
Office of the Chief Executive, 11.44
office staff
consultation with, 3.4, 4.1
discretion, 6.16
skills and training, 6.2, 6.56.6
older people, 9.3
on-street parking, 2.4, 14.9
district councils, 12.912.13
income reporting, 4.25
online payment, 10.8, 10.17
oral examination, debt recovery, 10.73
out-of-hours payment facilities, 10.25
outcome indicators, 4.12
owner of vehicle see also Notices to Owner
(NtOs)
consent not given, 11.23
not registered with DVLA, 8.88, 8.105
Penalty Charge Notice, 8.63, 8.74
recent change, 11.23, 11.29
registered keeper, 10.3810.43
untraceable, 10.4410.45
parish councils, 12.17
parking account, 4.24
parking adjudicators see adjudicators
parking attendants (PAs), 2.7, 6.14 see also Civil
Enforcement Officers (CEOs)
parking charges, 14.514.10
parking concessions, disabled badges, 9.5
parking meters, 6.13, 13.10
parking policies, 2.22.3, 2.10, 2.15, 2.18, 3.3
appraisal of, 4.14.9, 13.113.3, 13.14
awareness of, 5.75.13
contravention of more than 1 restriction, 8.45
cost-effectiveness, 12.13
enforcement regime, 13.5, 13.16, 13.2213.24
parking vouchers, 6.14
part payment, 10.8, 10.2710.28
pavements
dropped, 8.578.58, 8.618.62, 12.5
parking on, 13.1313.15
pay and display machines, 6.13
payment
163
centres, 10.8, 10.2310.24
discount periods, 10.22
incorrect, 10.1210.15
late, 10.21
methods, 8.100, 10.810.10, 10.1610.18, 10.23
Notice to Owner limitation period, 10.11
paid, 10.20
part payment, 10.8, 10.27
for release of vehicle, 10.28, 10.30
subject to conditions, 10.14
temporary waiving of, 10.2610.28
PCN see Penalty Charge Notices (PCNs)
pedestrian crossings, 10.6, 11.23, 12.20
pedestrians, 3.3, 13.20
Penalty Charge Notices (PCNs), 2.5, 3.6, 4.24,
11.3, 14.3
annual returns on, 4.17, 4.304.31
approved devices, 8.78, 8.81, 8.848.86
cancellation, 11.4, 12.20
contraventions, 6.21, 8.37, 8.458.46
copies of, 8.39
criminal activity, 12.20
fixed to vehicle, 8.37
hand held computers, 8.9, 8.39
identification of, 8.268.28
immobilisation or removal following, 8.92
income from, 4.25
information contained
additional, 8.44
essential, 8.40, 8.66, 8.70, 8.84
recommended, 8.41, 8.67, 8.71, 8.858.86
not issued, 6.17, 8.35
as Notice to Owner, 8.63, 8.66, 8.70, 8.84,
10.35
paid, 10.20
prevention of service, 6.21
regulations 9 and 10, 8.40, 8.66, 8.70, 8.75,
11.2
representations against, 6.9, 11.111.2
return of owner, 8.768.77
serving of, 6.12, 8.77, 8.80
by post, 8.37, 8.638.67
two or more within 24 hours, 8.46
unenforceable, 6.13, 8.35
uniform of officer, 8.5, 8.6
unique numbers, 8.268.29
written by hand, 8.9, 8.39
penalty charges, 3.8, 14.12, 14.1514.17
bands, 2.11, 14.11, 14.13
changes to, 8.24, 14.25
criminal proceedings, 10.6
levels, 4.4, 8.22, 8.23
London, 8.21, 8.25, 14.1214.13
payable by owner, 8.20, 10.5
payment, 8.40, 8.47, 10.810.10, 10.18
surcharge, 14.17
VAT, 14.24
performance measures
authorities, 4.18, 4.22
parking enforcement policies, 4.214.22, 4.24
quality of service, 10.2
staff, 4.12
performance targets, 3.6, 4.214.23, 8.99, 10.2
Permitted Parking Area (PPA), 2.7 see also Civil
Enforcement Areas (CEAs)
persistent evaders, 8.92, 8.96, 8.1058.107, 12.3
definition of, 8.105
diplomatic vehicles, 9.27
personal identity see disabled badges;
identification numbers
photo-identity cards, 8.7
picking up and setting down, 6.21
plain English, 5.15
planning policies
loading and unloading, 8.54
parking, 2.142.15
Planning Policy Guidance 13, 2.152.18
Planning Policy Statement 3, 2.15, 2.17
pocket books, 6.21
police
consultation with, 4.3, 4.84.9, 12.21, 15.5
notification of vehicles removed, 8.98, 8.103
parking enforcement, 2.1, 2.42.5
Civil Enforcement Areas, 12.1912.20
trunk roads, 13.18
removal, Blue Badge vehicle, 9.10
traffic offences responsibilities, 4.9
vehicle not registered, 8.105
postage
delays in, 10.21
first class, 8.66, 8.70, 10.2, 11.8
power to inspect legislation, 9.16
PPG13, 2.152.18
PPS3, 2.15, 2.17
prescribed functions, 8.4
pricing, of parking, 4.4
privacy, 7.5
private land, immobilisation on, 6.296.30
Private Security Industry Act 2001, 6.29
procedural impropriety, 11.23
Index March 2008
processes and procedures, 1.2, 2.8, 10.1
promissory notes, 10.26
public interest, 11.4, 12.13, 13.22
public perception, 8.1, 8.78, 8.90, 13.4
appeals process, 11.42
public services, 4.20
understanding of, 5.1, 5.7, 5.10
public transport, 3.3, 4.21, 13.22, 14.8
publication, of charges, 14.23, 14.25, 15.11
see also communication, with public
qualifications, 6.20, 6.27
quality assurance, 10.1
quality of service, 10.110.4
R v. LB Camden (ex parte Cran), 3.7
recovery, of vehicle, 8.99
registered keeper (see also owner of vehicle),
10.3810.43
registration, Charge Certificate, 10.55, 10.65
Regulation of Investigatory Powers Act 2000
(RIPA), 9.11
regulations, precedence of, 1.3
regulations 9 and 10 PCN see Penalty Charge
Notices
relevant date, 10.32
removal of vehicle, 8.898.90, 8.998.101,
9.99.10
authorisation, 6.13, 6.23
charges, 14.20
costs, 14.3
CPE powers, 12.3
diplomatic vehicles, 9.259.26, 9.289.29
disposal charges, 9.29, 10.28
fees, 10.18, 10.24, 14.17
hazard or obstruction, 8.88, 8.95, 9.9
operatives, 6.286.29, 8.5, 8.91
payment centres, 10.2310.25
persistent evaders, 8.106
photograph of vehicle, 8.17
return of driver, 8.96
sale proceeds, 11.30
where parking is permitted, 8.92
reporting, 4.154.24
financial, 4.254.29
representations
advice on rights, 10.3010.31, 11.15
consideration of, 11.2811.31
contracting out, 11.18
decisions, 11.28, 11.31, 11.33
delayed, 11.24
discretion, 11.411.5, 11.24
effective processes, 11.20
false, 9.17, 11.32
formal, 11.1811.24
grounds for, 8.66, 10.30, 11.22, 11.26
immobilisation or removal, 8.100, 11.2511.27
informal, 11.1011.17
procedures for, 8.76
rejection of, 10.50, 11.1, 11.3411.36
separation of duties, 11.19
statutory grounds for, 10.36
time limits, 8.66, 8.70, 8.84, 8.100, 10.33
residents, parking policies, 2.17
permits, 8.78
revenue, 4.24, 6.15
benefits from, 4.15
raising of, 3.63.9
road markings see traffic signs
road safety, 3.3
Road Traffic Act 1988, 13.13
Road Traffic Act 1991 (RTA), 1.11.2, 2.42.5,
Annex B
Road Traffic Regulation Act 1984 (RTRA), 1.5
disabled badge abuse, 9.17
parking charges, 14.5
parking policies, 2.4
s. 55, 3.8, 4.24, 4.25, 6.15, 14.7
s. 63A, 6.14
surplus income, use of, 4.27
Traffic Regulation Orders (TROs), 4.5, 13.14
road user groups, 4.8
RTRA see Road Traffic Regulation Act 1984
Scotland, 10.72
Security Industry Association (SIA), 6.29,
Annex G
security issues, 12.19
self-financing enforcement, 3.9
service level agreements (SLAs), 4.134.14
service vehicles, 8.58, 9.42
setting down, 6.21
signing see traffic signs
SLA see Service Level Agreements (SLAs)
social inclusion, 11.9
sole traders, 10.43
Special Enforcement Areas (SEAs), 8.58, 12.6,
Annex A
165
Special Parking Areas (SPAs), 2.7 see also Civil
Enforcement Areas (CEAs)
stakeholders, 5.2
stationary vehicles, 6.14
statistical information, 4.24, 8.30
statutory declaration see witness statements,
Charge Certificates
statutory duties, 1.3, 15.5
statutory grounds for appeal, 11.44
Statutory Guidance, 1.31.4
Statutory Instruments, 1.5
statutory period, payments, 10.21
statutory representations, 11.10
storage charges, 8.101, 14.20
supervisors, training of, 6.4, 6.6
surcharge, 8.66, 8.70, 8.84, 10.48, 14.17
see also Charge Certificates
surveys, on-street enforcement, 6.14
suspension of parking places, 6.14, 8.18, 9.41
sustainable transport, 2.15
TAG see Local Government Technical Advisory
Group
targets, 8.99, 10.2
tax discs see Vehicle Excise Duty (VED)
TEC see Traffic Enforcement Centre (TEC)
telephone contact, 10.4
payments, 8.100, 10.8, 10.21
time limits
adjudicators recommendation accepted, 11.47
appeals, 11.38
correspondence, 10.3
decision notices, 11.28
enforcement authorities, 11.45
payment, 8.40
quality of service, 10.2
representations, 8.66, 8.70, 8.84, 8.100, 11.28
warrants of execution, 10.69
TMA see Traffic Management Act 2004
town councils, 12.17
TRACE, 8.98, 8.103
Traffic Enforcement Centre (TEC), 4.8, 8.27, 8.29
county court orders, 10.54
local authority consultation, 12.2
recovery of charge, 10.53
transfer to County Court, 10.76
warrants of execution, 10.64
traffic flow, 4.4, 12.19
traffic management, 4.21, 8.88
appraisal of, 13.113.3
Traffic Management Act 2004 (TMA)
approved devices, certification, 8.78
Blue Badge Scheme, 9.8, 9.16
diplomatic immunity, 9.26
double parking and dropped footways, 8.58
management of road network, 2.1
Network Management Duty, 3.3
on-street parking account, 4.26
parking on trunk roads, 13.18
Part 6, 1.11.2, 1.5, 2.6, 12.4
persistent evaders, 8.106
purpose of, 6.14
representations against PCNs, 6.9
s. 87, 1.31.4
s. 90, 9.33
Sch. 7, 4.25
Traffic Regulation Orders, 13.10
warrant of execution, 10.69
Traffic Management Orders (TMOs) see Traffic
Regulation Orders
traffic orders see Traffic Regulation Orders
Traffic Regulation Orders (TROs), 2.3, 13.613.12
amendments for CPE, 13.10, 15.8
emergencies, 13.11
exemptions under, 8.54, 9.42
invalid, 11.23
mapping of, 13.9
review of, 2.10, 2.12, 4.44.5, 12.1, 13.6, 15.8,
Annex F
timing of restrictions, 13.8
traffic signs, 2.10, 4.4, 12.7
appropriate, 8.63, Annex E
defective, 6.13, 8.35
pavement parking, 13.13
Traffic Signs Regulations 2002, 12.17
traffic wardens see Civil Enforcement Officers
(CEOs)
training, 2.11, 4.4, 11.6
Civil Enforcement Officers (CEOs), 6.1, 6.4,
6.186.25
costs, 14.3
devices of enforcement, 8.81
disability awareness, 9.14
importance of, 6.1, 6.3
Transport Act 2000, 12.4
Transport for London, 8.21, 8.25, 14.12, 14.14
Tribunals, Courts and Enforcement Act 2007,
10.78
Tribunals for Users programme, 11.41
Index March 2008
166
TRO see Traffic Regulation Orders (TROs)
trunk roads, 13.1713.18
undertakers vehicles, 13.22
uniforms, 6.30, 8.48.8
unitary authorities, 12.712.8
unloading see loading and unloading
untraceable owners, 10.4410.45
utility companies, complaints from, 14.10
VAT issues, 14.24
VED see Vehicle Excise Duty (VED)
Vehicle Certification Agency (VCA), 7.1, 7.4
Vehicle Excise and Registration Act 1994, 9.34
Vehicle Excise Duty (VED), 4.11, 6.14, 10.46
vehicle registration system, 6.21
vehicles, identification of, 8.9
verbal warnings, 6.21
Vienna Convention on Diplomatic Relations,
9.259.26
violence, against CEO, 8.63, 8.65
Penalty Charge Notice by post, 8.668.68
vulnerable people, 8.90, 10.26
waivers, 9.1, 9.35, 13.21 see also dispensations
warning notices, 6.13, 14.24
warrants of control, 10.78
warrants of execution, 10.6410.76
website, use of, 5.11
wheel clamping see immobilisation
White Paper on Diplomatic Immunities and
Privileges, 9.25 see also diplomatic vehicles
width, of road, 13.14
witness statements, 6.13
cases of violence, 8.66
Charge Certificates, 10.5610.58, 10.63
working day, 8.68
written by hand, PCNs, 8.9, 8.39
Printed in the United Kingdom by TSO
N5808715 05/08
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This document provides good practice guidance. It supersedes the joint
Department for Transport and Welsh Ofce Circular 1/95 Guidance on
Decriminalised Parking Enforcement outside London and relevant sections
of the Mayor of Londons Transport Strategy. It sets out a policy framework
for parking policies in English local authorities. The document also advises
all English enforcement authorities of the procedures that they must follow,
the procedures to which they must have regard and the procedures that the
Government recommends they follow when enforcing parking restrictions.
www.tso.co.uk
ISBN 9780115529436
19.50

March 2008

Code of Practice for Operation of CCTV
Enforcement Cameras in the
[Enforcement Authority]

Version 3.3 December 2009
CONTENTS

Title Page
1. INTRODUCTION 1

1.1 Background 1
1.2 Commitment and Responsibility 1
1.3 Code of Practice 1

2. THE OPERATION OF CCTV ENFORCEMENT CAMERAS 3

2.1 CCTV Camera Surveillance 3
2.2 The Legal Framework 3
2.3 Enforcement of Traffic Regulations by CCTV 4
2.4 Operation of the System 6
2.5 Retention and Use of Evidence 7
2.6 Guidelines for Appeals 9
2.7 Security of Operations 11
2.8 Procedures Manual 11
2.9 Operating Personnel 11

APPENDICES
1. Particulars of Operating Authority 13
2. Example CCTV Control Room Log Sheet 14
3. Example CCTV Enforcement Log 15
4. Sample Authorised Officer Witness Statement (Parking Contraventions) 16
5. Sample Authorised Officer Witness Statement (Bus Lane Contraventions) 17
6. Sample Authorised Officer Witness Statement (Moving Traffic Contraventions) 18
7. Right to Request the Attendance at Appeal of the Person Signing the Authorised
Officer Witness Statement (Bus Lane Appeals)
19
8. Glossary of Terms 20
9. London Councils TEC approved training courses for CCTV operators 22
INTRODUCTION

1.1 Background

1.1.1 Since 1999 the London Boroughs and Transport for London have been using CCTV
cameras to enforce traffic regulations. The introduction of enforcement of traffic
regulations by CCTV cameras is one part of a wide-ranging programme of measures to
improve the reliability and punctuality of public transport, reduce congestion and pollution.
The aim of most traffic management measures, such as bus lanes and parking regulations
is to give priority to certain groups of road users by excluding others during prescribed
hours. The introduction of CCTV monitoring of traffic regulations is intended to reduce the
level of contraventions and so reduce delays on the highway network.

1.1.2 An essential and integral part of any CCTV system is a Code of Practice, which sets out
the objectives of the system and the rules by which it will be operated. This Code of
Practice ensures that issues such as privacy, integrity and fairness are properly dealt with.
It sets a minimum standard which must be adhered to by all those authorities in London
enforcing traffic regulations using CCTV cameras to ensure public confidence in the
scheme.

1.1.3 This Code of Practice is designed to operate within the framework of the relevant pieces
of legislation and to complement the Statutory and Operational Guidance produced by the
Department for Transport. If there are any contradictions between this document and the
relevant legislation or guidance documents then those should take precedence.

1.2 Commitment and Responsibility

1.2.1 The London Councils Transport & Environment Committee supports this Code of Practice
and the CCTV monitoring scheme, which it regulates. Permission to operate the scheme
will be granted only to London local authorities, which commit to and take responsibility for
its fair, legal and widespread implementation and its maintenance, review and
improvement as appropriate within this Code of Practice.

1.2.2 Within this overall framework for London individual local authorities will operate separate
monitoring schemes in conjunction with the local police and other partners. The addresses
of the authorities responsible for operating these particular schemes are given in
Appendix 1 paragraph 1.

1.2.3 All data shall be processed fairly and lawfully and the operators of the system will ensure
that appropriate security measures shall be taken against unauthorised access to,
alteration, disclosure or destruction of, personal data and against accidental loss or
destruction of personal data.

1.3 Code of Practice

Key Purpose of Code

1.3.1 This Code of Practice applies to the use of the CCTV systems for the purposes of
enforcing parking and traffic regulations only.

1.3.2 This Code of Practice has been drawn up to ensure that the use of CCTV to monitor traffic
is consistent throughout London and in accordance with current best practice. The Code
ensures that issues such as privacy and integrity are properly respected. CCTV in public
places must be operated with regard to the advice and guidelines issued by the Home
Office, Police Scientific Development Branch, Local Government Association, Office of
1
Data Protection Registrar, the Local Government Information Unit the CCTV User Group
and London Councils Traffic Camera Enforcement Group.

Availability of the Code to the Public

1.3.3 Copies of this Code of Practice are publicly available in accordance with the Local
Government (Access to Information) Act 1985. The Code can be inspected at many
addresses throughout London the most local are given at Appendix 1 paragraph 2.

Monitoring and Review of Code

1.3.4 The operation of this Code will be regularly reviewed by each of the London local
authorities operating CCTV monitoring. Authorities are required to report on CCTV
operations as part of the annual report produced under the Traffic Management Act 2004.
These reports will be made available for public inspection at the address given in
Appendix 1 paragraph 3.

1.3.5 The London Councils Transport & Environment Committee will also monitor the scheme in
respect of its wider operation across London.

Changes to Code

1.3.6 It is intended that this Code will be amended as necessary to ensure that it continues to
reflect current best practices. Changes to the Code will be classified as minor and major.

1.3.7 Minor changes are those that only affect the operation of the scheme locally and may only
be made after the agreement of senior representatives of all parties concerned in the
operation of the local scheme. Examples of minor changes are amending nominated
officers or areas of application. Minor changes do not need to be reported to London
Councils.

1.3.8 Major changes are those that affect more than one authority and usually involve a change
in overall London policy. Major changes may only be made with the authority of the
London Councils Environment & Transport Committee.

Detailed Objectives of Code

1.3.9 The Code of Practice has been designed to meet the following detailed objectives: -
To satisfy the community that the camera enforcement system is being operated
competently and honestly by its operators.
To reassure the community over the privacy of private areas and domestic buildings.
To ensure that operating staff are aware of and follow the correct procedures in the
case of an incident.
To use cameras as a deterrent and improve driver compliance with traffic regulations.
To facilitate the detection and prosecution of offenders in relation to non-compliance
with existing regulations.
To assist with achieving the key objectives of other town centre CCTV schemes
operated by the local authority.

Queries and Complaints about Code

1.3.10 Queries and complaints about this Code or its general operation should be sent to the
address given in Appendix 1, Paragraph 4.

1.3.11 Queries or appeals against any specific Penalty Charge Notice (PCN) shall be made to
the address shown on that PCN. Further details appear in paragraph 2.4.8.
2
2. THE OPERATION OF CCTV ENFORCEMENT CAMERAS

2.1 CCTV Camera Surveillance

2.1.1 Closed Circuit Television (CCTV) cameras operated by local authorities in public places
are used for a wide variety of purposes including the prevention and detection of crime,
protection of public and private property, town centre management, traffic monitoring and
the enforcement of traffic regulations. A single CCTV camera may be used for a number
of these purposes at different times of the day.

2.1.2 The CCTV cameras operated by a local authority may be owned or leased by that
authority or by Transport for London. The police may also have access to some of the
CCTV cameras owned and/or operated by the local authority and Transport for London.
Each authority may use the cameras for any of the purposes specified in paragraph 2.1.1.

2.1.3 The cameras used for the enforcement of traffic regulations may be used for more general
street surveillance when traffic restrictions are not in operation by the Police, TfL or by
CCTV systems operated by other Departments of the local authority.

2.1.4 This Code of Practice specifically relates to the use of CCTV cameras when they are
being used to enforce traffic regulations. It is supplemented by a procedural manual
containing specific instructions on the use of the camera and recording equipment and
control room procedures. Separate Codes of Practice exist covering the other purposes
for which CCTV cameras are used.

2.1.5 Mobile, transportable and handheld cameras may be used within an area for the purposes
of the enforcement of traffic regulations. The use of such cameras will be governed by this
Code of Practice and any procedures ancillary to it.

2.2 The Legal Framework

Legislation governing the operation of CCTV systems

2.2.1 The operation of CCTV systems must be undertaken with due regard to the following
legislation:
The Data Protection Act 1998
The Human Rights Act 1998
The Regulation of Investigatory Powers Act 2000
The Freedom of Information Act 2000

Legislation governing the enforcement of traffic regulations using CCTV cameras

2.2.2 The enforcement of traffic regulations by CCTV cameras is regulated under the following
legislation:
Road Traffic Regulation Act 1984
Road Traffic Offenders Act 1988
London Local Authorities Act 1996
The Road Traffic Offenders (Additional Offences and Prescribed Devices) Order 1997
London Local Authorities Act 2000
The Transport for London (Bus Lanes) Order 2001
London Local Authorities and Transport for London Act 2003
Traffic Management Act 2004
The Civil Enforcement of Parking Contraventions (England) General Regulations 2007
3
The Civil Enforcement of Parking Contraventions (England) Representations and
Appeals Regulations 2007
The Civil Enforcement of Parking Contraventions (Approved Devices) (England) Order
2007

2.2.3 Together these Acts allow a London Local Authority to install structures and equipment on
or near a highway for the detection of contraventions of Traffic Regulation Orders and to
use the information provided by them, to serve a Penalty Charge Notice (PCN) on the
registered keeper of a vehicle which contravenes the Traffic Regulations.

2.2.4 Relevant Traffic Regulation Orders must be made available on request.

2.2.5 Records of the keepers of vehicles that contravene traffic regulations will be obtained in
accordance with the Driver and Vehicle Licensing Agency enquiry procedures.

2.3 Enforcement of Traffic Regulations by CCTV

2.3.1 The primary objective of any CCTV camera enforcement system (the system) is to
ensure the safe and efficient operation of the road network by deterring motorists from
breaking road traffic restrictions and detecting those that do. To do this, the system needs
to be well publicised and indicated with lawful traffic signs.

2.3.2 In order to encourage compliance with traffic regulations the system enables fully trained
staff:
to monitor traffic activity in accordance with relevant legislation and guidance, including
this Code of Practice;
to identify vehicle registration number, colour and type of unauthorised vehicles
contravening traffic regulations;
to support the serving of Penalty Charge Notices (PCNs) to the registered keeper of
vehicles identified contravening the regulations;
to record evidence of each contravention to ensure that representations and appeals
can be fully answered;
to enable timed and dated pictorial evidence of such unauthorised driving or stopping
to be produced for adjudication or as information to the owner of such vehicles;
to enable the despatch of a Civil Enforcement Officers and / or a secondary
enforcement team for targeted enforcement of vehicles contravening traffic regulations.

2.3.3 The system is intended to view activity on public carriageways and footways. It will not be
used to invade the privacy of any persons in domestic, business or other private premises,
buildings or land.

Extensions and changes to the area surveyed

2.3.4 The operating London local authority can extend or change the areas covered by the
CCTV system subject to normal internal procedures.

Signs

2.3.5 Relevant camera enforcement signs should be displayed in areas where the system
operates. The signs will not define the field of view of the cameras but will advise that
CCTV camera enforcement is taking place in the area.

Systems, Equipment and Enforcement

2.3.6 This section gives a general description of systems and their uses. It is not exhaustive in
nature, nor does it supersede or replace any legislative requirements.
4

2.3.7 CCTV enforcement systems fall into two generic types:
Attended Systems
Unattended Systems

2.3.8 These are currently used across three enforcement streams although not all system types
can necessarily be used against all work streams.
Parking
Bus Lanes
Moving Traffic

Attended System

2.3.9 Attended systems are operated in real time by a camera operator who views the images
from roadside equipment. The operator may be located in a central control room or locally,
such as a vehicle-based control room. Contraventions are observed by the operator and
PCNs are issued primarily on the basis of the operator's observations and supported by
the image recordings.

Unattended System

2.3.10 Unattended systems are automated CCTV systems which operate without operator
intervention. They record contraventions from which PCNs are issued on the basis of the
recorded images. The recorded images must be reviewed by an operator before a PCN is
issued.

Parking Enforcement

2.3.11 Equipment that can be used for the enforcement of parking contraventions via CCTV is
regulated by the Traffic Management Act 2004 and the associated legislation. The 2004
Act provides a system approval scheme for CCTV systems used for parking enforcement
known as Approved Device Certification. From 31 March 2009 all systems used for the
enforcement of parking contraventions must be certified by the Department for Transport
(or its appointed agents) under this scheme. The scheme specifies how changes in the
system must be carried out and recorded.

Bus Lanes

2.3.12 Unlike Parking Enforcement, there is no requirement for an approved device under
London Local Authorities Act 1996. The 1996 Act requires that the equipment be a
prescribed device, described in the Road Traffic Offenders Act 1988 (as amended) as:

"a camera designed or adapted to record the presence of a vehicle on an area of road
which is a bus lane or route for use by buses only."

It is therefore the responsibility of each enforcing authority to ensure that the equipment
they use fits within the description of the 1988 Act.

2.3.13 If bus lane enforcement is being performed under the Transport Act 2000 then an
approved device is required. Approval is similar to that for parking enforcement except
that the system must additionally comply with the Bus Lanes (Approved Devices)
(England) Order 2005.

2.3.14 Authorities should also be mindful of the possibility for harmonisation of legislation under
the Traffic Management Act when specifying camera systems for bus lanes.

5
Moving Traffic

2.3.15 There is currently no specific legislation governing CCTV equipment that can be used for
the enforcement of moving traffic contraventions.

2.3.16 Authorities should be mindful of the requirements of systems used for parking
enforcement when carrying out moving traffic enforcement and should consider their
features as an indication of the requirements of systems that would be considered fit for
purpose. That is not to say however that a system used for moving traffic enforcement
under the London Local Authorities and Transport for London Act 2003 must conform to or
be approved by the Department for Transport.

2.3.17 Authorities should also be mindful of the possibility for harmonisation of legislation under
the Traffic Management Act when specifying camera systems for moving traffic
enforcement.

2.4 Operation of the System

Monitoring of Traffic

2.4.1 Only properly trained and qualified operators (see section 2.9 Operating Personnel) will
operate the system.

2.4.2 A contravention of traffic regulations will be identified depending on whether the system is
attended or unattended.

2.4.3 Contraventions will be identified from attended systems by monitoring the screen and
operating the cameras in real time. The operator must obtain the most effective images of
a vehicle and its surrounding circumstances at the time when any contravention may be
occurring. Contraventions must be identified at the time when they are committed. Pre-
recorded video images will not be studied to identify contraventions committed at some
earlier time.

2.4.4 Unattended systems identify contraventions automatically and store them for later
processing. Such images must be verified by operators prior to notices being issued.

2.4.5 When a non traffic incident is caught on camera, operators will follow procedures agreed
locally with the police and other scheme partners. All such incidents are to be recorded on
a Control Room Log Sheet. An example of this document, which can also be used to
record equipment faults, is included in Appendix 2.

2.4.6 When a contravention is observed using an attended system and sufficient evidence has
been recorded, the operator will record the time and sufficient vehicle identifier information
in an electronic or handwritten logbook or by utilising approved audio equipment (see
2.3.13). The operator will then continue monitoring. An example of the layout for a
Camera Enforcement logbook is included in Appendix 3.

Issue of Penalty Charge Notices (PCNs)

2.4.7 The Secretary of State recommends that all PCNs should be issued within 14 days of the
contravention. A PCN should be sent by first class post and must not be sent by second
class post. Any notice served by first class post is deemed to have been served on the
second working day after posting unless the contrary is proved.

6
2.4.8 Reasons for not serving the PCN within 14 days should be restricted to those that are
outside of the control of the authority, for example where details from the DVLA have not
been received in time.

2.4.9 In any case, PCNs must be served within 28 days of the date of contravention unless
keeper details have not been received from DVLA.

Representations

2.4.10 With regard to bus lane contraventions, formal representations specifically concerned with
the issue of any Penalty Charge Notice (PCNs) from this system can only be made once
the Enforcement Notice has been issued to the keeper of the vehicle. An Enforcement
Notice will seek details of any Police Notice of Intention to Prosecute (NIP), which may
have been issued in relation to the same alleged infringement. With regard to moving
traffic contraventions formal representations can be made once the Penalty Charge Notice
has been issued to the keeper of the vehicle.

2.4.11 In all cases, the enforcing authority must consider the representations and, if it does not
accept them, issue a Notice of Rejection. If the keeper is not satisfied by this outcome,
there is a right of further appeal to the independent adjudicators at the Parking and Traffic
Appeals Service (see section 2.6 Guidelines for Appeals).

2.5 Retention and Use of Evidence

Ownership, copying and release of recordings

2.5.1 All recordings are the property of the Authority operating the scheme and may not be
copied or released from the Control Room or from secure storage without the formal
written agreement of the Senior Officer nominated in Appendix 1 paragraph 5. A copy of
the section of footage, relevant to a particular contravention, will only be released:
to the appellant in whatever means the authority deems appropriate
to the Parking and Traffic Appeals Service (and copied to the appellant)
to the Police
to Lawyers acting for appellants in Traffic Appeals
to Lawyers acting for defendants/victims in connection with criminal proceedings
to a third party prosecuting authority, such as Customs & Excise or the Health &
Safety Executive.
by court order, in connection with civil proceedings
in the case of VHS video and DVDs, to be magnetically erased and properly
disposed of after twelve cycles of use. Authorities and any of their agents
undertaking the disposal should ensure safe destruction. They should also keep
recordings for an adequate amount of time in line with the policy of the authority.

2.5.2 Recordings (or copies of a section of a recording) will only be released over signature to
representatives of the above organisations after proof of identity. Recordings (and copies
of recordings), which are released, remain the property of the Local Authority. Any
recording released to the Police will be dealt with by the Police as an exhibit and shall not
be used for anything other than the purpose specified and identified when released to the
Police. A detailed record must be kept of the recording (or section of it) that has been
released and the reason for its release.

2.5.3 The Local Authority will provide the Police with a statement confirming the integrity of the
recording, if required for evidential purposes.

2.5.4 Under no circumstances will recordings be released to members of the public except as
per section 2.5.15 below, or to media or other commercial organisations except where
7
such recordings are to be used for educational or training purposes or where release is
required under relevant legislation.

2.5.5 Recorded material will only be used for the purposes defined in this Code of Practice and
will only be accessed as defined in this Code of Practice. In no circumstances will
recorded material (or any copies or still prints generated from it) be sold or lent for any
purpose other than those set out above. Copyright of all recorded material and stills
printed from such material remain totally with the operating authority.

Viewing of recording media

2.5.6 A person who has received a PCN or the keeper of the vehicle is entitled to view that
section of the media recording showing the contravention for which the PCN was issued.
Viewing of videotapes, DVDs or other recording medium, will only be arranged following
formal agreement of the Senior Officer nominated in Appendix 1 paragraph 5. Viewing of
the media evidence should be arranged as soon as possible after a request has been
made by the person in receipt of the PCN. The viewing area should not only be secure,
but it should be designed and laid out so that only those in the viewing room can see the
images. A still image may be supplied at no charge, as an alternative, in a situation where
it is not possible to arrange a viewing of media evidence. Authorities may agree to send
the media recording to the keeper of the vehicle upon request, which may incur a small
cost. Recordings may also be viewed on-line if the authority has this facility. The PCN
number and VRM would need to be entered to activate this service.

2.5.7 Viewing of recordings will only be permitted in the following circumstances:
to support the issue of a PCN
as an alternative to releasing a recording to one of the parties nominated in
paragraph 2.5.1 above
as part of internal audit, review or disciplinary procedures
as part of the training process for control room staff
for education and road safety training.

2.5.8 Viewing of recordings will only take place in a secure area except where the recipient of
the Penalty Charge Notice or his nominated agent has specifically signed a waiver stating
otherwise. This waiver will only be valid for viewings by the recipient or his agent. Whether
in a secure area or not, the viewing will be supervised by properly authorised staff. Only
the working media recording will be viewed. Evidence media recordings will not be
viewed.

2.5.9 The person supervising the viewing must enter full details of the event in the Control
Room Records including:
time, date and location of viewing
the serial numbers of all tapes or discs viewed, the sections of those tapes or discs
which were viewed (using the start and finish frame numbers) if applicable
the reasons for viewing each tape or disc
details of the people present at the viewing.

2.5.10 In the case of digital storage media it is sufficient for the system to log, with the video
image:
time, date and location of viewing
the reasons for viewing
details of the people present at the viewing.

2.5.11 These records should be subject to regular audit, at least once a year, by officers
specified in Appendix 1, paragraph 7.

8
Still Images

2.5.12 Still images must be provided in accordance with the relevant legislation. Notwithstanding
this, authorities should include such still images on the PCN to show sufficient grounds for
the PCN being issued. Still images should be sent upon request. No charge is to be made
for the provision of such images. The image then becomes the property of the person
who received the PCN. All other still images will remain the property of the operating
Authority.

2.5.13 A still image is a print onto paper of the picture held on a single field or frame of the video
recording. The equipment will be used to generate these still images and each image
produced will contain its unique frame number and the time (HH MM SS) and date (DD
MM YY or similar format) of the occurrence.

2.5.14 Still images will only be generated at the discretion of the Senior Officer indicated in
Appendix 1 paragraph 5 and only for the following purposes:
to support the issue of a PCN
as evidence for an Appeal
if the Police or other organisation with appropriate authority request such an image
with detailed written reasons for their request.

2.5.15 Each still image will be given a unique serial number and will be logged and accounted for
at all times. Still images will only leave the Control Room when requested by the recipient
of the relevant PCN or signed out as evidence in the possession of the Police or other
relevant organisation.

2.5.16 Still images produced outside the normal progression of a case must only be made by
properly authorised staff, and must be logged and auditable.

2.5.17 Still images, which are no longer required, are to be destroyed in the Control Room and
the destruction of each image will be recorded in the Control Room records.

2.5.18 The procedure for production, release and destruction of still images will be subject to
regular audit.

2.6 Guidelines for Appeals

The Appeal Form

2.6.1 The relevant appeal form, as produced and supplied by the Parking and Traffic Appeals
Service, must be enclosed with every Notice of Rejection of Representations issued by
an enforcing authority.

2.6.2 The official use box must be completed by an authorised official of the enforcing authority.
This must state the PCN number, the Vehicle Registration Number, the name of the
keeper to whom the Notice of Rejection was sent and the date the Notice of Rejection
was sent. This information must be completed for an appeal to be registered and enables
the appeal service to check that the right person is lodging an appeal and that it has been
submitted in time.

2.6.3 Evidence should be submitted to PATAS at least seven days before the hearing date and
must also be sent to the appellant.

2.6.4 The following items will be required as mandatory evidence by the Traffic Adjudicators:
a) Authorised Officer Witness Statement a declaration that at the time the
contravention was observed, the monitoring and recording equipment used was of a
9
type approved by the Secretary of State and was in full working order. Examples of
Authorised Officer Witness Statements that should be used for parking
contraventions and bus lane contraventions are included in Appendices 5 and 6
respectively. The Authorised Officer Statement also includes details of the evidence
that is being produced (e.g. stills from video recording) and confirmation that these
were produced in accordance with the Code of Practice. In order for the Authorised
Officer to sign the declaration reference should be made to the Control Room Log
Sheet to determine the status of the equipment at the time at which the
contravention was witnessed. An example of a Control Room Log Sheet is included
in Appendix 2.

b) Copy of the Penalty Charge Notice
c) A case summary - This should include the relevant part of the regulation allegedly
contravened and deal with any exemption claimed by the appellant.

d) Copy of the Enforcement Notice (where applicable)

e) Copies of any representations made and all correspondence

f) Copy of the Notice of Rejection

g) Colour Images of the Contravention the images must show the context of the
contravention and the identification of the target vehicle. All pictures must display
the location, date and time of the contravention. The Adjudicators do not expect
footage except in particular cases where there is a strong conflict of evidence. If the
Council produces video evidence to the Adjudicators, they must also supply the
appellant with a copy. The footage for the Adjudicators must be of a type approved
by PATAS however the footage for the appellant must be in a format agreed with
the appellant. Even if the appellant has already viewed the Councils recorded
evidence of the contravention, the Adjudicator would expect to see images in
evidence. A copy of the images would therefore have to be served on the appellant.
A digital photograph would be acceptable, providing that the accompanying
statement explains that it is a digital photograph, taken by an approved device, a
true copy, not enhanced etc.

h) Certificate of Service the evidence submitted to the Adjudicator must be
accompanied by a certificate confirming that the appellant has been sent copies of
the evidence submitted to the Adjudicator not less than 7 days before the hearing.
This requirement is in line with Article 6 of the Human Rights Act 1998. The
evidence copied to the appellant must be in the same format as that submitted to
the Adjudicator.

2.6.5 The list above is not exhaustive. As with any case, the Adjudicator may ask for other
forms of evidence not mentioned above. The Councils will be given at least 21 days
notice to submit evidence for Appeals.

Witness Attendance at an Appeal Hearing (Bus Lane Appeals)

2.6.6 Paragraph 7 (6) of Schedule 1 of the London Local Authorities Act 1996 relating to bus
lane contraventions, states that documentary evidence as described above will not be
admissible if the appellant, not less than 3 days before the hearing (or such other time
specified by the Adjudicator) serves a notice on the Council requiring attendance at the
hearing of the person who signed the document. The Adjudicators have taken this to
mean that if the appellant does not accept such evidence as provided in written or
photographic format by the Council, and if the Council wishes to proceed with the appeal,
the person who provided the evidence may have to attend the hearing. The Council must
inform the appellant that he/she can require the attendance at the hearing of the person
10
who signed the Authorised Officer Witness Statement. The Adjudicator may also direct
the attendance of a witness at a hearing if he considers it necessary. A copy of the
suggested wording, which should be used to inform the appellant that they have the
opportunity to request the attendance of the person signing the Authorised Officer
Witness Statement, is included in Appendix 6. This paragraph should be included in the
Notice of Rejection sent to the Appellant. This requirement only applies to bus lane
appeals and does not apply to appeals for parking or moving traffic contraventions.

2.7 Security of Operations

2.7.1 The CCTV traffic monitoring, recording and storage operations will be carried out in a
secure environment.

2.7.2 Visitors may only access the Control Room when authorised by the Senior Officer
indicated in Appendix 1 paragraph 6.

2.7.3 A log detailing all events and visits should be maintained in the Control Room.

2.7.4 If the Control Room is left unattended for any amount of time, no matter how short, the
monitoring, storage and control room equipment must be securely locked and
inaccessible to any unauthorised person. Any alternative secure storage room must be
subject to the same conditions of attendance.

2.7.5 Technical, maintenance and repair work will only be carried out with the authorisation of a
responsible officer or agent of the authority.

2.8 Procedures Manual

2.8.1 A Control Room Procedures Manual listing duties, responsibilities and procedures to be
followed will be available in the Control Room at all times. Access to that manual shall be
restricted to officers who have responsibility for operating the system. The manual will be
regularly updated to reflect current agreed practice.

2.9 Operating Personnel

Responsibilities

2.9.1 Management responsibility for the operation of the system and observance of this Code of
Practice and Control Room Procedures Manual resides with the Officers listed in
Appendix 1 Paragraph 7.

2.9.2 All staff operating the system will be responsible for working in full accord with this Code
of Practice and the Control Room Procedures Manual. They will be subject to their
employers normal disciplinary procedures and will sign an acknowledgement that they
have been trained in and understand the Code of Practice and the Procedures Manual.
Breaches of this Code of Practice or of the Procedures will result in disciplinary action.

Selection and Training

2.9.3 All personnel permitted to operate the System will be selected in accordance with the
Employers Standard Recruitment Procedures for personnel who are obliged to work to
rules of confidentiality.

11
2.9.4 They will be fully instructed in their responsibilities and role in operating CCTV.

2.9.5 All staff undertaking enforcement of parking and traffic regulations using CCTV cameras
must have successfully completed an approved training course. A list of the courses that
have been approved for this purpose is contained in Appendix 9.

2.9.6 Training will include: -
all aspects of this Code of Practice
all aspects of Control Room Procedures
all aspects of equipment operation
system audit procedures
issue of PCNs
knowledge of the areas of application in the Borough
the necessary underpinning knowledge of Traffic Law
Health & Safety

2.9.7 Full records of training and of assessments of competence will be kept according to the
Employers Standard procedures.

2.9.8 Operators will only be permitted to operate the system unsupervised when they have
proved their competence according to the Employers Standard Procedures.
12
13
Appendix 1
Particulars of Operating Authority

1 Authorities responsible for the Scheme in the London Borough of (Borough Name)

London Borough A, Metropolitan Police, Other

2 Local Addresses at which the Code of Practice can be inspected

Town Hall, Library, Police Station

3 Addresses at which Annual Reports may be inspected

Town Hall, Library

4 Address to which queries and complaints about the scheme should be sent
Town Hall

5 Officers who can authorise copying and release of tapes

Name or post

6 Officers who can authorise access to Control Room

Name or post

7 Officers responsible for operation of the system and observance of the Code of Practice:

Overall responsibility: (Name or post)

Responsibility for day-to-day operations: (Name or post)

Responsibility for Training: (Name or post)
14

Appendix 2

Example CCTV Control Room Log Sheet

Date :_____________________

Name of Camera Operator

Camera
Number
Camera Location Start
Time
Finish
Time
Comments / Equipment Faults

Name of Control Room Supervisor..

Signature

15
Appendix 3
Example CCTV Enforcement Log

Date.. Camera Operator. Sheet No..

Time Location Camera V.R.M. Make Colour Input D Check
16.18 R 807 H568 GRQ Ford White
16.23 R 807 D456 PRT Toyota Red
16.23 R 849 F398 DVW BMW White
16.24 R 849 K533 RPY Nissan Blue
16.25 B 127 H567 HRT VW Green

16
Appendix 4
Authorised Officer Witness Statement (Parking Contraventions)

[Appellant] v [Council]
PATAS Case No:
PCN No:

I, [Name] am an authorised officer of [X] Council.

This statement is true to the best of my knowledge and belief. I make it knowing that, if it is
tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything that I know to
be false or do not believe to be true.

I produce in evidence in the above case [details of evidence being produced e.g. stills from media].
I certify that these were produced [describe circumstances in which they were produced: e.g. stills
from a media recording] made by a CCTV camera located at [location] on [date].

I further certify:

1. that this/these was/were produced in accordance with the Code of Practice for the
Operation of CCTV Enforcement Cameras;
2. that the monitoring and recording equipment used at the location and time specified is an
approved device under Article 2 of the Civil Enforcement of Parking Contraventions
(Approved Devices) (England) Order 2007.
3. that, to the best of my knowledge and belief, all conditions subject to which approval was
given were satisfied.

[Describe what the evidence shows]

Signed...

Name. Position.

17
Appendix 5
Authorised Officer Witness Statement (Bus Lane Contraventions)

PATAS Case No:
PCN No:

I, [Name] am an authorised officer of [X] Council.

This statement is true to the best of my knowledge and belief. I make it knowing that, if it is
tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything that I know to
be false or do not believe to be true.

I produce in evidence in the above case [details of evidence being produced e.g. stills from media].
I certify that these were produced [describe circumstances in which they were produced: e.g. stills
from a media recording made by a CCTV camera located at [location] on [date].]

I further certify:
1. that this/these was/were produced in accordance with the Code of Practice for the
2. that the monitoring and recording equipment used at the location and time specified is a
prescribed device under Section 20(9) of the Road Traffic Offenders Act 1988 (as
amended);
3. that, to the best of my knowledge and belief, all conditions subject to which approval was
given were satisfied.


Signed..

Name. Position.

18
Appendix 6
Authorised Officer Witness Statement (Moving Traffic Contraventions)

PATAS Case No:
PCN No:

I,[Name], am an authorised officer of [X] Council.

This statement is true to the best of my knowledge and belief. I make it knowing
that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully
stated anything that I know to be false or do not believe to be true.

I produce in evidence in the above case [details of evidence being produced e.g. stills
from recorded media]. I certify that these were produced [describe circumstances which
they were produced: e.g. stills from a media recording made by CCTV camera located at
[location] on [date].

I further certify:

- that this / these was / were produced in accordance with the Code of Practice for the
- that, to the best of my knowledge and belief, all conditions subject to which approval
was given were satisfied.


Signed...

Name. Position.

19
Appendix 7
Right to Request the Attendance at Appeal of the Person Signing the
Authorised Officer Witness Statement

The following is a suggested wording for inclusion with Bus Lane appeals.

If you appeal, we will send you a copy of all our evidence as soon as possible. We
must provide you with a copy of any video, photograph or digital image that we want
the Traffic Adjudicator to consider, at least seven days before the scheduled date of
the hearing. We must also send you a certificate as to the circumstances in which the
video etc was produced and another that the device used to produce it was approved
by the Secretary of State. These certificates will normally be fairly standard. However if
you serve a notice on us, not less than three days before the hearing date, we cannot
rely on such evidence without the person(s) who signed them attending. The three-day
limit may be varied by the Traffic Adjudicator in special circumstances.

Please note that this notification is only required for bus lane appeals and is not required for
appeals for parking or moving traffic contraventions.

20
Appendix 8
Glossary of Terms
The Code of Practice refers to the following terms:
Agency An Agency is an organisation responsible for implementing, operating
and maintaining a CCTV scheme and or CCTV system. Each Agency
can be responsible for one or more CCTV schemes and one or more
CCTV systems. Agencies may enter into partnership to implement a
CCTV scheme and or CCTV system. Agencies, whether acting alone
or in partnership, are responsible for ensuring that all operators of
their CCTV schemes and CCTV systems comply with the relevant
legislation.
Approved Device A CCTV system approved by the DfT under the Traffic Management
Act 2004 for use in the enforcement of parking contraventions.
Bus lane contravention Contravention of a traffic order pertaining to a bus lane in London
enforceable under the London Local Authorities Act 1996.
CCTV scheme The method, policy and operations under which an agency runs a
CCTV system.
CCTV system The physical infrastructure that is used to implement a CCTV scheme.
One CCTV system can be used by more than one CCTV scheme.
Contravention A breach of the legislation under which the CCTV scheme is in place
to enforce.
Data Controller A Person who (either alone or jointly or in common with other
persons) determines the purposes for which and the manner in which
any personal data are, or are to be, processed. The CCTV schemes
covered by this Code of Practice may have single, joint or in common
Data Controllers depending on the agreement each agency has and
the use of the images involved. For the purposes of this Code of
Practice, the Data Controller is defined as the Agency who is actually
using the images at any given time to gather or record data which in
turn will actually be deemed to be Personal Data. The Data Controller
may differ from the CCTV Scheme Operator. At any given time there
may be none or several Data Controllers.
Data Processor Used in relation to Personal Data and means any person (other than
the employee of the Data Controller) who processes the data on
behalf of the Data Controller.
Footage Data represented in a moving visual form that may constitute
Personal Data.
Image Data represented in a still visual form that may constitute Personal
Data.
Moving traffic contravention Contravention of a traffic order or non-compliance with a sign
enforceable under the London Local Authorities and Transport for
London Act 2003.

21
NIP see Notice of Intended Prosecution
Notice of Intended
Prosecution
A notice served by the police on a person in respect to an offence. In
this Code of Practice, this relates solely to NIPs served under section
54(2) or (4) of the Road Traffic Offenders Act 1988 in respect of a bus
lane offence.
Operator A person who gathers images for the purpose of their contractual
employment. Each operator is responsible for complying with the Data
Protection Act (1998). An operator may work with more than one
CCTV Camera Scheme.
Parking and Traffic Appeals
Service
The independent tribunal in London for adjudicating parking, bus lane
and moving traffic contraventions.
Parking contravention Contravention of a traffic order or other relevant London legislation
enforceable under the Traffic Management Act 2004.
PATAS Parking and Traffic Appeals Service
Penalty Charge Notice A notice served under appropriate legislation alleging a contravention.
Personal Data Data which relates to a living individual who can be identified:
(a) from those data, or
(b) from those data and other information which is in the
possession of, or likely to come into the possession of, the Data
Controller,
and includes any expression of opinion about the individual and
indication of the intentions of the Data Controller or any other person
in respect of the individual.
Prescribed Device A CCTV system, or part of a CCTV system, prescribed by the relevant
government body for a specific use. In terms of this Code of Practice,
this relates solely to bus lane enforcement under the London Local
Authorities Act 1996.
Registered Keeper The person registered with the DVLA as being the keeper of the
vehicle.
Searching / Hunting The process of using a CCTV Camera without due cause. The CCTV
User may be either looking for something to view or capturing a CCTV
Image for personal use. CCTV Camera Users must not use CCTV
Cameras for the purpose of Searching / Hunting.

22
Appendix 9
London Councils TEC Approved Training Courses for CCTV Operators

Course title Training providers Date of Approval
BTEC Level 2 Intermediate Award
in CCTV Camera Enforcement
London Borough of Croydon(*),
London Borough of Camden
December 2003

CCTV Traffic Enforcement BTEC
Unit (Anyone taking this training
course will have to have already
successfully completed TAVCOM's
CRO1 and CRO2 modules which
provide them with control room
operators training.)
TAVCOM August 2004
VINCI Park CCTV Enforcement
Training Programme
VINCI Park J anuary 2006
NCP Services CCTV Traffic
Enforcement Course
NCP Services September 2008

(*) The London Borough of Croydon no longer runs this course but officers with the qualification are still
approved for the purposes of CCTV enforcement.
5
CCTV code of practice
Revised edition 2008
Data Protection
Contents
1. Foreword 3
2. About this code 4
3. What this code covers 5
4. Deciding whether to use CCTV 6
or continue using CCTV
5. Ensuring effective administration 8
6. Selecting and siting the cameras 9
7. Using the equipment 10
8. Looking after the recorded material 12
and using the images
9. Responsibilities 15
10. Staying in control 19
Appendix 1 20
Appendix 2 21
Appendix 3 22
Annual Report
2006-2007
42
53
1. Foreword
CCTV surveillance has become a common feature of our daily lives. We are caught on numerous
CCTV cameras as we move around our towns and cities, visit shops and offices, and travel on
the road and other parts of the public transport network. Whilst the use of CCTV continues to
enjoy general public support, it necessarily involves intrusion into the lives of ordinary individuals
as they go about their day to day business. Our research has shown that the public expect it to
be used responsibly with effective safeguards in place. Maintaining public trust and confidence in
its use is essential if its benefits are to be realised and its use is not to become increasingly
viewed with suspicion as part of a surveillance society.
This code of practice replaces one first issued in 2000. Since then there have been advances in
the way CCTV is used, the technology employed and the wider legal environment in which it
operates. There have also been developments which may help achieve more privacy friendly
ways of using CCTV. This revised code builds upon the previous guidance reflecting these
changes and the lessons learnt of how it is used in practice. During the production of the code
discussions have taken place with organisations that use CCTV and a public consultation
exercise undertaken which generated many valuable comments.
However, the objective of this code remains the same: helping ensure that good practice
standards are adopted by those who operate CCTV. If they follow its provisions this not only
helps them remain within the law but fosters public confidence by demonstrating that they take
their responsibilities seriously.
Richard Thomas
Information Commissioner
Annual Report
2006-2007
44
2. About this code
This code provides good practice advice for those
involved in operating CCTV and other devices which view
or record images of individuals. It also covers other
information derived from those images that relates to
individuals (for example vehicle registration marks). This
code uses the terms CCTV and images throughout for ease of reference. Information held by
organisations that is about individuals is covered by the Data Protection Act 1998 (DPA) and the
guidance in this code will help operators comply with their legal obligations under the DPA.
The DPA not only creates obligations for organisations, it also gives individuals rights, such as the
right to gain access to their details and to claim compensation when they suffer damage.
The basic legal requirement is to comply with the DPA itself. This code sets out the Information
Commissioners recommendations on how the legal requirements of the DPA can be met.
Organisations may use alternative methods to meet these requirements, but if they do nothing
then they risk breaking the law.
The recommendations in this code are all based on the legally enforceable data protection
principles (Appendix 1) that lie at the heart of the DPA and they have been set out to follow the
lifecycle and practical operation of CCTV. Each section of the code poses questions that must be
positively addressed to help ensure that the good practice recommendations are being achieved.
Following the recommendations in this code will:
help ensure that those capturing images of individuals comply with the DPA;
mean that the images that are captured are usable; and
reassure those whose images are being captured.
This code replaces the earlier code of practice issued by the Information Commissioners Office
(ICO) in 2000 (reprinted in 2001) and the supplementary guidance for small users. It takes
account of the technical, operational and legal changes that have taken place since the original
code was drawn up.
CCTV operators and practitioners have been involved in its production and we have taken into
account their experiences of using the previous code of practice. It also builds upon research the
ICO has commissioned into public attitudes to surveillance technologies and research on
surveillance society issues more generally.
55
3. What this code covers
This code covers the use of CCTV and other systems which
capture images of identifiable individuals or information relating
to individuals for any of the following purposes:
Seeing what an individual is doing, for example monitoring
them in a shop or walking down the street.
Potentially taking some action in relation to an individual, for example handing the images
over to the police to investigate a crime.
Using the images of an individual in some way that will affect their privacy, for example
passing images on to a TV company.
Most CCTV is directed at viewing and/or recording the activities of individuals. This means that
most uses of CCTV by organisations or businesses will be covered by the Data Protection Act
(DPA) and the provisions of this code, regardless of the size of the system. This replaces our
previous guidance on when a CCTV system has to comply with the DPA.
The use of cameras for limited household purposes is exempt from the DPA. This applies where an
individual uses CCTV to protect their home from burglary, even if the camera overlooks the street
or other areas near their home. Images captured for recreational purposes, such as with a mobile
phone, digital camera or camcorder, are also exempt.
Example: If you make a video of your child in a nativity play for your own family use,
this is not covered by data protection law.
This code is primarily aimed at businesses and organisations who routinely capture images of individuals
on their CCTV equipment. Some specific uses of image recording equipment are not intended to be
covered in this code, although they may still be covered by the requirements of the DPA.
The covert surveillance activities of the law enforcement community are not covered here
because they are governed by the Regulation of Investigatory Powers Act (RIPA) 2000 and
Regulation of Investigatory Powers (Scotland) Act (RIPSA) 2000.
The use of conventional cameras (not CCTV) by the news media or for artistic purposes
such as for film making are not covered by this code as they are subject to special treatment
in the DPA. This code does apply to the passing on of CCTV images to the media.
Not all sections of the code will be fully relevant to all CCTV systems; this will depend upon the
extent and use of the images. Although small-scale users (such as small retailers) are covered by
the DPA, they are unlikely to have sophisticated systems, so many of this codes provisions are
inappropriate. Appendix 2 provides special guidance, as an alternative to the full code, for very
limited use of CCTV where privacy risks are small and resources are limited. If you are a small user,
but you wish to use your CCTV system for any purpose which is not covered in the checklist, you
should read the full code. Appendix 3 is for employers who may use CCTV to monitor their workers.
Note: The DPA applies to images captured by CCTV. This code does not cover the use of dummy
or non-operational cameras.
46
4. Deciding whether to use CCTV or continue
using CCTV
Using CCTV can be privacy intrusive, as it is capable of putting a lot of law-abiding people under
surveillance and recording their movements as they go about their day to day activities. You
should carefully consider whether to use it; the fact that it is possible, affordable or has public
support should not be the primary motivating factor. You should take into account what benefits
can be gained, whether better solutions exist, and what effect it may have on individuals.
Example: Cars in a car park are frequently damaged and broken in to at night.
Consider whether improved lighting would reduce the problem more effectively
than CCTV.
You should consider these matters objectively as part of an assessment of the schemes impact
on peoples privacy. This does not have to be an extensive or time-consuming process in all
cases. The extent of assessment necessary will depend on the size of the proposed scheme and
the level of impact it is likely to have on peoples privacy
1
.
You should use the results of the impact assessment to determine whether CCTV is justified in
all the circumstances and if so how it should be operated in practice.
The things to cover in any impact assessment include:
What organisation will be using the CCTV images? Who will take legal responsibility under
the Data Protection Act (DPA)?
2
What is the organisations purpose for using CCTV? What are the problems it is meant to
address?
What are the benefits to be gained from its use?
Can CCTV technology realistically deliver these benefits? Can less privacy-intrusive
solutions, such as improved lighting, achieve the same objectives?
Do you need images of identifiable individuals, or could the scheme use other images not
capable of identifying the individual?
Will the particular equipment/system of work being considered deliver the desired benefits
now and remain suitable in the future?
What future demands may arise for wider use of images and how will you address these?
What are the views of those who will be under surveillance?
What could you do to minimise intrusion for those that may be monitored, particularly if
specific concerns have been expressed?
1
If you are establishing a large system, or considering a use of CCTV which could give rise to significant privacy
concerns, you may wish to consider using the ICOs Privacy impact assessment handbook.
2
If CCTV is used by a business or organisation, then it is the body that is legally responsible under the DPA (the data
controller), not an individual member of staff.
7
Where the system will be operated by or on behalf of a public authority, the authority will also
need to consider wider human rights issues and in particular the implications of the European
Convention on Human Rights, Article 8 (the right to respect for private and family life). This will
include:
Is the proposed system established on a proper legal basis and operated in accordance with
the law?
Is it necessary to address a pressing need, such as public safety, crime prevention or
national security?
Is it justified in the circumstances?
Is it proportionate to the problem that it is designed to deal with?
If this is not the case then it would not be appropriate to use CCTV.
8
5. Ensuring effective administration
Establishing a clear basis for the handling of any personal information is essential and the handling
of images relating to individuals is no different. It is important to establish who has responsibility
for the control of the images, for example, deciding what is to be recorded, how the images should
be used and to whom they may be disclosed. The body which makes these decisions is called the
data controller and is legally responsible for compliance with the Data Protection Act (DPA).
Where more than one organisation is involved, each should know its responsibilities and
obligations. If both make decisions about the purposes and operation of the scheme, then both
are responsible under the DPA. This may be the case, for example, where the police have a live
feed from a local authority-owned camera.
Who has responsibility for control of the images and making decisions on how these can be
used? If more than one body is involved have responsibilities been agreed and does each
know its responsibilities?
Has the body (or have the bodies) responsible notified the Information Commissioner's
Office (ICO) that they are the data controller? Does the notification cover the purposes for
which the images are used, the disclosures that are made and other relevant details?
3
If someone outside your organisation provides you with any processing services, for
example editing the images, is a written contract in place with clearly defined
responsibilities? This should ensure that the images are only processed in accordance with
your instructions. The contract should also include guarantees about security, such as
storage and the use of properly trained staff.
You will also need clear procedures to determine how you use the system in practice.
Have you identified clearly defined and specific purposes for the use of images, and have
these been communicated to those who operate the system?
Are there clearly documented procedures, based on this code, for how the images should
be handled in practice? This could include guidance on disclosures and how to keep a
record of these. Have these been given to appropriate people?
Has responsibility for ensuring that procedures are followed been allocated to an
appropriate named individual? They should ensure that standards are set, procedures are
put in place to meet these standards and they should make sure the system complies with
this code and with legal obligations such as an individuals right of access.
Are proactive checks or audits carried out on a regular basis to ensure that procedures are
being complied with? This can be done either by you as the system operator or a third party.
You should review regularly whether the use of CCTV continues to be justified. You will have to
renew your notification yearly, so this would be an appropriate time to consider the ongoing use
of CCTV.
3
Please be aware that notification to the Commissioner does not in itself ensure that the system is compliant.
You will still need to comply with the data protection principles (see appendix 1). Not all organisations need to
notify. Current notification requirements can be found at
www.ico.gov.uk/what_we_cover/data_protection/notification.aspx
9
6. Selecting and siting the cameras
Any CCTV images must be adequate for the purpose for which you are collecting them. It is essential
that you choose camera equipment and locations which achieve the purposes for which you are
using CCTV. Both permanent and movable cameras should be sited and image capture restricted to
ensure that they do not view areas that are not of interest and are not intended to be the subject of
surveillance, such as individuals private property. The cameras must be sited and the system must
have the necessary technical specification to ensure that images are of the appropriate quality.
Example: Check that a fixed camera positioned in winter will not be obscured by the
growth of spring and summer foliage.
Have you carefully chosen the camera location to minimise viewing spaces that are not of
relevance to the purposes for which you are using CCTV?
Where CCTV has been installed to deal with a specific problem, have you considered setting
the system up so it only records at the time when the problem usually occurs? Alternatively,
have you considered other privacy-friendly ways of processing images? For example, some
systems only record events that are likely to cause concern, such as movement into a
defined area. This can also save on storage capacity.
Will the cameras be sited to ensure that they can produce images of the right quality, taking
into account their technical capabilities and the environment in which they are placed?
Is the camera suitable for the location, bearing in mind the light levels and the size of the
area to be viewed by each camera?
Are the cameras sited so that they are secure and protected from vandalism?
Will the system produce images of sufficient size, resolution and frames per second?
In areas where people have a heightened expectation of privacy, such as changing rooms or toilet
areas, cameras should only be used in the most exceptional circumstances where it is necessary
to deal with very serious concerns. In these cases, you should make extra effort to ensure that
those under surveillance are aware
4
.
To judge the quality of images that will be necessary, you will need to take into account the purpose
for which CCTV is used and the level of quality that will be necessary to achieve the purpose. The
Home Office Scientific Development Branch
5
recommends identifying the needs of a CCTV system
by using four categories:
Monitoring: to watch the flow of traffic or the movement of people where you do not need
to pick out individual figures.
Detecting: to detect the presence of a person in the image, without needing to see their face.
Recognising: to recognise somebody you know, or determine that somebody is not known to you.
Identifying: to record high quality facial images which can be used in court to prove
someones identity beyond reasonable doubt.
Their guidance gives more detail on the quality of images needed for each of these purposes, and
should be consulted when choosing equipment.
4
The use of signs is included in the section on Responsibilities
5
CCTV Operational Requirements Manual (v0.4 55/06), available from http://scienceandresearch.homeoffice.gov.uk/hosdb
10
7. Using the equipment
It is important that a CCTV system produces images that are of a suitable quality for the purpose
for which the system was installed. If identification is necessary, then poor quality images which
do not help to identify individuals may undermine the purpose for installing the system.
Do the recorded pictures and prints as well as the live screens produce good clear pictures?
This is important to ensure that there has not been an unacceptable loss of detail during
the recording process.
Have you considered the compression settings for recording material? In a digital system, a
high level of compression will result in poorer picture quality on playback.
Have you set up the recording medium in such a way that images cannot be inadvertently
corrupted?
Is there a regular check that the date and time stamp recorded on the images is accurate?
If automatic facial recognition technology is being used, are the cameras placed so that
facial images are clearly captured? Are the results of any match checked by people before
any action is taken?
Has a regular maintenance regime been set up to ensure that the system continues to
produce high quality images?
If a wireless transmission system is used, are sufficient safeguards in place to protect it
from being intercepted?
CCTV must not be used to record conversations between members of the public as this is highly
intrusive and unlikely to be justified. You should choose a system without this facility if possible.
If your system comes equipped with a sound recording facility then you should turn this off or
disable it in some other way.
There are limited circumstances in which audio recording may be justified, subject to sufficient
safeguards. These could include:
Audio based alert systems (such as those triggered by changes in noise patterns such as
sudden shouting). Conversations must not be recorded, and operators should not listen in.
Two-way audio feeds from help points covered by CCTV cameras, where these are
activated by the person requiring assistance.
Conversations between staff and particular individuals where a reliable record is needed of
what was said, such as in the charging area of a police custody suite
6
.
Where recording is triggered due to a specific threat, e.g. a panic button in a taxi cab.
In the limited circumstances where audio recording is justified, signs must make it very clear that
audio recording is being or may be carried out.
6
Police use of body-worn video devices (headcams) is covered by the Home Office guidelines, "Guidance for the
police use of body-worn video devices, produced in consultation with the ICO. See the Home Office police
publications page, http://police.homeoffice.gov.uk/news-and-publications/
11
The use of audio to broadcast messages to those under surveillance should be restricted to
messages directly related to the purpose for which the system was established.
If there is an audio monitoring or recording capability has this been disabled?
If an audio based alert system is being used are measures in place to prevent conversations
being monitored or recorded?
If there are audio communications with help points, are these initiated by those requiring
assistance?
If a message broadcast facility is used, are the messages limited to those consistent with
the original purpose for establishing the system?
4 12
8. Looking after the recorded material and using
the images
8.1 Storing and viewing the images
Recorded material should be stored in a way that maintains the integrity of the image. This is to
ensure that the rights of individuals recorded by the CCTV system are protected and that the
material can be used as evidence in court. To do this you need to carefully choose the medium
on which the images are stored, and then ensure that access is restricted. You may wish to keep
a record of how the images are handled if they are likely to be used as evidence in court. Finally,
once there is no reason to retain the recorded images, they should be deleted. Exactly when you
decide to do this will depend on the purpose for using CCTV.
Many modern CCTV systems rely on digital recording technology and these new methods
present their own problems. With video tapes it was very easy to remove a tape and give it to
the law enforcement agencies such as the police for use as part of an investigation. It is
important that your images can be used by appropriate law enforcement agencies if this is
envisaged. If they cannot, this may undermine the purpose for undertaking CCTV surveillance.
How easy is it to take copies of a recording off your system when asked for by a law
enforcement agency? Can this be done without interrupting the operation of the system?
Will they find your recorded images straightforward to use?
What will you do when recorded material needs to be taken away for further examination?
Viewing of live images on monitors should usually be restricted to the operator unless the
monitor displays a scene which is also in plain sight from the monitor location.
Example: Customers in a bank can see themselves on a monitor screen. This is
acceptable as they cannot see anything on the screen which they could not see by
looking around them. The only customers who can see the monitor are those who
are also shown on it.
Example: Monitors in a hotel reception area show guests in the corridors and lifts,
i.e. out of sight of the reception area. They should be turned so that they are only
visible to staff, and members of the public should not be allowed access to the area
where staff can view them.
Recorded images should also be viewed in a restricted area, such as a designated secure office.
The monitoring or viewing of images from areas where an individual would have an expectation
of privacy should be restricted to authorised persons.
Are your monitors correctly sited taking into account the images that are displayed?
Is your monitor viewing area appropriate and secure?
Where necessary is access limited to authorised people?
5 13
8.2 Disclosure
Disclosure of images from the CCTV system must also be controlled and consistent with the
purpose for which the system was established. For example, if the system is established to help
prevent and detect crime it will be appropriate to disclose images to law enforcement agencies
where a crime needs to be investigated, but it would not be appropriate to disclose images of
identifiable individuals to the media for entertainment purposes or place them on the internet.
Images can be released to the media for identification purposes; this should not generally be
done by anyone other than a law enforcement agency.
NOTE: Even if a system was not established to prevent and detect crime, it would still be
acceptable to disclose images to law enforcement agencies if failure to do so would be likely to
prejudice the prevention and detection of crime.
Any other requests for images should be approached with care, as a wide disclosure of these
may be unfair to the individuals concerned. In some limited circumstances it may be appropriate
to release images to a third party, where their needs outweigh those of the individuals whose
images are recorded.
Example: A member of the public requests CCTV footage of a car park, which
shows their car being damaged. They say they need it so that they or their
insurance company can take legal action. You should consider whether their request
is genuine and whether there is any risk to the safety of other people involved.
Are arrangements in place to restrict disclosure of images in a way consistent with the
purpose for establishing the system?
Do those that may handle requests for disclosure have clear guidance on the
circumstances in which it is appropriate to make a disclosure and when it is not?
Do you record the date of the disclosure along with details of who the images have been
provided to (the name of the person and the organisation they represent) and why they are
required?
Judgements about disclosure should be made by the organisation operating the CCTV system.
They have discretion to refuse any request for information unless there is an overriding legal
obligation such as a court order or information access rights
7
. Once you have disclosed an image
to another body, such as the police, then they become the data controller for their copy of that
image. It is their responsibility to comply with the Data Protection Act (DPA) in relation to any
further disclosures.
The method of disclosing images should be secure to ensure they are only seen by the intended
recipient.
7
More information on subject access and freedom of information requests can be found in section 9.
14
8.3 Retention
The DPA does not prescribe any specific minimum or maximum retention periods which apply to
all systems or footage. Rather, retention should reflect the organisations own purposes for
recording images.
You should not keep images for longer than strictly necessary to meet your own purposes for
recording them. On occasion, you may need to retain images for a longer period, where a law
enforcement body is investigating a crime, to give them opportunity to view the images as part
of an active investigation.
Example: A system installed to prevent fraud being carried out at an ATM may need
to retain images for several weeks, since a suspicious transaction may not come to
light until the victim gets a bank statement.
Example: Images from a town centre system may need to be retained for enough
time to allow crimes to come to light, for example, a month. The exact period
should be the shortest possible, based on your own experience.
Example: A small system in a pub may only need to retain images for a shorter
period of time because incidents will come to light very quickly. However, if a crime
has been reported to the police, you should retain the images until the police have
time to collect them.
Have you decided on the shortest period that you need to retain the images, based upon
your own purpose for recording the images?
Is your image retention policy documented and understood by those who operate the
system?
Are measures in place to ensure the permanent deletion of images through secure methods
at the end of this period?
Do you undertake systematic checks to ensure that the retention period is being complied
with in practice?
15
9. Responsibilities
9.1 Letting people know
You must let people know that they are in an area where
CCTV surveillance is being carried out.
The most effective way of doing this is by using
prominently placed signs at the entrance to the CCTV zone and reinforcing this with further
signs inside the area. This message can also be backed up with an audio announcement, where
public announcements are already used, such as in a station.
Clear and prominent signs are particularly important where the cameras themselves are very
discreet, or in locations where people might not expect to be under surveillance. As a general
rule, signs should be more prominent and frequent where it would otherwise be less obvious to
people that they are on CCTV.
In the exceptional circumstance that audio recording is being used, this should be stated
explicitly and prominently.
Signs should:
be clearly visible and readable;
contain details of the organisation operating the system, the purpose for using CCTV and
who to contact about the scheme (where these things are not obvious to those being
monitored); and
be an appropriate size depending on context, for example, whether they are viewed by
pedestrians or car drivers.
Signs do not need to say who is operating the system if this is obvious. If CCTV is installed
within a shop, for example, it will be obvious that the shop is responsible. All staff should know
what to do or who to contact if a member of the public makes an enquiry about the CCTV
system. Systems in public spaces and shopping centres should have signs giving the name and
contact details of the company, organisation or authority responsible.
Example: Images are being monitored and recorded for the purposes of crime
prevention and public safety. This scheme is controlled by Greentown Borough
Council. For more information, call 01234 567890.
Do you have signs in place informing people that CCTV is in operation?
Do your signs convey the appropriate information?
9.2 Subject access requests
Individuals whose images are recorded have a right to view the images of themselves and,
unless they agree otherwise, to be provided with a copy of the images. This must be provided
within 40 calendar days of receiving a request. You may charge a fee of up to 10 (this is the
current statutory maximum set by Parliament). Those who request access must provide you
with details which allow you to identify them as the subject of the images and also to locate the
images on your system. You should consider:
How will the staff involved in operating the CCTV system recognise a subject access
request?
Do you have internal procedures in place for handling subject access requests? This could
include keeping a log of the requests received and how they were dealt with, in case you
are challenged.
A clearly documented process will also help guide individuals through such requests. This should
make it clear what an individual needs to supply. You should decide:
What details will you need to find the images? Is it made clear whether an individual will
need to supply a photograph of themselves or a description of what they were wearing at
the time they believe they were caught on the system, to aid identification?
Is it made clear whether details of the date, time and location are required?
What fee will you charge for supplying the requested images (up to a maximum of 10)
and how should it be paid? Make this clear to people making access requests.
How will you provide an individual with copies of the images?
If images of third parties are also shown with the images of the person who has made the
access request, you must consider whether you need to obscure the images of third parties. If
providing these images would involve an unfair intrusion into the privacy of the third party, or
cause unwarranted harm or distress, then they should be obscured. In many cases, images can
be disclosed as there will not be such intrusion.
Example: A public space CCTV camera records people walking down the street and
going about their ordinary business. Where nothing untoward has occurred, this can
be released without editing out third party images.
Example: Images show the individual who has made the request with a group of
friends, waving at a camera in the town centre. There is little expectation of privacy
and the person making the request already knows their friends were there. It is
likely to be fair to release the image to the requester without editing out the faces
of their friends.
Example: Images show a waiting room in a doctors surgery. Individuals have a high
expectation of privacy and confidentiality. Images of third parties should be
redacted (blurred or removed) before release.
Where you decide that third parties should not be identifiable, then you will need to make
arrangements to disguise or blur the images in question. It may be necessary to contract this
work out to another organisation. Where this occurs, you will need to have a written contract
with the processor which specifies exactly how the information is to be used and provides you
with explicit security guarantees.
16
9.3 Freedom of information
If you are a public authority then you may receive requests under the Freedom of Information
Act 2000 (FOIA) or Freedom of Information (Scotland) Act 2002 (FOISA). Public authorities
should have a member of staff who is responsible for responding to freedom of information
requests, and understands the authoritys responsibilities. They must respond within 20
working days from receipt of the request.
Section 40 of the FOIA and section 38 of the FOISA contain a two-part exemption relating to
information about individuals. If you receive a request for CCTV footage, you should consider:
Are the images those of the requester? If so then that information is exempt from the
FOIA/FOISA. Instead this request should be treated as a data protection subject access
request as explained above.
Are the images of other people? These can be disclosed only if disclosing the information
in question does not breach the data protection principles.
In practical terms, if individuals are capable of being identified from the relevant CCTV images, then it is
personal information about the individual concerned. It is unlikely that this information can be disclosed
in response to an FOI request as the requester could potentially use the images for any purpose and
the individual concerned is unlikely to expect this. This may therefore be unfair processing in
contravention of the Data Protection Act (DPA).
This is not an exhaustive guide to handling FOI requests
8
.
Note: Even where footage is exempt from FOIA/FOISA it may be lawful to provide it on a
case-by-case basis without breaching the DPA, where the reason for the request is taken into
account. See section 8 (using the images) for advice on requests for disclosure.
9.4 Other responsibilities
Staff operating the CCTV system also need to be aware of two further rights that individuals
have under the DPA. They need to recognise a request from an individual to prevent processing
likely to cause substantial and unwarranted damage or distress (s10 DPA) and one to prevent
automated decision-taking in relation to the individual (s12 DPA). Experience has shown that
the operators of CCTV systems are highly unlikely to receive such requests. If you do, guidance
on these rights is available from the Information Commissioners Office
9
. Any use of Automatic
Facial Recognition technology should also involve human intervention before decisions are
taken, and this would not be decision taking solely on an automated basis within the terms of
the DPA.
If the CCTV system covers a public space, the organisation operating the CCTV system should
be aware of the possible licensing requirements imposed by the Security Industry Authority.
17
8
Further information about the FOIA can be found on ICOs website: www.ico.gov.uk including specific guidance
about section 40 (FOI Awareness Guidance No1).
9
How can I stop them processing my personal information? and Preventing decisions based on automated
processing of personal information can both be found on the ICO website: www.ico.gov.uk. You may also wish
to consult our Legal Guidance.
A public space surveillance (CCTV) licence is required when operatives are supplied under a
contract for services. Under the provisions of the Private Security Industry Act 2001, it is a criminal
offence for staff to be contracted as public space surveillance CCTV operators in England, Wales
and Scotland without an SIA licence
10
.
Do the relevant staff know how to deal with any request to prevent processing or prevent
automated decision making and where to seek advice?
Have you satisfied any relevant licensing requirements?
18
10
This requirement does not apply in Northern Ireland. For more information visit www.the-sia.org.uk
10. Staying in control
Once you have followed the guidance in this code and set
up the CCTV system you need to ensure that it continues
to comply with the Data Protection Act (DPA) and the
codes requirements in practice. If requested you should:
tell people how they can make a subject access request, who it should be sent to and what
information needs to be supplied with their request;
give them a copy of this code or details of the Information Commissioner's Office (ICO)
website; and
tell them how to complain about either the operation of the system or failure to comply
with the requirements of this code.
Staff using the CCTV system or images should be trained to ensure they comply with this code.
In particular, do they know:
what the organisations policies are for recording and retaining images?
how to handle the images securely?
what to do if they receive a request for images, for example, from the police?
how to recognise a subject access request and what to do if they receive one?
All images must be protected by sufficient security to ensure they do not fall into the wrong
hands. This should include technical, organisational and physical security. For example:
Are sufficient safeguards in place to protect wireless transmission systems from interception?
Is the ability to make copies of images restricted to appropriate staff?
Where copies of images are disclosed, how are they safely delivered to the intended recipient?
Are control rooms and rooms where images are stored secure?
Are staff trained in security procedures and are there sanctions against staff who misuse
CCTV images?
Are staff aware that they could be committing a criminal offence if they misuse CCTV images?
Any documented procedures which you produce following on from this code should be reviewed
regularly, either by a designated individual within the organisation or by a third party. This is to
ensure the standards established during the setup of the system are maintained.
Similarly, there should be a periodic review (at least annually) of the systems effectiveness to
ensure that it is still doing what it was intended to do. If it does not achieve its purpose, it should
be stopped or modified.
Is information available to help deal with queries about the operation of the system and how
individuals may make access requests?
Does the information include your commitment to the recommendations in this code and
include details of the ICO if individuals have data protection compliance concerns?
Is a system of regular compliance reviews in place, including compliance with the provisions
of this code, continued operational effectiveness and whether the system continues to
meet its purposes and remains justified?
Are the results of the review recorded, and are its conclusions acted upon?
19
Appendix 1
The Data Protection Act 1998:
data protection principles
1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed
unless-
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is
also met.
2. Personal data shall be obtained only for one or more specified and lawful purposes, and
shall not be further processed in any manner incompatible with that purpose or those
purposes.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or
purposes for which they are processed.
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is
necessary for that purpose or those purposes.
6. Personal data shall be processed in accordance with the rights of data subjects under this
Act.
7. Appropriate technical and organisational measures shall be taken against unauthorised or
unlawful processing of personal data and against accidental loss or destruction of, or
damage to, personal data.
8. Personal data shall not be transferred to a country or territory outside the European
Economic Area unless that country or territory ensures an adequate level of protection for
the rights and freedoms of data subjects in relation to the processing of personal data.
This is not a full explanation of the principles. For more general information, see our Legal
Guidance
1
.
20
1
The ICOs Data Protection Act 1998 Legal Guidance is available on the ICO website: www.ico.gov.uk.
Appendix 2
Checklist for users of limited CCTV systems
monitoring small retail and business premises
This CCTV system and the images produced by it are controlled by .. who is responsible
for how the system is used and for notifying the Information Commissioner about the CCTV
system and its purpose (which is a legal requirement of the Data Protection Act 1998)
1
.
We () have considered the need for using CCTV and have decided it is required for the
prevention and detection of crime and for protecting the safety of customers. It will not be used
for other purposes. We conduct an annual review of our use of CCTV.
Checked By Date of next
(Date) review
Notification has been submitted to the Information
Commissioner and the next renewal date recorded.
There is a named individual who is responsible for the
operation of the system.
A system has been chosen which produces clear images
which the law enforcement bodies (usually the police) can
use to investigate crime and these can easily be taken from
the system when required.
Cameras have been sited so that they provide clear images.
Cameras have been positioned to avoid capturing the
images of persons not visiting the premises.
There are visible signs showing that CCTV is in operation.
Where it is not obvious who is responsible for the system
contact details are displayed on the sign(s).
Images from this CCTV system are securely stored, where
only a limited number of authorised persons may have
access to them.
The recorded images will only be retained long enough for
any incident to come to light (e.g. for a theft to be noticed)
and the incident to be investigated.
Except for law enforcement bodies, images will not be
provided to third parties.
The organisation knows how to respond to individuals
making requests for copies of their own images. If unsure
the controller knows to seek advice from the Information
Commissioner as soon as such a request is made.
Regular checks are carried out to ensure that the system is
working properly and produces high quality images.
Please keep this checklist in a safe place until the date of the next review.
21
1
Not all small businesses need to notify. Current notification requirements can be found at
www.ico.gov.uk/what_we_cover/data_protection/notification.aspx
Appendix 3
Monitoring your workforce
When you install CCTV in a workplace, such as a shop, it is likely to capture pictures of workers,
even if they are not the main subject of surveillance. If the purpose of the CCTV is solely to
prevent and detect crime, then you should not use it for monitoring the amount of work done or
compliance with company procedures.
Have the cameras been installed so they are not directed specifically to capture images of
workers?
Are the recorded images viewed only when there is suspected criminal activity, and not just
for routine monitoring of workers? Cameras installed for preventing and detecting crime
should not be used for non-criminal matters.
Are images of workers used only if you see something you cannot be expected to ignore,
such as criminal activity, gross misconduct, or behaviour which puts others at risk?
If these images are used in disciplinary proceedings, is the footage retained so that the
worker can see it and respond? A still image is unlikely to be enough.
In some cases, it may be appropriate to install CCTV specifically for workforce monitoring. You
should go through the decision making process in section 4 of this code and consider whether it
is justified. In particular, consider whether better training or greater supervision would be a more
appropriate solution.
Example: You suspect that your workers are stealing goods from the store room. It
would be appropriate to install CCTV in this room, as it will not involve continuous
or intrusive monitoring and is proportionate to the problem.
Example: You suspect that your workers are making mobile phone calls during
working hours, against company policy, and you consider installing CCTV cameras
on their desks to monitor them throughout the day. This would be intrusive and
disproportionate. Continuous monitoring should only be used in very exceptional
circumstances, for example where hazardous substances are used and failure to
follow procedures would pose a serious risk to life.
Is CCTV limited to areas which workers would not expect to be private? CCTV should not
be used in toilet areas or private offices.
Are workers made aware that the CCTV is for staff monitoring and how it will be used?
How are visitors informed that CCTV is in operation?
If CCTV is used to enforce internal policies, are workers fully aware of these policies and
have they had sufficient training?
Do you have procedures to deal appropriately with subject access requests from workers?
Workers should normally be aware that they are being monitored, but in exceptional
circumstances, covert monitoring may be used as part of a specific investigation. Covert
22
monitoring is where video or audio recording equipment is used, and those being monitored are
unaware that this is taking place. Before approving covert monitoring, you should ask yourself:
Is this an exceptional circumstance, and is there is reason to suspect criminal activity or
equivalent malpractice?
Will the cameras only be used for a specific investigation, and will they be removed once
the investigation is complete?
Would it prejudice the investigation to tell workers that cameras are being used?
Have you taken into account the intrusion on innocent workers?
Has the decision been taken by senior management?
Cameras and listening devices should not be installed in private areas such as toilets and private
offices, except in the most exceptional circumstances where serious crime is suspected. This
should only happen where there is an intention to involve the police, not where it is a purely
internal disciplinary matter.
In some cases, covert cameras installed for one investigation may turn up evidence of other
criminal behaviour or disciplinary offences. You should only make use of this where the offence is
serious, for example, gross misconduct or misconduct putting others at risk. It would be unfair to
use evidence obtained covertly for minor disciplinary matters.
In some cases, covert monitoring may be covered by the Regulation of Investigatory Powers Act
2000 or the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPA / RIPSA). You may
wish to seek advice
1
.
More advice on monitoring workers can be found in our Employment practices code
2
.
23
1
The Home Office guidance on RIPA can be found at http://security.homeoffice.gov.uk/ripa
2
The Employment practices code and other related guidance can be found on the ICO website: www.ico.gov.uk.
4
If you would like to contact us please call 08456 306060, or 01625 545745
if you would prefer to call a national rate number.
e: mail@ico.gsi.gov.uk
w: www.ico.gov.uk
January 2008
Information Commissioners Office
Wycliffe House, Water Lane
Wilmslow, Cheshire SK9 5AF
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Schedule 2 Enforcement Operations SOR Redacted Version

The Agreement V5.0 - In Confidence - Page 1 of 302

SCHEDULE 2
Enforcement Operations SOR

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Table of Contents

APPENDICES ......................................................................................................... 3
1 STATEMENT OF REQUIREMENTS ................................................................ 4
1.1 Introduction ................................................................................................ 4
2 OVERVIEW OF SERVICES REQUIRED ......................................................... 8
Introduction .......................................................................................................... 8
2.1 General ...................................................................................................... 8
3 PCN PROCESSING TIMELINE ..................................................................... 12
Introduction ........................................................................................................ 12
3.1 General .................................................................................................... 12
4 RECEIPT OF CONTRAVENTION RECORDS AND PCN ISSUE .................. 20
Introduction ........................................................................................................ 20
4.1 Receipt of Contravention Records ........................................................... 20
4.2 Processing of Contravention Records ..................................................... 23
4.3 Contravention Validation and Verification Checking (CVVC) ................... 26
4.4 Diplomatic Vehicles ................................................................................. 43
4.5 Foreign Vehicles ...................................................................................... 46
4.6 Penalty Charges and PCNs ..................................................................... 49
4.7 PCN Suspensions ................................................................................... 54
5 DEBT ESCALATION AND MANAGEMENT .................................................. 57
Introduction ........................................................................................................ 57
5.1 General .................................................................................................... 57
5.2 Issue of Charge Certificates .................................................................... 58
5.3 General .................................................................................................... 60
5.4 Issue of Orders for Recovery ................................................................... 63
5.5 Receipt of Statutory Declarations ............................................................ 66
5.6 Out of time Statutory Declarations ........................................................... 71
5.7 Issue of Bailiff Warrants of Execution to Bailiffs ...................................... 81
5.8 Representation Consideration ................................................................. 88
5.9 Third Party Representations .................................................................. 103
5.10 Late Representations ............................................................................ 107
5.11 Appeal Consideration ............................................................................ 111
5.12 Appeal Withdrawn ................................................................................. 132
5.13 Appeal Decision Review ........................................................................ 133
5.14 Clamp and Removal Representations and Appeals .............................. 136
5.15 Representation & Appeals Costs ........................................................... 145
5.16 Persistent Evaders & the OSE Service Provider ................................... 146
5.17 Legal Claims .......................................................................................... 161
5.18 Escalation Management ........................................................................ 163
6 PCN PAYMENT AND ENQUIRY ................................................................. 168
Introduction ...................................................................................................... 168
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6.1 General .................................................................................................. 168
6.2 PCN Payments ...................................................................................... 181
6.3 Refunds ................................................................................................. 189
6.4 General PCN Search Functionality ........................................................ 193
6.5 PCN Payment & Enquiry Service via the Telephone ............................. 196
6.6 Customer Service Representative (CSR) .............................................. 204
6.7 Call Recording ....................................................................................... 208
6.8 PCN Payment & Enquiry Service via the Internet .................................. 210
6.9 PCN Payment & Enquiry Service via Post ............................................. 220
6.10 Complaints ............................................................................................ 235
7 OUTGOING CORRESPONDENCE ............................................................. 238
Introduction ...................................................................................................... 238
7.1 General .................................................................................................. 238
7.2 Ad-hoc Correspondence ........................................................................ 252
8 CLAMP, REMOVAL AND POUND MANAGEMENT MODULE ................... 253
Introduction ...................................................................................................... 253
8.1 General .................................................................................................. 253
9 FACILITIES, PERSONNEL, STAFFING AND TRAINING ........................... 272
Introduction ...................................................................................................... 272
9.1 Facilities ................................................................................................ 272
9.2 Organisation .......................................................................................... 274
9.3 Service Provider Recruitment and Staffing ............................................ 275
9.4 Service Provider Personnel Training ..................................................... 276
9.5 TfL Personnel and Training ................................................................... 278
10 TECHNICAL ................................................................................................. 280
Introduction ...................................................................................................... 280
10.1 Conceptual Data Model ......................................................................... 280
10.2 Components of the System ................................................................... 281
10.3 Service Levels ....................................................................................... 289
10.4 Security and Systems Access ............................................................... 290
10.5 Data Integrity ......................................................................................... 291
11 INTERFACES ............................................................................................... 293
Introduction ...................................................................................................... 293
11.1 General .................................................................................................. 293
11.2 Operational Requirements ..................................................................... 296
11.3 Front End to Core IT System Interface .................................................. 299

APPENDICES

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1. Appendix 16 Evidential Record Template
2. Appendix 17 Penalty Charge Write-off Policy
3. Appendix 18 PCN Template
4. Appendix 19 Charge Certificate Template
5. Appendix 20 Order for Recovery Template
6. Appendix 21 Statutory Declaration Template
7. Appendix 22 Statement of Truths for Out of Time Statutory Declarations
8. Appendix 23 Warrant of Execution Template
9. Appendix 24 Criteria for Dealing with Representations
10. Appendix 25 Criteria for Dealing with Clamping and Removal Representations
11. Appendix 26 Notice of Acceptance and Rejection Letter Templates
12. Appendix 27 Interface Catalogue
13. Appendix 28 Appeal Non-Contest Codes
14. Appendix 29 Written PCN Enquires
15. Appendix 30 TEC Code of Practice
16. Appendix 31 Enforcement Operations Volumes
17. Appendix 32 Enforcement Interface Failover Thresholds
18. Appendix 33 Refund Policy
19. Appendix 34 Responses to DVLA Enquiries
20. Appendix 35 Criteria for Dealing with Returned Mail for Enforcement Operations
21. Appendix 36 TPED Contraventions
22. Appendix 37 PCN Insert

1 STATEMENT OF REQUIREMENTS
1.1 Introduction
1.1.1 This document, along with its appendices, is part of schedule 2 (Statement of
Requirements) of the London Road User Charging Agreement. Schedule 2
provides the requirements for the Business Operations, Enforcement Operations
and Core IT Service Elements.
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1.1.2 This document should be read in conjunction with other component documents of
the Agreement.
1.1.3 Definitions of terms used in this document are contained in schedule 1
(Definitions).
1.1.4 The Common Statement of Requirements is a component document of schedule
2 which contains requirements common to the Business Operations,
Enforcement Operations and the Core IT Service Elements.
1.1.5 The structure and layout of this document is ordered into sections. Each section
has a heading with an introductory statement. This is followed by sub-headings
containing requirements. Each requirement has two rows above containing the
following information (see example of layout of Statement of Requirements):
Requirement number;
R1, R2 or Additional Services;
Mandatory or For Your Information; and
MIS.
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Example of layout of Statement of Requirements

E1.1.1 R1 Mandatory
MIS
Individual requirements are located from here onwards.

1.1.6 The requirement number indicates the number of the individual requirement. The
requirement number is made up of one (1) letter and three (3) numbers. The
letter indicates the Statement of Requirements to which this requirement relates
to (e.g. E =Enforcement Operations). The first number relates to the section
number, the second number relates to the sub-section and the third number
relates to the requirement number within that sub-section.
1.1.7 R1 means Release 1 which is made up of those services which are required to
support the Schemes available to the public at the Operational Commencement
Date.
1.1.8 R2 means Release 2 which is made up of Services that are planned to be
introduced subject to feasibility and public consultation once Release 1 has been
operational for twelve (12) months following Operational Commencement Date.
The implementation of Release 2 is intended to be a switching-on of the
services involved. Thus the functionality and processes involved in Release 2
must be designed, implemented and tested at the same time as Release 1.
1.1.9 R1/R2 relates to those activities that must be performed to support both Release
1 and Release 2.
1.1.10 Additional Services are the services that may or may not be required during this
contract.
1.1.11 Mandatory or FYI (For your Information) dictates the type of requirement. A
mandatory requirement must be met by the Service Providers solution. FYI is
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information either provided by TfL or shall be provided by TfL in due course to the
Service Provider.
1.1.12 The next field indicates whether the requirement generates Data that needs an
interface into the MIS system for the purposes of reporting.
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2 OVERVIEW OF SERVICES REQUIRED
Introduction
The Service Provider shall provide PCN processing services for the Scheme(s).
2.1 General
E2.1.1 R1/R2 Mandatory

The Service Provider shall ensure that the Scheme(s) or other civil enforcement
schemes are enforced to the highest standards and that those who have not complied
with the requirements of the relevant Scheme(s) are charged the appropriate Penalty
Charge and, where appropriate, a PCN is issued. The Service Provider shall progress
all Representations and Appeals made and ensure high rates of collection against
issued penalties in accordance with this Agreement including without limitation to the
Service Levels.
E2.1.2 R1 Mandatory

The Service Provider shall be fully responsible for the Enforcement Operations System.
The Service Providers responsibility for the Enforcement Operations System shall
include but not be limited to:
Building the Enforcement Operations System;
Building and maintaining all Interfaces between the Enforcement Operations
System and Third Parties / Other Service Providers;
Operation of the Enforcement Operations System;
Provision of highly trained Personnel for Penalty Charge issue, progression, queries
and payment processing; and
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Maintenance of the Enforcement Operations System,
as further set out in the following provisions of this Statement of Requirements.
E2.1.3 R1 Mandatory

The Service Provider shall update the Core IT System with details on each significant
event that occurs in the life of a PCN. These significant events include but not are
limited to:
PCN/Penalty Charge raised;
PCN issued;
PCN paid;
PCN Appealed; and
Outcome of the Appeal.
E2.1.4 R1 Mandatory

If the Registered Keeper/Person Liable for the Vehicle issued with a Penalty Charge
Notice does not either pay the appropriate Penalty Charge in full or make a written
Representation within the required timescale, the Service Provider shall have
processes in place to recover the outstanding debt(s) as further set out in the following
provisions of this Statement of Requirements.
E2.1.5 R1 Mandatory

The Service Provider shall raise all Penalty Charges due for non-payment of the
relevant Charge Payment, issue PCNs (where Registered Keeper/Person Liable details
are available), process Representations and Appeals, receive payments made for
Penalty Charges, process outstanding Penalty Charges and register and recover
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unpaid PCNs as debts via the county court and Bailiff processes.
E2.1.6 R1 Mandatory

The Service Provider shall be required to issue and process penalties relating to future
Contravention Types introduced by TfL.
E2.1.7 R1 Mandatory

The Service Provider shall ensure that the Enforcement Operations System has the
flexibility to issue and process different levels of Penalty Charges, different levels of
evidence requirements, and timelines for payment of Penalty Charges and responses
to PCNs through various different Interfaces to penalty issue services as further set out
in the following provisions of this Statement of Requirements.
E2.1.8 R1 Mandatory

If TfL was to proceed with the introduction of additional Contravention Types, the
Service Providers solution shall be sufficiently scalable to supply PCN processing
services for any expansion of the current Charging Zone(s), any new Zone(s) or
Scheme(s) or other non-charging related Enforcement products as further set out in the
following provisions of this Statement of Requirements.
E2.1.9 R1 Mandatory

The Service Provider shall provide a regular update via a secure communications
channel to the Core IT System. This shall include, but not be limited to, registering
updated Registered Keeper/Person Liable and VRM details, corrections required to
Resident Discounts or corrections required for Convenience Card details.
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E2.1.10 R1 Mandatory

The Service Provider shall request the Core IT System to make corrections and
updates to Personal Data held by the Core IT System and the Service Provider shall
check that these have been inputted accurately to prevent further actions, such as the
issue of Penalty Charges based on incorrect Data recorded by the Business
Operations Service Element.

The Service Provider shall ensure that the method of making such requests, as
detailed in E2.1.10, clearly identifies the correct and incorrect Data and that such
method shall ensure that no further errors occur due to mistyping or misreading.
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3 PCN PROCESSING TIMELINE
Introduction
Each PCN issued will progress through a number of Enforcement stages along the
PCN processing timeline until the appropriate payment is received or the PCN is
cancelled or written-off.
3.1 General
E3.1.1 R1 FYI

Figure 1: Enforcement Operations process:

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E3.1.2 R1 Mandatory

The Service Provider shall adhere to all statutory requirements under the Scheme(s),
including without limitation the Road User Charging (Enforcement and Adjudication)
(London) Regulations 2001 (as amended) and the Road User Charging (Charges and
Penalty Charges) (London) Regulations 2001 (as amended), and the Scheme Order(s).
In addition the Service Provider shall adhere to all statutory requirements relating to
any Services that the Service Provider may be required to provide in the future.
E3.1.3 R1 Mandatory

The Service Provider shall differentiate between each of the Contravention Types
within the Scheme(s) as further set out in the following provisions of this Statement of
Requirements.
E3.1.4 R1 Mandatory

The Service Provider shall follow a given pathway for each Contravention Type within
the Scheme for that particular Contravention Type.
E3.1.5 R1 Mandatory

The Service Provider shall raise a different Penalty Charge for each Contravention
Type for each relevant Scheme(s).
E3.1.6 R1 Mandatory

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The Service Provider shall issue a different PCN for each Contravention Type and
follow the relevant timeline for that Contravention Type as set out in the relevant
business rules.
E3.1.7 R1 Mandatory

The Service Provider shall provide (as a minimum) the following PCN processing
services for the Enforcement of the Schemes dependant upon the Contravention Type
for example, Congestion Charging Scheme and LEZ Scheme PCNs do not have a
Notice to Owner issue process but the Service Provider is likely to be required to issue
and process PCNs that do have such a notice in the future:
Contravention Validation and Verification Checking (CVVC);
PCN issue, including bulk printing;
issue Enforcement Notice/Notice to Owner;
allocation of Penalty Charges/PCNs incurred by foreign Vehicles to the European
Debt Recovery Agency;
identification of Persistent Evaders, the OSE Service Provider and Bailiff action;
issue Charge Certificates;
register debts;
issue Orders for Recovery;
process Statutory Declarations;
issue Warrants of Execution to Bailiffs contracted directly by TfL;
Representation consideration;
Appeal consideration;
operate sufficient payment facilities (PCN payment via telephone, Web and post);
process Penalty Charge payments;
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operate PCN Payment and Enquiry Service;
process Enforcement correspondence;
provision of Management Information;
transfer of income collected to TfL within specified timescales;
liaise with other enforcement agencies and bodies where permissible;
liaise with the Core IT System; and
liaise with TfL.
E3.1.8 R1 FYI

The current timelines for Congestion Charging Scheme PCNs are indicated in Figure 2:
Timescales for Enforcement Action.
Figure 2: Timescales for Enforcement Action

E3.1.9 R1 Mandatory

The Service Provider shall ensure that each PCN issued or Penalty Charge raised
progresses through the relevant Enforcement stages in accordance with the PCN
processing timeline indicated in Figure 2, as detailed in E3.1.8, or as otherwise
specified by TfL from time to time (depending on the Contravention Type) until a
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Penalty Charge payment is received or the Penalty Charge is written off or cancelled.

Depending on the Contravention Type, the Service Provider shall take a number of
different Enforcement Actions at each stage of the PCN processing timeline ensuring
that processes/pathways for each Contravention Type are independent of one
another.

The Service Provider shall provide the functionality to alter the timeline for PCN
progression for each Contravention Type in accordance with TfLs instructions from
time to time, without requiring a formal Change through schedule 9: Change Control
Request Procedure. For the avoidance of doubt, the Service Provider is not authorised
to alter any PCN progression without formal TfL approval. The Service Provider shall
ensure that such changes to the PCN Processing timeline for each Contravention Type
are independent of one another.

The Service Provider shall Parameterise the Enforcement Operations System to allow
independent configuration of the timelines between each stage of PCN processing
within twenty four (24) hours of notification in writing by TfL to the Service Provider of
the required change. Any changes to the PCN Processing timeline for a Contravention
will only be applicable for PCNs issued from the effective date of such change, as
specified by TfL, and all previously issued PCNs will follow their previous timeline.
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The Service Provider shall automatically update all PCNs or Enforcement Operations
Customer Records with the appropriate Penalty Charge amount and status in
accordance with the PCN processing timeline. All such changes shall not constitute a
Change through schedule 9: Change Control Request Procedure and shall not incur
any additional cost to TfL.

For each Contravention Type, the Service Provider shall Parameterise the Penalty
Charge amounts applicable to each stage of the PCN processing timeline and their
associated surcharges. The Service Provider shall deal accordingly with any changes
to the amounts and this shall not constitute a Change through schedule 9: Change
Control Request Procedure and shall not incur any additional cost to TfL.

The Service Provider shall Parameterise the Enforcement Operations System in
accordance with the minimum time required to have elapsed at each PCN processing
stage prior to the individual case progressing to the next stage of Enforcement Action,
as agreed by TfL, the TEC and the Adjudication Service.

Where the timelines for Enforcement Action are changed by TfL (e.g. the time allowed
for Penalty Charge payment is increased from one (1) day to three (3) weeks), the
Service Provider shall process the PCN in accordance with the new timeline specified
by TfL.
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The Service Provider shall include three (3) categories of Parameter for each stage of
progression along the PCN processing timeline (such stages being PCN, Notice to
Owner (where applicable), Charge Certificate, Debt Registration, Order for Recovery
and application for Warrant of Execution). These Parameters shall include:
a service period Parameter;
an official timeline Parameter determining the time between each Enforcement
stage; and
an additional Parameter for events such as postal delay.
The relationship between each of the categories of Parameter and the PCN processing
timeline is indicated in Figure 2: Timescales for Enforcement Action set out above.

The Service Provider shall calculate the dates to be included on the PCN using the
service period Parameter. This service period shall initially be set to two (2) days but
the Service Provider shall allow for future changes to the service period.

The Service Provider shall ensure that the payment period begins upon expiry of the
initial service period.

The Service Provider shall take into account a set period to allow for any postal delay
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to all Enforcement correspondence. The currently envisaged policy is that a period of
seven (7) days shall be allowed for postal delay to all Enforcement correspondence.
The set period allowed for any postal delay is subject to change as per TfLs
guidelines.

The Service Provider shall calculate the date to be included on the PCN for when a
Representation or discounted payment is to be received by, and the date for when a
Representation or full payment is to be received by, using the formula:
date of issue +service period +discounted/full period respectively.
For example, the dates to be shown on a Congestion Charging Scheme PCN for
discounted payments, receipt of a Representation or full payment, are calculated as:
PCN issued (1st Dec) +service period (2 days) +discounted period (14 days)
discounted payment must be received by midnight on 17th December.
PCN issued (1st Dec) +service period (2 days) +full period (28 days).
Full payment must be received by midnight on 31
st
December.

The Service Provider shall ensure that Enforcement correspondence (Notice to
Owners, Charge Certificates etc) is issued automatically in accordance with prescribed
timelines following the date of issue of the PCN.

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4 RECEIPT OF CONTRAVENTION RECORDS AND PCN ISSUE
Introduction
Evidential Records for the various Contravention Types will be received from the Core
IT System and Contravention Records will be created via the Contravention Validation
and Verification Checking (CVVC) which will determine whether a Penalty Charge will
be raised. All incorrectly interpreted and poor quality Evidential Records will be
returned to the Core IT System via the Core Interface which will pass these on to the
Detection and Enforcement Infrastructure Service Provider for re-interpretation or
deletion (where relevant).
4.1 Receipt of Contravention Records
E4.1.1 R1 FYI

For the Congestion Charging Contravention Type, Registered Keeper/Person Liable
details as well as Vehicle details for Contravention Candidates will be returned from the
DVLA to the Service Provider via the Core IT System (on the next Working Day
following the deadline for Payment).
E4.1.2 R1 Mandatory

The Service Provider shall receive a Message from the Core IT System containing a
copy of the Evidential Record for each charging Contravention Candidate for the
relevant Contravention Type.
E4.1.3 R1 Mandatory

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As required, the Service Provider shall print Evidential Records in the format specified
in appendix 16: Evidential Record Template.
E4.1.4 R1 Mandatory

In respect of the Scheme(s), Data contained in the Messages shall contain five (5)
Images for each Contravention Candidate. The Images will include:
the Mono Platepatch a black and white close up Image of the Vehicle number
plate;
the Mono Contextual a black and white Image of the Vehicle;
Colour Contextual a colour Image of the Vehicle;
Colour Contextual before a colour Image of the Vehicle 0.25 seconds before the
exact time of the offence; and
Colour Contextual after a colour Image of the Vehicle 0.25 seconds after the
exact time of the offence.
E4.1.5 R1 Mandatory

The Service Provider shall be able to receive (approximately twice a Month) and store
compact disc sized WORM media (that hold the encryption keys for the Evidential
Records) from the Detection and Enforcement Infrastructure Service Provider.
E4.1.6 R1 Mandatory

The Service Provider shall store the compact disc sized WORM media received from
the Detection and Enforcement Infrastructure Service Provider in accordance with
schedule 14: Security Policy.
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E4.1.7 R1 Mandatory

The Service Provider shall allow Authorised TfL Personnel to access and retrieve
media from the store, on request by TfL.
E4.1.8 R1 Mandatory

For Schemes other than the Congestion Charging Scheme TfL anticipates that the
Service Provider will have direct Interfaces (i.e. not via the Core IT System) to the
relevant Service Providers or organisations where different levels of evidence to
support the Contraventions will be provided and stored by the Service Provider. For
example, if the Service Provider takes on the management of TfLs bus lane
Contraventions, the offences will be identified by TfLs in house TECO team and
passed to the Service Provider through a direct Interface for PCN issue and
progression.
E4.1.9 R1 Mandatory

The Service Providers System shall support multiple Interfaces for different
Contraventions and different levels of evidence to those stated for Congestion
Charging Penalty Charges. As a minimum the Service Providers Systems shall
support the receipt, storage and access to digital and analogue Images, MPEG4 video
and handwritten contemporaneous notes.

The Service Provider shall devise and implement contingency procedures to mitigate
the effects of the following:
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failure by the Core IT System to provide the list of Contravention Candidates,
Vehicle and Registered Keeper/Person Liable details or Images; and
failure of the Service Provider Interface(s) to the Core IT System which prevents the
Service Provider obtaining the list of Contravention Candidates, Vehicle and
Registered Keeper/Person Liable details and Images.

In the event of the failure of the Interface to the Core IT System, the Service Provider
shall operate fallback procedures in accordance with schedule 25: Business Continuity.

For all applicable Contraventions, the Service Provider shall create a Contravention
Record (for each VRM in the list of Contravention Candidates) which shall include the
relevant five (5) Images and the relevant Vehicle and Registered Keeper/Person Liable
information provided by the DVLA via the Core IT System.
4.2 Processing of Contravention Records
E4.2.1 R1 Mandatory

On receipt of the Data required for the Contravention Record from the Core IT System,
the Service Provider shall load the Contravention Record details onto the Enforcement
Operations System.
E4.2.2 R1 Mandatory
MIS
For each Contravention Record, the Enforcement Operations System shall have the
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flexibility to change or update the following Data fields as suitable:
VRM of the Vehicle;
make of the Vehicle*;
model of the Vehicle*;
colour of the Vehicle*;
Vehicle length*;
Registered Keeper/Person Liable for the Vehicle*;
Registered address of the Registered Keeper/Person Liable for the Vehicle*;
engine capacity of the Vehicle*;
taxation class description of the Vehicle*;
body type description of the Vehicle*;
propulsion type of the Vehicle*;
Contravention Type;
Contravention location;
Contravention date;
Contravention time;
Vehicle width*;
Response Code provided by DVLA to the Core IT System;
foreign country details*;
number of seats in the Vehicle*;
Vehicle weight*; and
Euro Standards classification*.
The Enforcement Operations System shall have the flexibility to update the Data fields
marked with an asterisk (*), as required, throughout the Enforcement Process.
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E4.2.3 R1 Mandatory
MIS
The Service Provider shall ensure that where the Data held within a Data field is
updated an audit trail for this update and the previous information held in that Data field
is available.
E4.2.4 R1 Mandatory
MIS
The Service Provider shall display the audit information with the update, including at a
minimum the following information:
username of the person who updated the Data field (if manual);
batch ID of the process that updated the Data field (if automatic);
date the update occurred;
time the update occurred; and
why the update occurred.
E4.2.5 R1 Mandatory

The Service Provider shall provide a query structure which will permit requests for
searches of the Image and Data store on one (1) or more of the following criteria:
Partial VRM;
date of Contravention;
full or part name of the Registered Keeper/Person Liable;
range of dates
full or part address of Registered Keeper/Person Liable; and
unique identifier.
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E4.2.6 R1 Mandatory

The Service Provider shall ensure that the response to the query structure for each
Evidential Record includes as a minimum:
number of matching Evidential Records;
unique identifier;
Images of the Contravention;
VRM;
status of Contravention;
time of Contravention; and
facility to view individually the matching options (if more than one (1)).
4.3 Contravention Validation and Verification Checking (CVVC)
E4.3.1 R1 FYI

The CVVC is an essential aspect of the Enforcement process. It ensures (for
Congestion Charging Scheme and other Contravention Types received via the Core IT
System) that the VRM interpreted by the NRS is correct and determines whether a
Penalty Charge should be raised, whether the VRM has been interpreted incorrectly or
another different action is required (such as tagging the interpreted VRM as a
Tampered Vehicle or Ringed Vehicle).
Failure to provide sufficient resources or adequate systems and processes to
undertake the CVVC will have serious consequences for the Service Provider and TfL.
These include:
high levels of Representations and Appeals as a result of incorrectly issued PCNs;
CCS0000140731

high levels of complaints and adverse publicity to the Service Provider and TfL;
claims for costs and expenses from Registered Keeper/Person Liable of Vehicles
issued PCNs which did not enter the Charging Zone; and
breach of obligations under the DPA due to incorrectly issued PCNs or Third Party
access to Vehicle Images.
E4.3.2 R1 Mandatory

The Service Provider shall load the Images provided by the Core IT System onto the
Enforcement Operations System upon receipt ensuring each Image accurately
matches the correct Contravention Candidate.
E4.3.3 R1 Mandatory

The Service Provider shall provide sufficient resources to undertake the CVVC.
E4.3.4 R1 Mandatory

The Service Provider shall provide a dedicated team of trained resources to perform
the CVVC.
E4.3.5 R1 Mandatory

The Service Provider shall implement and manage a supervisory structure that enables
close and regular supervision of the CVVC process.
E4.3.6 R1 Mandatory

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The Service Provider shall ensure that the Enforcement Operations System shall
present at a minimum the following information to the Service Providers CVVC
checkers for each Contravention Candidate:
VRM of the Vehicle, in large (minimum size 36) font. This must be the same VRM
interpreted by the Detection and Enforcement Infrastructure Service Provider and
sent to the DVLA;
make, model and colour of the Vehicle as provided by the DVLA for the interpreted
VRM;
Response Code provided by the DVLA;
indication (i.e. "Registered Keeper/Person Liable details present Y/N") of whether
the Registered Keeper/Person Liable details have been provided by the DVLA (not
the details themselves);
copy of the Mono Platepatch Image which should be directly above the large font
reproduction of the interpreted VRM;
copy of the Mono Contextual Image; and
access to the Colour Contextual Images via links on the main CVVC screen.
E4.3.7 R1 Mandatory

The Service Provider shall ensure that the Enforcement Operations System shall have
flexible Parameters to enable the prioritisation of Contravention Candidates for CVVC
checking (for example, all those Contravention Candidates not processed from the day
before, all those Contravention Candidates with Registered Keeper/Person Liable
details to be processed first).
E4.3.8 R1 Mandatory

The Service Provider shall undertake CVVC checking of the Contravention Records
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according to the following order of priority:
cases with the oldest Contravention date (these shall normally be cases previously
rejected by the Service Provider through the CVVC process which have been
reinterpreted by the Core IT System and returned through the Enforcement
Process);
cases from the previous Charging Day in order of Confidence Level of the Images,
where DVLA have provided Registered Keeper/Person Liable details;
cases from the previous Charging Day in order of Confidence Level of the Images,
where DVLA have not provided Registered Keeper/Person Liable details; and
cases from the previous Charging Day where DVLA have returned a non standard
Response Code.
E4.3.9 R1 Mandatory

The Service Provider shall ensure that Parameters are flexible enough to
accommodate specific requests by TfL to change the prioritisation of the Contravention
Candidates at short notice. The Service Provider shall implement such changes within
twenty four (24) hours of notification by TfL in writing (including by email). For the
avoidance of doubt the Service Provider is not permitted to make any change to the
prioritisation of the Contravention Candidates without authorisation from TfL. All such
changes shall not constitute a Change through schedule 9: Change Control Request
Procedure and shall not incur any additional cost to TfL.
MIS
The Service Provider shall provide a report by camera ID on the Images that are
rejected during the Confidence Check due to poor quality of Image.
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The Service Provider shall ensure that all rejected Images are sent back to Core IT
System (via the Core Interface) which shall pass them on to the Detection and
Enforcement Infrastructure Service Provider for re-interpretation or deletion where
relevant.
MIS
The Service Provider shall ensure that all rejected Images (sent back to the Core IT
System) are forwarded along with the reasons for rejection. The reasons for rejecting a
Contravention Candidate include but are not limited to:
no offence has occurred, e.g. a road diversion was in place at the time;
VRM has been incorrectly identified or interpreted; and
Evidential Records do not meet the requirements for Enforcement.
MIS
The Service Provider shall ensure that the CVVC checking functionality gives the
CVVC checkers the following options during the processing of Contravention
Candidates:
accept the record as a confirmed Vehicle record;
accept the record as a Ringed Vehicle record;
accept the record as a Tampered Vehicle record;
accept the record as a Diplomatic Vehicle record;
accept the record as a foreign Vehicle record;
reject the record as a partial Vehicle record;
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reject the record as a misread Vehicle record;
reject the record as a Tampered Vehicle record;
reject the record as an Image quality Vehicle record;
escalate the record to a team leader or TfLs PMA as a Ringed Vehicle record;
escalate the record to a team leader or TfLs PMA as a Tampered Vehicle record;
escalate the record to a team leader or TfLs PMA as a foreign Vehicle record; and
escalate the record to a team leader or TfLs PMA as an Image quality Vehicle
record.

For each Contravention Candidate, the Service Providers CVVC checkers shall check
that the VRM as sent to the DVLA (via the Core IT System) and presented on the
Enforcement Operations Systems CVVC screen has been correctly interpreted (using
the DVLA information provided by the Core IT System as a guide and with reference to
the CVVC procedure, which will be provided, and amended from time to time, by TfL).

The Service Provider shall ensure that the CVVC functionality includes the ability for a
User to undo a decision made in error and amend the Contravention Candidate case to
reflect the correct decision. The Service Provider shall ensure that the Enforcement
Operations System requires a User to record a decision before exiting from the
Contravention Record.

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The Service Provider shall send all CVVC checked Images through to a second CVVC
check, which shall require a different CVVC checker to undertake the CVVC check
process in order for the case to progress.

The Service Provider shall ensure that Contravention Candidates undergoing CVVC
checking do not identify at what stage of the CVVC check the Contravention Candidate
is at or the results of any previous CVVC check(s).

Where the outcome of the second CVVC check results is different to that of the first
CVVC check, the Service Provider shall escalate to a third CVVC checker (preferably a
team leader) who will have view of the different outcomes selected by the different
CVVC checkers. The third CVVC checker shall undertake the final CVVC check, based
on the differing outcomes as well as the evidence available.
MIS
The Service Provider shall record all cases where a third CVVC check is required. This
record shall include the three (3) CVVC checkers IDs and outcomes, and shall be used
for training and performance management purposes. The Service Provider shall make
this report available to TfL on request.
MIS
a real time management tool which shall provide detailed statistics regarding the CVVC
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process and workload management. The Enforcement Operations Systems
functionality shall include, but not be limited to:
total number of Contravention Candidates by Contravention Type in the CVVC
process at the start of the check and at the time of Enquiry;
total number of Contravention Candidates remaining to be checked including key
details such as the percentage of Contravention Candidates that fall into each
Response Code category;
number of Contravention Candidates checked by each CVVC checker and the
check rate of case per hour over a Parameterised time period per CVVC checker;
number of Contravention Candidates accepted or rejected through the CVVC
process and by each individual CVVC checker;
estimates of the final, completed CVVC checking totals based on the current
performance such as estimated total number of PCNs to be issued, Penalty
Charges raised and cases rejected and sent back to the Core IT System;
work management tools which provide key statistics, reports and performance Data
which provide assistance to the Service Providers management team with the day-
to-day management of the CVVC process, estimate the likely completion time of the
CVVC check each day, provide sufficient resources to complete the CVVC check
and make key decisions relating to the PCN processing services and operation; and
detailed and comprehensive end-of-day reports providing detailed breakdown of
volumes, checker performance, outcomes, trends and comparisons.
MIS
The Service Provider shall ensure that all available options in the CVVC checking
functionality will result in one (1) of the actions, as detailed in Table 1: Contravention
Candidate Actions.
Table 1: Contravention Candidate Actions
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Action Vehicle
Record Type
Result
Accept Confirmed Contravention Record updated with the Vehicle
status set to Confirmed.
Accept Ringed Contravention Record updated with the Vehicle
status set to Ringed.
Accept Tampered Contravention Record updated with the Vehicle
status set to Tampered. All notes to be stored
under Vehicle status.
Accept Diplomatic Contravention Record updated with the Vehicle
status set to Diplomatic.
Accept Foreign Contravention Record updated with the Vehicle
status set to Foreign.
Reject Partial VRM, Contravention date, Vehicle record type
and operator ID to be recorded.
Reject Misread VRM, Contravention date, Vehicle record type
Reject Tampered VRM, Contravention date, Vehicle record type
Reject Image quality VRM, Contravention date, Vehicle record type
Escalate Ringed Notes to be completed as to the reason for the
escalation and the operator ID who escalated the
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record.
Escalate Tampered Notes to be completed as to the reason for the
record.
Escalate Foreign Notes completed as to the reason for the
record.
Escalate Image Quality Notes completed as to the reason for the
record.

MIS
The Service Provider shall ensure that:
all accept actions result in an accept Message being sent to the Core IT System
with the relevant Penalty Charge number;
all reject actions result in a reject Message being sent to the Core IT System with
the relevant Vehicle Record Type; and
all escalate actions result in the record being escalated to a team leader for
processing using one of the accept or reject actions available.
MIS
Where a Contravention Candidate case is accepted, the Service Provider shall raise a
Penalty Charge and allocate a unique number to the Contravention Record using the
algorithm provided in appendix 30: TEC Code of Practice annex 6A. All Contraventions
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for other non-charging Scheme Contraventions received directly (rather than through
the Core IT System) will either:
be provided to the Service Provider with a Penalty Charge number already
generated and, therefore, will bypass the CVVC Check process and follow the
required progression timeline; or
will require the allocation of a unique Penalty Charge number using the algorithm as
provided in appendix 30: TEC Code of Practice and may require some level of
Contravention checking as specified in annex 6A. The level of pre PCN issue
checking required will be clarified with the Service Provider should TfL require the
Service Provider to manage the issue and processing of such penalties in the
future.

The Service Provider shall ensure that each Penalty Charge raised goes through a
validation process. The validation process will be in three (3) parts: the diplomatic
check, the Response Code check and the Hotlist check.

Diplomatic check:
The Service Provider shall check the VRM of each Penalty Charge raised to see if it
matches a diplomatic number plate (a plate of the format nnnDnnn or nnnXnnn (where
n is a number) or where it matches a list of diplomatic cherished number plates
provided by TfL).

If a VRM of a Penalty Charge matches a diplomatic number plate, the Enforcement
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Operations System shall update the Contravention Candidate so that the Vehicle status
is set to diplomatic.
MIS
The Enforcement Operations System shall automatically cross-reference the first three
(3) digits of the number plate or, in the case of a diplomatic cherished number plate,
the entire number plate with a table of diplomatic mission codes and the Registered
Keeper/Person Liable details, which should be empty. The Service Provider shall
update these fields with the relevant details provided for that mission by TfL.
MIS
Where a Contravention Candidate is identified as diplomatic but the Registered
Keeper/Person Liable details already exist, the Service Provider shall flag this and
escalate to TfLs PMAs for advice.

The Service Provider shall ensure that cases identified as a Diplomatic Vehicle do not
pass through the Response Code check but go through the Hotlist check.
MIS
Response code check
The Service Provider shall check the Response Code of each Penalty Charge raised
against a list of non-standard Response Codes. Where the Response Code for a
Contravention Record matches a non-standard Response Code, the Service Provider
shall follow the appropriate action. This action will be to:
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cancel the Penalty Charge with an appropriate cancellation code; or
flag the Penalty Charge so that the Vehicle and Registered Keeper/Person Liable
details are re-requested at a pre-determined time, e.g. weekly, for a pre-determined
number of occasions, e.g. four (4).

Hotlist check
The Service Provider shall ensure that all Penalty Charges, including those identified
as diplomatic or matched in the Response Code check, pass through the Hotlist check.

The Enforcement Operations System shall have a Hotlist function to filter out VRMs
accepted in the Manual Checking process which have been identified as requiring a
different course of action through other processes (such as the Representations
process). The Hotlist of VRMs will contain the dates of listing and reason for being on
the Hotlist.
MIS
The Enforcement Operations System shall allow such VRMs to be entered for any
Representation or Appeal accepted on the basis that a PCN was not applicable as
another Vehicle had been captured displaying a Tampered or copied number plate (i.e.
Tampered/Cloned Vehicle).
MIS
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The Service Provider shall flag any VRM entered onto the Hotlist with the reason why it
has been placed on the Hotlist. This shall be in the form of a code. Reasons shall
Ringed Vehicle;
Cloned Vehicle;
Tampered Vehicle;
exceptional agreement not to issue a Penalty Charge to a specific VRM;
exceptional agreement not to issue a Penalty Charge to a specific person;
exceptional agreement not to issue a Penalty Charge to a specific address or
postcode; and
TfL instruction.

On request by TfL, the Service Provider shall implement changes to the above codes
no later than within twenty four (24) hours of notification. All such changes shall not
constitute a Change through the schedule 9: Change Control Request Procedure and
shall not incur any additional cost to TfL. For the avoidance of doubt, the Service
Provider may not add, change or delete any Hotlist codes without authorisation from
TfL.
MIS
The Service Provider shall process Contravention Records which have a VRM that
matches the VRM on the Hotlist within a start and end date as per the instructions for
that particular code as agreed with TfL. These instructions shall be Parameterised and
will include, but not be limited to:
whether a Penalty Charge is raised;
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whether a PCN (if Registered Keeper/Person Liable details are available) is issued;
whether the Registered Keeper/Person Liable details provided by the Core IT
System are superseded by other details obtained from alternative sources;
whether the make/model/colour details are replaced; and
whether or not the evidence is deleted.
This is to ensure that, regardless of whether or not the Core IT System provides the
Registered Keeper/Person Liable details, any known innocent Registered
Keeper/Person Liable will not receive a PCN yet the Vehicle displaying the copy of the
VRM will be treated as a Persistent Evader and shall thus be subject to OSE action.

The Enforcement Operations System shall allow the Service Providers authorised
Personnel to add and remove VRMs to the Hotlist (on an ad-hoc basis where the VRM
is added to the Hotlist for a Parameterised time period). Such VRMs may have been
identified via other processes. The Service Provider shall provide such functionality to
TfL through the Interface to the Service Systems.

The Service Provider shall maintain the Hotlist in order to ensure accurate PCN
processing services.

For each reason code on the Hotlist, the Service Provider shall provide an option,
which may request a configurable standard letter to be sent to the Registered
Keeper/Person Liable for the Vehicle on the Hotlist. TfL will notify the Service Provider
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of codes and circumstances where such a letter will be issued rather than a penalty
and the Service Provider shall issue such letters at no cost to TfL.

The Enforcement Operations System shall have a bulk delete facility which shall allow,
only under the direction of or following consultation with named TfL Enforcement
Personnel, the bulk deletion of cases which would otherwise result in a Penalty Charge
or PCN. The current list of Authorised TfL Personnel are:
Head of Enforcement Operations;
Representations and Appeals Manager; and
Enforcement Validation and Verification Manager.
MIS
The Service Provider shall ensure that access to the bulk delete facility is strictly
controlled to the most senior members of the Service Providers management team.
The date, time and system user of each bulk deletion activity must be recorded and
provided to TfL on request.

The Service Provider shall provide automated control of the bulk deletion to TfLs
Enforcement team who are:
Head of Enforcement Operations;
Representations and Appeals Manager; and
Enforcement Validation and Verification Manager,
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via the TfL remote Interface.
MIS
The reasons and functionality for the bulk deletion facility shall be as shown in Table 2:
Bulk Delete Functionality.
Table 2: Bulk Delete Functionality
Description Deletion Parameters
Diversions into the Charging Zone during
Charging Hours as identified by TfL
The deletion of all Contravention
Candidates accepted after Manual
Checking for capture events on or
between specified dates and start/end
times for a range of camera numbers and
locations or for all cameras numbers and
locations.
Serious Security Incident The deletion of all Contravention
Checking for capture events on or
between specified dates and times.
Exceptional agreement not to issue a
Penalty Charge to a specific Vehicle.
Checking for a specific VRM.
Penalty Charge to a specific person
Checking for a specific person (e.g.
where the correct Registered
Keeper/Person Liable as provided by
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DVLA is known).
Penalty Charge to a specific address
and/or postcode
Checking for a specific address and/or
postcode.
Multiple VRM Upload The deletion of all Contravention
Checking for a number of different VRMs
for a Parameterised number of
Contravention dates. Upload would be
possible through the provision of lists of
VRMs provided to the Service Provider
in, as a minimum, CSV files and
Microsoft Excel spreadsheets.

4.4 Diplomatic Vehicles
E4.4.1 R1 Mandatory

The Service Provider shall receive the initial transfer of diplomatic country codes,
diplomatic cherished number plates and which mission they belong to from TfL. These
VRMs follow standard DVLA syntax. The Service Provider shall treat these as
Diplomatic Vehicles.
E4.4.2 R1 Mandatory
MIS
The Service Provider shall process the diplomatic country codes and diplomatic
cherished number plates supplied electronically (either by email or through transferable
media such as CD-ROM or floppy disc) by TfL in Microsoft Excel format. However, the
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Service Provider shall provide and operate the facility to receive and process this Data
should it arrive in paper format at no additional cost to TfL.
E4.4.3 R1 Mandatory

The Service Provider shall receive and impact any changes made to country codes for
Diplomatic Vehicles or diplomatic cherished number plates communicated to them by
TfL and the dates on which such changes become effective.
E4.4.4 R1 Mandatory

The Service Provider shall use the diplomatic country codes provided by TfL and any
changes as notified to them to allocate PCNs to diplomatic missions.
E4.4.5 R1 Mandatory
MIS
The Service Provider shall ensure that all Diplomatic Vehicles, including those with
diplomatic cherished number plates, are still issued PCNs but are removed from the
progression process when:
issuing Charge Certificates;
registering outstanding debts; or
classifying a Diplomatic Vehicle as a Persistent Evader.
E4.4.6 R1 Mandatory

The Service Provider shall ensure that the mechanism used to transfer diplomatic VRM
and country codes from TfL to the Service Provider and correspondence between
diplomatic missions and the Service Provider is secure.
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E4.4.7 R1 Mandatory

As diplomatic country codes are sensitive information, the Service Provider shall
ensure that access to the diplomatic country codes and other information relating to
PCNs issued to diplomatic missions is restricted and used only for Enforcement
purposes and by authorised Personnel of the Service Provider.
E4.4.8 R1 Mandatory
MIS
The Service Provider shall issue PCNs to a designated point of contact at each
diplomatic mission and international organisation, currently assumed to be the head of
administration. Should the contact change in the future, the Service Provider shall
ensure that the Enforcement Operations System is updated for future PCNs without
recourse to schedule 9: Change Control Request Procedure and at no additional cost
to TfL.
E4.4.9 R1 Mandatory

As for other Customers, the Service Provider shall ensure that diplomats have the
opportunity to pay the discounted Penalty Charge if payment is made in the Penalty
Charge payment discount period.

As for other Customers, the Service Provider shall ensure that the full Penalty Charge
applies to diplomats after the Penalty Charge payment discount period expires.
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MIS
Where an urgent reply is required from diplomats regarding a Penalty Charge, the
Service Provider shall escalate the information to TfLs PMAs.

The Service Provider shall provide an update to each diplomatic mission at the end of
each Month with a covering letter (to be approved by TfL) giving details of all their
outstanding Penalty Charges.
4.5 Foreign Vehicles
E4.5.1 R1 Mandatory

If the DVLA is able to provide details (e.g. Registered Keeper/Person Liable name and
address) of a foreign VRM in the future, the Service Provider shall issue the
corresponding PCNs in the relevant foreign language via the normal procedure for
such cases when such details are received.
E4.5.2 R1 Mandatory
MIS
In respect of cases that are identified as foreign Vehicles (excluding Northern Ireland),
the Service Provider shall:
supply a copy of the foreign Contravention Records and Evidential Records to the
European Debt Recovery Agency in accordance with appendix 27: Interface
Catalogue;
record against the Enforcement Operations System that the copy of the
Contravention Record including the Evidential Record has been passed to EDRA
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(including the date of Contravention and date of referral); and
update the Enforcement Operations System with details of payments received via
EDRA.
All payments received from EDRA will be for the full amount paid by the Customer.
E4.5.3 R1 Mandatory
MIS
The Service Provider shall provide to EDRA the following information for each identified
foreign Vehicle:
VRM;
make, model and colour of the Vehicle;
Penalty Charge number;
time of Contravention;
amount due;
location of Contravention;
any Registered Keeper/Person Liable details, if known; and
Images of the Contravention, including the Mono Platepatch, Mono Contextual and
the Colour Contextual Images.
E4.5.4 R1 Mandatory
MIS
The Service Provider shall write-off any outstanding debts for foreign Vehicles which
EDRA has been unable to recover in accordance with appendix 17: Penalty Charge
Write-off Policy.
E4.5.5 R1 Mandatory
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MIS
The Service Provider shall notify EDRA no less than seven (7) Working Days before
writing off any of the outstanding debt and closing the case.
E4.5.6 R1 Mandatory

The Service Provider shall not delete the copy of the Evidential Record for identified
foreign Vehicles that are Contravention Candidates until either:
payment is received from EDRA pursuing Penalty Charges for foreign VRMs; or
the Penalty Charge is written off in accordance with appendix 17: Penalty Charge
Write-off Policy.
E4.5.7 R1 Mandatory
MIS
automatically filter out and not issue Charge Certificates or other notices in all cases
relating to foreign Vehicles that would otherwise be due to receive a Charge Certificate.
E4.5.8 R1 Mandatory
MIS
The Service Provider shall receive electronic case status updates from EDRA on a
daily basis and shall update the relevant record accordingly.
E4.5.9 R1 Mandatory
MIS
The Service Provider shall receive (via the electronic Interface) translated
correspondence from EDRA and shall take the required action on receipt of the
correspondence and send the relevant response in English via the electronic Interface
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to translate and forward to the foreign Registered Keeper/Person Liable.
4.6 Penalty Charges and PCNs
E4.6.1 R1 Mandatory

Once a Penalty Charge has been created for a Summary Record, the Service Provider
shall process the Penalty Charge in accordance with the procedure detailed in
appendix 34: Responses to DVLA Enquires.
E4.6.2 R1 Mandatory

Where the DVLA is able to provide Registered Keeper/Person Liable details for a VRM
(which corresponds to a Contravention Candidate) via the Core IT System, the Service
Provider shall use these details to determine whether a PCN should be issued or not.
E4.6.3 R1 Mandatory

The Service Provider shall issue a PCN in accordance with the relevant business rules
to the Registered Keeper/Person Liable.
E4.6.4 R1 Mandatory

For each case, the Service Provider shall ensure that the Enforcement Operations
System shall take the VRM of the case and search for any previous Penalty Charges
for that Vehicle. If there are no previous Penalty Charges then the Service Provider
shall use the Registered Keeper/Person Liable details provided by the DVLA (via the
Core IT System) to issue a PCN.
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E4.6.5 R1 Mandatory

If there are previous Penalty Charges for the same Vehicle, the Enforcement
Operations System shall compare the Registered Keeper/Person Liable details
provided by the DVLA (via the Core IT System) for the current Penalty Charge with the
Registered Keeper/Person Liable details provided by the DVLA (via the Core IT
System) for the previous Penalty Charge.
E4.6.6 R1 Mandatory

If the details provided on both occasions are the same and the Contravention date for
the current Penalty Charge lies between the from and to date held together with the
updated Registered Keeper/Person Liable details held against the previous Penalty
Charge, then the Service Provider shall use the updated Registered Keeper/Person
Liable details held against the previous Penalty Charge to send the PCN.
E4.6.7 R1 Mandatory

If the details provided by the DVLA (via the Core IT System) for the current Penalty
Charge differ from the details provided by the DVLA (via the Core IT System) for the
previous Penalty Charge then the Service Provider shall use the details provided by the
DVLA (via the Core IT System) for the current Penalty Charge to issue the PCN.
E4.6.8 R1 Mandatory

The Service Provider shall ensure that in the event that the circumstances in the above
requirement apply, Penalty Charges progress along the same pathway as an actual
PCN in accordance with the PCN processing timeline until the Charge Certificate stage
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but does not result in the physical issuing of a written notification of the Contravention.
E4.6.9 R1 Mandatory

The Enforcement Operations System shall possess the necessary functionality
required to process both PCNs and Penalty Charges in a similar manner except where
stated.

The Enforcement Operations System shall have the functionality to update the
Registered Keeper/Person Liable details and create Penalty Charges in the same
manner as PCNs should the Registered Keeper/Person Liable details become
available via the DVLA or another source.
MIS
The Service Provider along with the User who updated the Registered Keeper/Person
Liable details shall record where the details were updated, the reason for the update
and the time and date they were updated.
MIS
Where a PCN is issued, the Service Provider shall ensure that it includes all relevant
details as provided in appendix 18: PCN Template. Any changes to the PCN template
shall be subject to TfLs prior approval.
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Each different Contravention Type will have a unique PCN template that may require
the inclusion of different coded text, Images and Data fields. The Service Provider shall
provide a unique PCN template for each Contravention Type.
MIS
Should it be required, (as is likely for the TPED Contravention Types), the Service
Provider shall ensure that the Enforcement Operations System allows the following
information to be printed on the Enforcement Notice/Notice to Owner:
date of issue of the Enforcement Notice/Notice to Owner;
name and address of the Registered Keeper/Person Liable;
VRM;
Vehicle make;
date and time of the Contravention;
location of Vehicle as shown on the camera Images;
Contravention description (ground under which the PCN is payable);
amount of the Penalty Charge payable;
date penalty payment discount period expires;
date when the Penalty Charge will increase and the Enforcement Notice/Notice to
Owner will be produced;
date when the Penalty Charge will increase further and the Charge Certificate will
be produced;
Legislation under which the PCN is issued;
contact details for payment;
contact details for Enquiries;
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contextual Image of the Contravention embedded on the PCN;
close up Image of the Contravention embedded on the PCN;
details on how to make a Representation; and
grounds for making a Representation.

For TPED Contravention Types, the list of Data fields to be printed on the Enforcement
Notice/Notice to Owner may be changed in the future as a result of legislative change,
a decision made by TfL or a recommendation made by the Adjudication Service. The
Service Provider shall comply with these changes subject to a notice period agreed
with TfL.

The Service Provider shall have the flexibility to deal with legislative changes that
eliminates a stage in the Enforcement process currently envisaged to be the
Enforcement Notice/Notice to Owner stage (for the TPED Contravention Type).

The Service Provider shall include the Mono Platepatch and Mono Contextual Images
of the Congestion Charging Scheme related penalties on the front of the PCN.

Where required, the Service Provider shall assign a unique identifying number to each
PCN to which all details regarding the Contravention, future payments and
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correspondence shall be linked.

The unique identifying number shall be in the format of a character string consisting of
two (2) alphabetic characters (different prefixes will be used for different Contravention
Types) followed by eight (8) numeric characters, e.g. "TL12345678".

The Service Provider shall create the unique identifying number using an algorithm
provided by TfL and this identifying number shall be stored in the Enforcement
Operations System.

On request by TfL, the Service Provider shall implement changes to the Charge
Payment structure or introduce new Penalty Charge prefixes for Penalty Charges
issued under different circumstances (e.g. for different offence codes and currencies)
within one (1) Month of notification. All such changes shall not constitute a Change as
indicated in schedule 9: Change Control Request Procedure and shall not incur any
additional cost to TfL. For the avoidance of doubt, the Service Provider is not
authorised to make any such changes without formal approval from TfL.
4.7 PCN Suspensions
E4.7.1 R1 Mandatory
MIS
The Service Provider shall suspend PCNs for a variety of reasons, these include but
CCS0000140731

are not limited to the receipt of:
Representation;
Appeal;
Enquiry (including informal Representations where applicable); or
request from TfL.
E4.7.2 R1 Mandatory

the functionality to suspend the progression of a PCN. This shall include the
functionality to suspend multiple PCNs for either single or multiple VRMs in one (1)
action.
E4.7.3 R1 Mandatory
MIS
record reason(s) for suspension against the PCN for the suspension, such list of
reasons being subject to TfLs approval and the Service Provider shall amend/change
the criteria for suspension within twenty four (24) hours notice (following written
authorisation from TfL). Such changes shall not constitute a Change under schedule 9:
Change Control Request Procedure and shall be at no additional cost to TfL. For the
avoidance of doubt the Service Provider shall not make any changes to the list of
reasons for suspension without authorisation from TfL.
E4.7.4 R1 Mandatory

The Service Provider shall set each suspension reason for a Parameterised period
before it is lifted. This period may be any time between one (1) day and indefinitely.
Certain categories of suspension reasons shall be for a fixed period to ensure
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consistency and these shall be subject to TfLs approval.
E4.7.5 R1 Mandatory

The Service Provider shall automatically lift certain suspensions upon completion of an
action against the PCN. This would include where a response has been sent to an
Enquiry or where payment has been received.
E4.7.6 R1 Mandatory
MIS
The Service Provider shall ensure that the suspension reasons, as agreed with TfL,
result in a System report being generated to alert the Service Provider that PCNs are
suspended and further action is required. When appropriate, the Service Provider shall
make these reports available to TfL.

CCS0000140731


5 DEBT ESCALATION AND MANAGEMENT
Introduction
Debt escalation and management encompasses pursuing payment of unpaid PCNs
and responding to any Representation or Appeal made by a Customer. Where a
Customer fails to pay and a Representation is not received, the PCN will progress
along the relevant PCN processing timeline.
Where full payment is not received within the appropriate time, debt(s) shall be
registered and a Warrant of Execution will be applied for by the Service Provider from
Northampton County Court. Once granted, the Warrant of Execution shall be issued to
Bailiffs (appointed by TfL) for recovery of the debt.
5.1 General
E5.1.1 R1 Mandatory

For the Schemes and any other PCN issue services for which the Service Provider is
responsible, the Service Provider shall be responsible for pursuing payment of unpaid
Penalty Charges and responding to any Representation or Appeal made by a
Customer. Where a Customer has not made any payment and the Service Provider
has not received a Representation, the Service Provider shall ensure that the PCN
progresses along the relevant PCN processing timeline specified by TfL. A Customer
may make a Representation to the Service Provider. Where the Service Provider is in
receipt of a Representation, it shall follow the procedures outlined in this Statement of
Requirements.
E5.1.2 R1 Mandatory
MIS
CCS0000140731

The Service Provider shall report to the On Street Enforcement Service Provider and
TfL on those Vehicles regarded as Persistent Evaders and those eligible for Bailiff
action.
5.2 Issue of Charge Certificates
E5.2.1 R1 Mandatory
MIS
automatically select all cases that are due to receive a Charge Certificate and print all
Charge Certificates on the day that they become due. The Service Provider shall
ensure that there are different Charge Certificates for each Contravention Type.
E5.2.2 R1 Mandatory

The information that will be printed on the Charge Certificates for the applicable
Penalty Charge shall include but not be limited to the following:
PCN number;
type of PCN;
date of issue of the Charge Certificate;
date of PCN issue;
date of issue of the Enforcement Notice/Notice to Owner; *
Contravention description;
name and address of the Registered Keeper/Person Liable;
Contravention code and description;
location of the Vehicle as shown on the PCN;
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VRM;
amount of the Penalty Charge, showing the percentage Penalty Charge increase;
amount of any payment received to date and the balance due; and
date of rejection of a Representation and/or the Adjudicators decision (as
appropriate).
(Note: * applies only to the TPED Contravention Type).
E5.2.3 R1 Mandatory

The Service Provider shall provide the functionality to issue different formats of Charge
Certificates with different hard coded text and Data fields depending on the
Contravention Type.
E5.2.4 R1 FYI

The current Congestion Charging Scheme Charge Certificate template is provided in
appendix 19: Charge Certificate Template.
E5.2.5 R1 Mandatory
MIS
The Charge Certificate shall include standard paragraph(s) of text based on the type of
response received from the Registered Keeper/Person Liable. There are five (5)
possible types of response:
no response received to the PCN;
Representation against a PCN rejected;
Appeal rejected by the Adjudicator;
Appeal withdrawn by the Appellant; and
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Appeal rejected by an Adjudicator following a Statutory Declaration.
E5.2.6 R1 Mandatory

TfL may request changes to any of the Charge Certificate forms for any Contravention
Type. The Service Provider shall make amendments to the Charge Certificate as
requested by TfL and this shall not constitute a Change through schedule 9: Change
Control Request Procedure and shall incur no additional cost to TfL.
E5.2.7 R1 Mandatory

For the avoidance of doubt, the Service Provider shall not make any changes to any
Enforcement documentation (including Charge Certificates) unless approved by TfL.
E5.2.8 R1 Mandatory
MIS
The Service Provider shall update the Enforcement Operations System for all cases in
receipt of a Charge Certificate, including details of the date of the Charge Certificate.
5.3 General
E5.3.1 R1 Mandatory

The Enforcement Operations System shall automatically select all cases that are due
for Debt Registration (where the Registered Keeper/Person Liable lives in England or
Wales) in accordance with the PCN processing timeline specified by TfL.
E5.3.2 R1 Mandatory

CCS0000140731

The Service Provider shall request Registered Keeper/Person Liable details from the
DVLA via the Core IT System.
E5.3.3 R1 Mandatory
MIS
Upon receipt of the Registered Keeper/Person Liable details, the Service Provider shall
match them against the current Registered Keeper/Person Liable details for that
Penalty Charge. If the details match then the Service Provider shall flag the Penalty
Charge as a candidate for Debt Registration. If the details do not match then these
cases shall be flagged for investigation.
The Service Provider shall ensure that the investigation (in accordance with business
rules to be provided by TfL) identifies whether the Penalty Charge can proceed for
Debt Registration, be cancelled with an appropriate reason code or have the
Registered Keeper/Person Liable details updated and the PCN re-issued.
E5.3.4 R1 Mandatory
MIS
The Service Provider shall notify TfL of any cases that become due for Debt
Registration where the Registered Keeper/Person Liable does not live in England or
Wales as non-standard debts.
E5.3.5 R1 Mandatory

The Service Provider shall reproduce non-standard debts in a file for transfer to a Third
Party for processing. The file shall contain, at minimum, the following information:
VRM;
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details of all events;
Registered Keeper/Person Liable details; and
Vehicle details.
E5.3.6 R1 Mandatory
MIS
The Service Provider shall send all cases due for Debt Registration in England or
Wales to the TEC on the day they become due as detailed in appendix 27: Interface
Catalogue.
E5.3.7 R1 Mandatory

For some non-charging related Contravention Types as identified by the Contravention
Type, the Service Provider shall ensure the TEC Debt Registration record sent to the
TEC contains the offence code (indicating nature of breach of regulations).
E5.3.8 R1 Mandatory

In the event of the failure of the link to the TEC, the Service Provider shall follow the
Business Continuity/failover guidelines as detailed in appendix 32: Enforcement
Interface Failover Thresholds.
E5.3.9 R1 Mandatory
MIS
The Service Provider shall have the ability to manually batch transfer to a nominated
Third Party nominated by TfL the penalty and Registered Keeper/Person Liables
details where the Registered Keeper/Person Liable resides in the United Kingdom but
outside of England and Wales or in another Member State. Upon TfLs request, the
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Service Provider shall send some or all of the Registered Keeper/Person Liable (where
they reside in the UK but outside England and Wales) details to TfL and to TfLs
recovery agents.

The Service Provider shall provide a dedicated email address and fax machine solely
for communications with the TEC. In the event that this fax machine is not operational,
the Service Provider shall immediately divert communications to its standard fax
number.

The Service Provider shall ensure that all its communications with the TEC are made in
accordance with the TEC Code of Practice as specified in appendix 30: TEC Code of
Practice.
5.4 Issue of Orders for Recovery
E5.4.1 R1 Mandatory
MIS
The Service Provider shall receive from the TEC a sealed authority to issue an Order
for Recovery for unpaid PCNs within two (2) Working Days of the Debt Registration
request.
E5.4.2 R1 Mandatory

The Service Provider shall ensure that there are different Order for Recovery templates
for each Contravention Type. The current Congestion Charging Order for Recovery
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template is provided in appendix 20: Order for Recovery Template.
E5.4.3 R1 Mandatory
MIS
When notification is received by the Service Provider from the TEC confirming authority
for the recovery of an unpaid PCN, the Service Provider shall update the Enforcement
Operations System with the relevant details on the day of receipt.
E5.4.4 R1 Mandatory
MIS
The TEC will list those cases by exceptions, which have not been accepted for Debt
Registration. The Service Provider shall remove any exceptions from the batch before
the remainder of cases in the batch are accepted for processing. If no exceptions are
listed, the Service Provider may accept the whole batch for processing.
E5.4.5 R1 Mandatory
MIS
The Service Provider shall correct any errors returned in a batch from the TEC and
send them back to the TEC for registration by 9.30am at the latest on the day following
receipt of the batch.
E5.4.6 R1 Mandatory
MIS
If the TEC rejects the complete batch, the Service Provider shall determine the error,
take the appropriate actions to resolve it and resend the batch by 9.30am at the latest
on the day following receipt of the rejected batch. The Service Provider shall ensure
that this conforms to specified timescales agreed with by TfL.
E5.4.7 R1 Mandatory
CCS0000140731

MIS
The Service Provider shall be entirely responsible for payment of the required
registration fee per record to the TEC and this shall be incorporated in a Monthly
Invoice submitted by the Service Provider to TfL.
E5.4.8 R1 Mandatory

The Service Provider shall deposit a sum of two hundred and fifty thousand pounds
(250,000) in a dedicated account and maintain an initial minimum amount of eighty
thousand pounds (80,000) in such account to ensure that timely payments are made
to the TEC for registration fees payable. Such minimum balance may vary over time
and the Service Provider shall remain entirely responsible for ensuring that sufficient
funds are available for payment of Debt Registration fees.
E5.4.9 R1 Mandatory
MIS
The Service Provider shall print all Orders for Recovery on the day of receipt of
authority from the TEC except for the following cases:
where full payment has been received since the request for Debt Registration; or
where the PCN has been suspended pending further action.

The Service Provider shall ensure that information to be printed on the Orders for
Recovery shall include all Data as specified in the TEC Code of Practice. Currently this
includes:
applicable PCN number, which may additionally be printed as a bar code;
date of issue of the Order for Recovery;
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date of PCN issued;
location of Vehicle as shown on the PCN;
VRM;
date of Charge Certificate issued;
amount of the Penalty Charge, plus Debt Registration fee;
amount of any payment received to date and the balance due; and
date of Debt Registration at the TEC.

The Service Provider shall update its Systems, processes and Documentation in order
to match any changes/updates to the TEC Code of Practice at no additional cost to TfL.

The Service Provider shall print a separate Statutory Declaration form for inclusion with
the Order for Recovery in accordance with appendix 21: Statutory Declaration
Template. The Service Provider shall ensure that the form complies with the TEC Code
of Practice.
5.5 Receipt of Statutory Declarations
E5.5.1 R1 Mandatory
MIS
The TEC receives Statutory Declarations as shown in appendix 21: Statutory
Declaration Template and forwards to the Service Provider copies of all valid Statutory
Declarations received. If the TEC accepts the Statutory Declaration as valid, it sends a
CCS0000140731

notice of revocation to the Registered Keeper/Person Liable and to the Service
Provider. In such cases, the Service Provider shall update the Enforcement Operations
System to suspend further debt recovery processing on the case.
E5.5.2 R1 Mandatory

Where any relevant details are missing on the notice of revocation sent by the TEC, the
Service Provider shall contact the TEC on the same day to obtain the missing details.
E5.5.3 R1 Mandatory

The Service Provider shall process Statutory Declarations made because the PCN was
not received by cancelling the Order for Recovery, Charge Certificate and the
Enforcement Notice/Notice to the Owner (for the TPED Contravention Type).
E5.5.4 R1 Mandatory
MIS
The Service Provider shall update Registered Keeper/Person Liable details to reflect
the correct Registered Keeper/Person Liable address.
E5.5.5 R1 Mandatory
MIS
The Service Provider shall issue a new PCN by recorded delivery to the correct
Registered Keeper/Person Liable with the same Contravention details printed as on the
original PCN. PCNs issued in such situations shall be at the start of the PCN
processing timeline (start of discount period).
CCS0000140731

E5.5.6 R1 Mandatory
MIS
On receipt of a Statutory Declaration made on the following grounds:
Representation made to TfL, but a Notice of Rejection has not been received; or
Appeal lodged with the Adjudication Service, but a response has not been received,
Authorised Personnel of the Service Provider shall be responsible for making the
decision whether or not to refer the case to the Adjudication Service based on the
Representations and Appeals requirements as indicated in this Statement of
Requirements and/or any additional information provided with the Statutory
Declaration. If the Service Provider is in any doubt, the case shall be referred to TfLs
PMAs or to TfL for advice.
E5.5.7 R1 Mandatory
MIS
Where a Statutory Declaration is referred to the Adjudication Service, the Service
Provider shall collate a Statutory Declaration Appeal Pack (containing all relevant
evidence relating to the history of the PCN with TfLs case and recommendation) with
any additional supporting evidence, including all other relevant incoming and Outgoing
Correspondence.
E5.5.8 R1 Mandatory

The Service Provider shall send the Appeal Pack to the Adjudication Service in
accordance with the following:
all relevant requirements and Service Levels as detailed in schedule 5: Service
Level Agreement for standard Appeals processing; and
appendix 27: Interface Catalogue.
CCS0000140731

E5.5.9 R1 Mandatory

The Service Provider shall handle all subsequent Information, correspondence and
directions related to the Statutory Declaration according to the relevant requirements
stipulated for in time Appeal handling.
MIS
The Service Provider shall record the number of Statutory Declarations made by a
particular Customer as well as the number of Statutory Declarations made against
each PCN.

The Service Provider shall flag to TfLs authorised officers all cases where more than
three (3) Statutory Declarations have been received from the same Registered
Keeper/Person Liable or relating to the same PCN. The Service Provider should still
continue to process the Statutory Declaration in accordance with the relevant
requirements.

On receipt of a notice from the TEC that a Statutory Declaration has been made and
accepted, the Service Provider shall ensure that a false Statutory Declaration has not
been made by checking, as a minimum, the following for each Statutory Declaration
made and accepted:
whether a Representation or Enquiry was made against the original PCN by the
same person making the Statutory Declaration;
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whether correspondence from the person making the Statutory Declaration has
been received by TfL; and
whether an application (successful or otherwise) for a Discount or Exemption has
been made in the past.

The Service Provider shall consult with TfL to ascertain whether there is any further
evidence, which supports the process for determining whether a potentially false
Statutory Declaration has been made.
MIS
If there is suspicion that a potentially false Statutory Declaration has been made, the
Service Provider shall pass the case to TfL's authorised officer(s) dealing with Statutory
Declarations to make a decision concerning any further action(s). This shall be a
separate process from the recovery of the PCN.

The Service Provider shall process the PCN in accordance with the instructions from
the TEC, which is dependent upon the grounds under which the Statutory Declaration
has been accepted. If further action is to be taken against the Registered
Keeper/Person Liable for making a potentially false Statutory Declaration, then it shall
be for TfL to take this action at its discretion.
MIS
CCS0000140731

If there is evidence to demonstrate that a potentially false Statutory Declaration has
been made or that the Registered Keeper/Person Liable for the Vehicle is using the
Statutory Declaration process for the purpose of evading PCN payment and debt
recovery, the Service Provider shall prepare and submit to TfLs authorised officer a
Case File for consideration and action.
MIS
The Case File shall include but not be limited to the following:
details of the Registered Keeper/Person Liable;
number of PCNs outstanding;
number and details of Statutory Declaration(s) received against the PCNs; and
reasons why the Statutory Declaration(s) is/are suspected to be false.

The Case File shall include details of all relevant evidence supporting the suspicion
that the Statutory Declaration is potentially false such as:
copies of incoming and Outgoing Correspondence from the Registered
Keeper/Person Liable,
copy of a rejected application for a Discount or Exemption made by the Registered
Keeper/Person Liable; and
any other relevant information.
5.6 Out of Time Statutory Declarations
E5.6.1 R1 Mandatory

CCS0000140731

The Service Provider shall receive and process applications for Out of Time Statutory
Declarations from the TEC.
E5.6.2 R1 Mandatory
MIS
The Service Provider shall receive from the TEC via post, the reason for the
application being late forms (currently PE2) and the grounds for Statutory Declaration
forms (currently PE3) that are associated with each PCN, as well as the summary
sheet on Out of Time Statutory Declarations.
E5.6.3 R1 Mandatory
MIS
On receipt of an email from the TEC with the summary sheet on Out of Time Statutory
Declarations, the Service Provider shall suspend further Debt Recovery action(s) on
the PCN and update the Enforcement Operations System to include the relevant
details. The relevant details shall include but are not limited to the following:
Customer names;
Bailiff details; and
TEC response date.
E5.6.4 R1 Mandatory

The Service Provider shall challenge all applications to make Out of Time Statutory
Declarations with the exception of those detailed in the Out of Time/N244 business
rules.
E5.6.5 R1 Mandatory

CCS0000140731

The Service Provider shall investigate the PCNs for which an Out of Time Statutory
Declaration has been made and shall suspend the progression of the PCN.
E5.6.6 R1 Mandatory

Where the PCN is subject to Bailiff action and an Out of Time Statutory Declaration has
been received, the Service Provider shall liaise (by telephone and email) with the
relevant Bailiff on the same Working Day and inform them to suspend action on
pursuing the debt(s) subject to a decision on the Out of Time Statutory Declaration
application.
E5.6.7 R1 Mandatory

The Service Provider shall respond to the TEC stating whether it will oppose or accept
the Out of Time Statutory Declaration application. The Service Provider shall respond
within the timeline specified in appendix 30: TEC Code of Practice.
E5.6.8 R1 Mandatory
MIS
The Service Provider shall view the reasons as to why the Statutory Declaration is late,
make a decision as to whether or not the application should be challenged, and update
the Enforcement Operations System to reflect the decision taken.
E5.6.9 R1 Mandatory
MIS
The Service Provider shall inform the TEC of the decision to challenge or accept the
reasons for the Out of Time Statutory Declaration within fourteen (14) days of receipt of
the email notification of the Out of Time Statutory Declaration from the TEC.
CCS0000140731

MIS
Where the Service Provider considers the reason for late submission of Out of Time
Statutory Declaration to be unacceptable, it shall challenge the application. The Service
Provider shall produce a Statement of Truth, which consists of history of the PCN and
reasons why the application should be refused.
MIS
Alongside the Statement of Truth, the Service Provider shall produce a Challenge
Pack, which consists of documents sent from the Service Provider to the Customer and
details of the PCN history.
MIS
The Service Provider shall complete and shall send the Challenge Pack to the TEC.

The Service Provider shall update the Enforcement Operations System to reflect the
actions taken and the Challenge Pack created.

Where the decision was made to challenge the application, the case shall be heard by
a district judge. The judges decision shall be sent to the Service Provider via the TEC.
CCS0000140731

MIS
Where the district judges decision accepts the Out of Time Statutory Declaration
application, the TEC will issue a revoking order to cancel out the Warrant of
Execution/Order of Recovery and Charge Certificate. On receipt of the revoking order,
the Service Provider shall cease Bailiff activity completely for the PCNs in question.

The Service Provider shall comply with the requirements of the revoking order.

Where a decision to accept the Out of Time Statutory Declaration application is made
and the TEC is notified, the Service Provider shall keep the case suspended until the
revoking order is received.
MIS
Where the district judges decision accepts the Out of Time Statutory Declaration
application, the Service Provider shall update the Enforcement Operations System.
The update shall reflect the outcome as well as when it was received. The TEC shall
process the Out of Time Statutory Declaration as if it were made in time. The Service
Provider shall then treat this as an in-time Statutory Declaration and shall process it
accordingly.
MIS
CCS0000140731

Where the district judges decision refuses the Out of Time Statutory Declaration
application, there shall be no revoking order. The Service Provider shall update the
Enforcement Operations System to reflect this decision upon notification of the same
by the TEC.
MIS
Once twenty one (21) days has passed after the district judges decision to refuse the
Out of Time Statutory Declaration application and no further correspondence has been
received, the Service Provider shall un-suspend the PCN. This PCN shall then be
active and shall continue progressing from its previous state.
MIS
After un-suspending the PCN due to the district judges decision to refuse the Out of
Time Statutory Declaration application, the Service Provider shall contact the relevant
Bailiff and instruct them to proceed with debt collection.
MIS
Where no revoking order has been issued, the Warrant of Execution remains in effect
and should payment for the PCN be received by the Bailiff whilst the case has been
suspended, the Service Provider shall update the Enforcement Operations System to
reflect the receipt of the payment.

Once the district judges decision has been communicated, both TfL and the applicant
have the right to Appeal against this decision using a N244 Application. The Service
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Provider shall provide TfL with all Documents to support or challenge any such
application.
E5.6.24 R1 FYI
MIS
If the district judge rejects an Out of Time Statutory Declaration application, the
decision shall be sent to the applicant, together with an N244 Application form. If the
applicant appeals using the N244 Application form, the TEC shall inform the Service
Provider via post that they have received a completed N244 Application.
MIS
On receipt of the notification from the TEC, the Service Provider shall update the
relevant PCN on the Enforcement Operations System to indicate that a N244
Application has been received. If the PCN is not suspended, then the Service Provider
shall suspend the PCN and add a note indicating why the PCN has been suspended
and the date the N244 Application was received.
MIS
The county court (on receipt of the N244 Application from the TEC) notifies the Service
Provider by post of a hearing date for the N244 Application. The Service Provider shall
update the Enforcement Operations System with the hearing date and time and details
of the county court at which the hearing is scheduled.
MIS
The Service Provider shall update the Enforcement Operations System on the decision
to challenge or to accept the N244 Application.
CCS0000140731

MIS
Where the Service Provider reasonably believes the decision to reject the Out of Time
Statutory Declaration application was correct, it shall challenge the N244 Application.
The Service Provider shall print the Challenge Pack that was originally used for
challenging the Out of Time Statutory Declaration application.
MIS
The Service Provider shall send two (2) copies of the Challenge Pack (one (1) for the
county court and one (1) for the applicant) with appropriate covering letters, to be
agreed with TfL, at least three (3) days prior to the hearing date.
MIS
Where the Service Provider reasonably believes that the decision to refuse the Out of
Time Statutory Declaration application was incorrect or additional information has been
received, the Service Provider shall accept the N244 Application. The decision to
accept shall be sent by the Service Provider to the applicant and the county court at
least three (3) days prior to the hearing date.
MIS
On receipt of the N244 Application outcome (based on hearing by district judge from
the county court), the Service Provider shall review the outcome to determine whether
the applicant has been awarded costs. The Service Provider shall update the
Enforcement Operations System to show whether costs have been awarded or not.
Where costs are awarded, the Service Provider shall update the Enforcement
CCS0000140731

Operations System to show the amount awarded.
MIS
Where costs have been awarded, the Service Provider shall normally meet any costs
awarded against TfL or agreed settlement but may make representations to TfL if it
considers that any costs are unreasonable. The decision of TfLs authorised officer
shall be final in all cases. The Service Provider shall make all cost payments within
forty eight (48) hours of notification.
MIS
If the district judge rules that the applicant has the right to make a Statutory Declaration
and hence accepts the N244 Application, the Service Provider shall contact the TEC
and send a copy of the outcome from the N244 hearing to the TEC.
MIS
If the district judge rules that the applicant has no right to make a Statutory Declaration
and hence rejects the N244 Application, the Service Provider shall update the
Enforcement Operations System to reflect the judges decision. The Service Provider
shall un-suspend the PCN on the Enforcement Operations System and continue
processing it from its previous status.
MIS
On receipt of a revoking order on the N244 Application from the TEC via post, the
Service Provider shall update the Enforcement Operations System to reflect that a
revoking order has been received. The PCN case record shall be updated to record
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receipt of the order on the Enforcement Operations System as an in-time Statutory
Declaration.
MIS
Where a revoking order has been received because of an Out of Time Statutory
Declaration or a N244 Application, the Service Provider shall liaise with the relevant
Bailiff by telephone on the same Working Day to have the Warrant of Execution
returned for cancellation.
MIS
The Service Provider shall refund any costs associated with the Enforcement of the
Warrant of Execution already paid to the Bailiff by the applicant in accordance with the
Out of Time/N244 business rules provided by TfL. The Service Provider shall ensure
that the refund is of the form of a single payment made by cheque for the total amount
collected. The Service Provider shall send the refund with a covering letter to the
applicant.
MIS
The Service Provider shall send the Bailiffs electronic confirmation of the actions on a
Warrant of Execution in accordance with appendix 23: Warrants of Execution.
MIS
Where the Service Provider is required to refund Bailiff fees collected, it may apply to
TfL for the reimbursement of these costs, in accordance with the Out of Time/N244
business rules provided by TfL. The decision of TfLs authorised officer shall be final in
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these cases.
5.7 Issue of Bailiff Warrants of Execution to Bailiffs
E5.7.1 R1 Mandatory
MIS
The Service Provider shall apply to the TEC for a Warrant of Execution to recover the
debt if the following conditions are met:
full payment of the Penalty Charge is not received within the required time period
(currently within thirty eight (38) days of the date of service of the Order for
Recovery plus any days during suspension);
the PCN is not suspended; and
no Statutory Declaration has been made, extension applied for or payment
received.
E5.7.2 R1 Mandatory
MIS
In processing cases for Warrants of Executions, the Service Provider shall follow a
similar process to that of Debt Registration.
E5.7.3 R1 Mandatory
MIS
The Service Provider shall ensure that the Enforcement Operations System
automatically selects all cases that are due for Warrant of Execution requests in
accordance with the PCN processing timeline where the Registered Keeper/Person
Liable lives in England or Wales.
E5.7.4 R1 Mandatory
MIS
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The Service Provider shall send all such cases to the TEC on the day they become due
via a Data communications link as detailed in appendix 30: TEC Code of Practice.
E5.7.5 R1 Mandatory
MIS
In the event of the failure of Data communications link to the TEC, the Service Provider
shall follow the Business Continuity guidelines as detailed in appendix 32: Enforcement
Interface Failover Thresholds.
E5.7.6 R1 Mandatory
MIS
The Service Provider shall submit only one (1) batch of requests for Warrants of
Execution in any one (1) day.
E5.7.7 R1 Mandatory
MIS
The Service Provider shall ensure that the batch of Warrants of Execution requests is
accompanied with a Global Certificate of Registration adhering to the TEC Code of
Practice and satisfying the following criteria:
twenty one (21) days have elapsed since the service of the registration order;
full payment has not been made;
no Statutory Declaration has been filed;
no time extension has been approved; and
Registered Keeper/Person Liable lives in England or Wales.
E5.7.8 R1 Mandatory
MIS
CCS0000140731

The Service Providers authorised Personnel shall sign the Global Certificates of
Registration.
E5.7.9 R1 Mandatory
MIS
The Service Provider shall send a hard copy of the Global Certificate of Registration to
the TEC by first class post. The Service Provider shall fax or email the Global
Certificates of Registration in addition to this.
MIS
When authorisation is received from the TEC confirming acceptance of the batch, the
Service Provider shall update the Enforcement Operations System on the day of
receipt with the relevant details relating to the Warrants of Execution. This shall confirm
all Debt Registrations and Warrant of Execution applications accepted and list cases by
exception that have not been accepted.
MIS
The TEC may accept the whole batch if there are no exceptions. The Service Provider
shall remove any exceptions from the batch before the remainder of cases in the batch
are accepted for processing. An exception error occurs when one of the following is
found not to be true:
all the necessary information has been provided;
all the validation rules have been obeyed;
number used for each Penalty Charge is unique; and
suffixes are used strictly in ascending order.
Where validation or procedural errors exceed ten (10) per batch, the TEC will reject the
CCS0000140731

batch.
MIS
The Service Provider shall correct any errors returned in a batch from the TEC and
send them back to the TEC for registration by 10am at the latest on the day following
receipt of the rejected batch. Failure to do this within the required timescale shall result
in the issuing of Service Failure Deductions for late batch submission against the
Service Provider.
MIS
The Service Provider shall produce a batch of Warrant of Execution Data for each
Bailiff to be transferred electronically as per appendix 27: Interface Catalogue. In the
event of the Interface failing, the Service Provider shall produce the electronic file on a
CD-ROM and despatch to the relevant Bailiff by courier in accordance with the
Interface Specification.
MIS
automatically update the record to show the file number, batch number and creation
date of the Warrant of Execution request.

The Service Provider shall ensure that the Warrant of Execution transferred to the
Bailiff shall include, but not be limited to, the following Data:
CCS0000140731

name and address of Registered Keeper/Person Liable;
PCN number;
location of Vehicle as shown on the PCN;
Contravention code and description;
VRM;
amount of the Penalty Charge, plus the Debt Registration fee;
amount of any payment received to date and the outstanding balance;
date of Debt Registration at the TEC;
date and time of request to issue the Warrant of Execution; and
date and time of authorisation of the Warrant of Execution,
as specified in appendix 23: Warrant of Execution Template.
MIS
The Service Provider shall allocate the Warrants of Execution to Bailiffs, in accordance
with the guidelines provided by TfL. TfL employs the services of more than one (1)
Bailiff company and the Warrants of Execution shall be split by the Service Provider
amongst these Bailiff companies. The Service Provider shall be able to accommodate
up to ten (10) Bailiff companies.
MIS
The Service Provider shall ensure that the Enforcement Operations System shall list
the Bailiff companies responsible for each Warrant of Execution in respect of each
individual PCN.
CCS0000140731


At the direction of TfL, the Service Provider shall alter the allocation of the debt
recovery services, i.e. increase the allocation to one Bailiff or decrease another
depending on factors, such as the performance of the Bailiff companies. Alternatively
the Service Provider may be required by TfL to cease issuing Warrants of Execution
altogether to a Bailiff company or be required to issue Warrants of Execution to
additional or replacement Bailiffs determined by TfL, as notified to the Service Provider
in writing. Such changes shall not constitute a Change through schedule 9: Change
Control Request Procedure and shall not incur any additional cost to TfL.

allocate work according to the VRM and/or the postcode. Therefore a Vehicle with
more than one (1) PCN should not have more than one (1) Bailiff company assigned to
collect the debt.
MIS
Where daily updates are received from the Bailiffs in accordance with appendix 27:
Interface Catalogue, the Service Provider shall take the appropriate action and update
its Enforcement Operations System to reflect the update. This shall include the
following actions:
suspension code;
returned reason codes; and
paid code (pending official receipt of money from Bailiff).
CCS0000140731


The Service Provider shall interface with the Bailiff firms by phone, fax, and CD-ROM in
the case of any outage of the electronic Interface with the Bailiff firms in accordance
with appendix 27: Interface Catalogue. The Service Provider shall also provide a
dedicated fax, email, and telephone line for communication with the Bailiffs during all
operational hours.
MIS
The Service Provider shall receive and process PCN cancellation requests and Bailiff
retractions originating from TfL in accordance with appendix 27: Interface Catalogue.
MIS
The Service Provider shall provide a daily transfer of information to each Bailiff, pass
Warrant of Execution information to the Bailiffs and receive Data regarding the
progression of those Warrants of Executions and/or new Registered Keeper/Person
Liable details obtained by the Bailiffs in accordance with appendix 27: Interface
Catalogue.

The Service Provider shall provide a dedicated resource for all communications with
Bailiffs, including Bailiff queries and escalations as well as the logging, reporting and
timely resolution of such communications.
CCS0000140731

5.8 Representation Consideration
E5.8.1 R1 Mandatory
MIS
Upon receipt of a Representation, the Service Provider shall:
record receipt of the Representation on the Enforcement Operations System;
record the grounds and reason code for the Representation against the appropriate
unique PCN number;
immediately suspend the PCN processing timeline;
check that the address details are the same as those for the Registered
Keeper/Person Liable; and
consider the date of receipt and follow the appropriate actions.
E5.8.2 R1 Mandatory
MIS
Since the grounds will vary according to Contravention Type, the Service Provider shall
provide flexible Parameterisation for considering Representations.
E5.8.3
MIS R1 Mandatory
Upon receipt of all Representations from a Third Party, the Service Provider shall follow
the process outlined by the business rules (for the particular Penalty Charge) as
detailed in appendix 24: Criteria for Dealing with Representations.
E5.8.4 R1 Mandatory
MIS
Upon receipt of a Representation where the Registered Keeper/Person Liable indicates
CCS0000140731

that that person has moved address, the Service Provider shall update the
Enforcement Operations System with the new address details, provided all the
requirements in the business rules are met.
E5.8.5 R1 Mandatory

Figure 3: Representation Progression Timeline for Congestion Charging related
Representations:
Four (4) days grace has been allowed for the serving of documents i.e. the PCN,
Charge Certificate, Order for Recovery, Notice of Rejection, Notice of Acceptance and
Statutory Declaration and three (3) days for the Registered Keeper/Person Liable.
* The TEC states that twenty one (21) days have to elapse between issue of Charge
Certificate and application for Debt Registration and thirty six (36) days have to elapse
between the registration of the debt and the application of the Warrant of Execution.
The Adjudication Service allow an extra seven (7) days for the receipt of the Notice of
Acceptance, giving a total of thirty five (35) days. An extra day has been added to allow
for the notification to be received from the Adjudication Service.
E5.8.6 R1 Mandatory

For Representations received within the required timeframe, the Service Provider shall
take the appropriate action as indicated by figure 4: Current Representation Process
Flow for Congestion Charging Representations and appendix 24: Criteria for Dealing
CCS0000140731

with Representations. These rules and processes are subject to amendment by TfL
who shall be entitled to review such rules on a regular basis.
E5.8.7 R1 Mandatory

Figure 4: Current Representation Process Flow for Congestion Charging
Representations:
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CCS0000140731

E5.8.8 R1 Mandatory
MIS
The Service Provider shall flag all Representations received outside of the allocated
time as late and take the appropriate action in accordance with appendix 24: Criteria
for Dealing with Representations.
E5.8.9 R1 Mandatory
MIS
The Service Provider shall ensure that the Enforcement Operations System shall allow
Representations received after a Parameterised time period as specified by TfL from
time to time to be registered as a Representation.

The Service Provider shall process all Representations in accordance with appendix
24: Criteria for Dealing with Representations.

The Service Provider shall provide adequate system functionality and processes to
ensure that when receipt of the Representation is recorded, the Enforcement
Operations System automatically advises the Operative of all previous PCN history
details and Discount applications for the same VRM or Customer Record where
Registered Keeper/Person Liable details are the same.
MIS
CCS0000140731

The Service Provider shall ensure that all Operatives are required to view all PCN
history details and confirm this prior to consideration of the Representation.
MIS
produce correspondence in response to a Representation covering multiple PCNs for
the Schemes.
MIS
The Service Provider shall ensure that the Enforcement Operations System is able to:
associate one Representation through one action against many PCNs for the same
VRM;
cancel or progress many PCNs against one (1) VRM through systematic processing
of associated groups depending on the outcome of the Representation;
produce one Notice of Rejection, Notice of Acceptance or Appeal Pack in relation to
multiple PCNs for the same VRM. In cases where the Representation is rejected,
then the Notice of Rejection must make reference to different payment amounts if
applicable (e.g. one (1) PCN may require payment of fifty pounds (50) whereas
another may require payment of one hundred pounds (100)); and
retrieve, view and print all relevant incoming and outgoing Documents from any of
the PCNs to which it refers.

The Service Provider shall ensure visibility and access to historical record details by
the Operative at all times during the Representation consideration process. The
CCS0000140731

Service Provider shall ensure that this visibility access ensures that consistency is
applied to decisions when responding to the Representation or Appeal and that
previous acceptance/non-contest reasons (e.g. where the recipient of the PCN was
advised that no further Representation against PCNs issued in similar circumstances
would be accepted) are taken into account.

Where Representations are made against a single PCN, the Service Provider shall
ensure visibility and access to Operatives to other active PCNs on the Enforcement
Operations System to which the Representation does not refer but which, under the
circumstances raised in the Representation, should be considered at the same time.
For example, a Representation made because an annual Charge Payment was paid
shall be made against one (1) PCN but, on review, the Service Provider may discover
that additional PCNs have been issued to the same Vehicle since the Representation
was written. In such cases, the Service Provider shall consider all PCNs with the
Representation and cancel all relevant PCNs if the Representation is accepted.
MIS
The Service Provider shall be responsible for reporting back certain operational Data to
the Core IT System on a regular basis to be defined by TfL. This shall include, but not
be limited to, a detailed breakdown of the reason codes for Representations made by
Customers, including the identification of Cloned/Ringed/Tampered Vehicles.
MIS
The Service Provider shall add Ringed/Cloned/Tampered Vehicles identified through
CCS0000140731

the Representations process to the Hotlist.

Where any correspondence received in response to a PCN is not a valid
Representation or, in the case of some Contravention Types is an informal
Representation before issue of a Notice to Owner (e.g. a Representation not received
within the proper timescales), the Service Provider shall immediately suspend the PCN
processing timeline for this PCN until the Service Provider has carefully considered and
investigated the correspondence in accordance with the guidelines. Following this
review the PCN shall then either be cancelled or the suspension removed and the PCN
allowed to progress as normal.

The Service Provider shall operate the Representation process in accordance with the
relevant Legislation in relation to each Contravention Type in force and processed by
the Service Provider at that time.

If the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001,
Road User Charging (Charges and Penalty Charges) Regulations 2001 and/or the
applicable (or other relevant Legislation relevant to other Contraventions processed by
the Service Provider) is amended or if any precedent is set through Complaints,
Representation, Appeals procedures, or court action, then the Service Provider shall
implement Changes required through schedule 9: Change Control Request Procedure
as further set out in the following provisions of this Statement of Requirements.
CCS0000140731


When processing Representations, the Service Provider shall explore all relevant
avenues of investigation including enquiring against the Core IT System in line with
appendix 27: Interface Catalogue and fully investigating all claims made by the
Registered Keeper/Person Liable.

The Service Provider shall validate the accuracy and completeness of any address
given for a new owner or Registered Keeper/Person Liable using relevant industry tools
(e.g. post code checker, credit reference agency, on-line DVLA enquiry etc.). The
Service Provider shall ensure that the provided Registered Keeper/Person Liable is
legitimate and the PCN can be re-issued to a full Registered Keeper/Person Liable and
address.

The Service Provider shall train all Personnel undertaking Representations processing
in the relevant business rules for processing Representations under each relevant
Contravention Type and shall not deviate from the rules without prior written authority
from TfL or one of its authorised officers.

The Service Provider shall ensure that Operatives have a copy of the relevant business
rules for processing Representations relevant to each Contravention available to them
electronically at all times whilst processing Representations.
CCS0000140731


The Service Provider shall add, remove, amend and change any grounds or reason
codes outlined in each of the business rules for processing Representations within
twenty four (24) hours notice following written authorisation from TfL without recourse
to schedule 9: Change Control Request Procedure and at no additional cost to TfL. For
the avoidance of doubt, the Service Provider shall not make any changes to the
business rules without authorisation from TfL.
MIS
The Service Provider shall escalate any Representation received that is not covered by
the relevant business rules outlined in appendix 24: Criteria for Dealing with
Representations or requires additional clarification by TfLs Representations and
Appeals PMAs for consideration through the defined escalation process.
MIS
The decision to reject or accept a Representation refers to the decision taken on the
original Representation regarding the PCN. The Service Provider shall send the
appropriate letter(s) (i.e. letter of acceptance or rejection) to the Customer in all cases.
The Service Provider shall ensure that all letters, standard paragraphs and text have
been approved by TfL before use.
MIS
If the time required to process a Representation from receipt of the Representation
takes longer than a Parameterised length of time to be specified by TfL from time to
time, the Service Provider shall issue an acknowledgement letter by first class post
CCS0000140731

confirming receipt of the Representation to the Customer.
MIS
On acceptance of a Representation, the Service Provider shall update the Enforcement
Operations System with the reason for acceptance and the relevant reason code(s), as
provided in appendix 24: Criteria for Dealing with Representations.
MIS
If the Representation is accepted, the Service Provider shall issue a Notice of
Acceptance to the Registered Keeper/Person Liable for making the Representation.
The Notice of Acceptance shall be similar to the current examples as supplied in
appendix 26: Notice of Acceptance and Rejection Letter Templates and shall be
submitted in its final form to TfL for approval prior to use.

The Service Provider shall send the Notice of Acceptance to the Registered
Keeper/Person Liable and the Registered Keeper/Person Liables representative in
cases where the Representation was submitted by a representative rather than the
MIS
The Service Provider shall issue a Notice of Acceptance and cancel or re-issue a PCN
in accordance with the relevant business rules. The Service Provider shall ensure that
it is impossible to issue a Notice of Acceptance unless the relevant PCN(s) has/have
been cancelled or the Enforcement Operations System has been updated if the PCN is
CCS0000140731

to be issued to a new relevant Registered Keeper/Person Liable.
MIS
automatically generate the Notice of Acceptance based upon the template provided in
appendix 26: Notice of Acceptance and Rejection Letter Templates and the assigned
reason code.
MIS
If the Representation is rejected, the Service Provider shall send a Notice of Rejection
to the Registered Keeper/Person Liable stating the reason(s) for rejection in
accordance with the rejection codes as detailed in appendix 26: Notice of Acceptance
and Rejection Letter Templates. The Service Provider shall ensure that it is impossible
to send a Notice of Rejection unless the Enforcement Operations System has been
updated to restart the PCN timeline.

If a representative of the Registered Keeper/Person Liable submitted the
Representation, the Service Provider shall send the Notice of Rejection to the
Registered Keeper/Person Liable and also send a copy to the representative.
MIS
Where insufficient evidence is received and the authorised officer of the Service
Provider considering the Representation believes that the Representation would be
accepted with the provision of additional information (e.g. the person who submitted the
CCS0000140731

Representation claims they made a payment but does not include Receipt), the Service
Provider shall request more evidence from the Registered Keeper/Person Liable via
telephone, email, letter or fax where possible. The Service Provider shall give the
Registered Keeper/Person Liable twenty one (21) days for additional evidence to be
produced. The Service Provider shall record and store all such activities against the
relevant PCN(s) to enable inclusion of such evidence in Appeal Packs if necessary.
MIS
Where sufficient evidence is not received within the allocated time, the Service
Provider shall send a Notice of Rejection. If new evidence is sufficient and produced
within the allocated time then the Representation shall be accepted and the Service
Provider shall send a Notice of Acceptance. Where the new evidence is insufficient, the
Service Provider shall send a Notice of Rejection.

The Service Provider shall send an Appeal form with each Notice of Rejection. The
official use box on the form shall be automatically populated by the Enforcement
Operations System. An Appeal must only be sent to the Registered Keeper/Person
Liable i.e. not to the representative.

Upon rejection of the Representation the Service Provider shall lift the suspension and
reset the relevant PCN timeline for progression to zero (0).
MIS
CCS0000140731

functionality and processes provided are able to identify the date of the actual receipt of
the relevant Representation.
MIS
The date of receipt shall be used to determine if a Representation was received within
the discounted payment period for the PCN being considered. If the Representation
was received within the discount payment period for the PCN, the Service Provider
shall reset the discount payment period for the PCN to zero (0), offering a further
discount payment period for the PCN. The Service Provider shall ensure that this
action is reflected in the Enforcement Operations System functionality and included in
the relevant Notice of Rejection.

Where the relevant Representation is received after the discount payment period has
expired for the PCN under consideration, the Service Provider shall not reset the
discount payment period but shall ensure that the relevant Notice of Rejection details
the full amount to be paid and by what date it is to be paid. The Service Provider shall
ensure that the Enforcement Operations System shall have the functionality to re offer
the discounted sum for some or all of the Contravention Types (as notified by TfL to the
Service Provider) even if the PCN has progressed to the full outstanding amount.
MIS
functionality is able to cope with different PCN amounts outstanding when addressed in
a single Notice of Rejection. The balances due in such cases shall reflect any full
CCS0000140731

and/or partial payments made against each relevant PCN.
MIS
If a Representation is received after the expiry of the original discount payment period
for the PCN, then the Service Provider shall ensure that the Customer is provided with
a Parameterised time period (as specified by TfL from time to time) for both the
payment of the PCN and for postal delay in order to either pay the full amount of the
PCN or Appeal to the Adjudication Service.

The Service Provider shall ensure that the Notice of Rejection includes as a minimum,
all the required information as specified by the most current relevant Legislation for the
relevant Contravention Type.
MIS
The Service Provider shall issue Notices of Rejections and Notices of Acceptance at
the latest by midnight on the first Working Day following the day of decision. The PCN
processing timeline shall recommence after a Parameterised time period (as specified
by TfL from time to time) after despatch of the Notices of Rejection and Notices of
Acceptance. The Service Provider shall ensure that the time and date of despatch is
recorded onto the Enforcement Operations System.
MIS
The Service Provider shall provide the facility to support the reissue of PCNs during the
consideration of Representations where there is sufficient evidence to justify re-issue.
CCS0000140731

MIS
Where a Representation makes specific mention of contact with the Contact Centre,
the Service Provider shall locate the relevant call and process it in accordance with
appendix 24: Criteria for Dealing with Representations. If the call cannot be located, the
Service Provider shall request further information from the person making the
Representation in order to aid the search.
5.9 Third Party Representations
E5.9.1 R1 Mandatory

The Service Provider shall ensure that system functionality, processes and relevant
reason codes are provided to support the identification, status and/or relationship of the
Customer making a Representation, where they are different to the Registered
Keeper/Person Liable. This shall be to assist in the consideration and processing of
Representations.
E5.9.2 R1 Mandatory

The Service Provider shall process all Third Party Representations in accordance with
the process outlined in appendix 24: Criteria for Dealing with Representations. The
Service Providers System shall have the functionality to allow the application of
different rules and processes in relation to Third Party Representations depending on
Contravention Type.
E5.9.3 R1 Mandatory
MIS
CCS0000140731

Where a Representation has not been received from the Registered Keeper/Person
Liable, or another authorised person as specified in:
appendix 24: Criteria for Dealing with Representations; or
appendix 25: Criteria for Dealing with Representations for Clamp and Removal,
as appropriate the Service Provider shall ensure that System functionality, processes
and relevant reason codes are provided to the Registered Keeper/Person Liable via a
letter, the form of which is subject to TfLs approval.
E5.9.4 R1 Mandatory

The Service Provider shall ensure that the letter shall outline the receipt of the
Representation and shall request that the Registered Keeper/Person Liable provides
written agreement/authorisation to the Representation being made on his/her behalf
within a Parameterised period (to be specified by TfL from time to time).
E5.9.5 R1 Mandatory
MIS
The Parameterised period for each Contravention shall be defined by TfL and is
subject to change with twenty four (24) hours notice following written authorisation by
TfL without recourse to schedule 9: Change Control Request Procedure and at no
additional cost to TfL.
E5.9.6 R1 Mandatory
MIS
The Service Provider shall hold the case in suspension until either:
receipt of the authorisation; or
refusal to authorise; or
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expiry of the Parameterised period,
whichever is the earliest.
E5.9.7 R1 Mandatory
MIS
Where a Representation from the Registered Keeper/Person Liable has not been
received within the Parameterised period and/or the authorisation approval/refusal has
been received, the Service Provider shall ensure that the System is updated with the
appropriate reason codes and decision, and that a decision letter is sent to the
E5.9.8 R1 Mandatory
MIS
The Service Provider shall issue the decision letter to refuse or to consider the
Representation if incorrectly made by a Third Party in accordance with appendix 24:
Criteria for Dealing with Representations.
E5.9.9 R1 Mandatory

The Service Provider shall issue the relevant copies of the decision letter detailing that
the decision has been approved by TfL to both the person making the Representation
and the Registered Keeper/Person Liable (if different).

The Service Provider shall ensure that the standard decision letter includes, but is not
limited to the following:
date which the Representation was received;
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reasons for rejection of the Representation;
statement that the Customer has lost their right to Appeal to the Adjudication
Service;
statement that the decision does not create grounds to make a Statutory
Declaration on the basis of making a Representation whereby no response was
received;
details of the next Enforcement stage (as appropriate); and
details of the amounts due for each relevant PCN which shall take into account full
or partial payments received.
MIS
The Service Provider shall ensure that System functionality, processes and relevant
reason codes are provided to issue either a Notice of Acceptance or Notice of
Rejection, to the Registered Keeper/Person Liable and the Customer that made the
Representation (if different). The Service Provider shall send relevant copies of the
letter as outlined in figure 5: Third Party Representations Flowchart.
The Service Provider shall send an Appeals form only to the Registered Keeper/Person
Liable.
CCS0000140731

E5.9.12
R1 Mandatory

Figure 5: Third Party Representations Flowchart
Representation
received and from
registered keeper/
person liable
Yes
Process representation as in time
in accordance to CDR issuing
NOA or NOR. Issuing relevant
notification to person liable and a
copy to the person/ organisation
making the representation
No
No
Does the registered
keeper provide written
authority for the person or
organistaion to act on their
behalf?
Yes
No
Reject representation as from a
third party and issue notification
to reg. keeper person liable and
copy to person/organisation
making rep
Issue letter to person liable
to request they confirm
authorisation that they
provide a signed written
approval for the person
making the representation
within 14 days of letter
After 21 days: has
a signed written
authorisation been
received
No
Is the representation from a
person or organisation that
would be accepted as an
authorised party as outlined
in Third party
representations in the CDR?
Is the authorised
party a solicitor/
lawyer or barrister
Yes
No
Process representation as in time in
accordance to CDR issuing NOA or
NOR. Issuing relevant notification to
the person/organisation making the
representation and a copy to the
registered keeper/person liable

5.10 Late Representations
MIS
CCS0000140731

reason codes are provided to support the consideration and processing of
Representations which are made after the Parameterised date or event for making
Representations as defined by TfL and as specified in appendix 24: Criteria for Dealing
with Representations. (See Figure 6: Late Representations Flowchart).

The Service Provider shall hold cases in suspension until either the receipt of a written
explanation for the late submission of the Representation or the expiry of the
Parameterised response period (whichever is earlier). The Parameterised date or
identified event may be subject to change within twenty four (24) hours notice following
written authorisation by TfL without recourse to schedule 9: Change Control Request
Procedure and at no additional cost to TfL. For the avoidance of doubt, the Service
Provider is not authorised to make any such changes without formal approval from TfL.
CCS0000140731


Figure 6: Late Representations Flowchart

MIS
If a Representation is deemed to have arrived late (in accordance with the processes
defined by TfL) the Service Provider shall send a letter (suitably modified in the event
CCS0000140731

of a Clamp and Removal Representation), to the Registered Keeper/Person Liable.
The letter shall detail:
date the Representation was required to be received by and the date the
Representation was actually received, in order to reflect receipt of the
Representation after the statutory time allowed;
statement that TfL considers there are no reasons evident for the delay;
request that they provide written reasons for the delay; and
any supporting evidence required in making the Representation within a
Parameterised response period and a statement that if the information is not
received TfL will regard the Representation as late.
The Parameterised dates or events shall be defined by TfL and are subject to change
within twenty four (24) hours notice following written authorisation by TfL, without
recourse to schedule 9: Change Control Request Procedure and at no additional cost
to TfL. For the avoidance of doubt, the Service Provider is not authorised to make any
such changes without formal approval from TfL.
MIS
If no further information is received within the Parameterised response time, the
Service Provider shall refuse the Representation and send an appropriate response in
accordance with appendix 24: Criteria for Dealing with Representations and figure 6:
Late Representations Flowchart.
MIS
reason codes are provided to ensure that where a Representation is received that is
both late and not from the Registered Keeper/Person Liable, both incidents can be
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raised and relevant authorisation and/or explanation can be requested in a single letter
issued to the Registered Keeper/Person Liable.

The Service Provider shall ensure that the letter shall meet the requirements of both
Third Party and late Representation functionality outlined in this Statement of
Requirements and that the subsequent processes/considerations reflect this.
5.11 Appeal Consideration
E5.11.1 R1 FYI

Where a Representation has been rejected, for any civil enforcement process, the
Registered Keeper/Person Liable has the right to seek a review of the decision via the
Adjudication Service.

The Service Provider shall ensure that the process for receiving and processing
Appeals is generally the same for all Contravention Types, but that the Enforcement
Operations System retains the required functionality and flexibility to access different
levels of evidence for consideration of the Appeal and inclusion in the Appeals Packs if
a decision to contest the Appeal is taken.
R1 Mandatory
E5.11.3
Upon receipt of an Appeal, the Service Provider shall ensure that the Enforcement
Operations System automatically advises the Operative of all previous PCN history
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details and Discount applications for the same VRM and/or Customer Record and that
the Enforcement Operations System requires the Operative to view this information
and confirm it prior to consideration of the Appeal.

The Service Provider shall provide and operate a system capable of producing
Outgoing Correspondence in response to one (1) Appeal covering multiple PCNs. This
includes the ability to:
associate one (1) Appeal through one (1) action against many PCNs for the same
VRM;
disassociate PCNs, associated at Representation or Appeal stage but confirmed by
the Adjudication Service as not being part of the Appeal;
cancel, progress, or re-issue many PCNs against one VRM through systematic
processing of associated groups depending on the outcome of the Appeal;
make reference to different payment amounts if applicable (e.g. one (1) PCN may
require payment of fifty pounds (50) whereas another may require payment of one
hundred pounds (100)); and
retrieve, view and print all relevant incoming and Outgoing Correspondence from
any of the PCNs to which it refers.
MIS
On receipt of the Notice of Appeal from the Adjudication Service, the Service Provider
shall:
record the Notice of Appeal from the Adjudication Service against the relevant PCN
record regardless of what stage in the process it is at;
record the case number against each of the PCNs;
CCS0000140731

suspend the automatic progression of the case regardless of what stage in the
process it is at until the Appeal decision has been made and recorded and where
there is no requirement to request a review of the decision;
ensure the correct PCNs have been associated with the Appeal;
ensure the validity of the Appeal;
review the original decision reached;
review the original decision in light of any additional evidence having been received,
(if applicable);
review the Notice of Rejection for accuracy;
ensure that any Data which forms part of the Appeal Pack is not deleted or purged
from the System for as long as the Appeal is under consideration;
ensure all required information to support the Appeal is readily available; and
decide whether the Appeal should be contested in accordance with the guidelines
in appendix 24: Criteria for Dealing with Representations.
MIS
On receipt of an Appeal, the Service Provider shall ensure that the Enforcement
Operations System has the functionality to recognise varying sums as the outstanding
amount for the individual PCN. TfL shall confirm which scenario shall be applicable but
will retain the right to change the option applicable, with one (1) weeks notice and
without recourse to schedule 9: Change Control Request Procedure and at no
additional cost to TfL. The scenarios are as follows:
amount is suspended on the Enforcement Operations System when the
Adjudication Service notifies the Service Provider of the Appeal. Should the PCN
have reached Charge Certificate stage or beyond, the amount applicable will be
reduced to the full Penalty Charge rate; or
outstanding amount is the discount rate regardless of what was recorded on the
CCS0000140731

Enforcement Operations System when the Service Provider was notified of the
Appeal; or
outstanding amount is the full Penalty Charge rate regardless of what was recorded
on the Enforcement Operations System when the Service Provider was notified of
the Appeal.
MIS
The Service Provider shall have a Quality Assurance system in place (agreed by TfL)
of which TfL has full visibility. This system shall be able to check one hundred percent
(100%) of Outgoing Correspondence.

The Service Provider shall not be limited to carrying out the same action where PCNs
have been associated at either Representation or Appeal stage. For example, the
Service Provider shall provide Enforcement Operations System functionality that shall
ensure that in a multiple PCN Appeal, some PCNs can be contested, even where some
have been non-contested and vice versa. The Enforcement Operations System shall
also allow some, but not all of those being non-contested to be re-issued.

At all times during the consideration process the Operative shall have the ability to
access historical record details in order to ensure that consistency is applied to
decisions when responding to the Appeal and that previous acceptance/non-contest
reasons (e.g. where the recipient of the PCN was advised that no further
Representation against PCNs issued in similar circumstances would be accepted) are
taken into account.
CCS0000140731

MIS
The Service Provider shall achieve time critical postal outputs, whether sent
electronically or otherwise, such as case evidence for adjudications within the
timescales specified in schedule 5: Service Level Agreement.
MIS
The Service Provider shall ensure that an electronic Data Interface is in place between
the Adjudication Service systems and the Enforcement Operations System, and that
such Interface allows all Documents and other files to be sent and received
electronically. The Service Provider shall build the Interface in accordance with the
most up to date XML schema as provided by the Adjudication Service.

The Service Provider shall be capable of receiving and sending all Documents that the
Adjudication Service is capable of receiving and sending electronically and shall use
this information to update its Enforcement Operations System automatically in
accordance with appendix 27: Interface Catalogue.
MIS
The Service Provider shall ensure that all Documents received/sent are stored and
linked to the relevant PCN.
MIS
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The Service Provider shall consider the validity of all the notifications received from the
Adjudication Service. This shall include but not be limited to:
comparing the Registered Keeper/Person Liable and Vehicle details, the number
and status of the PCNs linked to the Appeal by the Adjudication Service; and
where the Appellant is not the Registered Keeper/Person Liable, whether the
Appellant is authorised to make the Appeal.

The Service Provider shall immediately contact the Adjudication Service via telephone,
fax or email should any details highlighted in the notification conflict with the details
held on the Enforcement Operations System.
The Service Provider shall ensure that, if necessary, an amended Document is
received from the Adjudication Service. The Service Provider shall update its records
accordingly or record all clarifications onto the Enforcement Operations System.

The Service Provider shall provide a response to all queries made by the Adjudication
Service. This shall include any query made by the Adjudication Service regardless of
whether it is before or after the Appeal has been made.
MIS
The Service Provider shall ensure that the response to any query from the Adjudication
Service shall be provided within three (3) Working Days of receipt of the query or by
the date specified by the Adjudication Service, whichever is earlier and shall be in the
format requested by the Adjudication Service.
CCS0000140731

MIS
The Service Provider shall record all queries and responses made by the Adjudication
Service on the Enforcement Operations System.
MIS
On receipt of an enquiry from the Adjudication Service, the Service Provider shall
suspend all related PCNs, with a clear note on the Enforcement Operations System as
to why such action was taken. This suspension shall be for a maximum period of two
(2) weeks.
MIS
If after the two (2) week period the Service Provider has not received notification of a
scheduled or rescheduled/rejected Appeal from the Adjudication Service, the Service
Provider shall lift the suspension and add a note to the Enforcement Operations
System to clarify the reason why.

Where an Appeal is received and the relevant Notice of Rejection issued highlighted
that a number of PCNs were considered, the Service Provider shall review the relevant
PCNs when dealing with the Appeal.

CCS0000140731

The Service Provider shall disassociate any PCNs that have not been specified as part
of the Appeal and shall associate further PCNs as required.
MIS
The Service Provider shall highlight to the Adjudication Service any Appeals that
contain PCNs that were not associated with a Notice of Rejection. The Service
Provider shall ensure that these additional PCNs remain suspended until the
Adjudication Service provides clarification.

The Service Provider shall include a copy of the Evidential Record and Images
obtained from the Core IT System for inclusion into the Appeal Pack as detailed in the
Interface Specification. This must be a copy of the original Evidential Record in order to
ensure evidential integrity and must include the explanation of the various fields. The
Service Provider must also have the ability to physically print copies of the Evidential
Record, including the explanation of the various fields. A copy of the current Evidential
Record and the explanation of the various fields are included in appendix 16: Evidential
Record Template.

The Adjudication Service may request out of time Appeals advice from the Service
Provider. In the event of such a request, the Service Provider shall evaluate whether
the Appeal should be considered in accordance with appendix 24: Criteria for Dealing
with Representations.
CCS0000140731

MIS
The Service Provider shall record all such queries from and responses to the
Adjudication Service on the Enforcement Operations System.
MIS
On receipt of such an enquiry, the Service Provider shall suspend all related PCNs,
with a clear note as to why such action was taken. This suspension shall be for a
maximum period of two (2) weeks.
MIS
If after two (2) weeks, notification of an Appeal being scheduled or rejected has not
been received from the Adjudication Service, the Service Provider shall lift the
suspension. Where the suspension is lifted, the Service Provider shall add a note to the
Enforcement Operations System to clarify why.
MIS
Where the Adjudication Service permits an out of time Appeal, the Service Provider
shall cancel any Charge Certificate issued to the Appellant and reset the PCN to the
pre-Charge Certificate amount. If the PCN has progressed beyond the Charge
Certificate stage, the Service Provider shall reset the PCN to the full Penalty Charge
amount (currently one hundred pounds (100)).

The Service Provider may only request a hearing to be rescheduled according to the
CCS0000140731

rules of the Adjudication Service. All such requests must be authorised by TfL. The
Service Provider shall record such a request and its response as an event on the
Enforcement Operations System.

In the case of a single Appeal being made against multiple PCNs, the Service Provider
shall prepare the case evidence to include the details required for each individual PCN
that is subject to the same Appeal. If the Appeal is for multiple PCNs, the Service
Provider shall provide the functionality to ensure that all or some of the PCNs can be
non-contested.
MIS
The Service Provider shall cite the reason for not contesting an Appeal and record this
reason along with any evidence obtained on the Enforcement Operations System in
accordance with the reason codes supplied in appendix 24: Criteria for Dealing with
Representations.
MIS
If the Service Provider decides not to contest an Appeal, the Service Provider shall
notify the Adjudication Service and update the Enforcement Operations System to
cancel the PCN and write-off any outstanding Penalty Charges relating to the PCN
detailed in schedule 5: Service Level Agreement.

The Service Provider shall update the Core IT System with Data on cancelled PCNs as
CCS0000140731

well as a message for the Detection and Enforcement Infrastructure Service Provider to
delete corresponding Images after the time period for retention of such Images has
expired.
MIS
The Service Provider shall provide the facility to support the re-issue of PCNs during
the Appeals processing and where there is sufficient evidence to justify re-issue. If this
is for multiple PCNs, the Service Provider shall provide a functionality to ensure that all
or some of the PCNs can be re-issued.
MIS
The Service Provider shall ensure that the Enforcement Operations System includes
the functionality to enable registration of updated Registered Keeper/Person Liable
details on acceptance of the Appeal and re-issue of the PCN to the updated Registered
Keeper/Person Liable.
MIS
The Service Provider shall write to the Appellant within twenty four (24) hours of the
decision not to contest and explain that TfL has decided not to contest the Appeal and
has cancelled the PCN. In cases where the decision not to contest has been taken on
procedural grounds, such as mitigating circumstances or despatch of an incorrect
Notice of Rejection, the Service Provider shall explain that the decision not to contest
has no bearing on the lawfulness of the event.

CCS0000140731

For Appeals non-contested on procedural grounds, the Adjudication Service shall write
to the Appellant advising him/her that the Adjudicator has allowed the Appeal without
consideration of the merits of the case. In a multiple PCN case, where only part of the
Appeal is not being contested, the Service Provider shall make it clear which PCNs are
still being contested and confirm the distinction between those PCNs not being
contested. The Service Provider shall also confirm that an Appeal Pack will follow
shortly.

The Service Provider shall issue letters advising Appellants of non-contested Appeals,
the form of which shall be approved by TfL before use.

In cases where the decision to re-issue the PCNs to the updated Registered
Keeper/Person Liable has been taken, the Service Provider shall communicate to the
original Registered Keeper/Person Liable that the original PCN has been cancelled
given the change in Registered Keeper/Person Liable details. The Service Provider
shall then reissue the PCN to the updated Registered Keeper/Person Liable.
MIS
The Service Provider shall record the correct reason for non-contested Appeals on the
Enforcement Operations System in accordance with appendix 28: Appeal Non-Contest
Codes. The reasons shall include, but not be limited to, failure to complete Appeal
Packs, incorrect Representation rejection, new evidence, resource requirements and
late notification.
CCS0000140731


The Service Provider shall evaluate whether the Appeal should be contested in
accordance with appendix 24: Criteria for Dealing with Representations. If it is
appropriate to contest the Appeal (or in the case of multiple PCNs, part of the Appeal)
the Service Provider shall collate the Appeal Pack for the Adjudication hearing and
deliver it to the Adjudication Service and Appellant at the earliest opportunity.
MIS
If a decision cannot be made as to whether to:
contest the Appeal;
appendix 24: Criteria for Dealing with Representations highlights that a referral
should be made; or
clarification or advice is needed,
the Service Provider shall escalate the matter to TfLs PMAs at the earliest opportunity
with details as to why the matter has been escalated. The Service Provider shall make
a referral no later than five (5) Working Days prior to the evidence due date. In such
circumstance the Appeal Pack shall be provided to the PMAs, with the evidence due
date and reason for the referral being made clear to the PMAs. The Service Provider
shall record such a referral and its response shall be recorded as an event in the
MIS
Once an Appeal Pack has been created the Service Providers Quality Assurance team
shall quality check it prior to its issue in order to ensure that all of the Documents has
been incorporated, the case summary is of the appropriate standard and the decision
CCS0000140731

to contest is correct. Only once approval has been granted by the Quality Assurance
team shall the Service Provider issue the Appeal Pack to the Appellant and the
Adjudication Service. The Service Provider shall record such approval as an event in
the Enforcement Operations System.

The Appeal Pack prepared by the Service Provider shall include, but not be limited to:
copy of the original Representation;
copy of the relevant PCN(s);
any additional relevant correspondence received regarding the PCN;
telephone Contact Centre logs summarising verbal conversations via the Contact
Centre;
call recordings (actual conversation) where applicable;
relevant statements supporting the issue of the PCN and/or rejection of the
Representation;
copies of documents obtained via the Core IT Systems;
Evidence tick sheets;
copy of the Evidential Record;
case summary (no size limit);
records and logs from the Enforcement Operations System;
full audit trail of Registered Keeper/Person Liable details and where details
obtained from (e.g. DVLA or hire agreement);
copy of the Notice of Rejection; and
video stream (MPEG4 format) where applicable.
For multiple PCNs, the Service Provider shall prepare an Appeal Pack for each
CCS0000140731

Representation and Appeal made.

The Service Provider shall ensure that all Enforcement Operatives have access to the
call recording system for investigation purposes. When investigating Representations
and Appeals, the Service Provider shall ensure that the investigation carried out
includes a detailed search for any related calls to the Contact Centre.

[This requirement has been moved to E5.8.49]

Where a relevant call has been identified, should a decision be made to contest the
Appeal, the Service Provider shall make specific reference to the call in the Appeal
Pack. An electronic copy of the call shall be provided to both the Appellant and the
Adjudication Service. Such a copy must be in a format that can easily be accessed by
both the Adjudication Service and the Appellant. Where requested, the Service
Provider shall also provide a transcription of the call to both the Adjudication Service
and the Appellant.
MIS
The Service Provider shall provide a mechanism to ensure that all the required
elements of an Appeal Pack are correctly gathered together and included in the Appeal
Pack. All elements that are held electronically on the Enforcement Operations System
shall be automatically flagged for inclusion by the Enforcement Operations System.
CCS0000140731

MIS
The Adjudicator through delegated authority to the Adjudication Service may adjourn
hearings, set a new date or leave the date open. If the Service Provider receives
notification of such events, it shall take the appropriate actions to prepare the case for
the new hearing date such as the provision of additional information or Data requested
by the Adjudicator.
MIS
The Adjudicator may also make specific requests for information or other such actions
via an adjournment request. The Service Provider shall respond to all adjournment
requests providing the required evidence or carrying out the appropriate action in
accordance with schedule 5: Service Level Agreement.
MIS
The Service Provider may receive additional evidence from the Appellant either directly
or via the Adjudication Service at any time during the Appeals process. If the additional
evidence is received directly, the Service Provider shall forward a copy to the
Adjudication Service for its information.

The Service Provider shall consider and respond to all additional evidence within five
(5) Working Days of its receipt or three (3) Working Days prior to the hearing date
(whichever is earlier).
CCS0000140731


Where the decision to contest the Appeal has yet to be made, the Service Provider
shall consider the additional evidence in accordance with appendix 24: Criteria for
Dealing with Representations, with direct reference made to the additional evidence in
the case summary.

Where the decision to contest has been made and the Appeal Pack has already been
issued, the Service Provider shall consider the additional evidence in accordance with
appendix 24: Criteria for Dealing with Representations. Should the additional evidence
require the case to be non-contested, the Service Provider shall inform both the
Appellant and the Adjudication Service of the decision to non-contest. This shall be in
line with the standard process for non-contesting an Appeal.

Where the additional evidence does not affect the decision to contest the Appeal, the
Service Provider shall provide a response to that effect to the Appellant and the
Adjudication Service in the format required by the Adjudication Service.

Where additional evidence is received after the Adjudicator has made a determination
on the Appeal, the Service Provider shall still consider the evidence in accordance with
appendix 24: Criteria for Dealing with Representations to see whether the PCN should
be cancelled or re-issued. The Service Provider shall provide a response to the
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Appellant confirming its action.

The Service Provider shall process all other requests from the Adjudication Service in
accordance with the request and within the specified timescales (e.g. requests for
further information, requests to suspend cases, requests to provide summary Data and
requests to attend hearings).

Where the Service Provider utilises an Interface with the Core IT System in compiling
Appeal Packs and where the presentation of the Core IT System Data is inconsistent
with other Data, the Service Provider shall put this into a consistent and readable
format and include it in the case summary.
MIS
When the Appeal Pack is sent to the Adjudication Service, the Service Provider shall
send an exact copy of the Appeal Pack to the Appellant. However, where audio or
video evidence has been included as part of the Appeal Pack to the Adjudication
Service, specific evidence shall be provided by the Service Provider to the Appellant in
a format that can be easily accessed by the general public (e.g. for an audio record, a
compact disc capable of being played on a normal stereo system should be provided
and for video evidence a DVD or video tape should be provided).
MIS
The Service Provider shall use the Interfaces with the Core IT Systems to obtain all
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required Data and information required for the Appeal Packs such as copies of the
original Residents Discount application form and Charge Payment details if applicable
as detailed in the Interface Specification.
MIS
The Service Provider shall ensure that all Appeal notifications sent by the Adjudication
Service are recorded and scanned in the Enforcement Operations System. This shall
include the suspension of the PCN to ensure that the Service Provider is not liable
where notification of an Appeal was sent by the Adjudication Service but the actual
Appeal was not received.

On receipt of an Appeal outcome, the Service Provider shall read the whole decision to
determine how the decision shall be recorded on the Enforcement Operations System.
This will not be an automated process.

When considering the Appeal outcome, the Service Provider shall consider whether the
decision affects any PCNs that are not part of the Appeal itself (e.g. where an error is
identified in the processing of a Residents Discount application). This is likely to affect
a number of PCNs and it shall be the responsibility of the Service Provider to identify
any of the PCNs not associated to the Appeal but linked to the decision itself.

The Service Provider shall raise any case(s) with TfLs PMAs where they believe it
CCS0000140731

would be prudent to take action on other PCNs not linked to the Appeal. The Service
Provider shall escalate these with an explanation as to why the referral has been
made.
MIS
functionality allows the Service Provider to highlight whether the Appeal shall be
allowed, refused or withdrawn and record what further action should be taken. To
clarify, an allowed Appeal should not automatically lead the Service Provider to cancel
the PCN or refund the monies.
MIS
The Service Provider shall record on the Enforcement Operations System whether the
decision was:
allowed;
allowed due to a non-contested Appeal;
refused; or
withdrawn.
MIS
Following the decision to allow/refuse/withdraw an Appeal, the Service Provider shall
make a decision as to whether:
a PCN should be reissued;
monies should be refunded;
a lower amount should be accepted (and for what period that lower amount shall be
CCS0000140731

accepted for); and
the Appeal should be reviewed.

When the Adjudicator grants an Appeal, the Service Provider shall consider whether a
review is appropriate. If not, the Service Provider shall comply with any directions made
by the Adjudicator relating to the cancellation of the PCN, refunding of paid PCNs
and/or any Clamp and Removal charges. If applicable, the Service Provider shall
reissue the PCN.
E5.11.70

Upon notification of an accepted Appeal, the Service Provider shall complete the
activities detailed in: Table 3: Service Provider Activity Timescales within the required
timescales:
Table 3: Service Provider Activity Timescales
Service Provider Action Timescale
The Enforcement Operations System
shall allow the PCN to be re-issued if
new hirer/Registered Keeper/Person
Liable details have been provided at the
hearing.
Within twenty four (24) hours of the
Adjudication decision.
Supply TfL with details of all such
decisions.
Within twenty four (24) hours of the
Review such decisions and make Within three (3) Working Days of the
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appropriate recommendations. Adjudication decision.
Highlight any decisions that should be
contested.
Within three (3) Working Days of the
Highlight comments or actions suggested
by the Adjudicator that fall outside of the
Service Providers jurisdiction.
Within three (3) Working Days of the
Refund PCNs paid. Within three (3) Working Days of the

5.12 Appeal Withdrawn

With TfL approval, the Service Provider shall be responsible for making the appropriate
request for review the Appeal in a format agreed by TfL.
MIS
If the Appellant withdraws an Appeal before the hearing, the Adjudication Service will
notify the Service Provider.
MIS
The Service Provider shall update the Enforcement Operations System with the
decision to withdraw the Appeal and allow the recovery of the Penalty Charge to
continue in accordance with the PCN processing timeline.
CCS0000140731

MIS
Upon withdrawal of an Appeal by the Appellant, the Service Provider shall write to the
Appellant within twenty four (24) hours of such notification confirming this decision and
requesting payment of the appropriate outstanding Penalty Charges. At a minimum,
the Service Provider shall include the Data fields included in the Appeal Pack (case
number, PCN number, VRM, payment due date and amount due).
5.13 Appeal Decision Review
MIS
The Service Provider shall send all reports and Appeal decisions received from the
Adjudication Service to TfL in an electronic format that is readable through commonly
available desktop tools within twenty four (24) hours of receipt of this information by the
Service Provider.
MIS
Once an Adjudicator makes a decision, the Appellant or TfL may request a review of
the decision in the light of, for example, new evidence becoming available. The
Service Provider shall make recommendations to TfLs PMAs on any decision that is
considered to require a decision review.

The Service Provider shall ensure that such a request is received by the Adjudication
Service and the Appellant within fourteen (14) days of the date the decision was made.
CCS0000140731

MIS
Where the Service Provider receives notification from the Adjudication Service that the
Appellant has made a request for review that has been accepted and a review hearing
scheduled, the Service Provider shall give full consideration to the review and provide a
full response to the Appellant and the Adjudication Service. The Service Provider shall
ensure receipt by the Appellant and the Adjudication Service by the evidence due date
at the latest.

The Service Provider shall supply all existing and additional evidence to support such a
decision review.
MIS
The Service Provider shall suspend the PCN processing timeline upon confirmation
from TfL that a decision review is required or notification of a decision review request
by the Appellant. The Service Provider shall respond to such review requests with an
appropriate response and the production of all required evidence.
MIS
If TfLs PMAs approve a decision to request a review, then the Service Provider shall
notify the Adjudication Service of the review request within ten (10) Working Days of
notification of the original decision. The Service Provider shall include all relevant
documentary evidence with the request to the Adjudication Service.
CCS0000140731


The Service Provider shall send an exact copy of the request for review to the
Appellant at the same time as the copy to the Adjudication Service is issued.

The Service Provider shall monitor all Appeals where a request has been made with
the approval of TfL.
MIS
The Service Provider shall highlight on a specific report, all adjournments, re-
schedules, additional evidence and decisions made directly to TfL within twenty four
(24) hours of the notification being received. This shall also include a copy of the
Document received.
MIS
Where the Service Provider receives notification from the Adjudication Service that the
Appellant has made a claim for costs, the Service Provider shall give full consideration
to the claim and provide a full response provided to both the Appellant and the
Adjudication Service.
MIS
The Service Provider shall record the amount claimed and the amount it offers the
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Appellant (where applicable) on the Enforcement Operations System. The Service
Provider shall make such a response at the earliest opportunity. The Service Provider
shall ensure receipt by the Appellant and the Adjudication Service by the evidence due
date at the latest.
5.14 Clamp and Removal Representations and Appeals
MIS
functionality, reason codes and processes provided are able to identify a Clamp and
Removal Representation and associated Appeals separately from an ordinary
Representation/Appeal. The Service Provider shall ensure that the relevant notification
issued to the Customer (or other relevant parties) distinguishes a Clamp and Removal
Representation or Appeal.
MIS
The Service Provider shall identify and process a Clamp and Removal Representation
in accordance with appendix 25: Criteria for Dealing with Clamp and Removal
Representations.

The Service Provider shall ensure that all relevant information required through the
Clamp and Removal Representation and Appeals processes has been requested from
and not limited to:
the OSE Service Provider;
Core IT System; and
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other relevant Service Elements and service providers.

The Service Provider shall request all relevant missing information from the relevant
party by an agreed method such as, fax, email, CD or other. Examples of missing
information may include, but are not limited to:
identification and recording of the four (4) events that give rise to the right to make a
Representation; or
photographic evidence of the Clamp and Removal action that is recorded/available.

The Service Provider shall ensure that the Enforcement Operations System is able to
identify the date on which a Clamp and Removal Representation was received.
MIS
functionality, reason codes and processes provided can identify the fifty sixth (56
th
) day
after receipt of Clamp and Removal Representations, with day one (1) of the fifty six
(56) days being the day the Representation was actually received. The Service
Provider shall Parameterise this period and shall change upon request by TfL with
twenty four (24) hours notice without recourse to the formal Change Control Request
Procedure and at no additional cost to TfL. For the avoidance of doubt the Service
Provider is not permitted to change the Parameter without approval from TfL.

CCS0000140731

The Service Provider shall process all Clamp and Removal Representations in
accordance with appendix 25: Criteria for Dealing with Clamp and Removal
Representations, within the relevant time period (currently fifty six (56) days) and shall
issue the relevant Notice of Acceptance and/or Notice of Rejection as appropriate.
Where a decision has not been made by this date, the Service Provider shall accept
the relevant Representation (as required by statutory regulations) and issue a Notice of
Acceptance.

The Service Provider shall ensure that the Enforcement Operations System allows both
a Notice of Acceptance and a Notice of Rejection to be issued (for Clamp and Removal
Representations only) for the same case (e.g. a Representation that is against ten (10)
PCNs, where three (3) PCNs are cancelled and a refund for the other seven (7) is
rejected).

The Service Provider shall determine the decision to accept or reject a Clamp and
Removal Representation in accordance with appendix 25: Criteria for dealing with
Clamp and Removal Representations.

The Service Provider shall issue appropriate letters using agreed templates and
paragraphs that meet the entire letter writing requirements agreed with TfL. The
templates/paragraphs shall be subject to change within twenty four (24) hours notice
following written authorisation by TfL without recourse to schedule 9: Change Control
Request Procedure and at no additional cost to TfL. For the avoidance of doubt, the
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Service Provider shall not alter any template without authorisation from TfL.

The Service Provider shall ensure that when a potentially late Clamp and Removal
Representation is received, the Enforcement Operations System functionality and
processes enable the case to be actioned in accordance with the late Representation
process as specified in appendix 24: Criteria for Dealing with Representations.

functionality and processes provided are capable of re-issuing any PCN after a Clamp
and Removal Notice of Acceptance has been issued or after any Appeal. This re-issue
of the PCN may be to the same or another party where relevant. (e.g. a Representation
accepted on the basis the Vehicle was purchased after the Contravention date(s) thus
indicating the previous Registered Keeper/Person Liable is liable, or an Appeal is
allowed by the Adjudicator).

The Service Provider shall provide appropriate Enforcement Operations System
functionality, reason codes and processes to enable the full consideration of a Clamp
and Removal Appeal and to distinguish it from an ordinary Appeal. The Enforcement
Operations System functionality and processes shall reflect and mirror the
requirements for ordinary Appeals.
MIS
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The Service Provider shall fully refund, from its own resources, all PCN payments and
all relevant and associated Clamp and Removal fees where the Service Provider fails
to respond to a Representation within fifty six (56) days of its receipt. The Service
Provider shall clearly record such actions onto the Enforcement Operations System.
MIS
The Service Provider shall record onto the Enforcement Operations System the
reasons for accepting or rejecting any Clamp and Removal Representation and the
reasons for non-contesting any such Appeal and the Appeal decision made by the
Adjudicator in relation to a Clamp and Removal Appeal.
MIS
If a Clamp and Removal Appeal is rejected, the Service Provider shall take no further
action except to update the Enforcement Operations System as required, as the PCN
and Release Fees have already been paid.
MIS
Where a Vehicle has been clamped and removed and any relevant PCNs are identified
as non-contested, the Service Provider shall escalate it to TfL for authorisation prior to
notification to the Adjudication Service using the escalations procedure agreed with
TfL.
MIS
The Service Provider shall indicate the reasons for its decision not to contest the
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Clamp and Removal case.
MIS
The Service Provider shall store the reasons for TfLs approval or disapproval of the
non-contest decision on a Clamp and Removal case on the Enforcement Operations
System. Reasons could include, but are not limited to at the discretion of the Service
Provider, the OSE Service Provider or TfL.
MIS
Where a Clamp and Removal Appeal is refused, the Service Provider shall update the
Enforcement Operation System with the decision and ensure that the recovery of the
Penalty Charge continues along the normal PCN processing timeline from the point as
specified by the Adjudicator.
MIS
When the Adjudicator grants an Appeal, the Service Provider shall consider whether a
review is appropriate. If not, the Service Provider shall comply with any directions made
by the Adjudicator relating to the cancellation of the PCN, refunding of paid PCNs
and/or any Clamp and Removal charges. If applicable, the Service Provider shall
reissue the PCN.
MIS
Upon notification of an accepted Appeal, the Service Provider shall complete the
activities detailed in: Table 4: Service Provider Activity Timescales within the required
CCS0000140731

timescales.
Table 4: Service Provider Activity Timescales
Service Provider Action Timescale
The Enforcement Operations System
shall allow the PCN to be re-issued if
new hirer/Registered Keeper/Person
Liable details have been provided at the
hearing.
Within twenty four (24) hours of
the Adjudication decision.
Supply TfL with details of all such
decisions.
Within twenty four (24) hours of
Review such decisions and make
appropriate recommendations.
Within three (3) Working Days of
Highlight any decisions that should be
contested.
Highlight comments or actions suggested
by the Adjudicator that fall outside of the
Service Providers jurisdiction.
Refund PCNs paid. Within three (3) Working Days of

MIS
If a Clamp and Removal Appeal is accepted, the Service Provider shall issue a refund
of all Release Fees paid. Depending on the grounds of the Appeal, the Penalty Charge
amount may also be refunded.
MIS
The Service Provider shall process and return all refunds to the Customer within five
CCS0000140731

(5) Working Days of receipt of the notice from the Adjudication Service.
MIS
Where an Appeal is lost on the grounds of an error by the Service Provider, then the
Service Provider shall communicate details of each case to TfL and the refund costs
incurred shall be borne by the Service Provider.
MIS
Where an Appeal is upheld on the grounds of a claimed Cloned Vehicle, the Service
Provider shall record and maintain details of such Vehicles on the Hotlist and shall
ensure that no further PCNs are issued to this VRM whilst it remains identified as a
Cloned Vehicle and on the Hotlist.
MIS
The OSE Service Provider stores and indexes Condition Reports, which detail the
condition of the Vehicle prior to Clamp and Removal action, digital Images of clamped
or removed Vehicles and notes regarding the Enforcement Action taken. Where this
evidence is required by the Service Provider to support a Representation or Appeal,
the Service Provider shall request this information from the OSE Service Provider via
email and shall be responsible for processing the Representation or Appeal correctly
using this information.

The Service Provider shall ensure that the relevant person who makes a
Representation against a Clamp and Removal action as he/she was not the Registered
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Keeper/Person Liable at the time at which that Penalty Charge had been incurred
provides sufficient evidence in accordance with appendix 24: Criteria for Dealing with
Representations.

The Service Provider shall keep a record of all claims of Clamp and Removal
Representations (both accepted and rejected) and shall use this information when
considering other Representations and Appeals for the same VRM and to identify
cases of possible fraudulent use of the Scheme(s).

The Service Provider shall consult with the OSE Service Provider and obtain any
additional information that may be relevant to the case, for example, that a claim was
made at the time of collection that the owner had recently purchased the Vehicle.

Where a Representation against the Enforcement Action is accepted then the Service
Provider shall reimburse all fees paid by the relevant person in accordance with
appendix 33: Refund Policy and forward this with a letter explaining the reasons for the
Enforcement Action. Such reasons may be, for example, that the previous owner had
not submitted his/her part of the V5C document and therefore the Registered
Keeper/Person Liable details supplied by DVLA to the Core IT System were incorrect.
MIS
In all cases where a Representation is accepted on the grounds that the relevant
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person was not the Registered Keeper/Person Liable at the time at which the Penalty
Charge had been incurred, the Service Provider shall reissue the PCNs to the previous
named Registered Keeper/Person Liable and the Vehicle shall be removed from the
Persistent Evader list.
5.15 Representation & Appeals Costs
MIS
The Service Provider shall, at its discretion but only with the agreement of TfLs PMAs,
apply and pursue recovery for costs in cases where it reasonably considers the
Appellant to have been unreasonable.
MIS
The Service Provider shall ensure that any costs awarded against the Appellant shall
be clearly identifiable and passed through to TfL.
MIS
The Service Provider shall provide a copy of all Appeals Data including the Appeal
Pack to the PMAs (in either electronic or hard copy) on request.
MIS
The Service Provider shall ensure that any costs awarded against TfL are clearly
identifiable on the Enforcement Operations System and added when the outcome is
recorded. The Service Provider shall normally meet any costs awarded against TfL but
may make representations to TfL if it considers that any costs are unreasonable. The
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decision of TfLs Representation and Appeals Manager shall be final in all cases.
5.16 Persistent Evaders & the OSE Service Provider
MIS
The Service Provider shall be responsible for generating, adding and removing
Vehicles to and from a Persistent Evader list for each Contravention Type.

The Service Provider shall store the Persistent Evader list within the Enforcement
Operations System and shall make it available to the OSE Service Provider via the
Clamp, Removal and Pound management module which shall be provided and
maintained by the Service Provider.

The Service Provider shall accurately send all Persistent Evader Data to the Core IT
System.
MIS
The Service Provider shall provide the Persistent Evader list via the Clamp, Removal
and Pound management module.

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identify a Vehicle as a Persistent Evader when a Parameterised number (currently
three (3) for the Congestion Charging Scheme) of Penalty Charges become
outstanding at a Parameterised event (currently Charge Certificate stage) where there
are no outstanding Representations or correspondence and no payment has been
made. The Service Provider shall update such Parameters within twenty four (24)
hours notice following written authorisation by TfL without recourse to schedule 9:
Change Control Request Procedure and at no additional cost to TfL. For the avoidance
of doubt, the Service Provider is not authorised to make any such changes without
formal approval from TfL.
E5.16.6 R1 FYI

Each Contravention Type may have a unique Parameter that defines its Contravention
as a Persistent Evader. For example, a Congestion Charging Scheme Persistent
Evader may be a Vehicle with three (3) or more Penalty Charges outstanding whereas,
a LEZ Scheme Persistent Evader may be a Vehicle with one (1) Penalty Charge
outstanding.

The Enforcement Operations System shall have the functionality to ensure that
Persistent Evaders are processed accordingly where each Contravention Type may
have a unique Parameter that defines its Contravention as a Persistent Evader.
MIS
The Service Provider shall ensure that each Persistent Evader list for each
Contravention is updated each Working Day in order to support the OSE Service
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Provider activities.

Immediately prior to the Vehicle becoming a Persistent Evader, the Service Provider
shall re-check the Registered Keeper/Person Liable details to ensure that the
Registered Keeper/Person Liable details have not changed or become available since
the last check was made.
MIS
The Service Provider shall maintain a log of when the DVLA check was made either
directly by the Service Provider as part of the Enforcement Operations or indirectly via
the Core IT System prior to the Vehicle becoming a Persistent Evader.
MIS
The Service Provider shall perform a sample check for each Persistent Evader list of
new VRMs identified as Persistent Evaders by checking with the Core IT System on
issues including, but not limited to:
potentially incorrectly registered Discounts;
inappropriate processing of Representations;
outstanding Customer Complaints;
CVVC; and
potential single digit VRM errors.
In the event that the Registered Keeper/Person Liable information has changed or the
Service Provider identifies an issue that may affect the Persistent Evader status, the
Service Provider shall place such cases in a hold queue which will ensure that the
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Data is not included in the relevant Persistent Evader list. The Service Provider shall
escalate all such cases to the TfL PMAs for review and direction.

The Service Provider shall ensure that the Persistent Evader list is kept accurate and
up to date. This shall include, but not be limited to, regular checks of all VRMs on the
Persistent Evader list and removal of those Persistent Evaders for whom the
appropriate payment has been received using the appropriate query and search
functionality.
MIS
Where the Registered Keeper/Person Liable for the Vehicle has changed (and is
therefore different to the name of the person to whom the original PCNs were issued),
the Service Provider shall not pass the VRM to the OSE Service Provider as the new
Registered Keeper/Person Liable is not liable for PCNs incurred by the previous
MIS
The daily Persistent Evader lists made available to the OSE Service Provider by the
Service Provider via the Clamp, Removal and Pound management module shall
include:
VRM;
make of the Vehicle;
model of the Vehicle;
primary colour of the Vehicle;
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a count of the total number of PCNs outstanding for each VRM;
status of the Vehicle (Registered Keeper/Person Liable known/not known,
Ringed/Cloned/Tampered); and
date of becoming a Persistent Evader for that Contravention.

The Service Provider shall interface with the OSE Service Provider by telephone or fax
in the case of an outage of the electronic Interface or the Clamp, Removal and Pound
management module between the Service Provider and the OSE Service Provider.

Where the Clamp, Removal and Pound management module via which the OSE
Service Provider accesses the Persistent Evader lists is unavailable, the Service
Provider shall courier the Persistent Evader lists to the OSE Service Provider in a
format to be agreed by TfL and the OSE Service Provider.

The Service Provider shall add PEU Vehicles which become Persistent Evaders to the
Persistent Evader list in accordance with requirements E5.16.5 - E5.16.17. It must be
possible for the OSE Service Provider to identify between PEU and PER Vehicles as
the OSE Service Provider will need to follow a different course of action depending on
which type of Persistent Evader Vehicle is on the PE list.

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If found on street, the OSE Service Provider is permitted to clamp the Vehicle if found
parked on the public highway in Greater London. However, for PEU Vehicles which are
clamped in the first instance there is no charge for the clamp action and the Clamp,
Removal and Pound management module provided by the Service Provider shall
provide the required level of functionality to distinguish between a normal clamping
action where a fee will be applied and a PEU clamping action where a fee will not be
applied when the Vehicle is clamped in the first instance.

The OSE Service Provider will release clamped PEU Vehicles from the clamp on
production to the OSE agent with verifiable evidence of the registered keeper of the
PEU Vehicle. The Clamp, Removal and Pound management module provided by the
Service Provider shall provide the required level of functionality to enable the OSE
Service Provider to enter the verified name and address of the Registered
Keeper/Person Liable of the Vehicle (for PEU status Vehicles only) onto the
Enforcement Operations System. Once updated the Enforcement Operations System
shall automatically re-issue all relevant PCNs to the name and address as provided by
the OSE Service Provider.

If the driver of a PEU Vehicle at the time of the clamping action is unable to provide the
Registered Keeper/Person Liable details of the Vehicle but is able to provide details of
his own name and address only and is prepared to pay a bond, then the OSE Service
Provider is required to release the Vehicle to the driver. The Clamp, Removal and
Pound management module provided by the Service Provider shall provide the ability
to charge and record payment of a Parameterised bond amount (unknown at this stage
but expected to be approximately two hundred fifty pounds (250)) for PEU status
Vehicles.
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The Clamp, Removal and Pound management module shall have the required
functionality for differing bond amounts depending on the Contraventions which make
up the Persistent Evader status. For example, if the Vehicle is a Persistent Evader of
Congestion Charging then the bond amount is likely to be in the region of two hundred
fifty pounds (250). If the Vehicle is a Persistent Evader of the Low Emission Zone the
bond amount is likely to be higher. If the Vehicle is a Persistent Evader of both
Schemes or another Scheme as yet to be introduced, then the bond amount required
shall default to the higher rate applicable to that Contravention. The bond amount shall
be Parameterised and changeable outside of the Change Control Request Procedure.
No change to the bond amount can be made without formal written approval of TfL.

On payment of the relevant bond amount the In Vehicle Clamping and Removal
System shall possess functionality to print a certificate to be issued to the driver of the
Vehicle. This certificate shall state:
that it is issued in accordance with Part 5, Section 13 of the London Local Authorities
and Transport for London Bill 2005;
the date of issue (this should default to the date of payment of the bond);
the VRM of the PEU Vehicle;
the expiry date of the certificate. This shall be a Parameterised field which can be
amended without recourse to the formal Change Control Request Procedure (the
current date being twenty one (21) days from the date of issue);
a summary of the effect of the certificate to be provided by TfL which will advise the
driver that the Vehicle will not be subject to further clamping or removal action as a
Persistent Evader by any authority for a period of twenty one (21) days from issue;
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and
contact details for the Authority which is expected to be the OSE Service Provider.
The Enforcement Operations System shall have the functionality for the bond certificate
to be Parameterised and have an independent, Parameterised grace period. It must be
possible to change both these periods independently of each other and without
recourse to the formal Change Control Request Procedure. No change to the periods
can be made without formal written approval of TfL.

On payment of the bond amount, the In Vehicle Clamping and Removal System shall
provide the optional functionality to reprint all outstanding PCNs in relation to the PEU
Vehicle. The PCN(s) to be issued are likely to be in a summary format (e.g. the PCN
will be similar to a standard PCN but the details of each Contravention, which makes
up the Persistent Evader status, may be printed in a summary/table format). If the PEU
Vehicle is a Persistent Evader of more than one Scheme then the In Vehicle Clamping
and Removal System shall provide the functionality to print a different summary PCN
for the different Contraventions. Images of Contraventions as per a standard single
PCN will not be required. For the avoidance of doubt, if the print PCN functionality is
used by the OSE Service Provider then all PCNs shall revert to the start of the original
PCN issue process, as detailed elsewhere in this Statement of Requirements.

The Service Provider shall ensure that payment for the bond is available via the Clamp,
Removal and Pound management module and, if possible, via the In Vehicle Clamping
and Removal System so that the OSE Service Provider may process bond payments
"on street". It is expected that all payment channels for the payment of the bond will be
operated by the OSE Service Provider using the Enforcement Operations
System/Clamp, Removal and Pound management module as the driver is required to
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provide some form of evidence to obtain the right to pay the bond amount (verifiable
evidence of his/her name and address).

On payment of the bond the Enforcement Operations System/Clamp, Removal and
Pound management module shall place all PCNs associated with the PEU action on
suspension immediately for a period of twenty one (21) days beginning with the date on
which the certificate was issued. For the avoidance of doubt, if a PEU Vehicle was
clamped on day one (1) and did not pay the bond until day three (3) and the certificate
was not issued until day three (3), the twenty one (21) days would begin from day three
(3) when the certificate was issued.

The Enforcement Operations System/Clamp, Removal and Pound management
module shall allow payment of all outstanding PCNs that make up the Enforcement
Action during the bond certificate period (twenty one (21) days). The amount of the
bond shall be deducted from the total amount owed by the PEU if the remaining
balance is paid within twenty one (21) days of the date of issue of the certificate. In
accordance with other requirements in this section, the Service Provider shall process
payments for the outstanding balance if an attempt is made to do so via the Contact
Centre or Web portal.

If the PEU driver provides the Registered Keeper/Person Liable details of the Vehicle
within twenty one (21) days then the bond will become refundable. It is expected that
the OSE Service Provider will process all such refunds, however these will be recorded
on the Enforcement Operations System/Clamp, Removal and Pound management
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module.

Despite the fact that all notices associated with the PEU/PER clamping or removal
action will refer the driver to the OSE Service Provider, as with payments of
outstanding PE PCNs (E8.1.31 32) it is possible that the driver will contact the
Service Provider's Contact Centre or write to the Service Provider. With the exception
of payments of all outstanding amounts relating to the PEU or PER the Service
Provider shall either deal with the interaction following the standard, non
Representation, Appeals or statutory process or refer the matter to the OSE Service
Provider following guidelines to be provided by TfL. For the avoidance of doubt, owners
of PEU Vehicles have no right of Representation at the initial stage of Enforcement,
they can only pay all outstanding amounts, provide name and address of Registered
Keeper/Person Liable, pay a bond and provide the name and address of themselves.

On provision of the Registered Keeper/Person Liable details to the OSE Service
Provider, the Service Provider shall update the Enforcement Operations
System/Clamp, Removal and Pound management module with the information and this
will be applied to all relevant PCNs that make up the Persistent Evader status. The
Enforcement Operations System shall, at this point, re-issue all PCNs to the new
Registered Keeper/Person Liable and the timeline for each re-issued PCN shall revert
back to the beginning and the Registered Keeper/Person Liable will have the
opportunity to make Representations, pay at the discounted rate etc.

If the PEU driver fails to act within twenty one (21) days then the bond amount is
CCS0000140731

retained and will not be refunded or offset against any future clamping or removal
activity. The PEU Vehicle shall, from this point, be treated as a PER following the
process detailed in this Statement of Requirements.

It is anticipated that the Enforcement Operations System and the Clamp, Removal and
Pound management module shall require some or all of the following additional status:
PEU created;
PEU added (to the PE list);
PEU authorised for clamping;
PEU clamped;
PEU keeper provided;
PEU PCNs reissued;
PEU bond paid;
PEU driver details provided;
PEU bond certificate issued;
PEU bond certificate expired;
PEU bond refunded;
PEU removed (no action to clamp);
PEU impounded;
PEU released; or
PEU disposed.

CCS0000140731

PEU Vehicles which have been clamped and for which no interaction has occurred for
X hours/days (Parameterised) shall be subject to removal by the OSE Service Provider
and as such the Clamp, Removal and Pound management module shall flag any PEU
Vehicle for which no contact has been recorded beyond this point for removal action by
the OSE Service Provider.

PEU Vehicles which were clamped and then released following payment of the bond
shall be added directly to the PE list as a PER type PE on expiry of the bond certificate
if the Registered Keeper/Person Liable details have not been provided or the
outstanding Penalty Charges that led to the PE action remain outstanding.

In accordance with requirement E5.16.14, once any PER Vehicle has reached the point
at which it effectively becomes a Persistent Evader the Service Provider shall check
that the Registered Keeper/Person Liable remain the same. At this point the Service
Provider shall also check whether the VRM has a previous bond payment against it. If
a previous bond payment has been made and the Registered Keeper/Person Liable is
the same as the Registered Keeper/Person Liable at the time the bond was paid then
the Vehicle can be added directly to the PE list without the issue of the Pre
Enforcement Notification Letter as detailed in the requirements below.

Prior to adding a PER type PE to the PE list, the Service Provider shall generate and
send by first class post a standard Pre Enforcement Notification Letter to the name and
address of the Registered Keeper/Person Liable of the Vehicle as provided by the
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DVLA and as per the individual PCNs issued which led to their status as a Persistent
Evader.

The Pre Enforcement Notification Letter shall, as a minimum:
summarise that the Vehicle has become a Persistent Evader of the relevant
Scheme;
summarise the details of all outstanding PCNs, identifying which PCNs are at
Persistent Evader status;
require either:
1) payment of all PE status PCNs; or
2) payment of a bond;
offer the right to make a Representation within twenty eight (28) days if the
Registered Keeper/Person Liablepays the bond or all outstanding charges; and
specify the timeline (seven (7) statutory days) by which time the Registered
Keeper/Person Liable has to pay the outstanding charges or bond and the
implications if no action is taken.

The Parameters required for the issue of the Pre Enforcement Notification Letter are
seven (7) statutory days (to be printed on the Pre Enforcement Notification Letter) plus
X (Parameterised) days service period. Both or either periods shall be Parameterised
and it must be possible to change both or either of these periods without recourse to
the formal Change Control Request Procedure. No change to the periods can be made
without formal written approval of TfL.
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The Service Provider shall ensure that all PCNs relating the Persistent Evader status
shall be automatically placed on suspension for an initial period of the total of the
statutory period plus service period days.

If no payment of the outstanding PE PCNs or the bond is made within the statutory plus
service period days then the Vehicle shall be added to the Persistent Evader list by the
Service Provider and enforced by the OSE Service Provider as a standard Persistent
Evader, although it is important the OSE Service Provider is made aware through the
Clamp, Removal and Pound management module that the Vehicle is a PER rather than
PEU type PE.

All bond payment for PEU Vehicles shall be directed to the Service Provider as these
are likely to be either accompanied with a formal Representation or a formal
Representation will be submitted within the specified timeframe. All bond payments will
be required by cheque or credit card submitted on a pre populated form provided with
the Pre Enforcement Notification Letter.

If a bond is paid in response to the Pre Enforcement Notification Letter then the Service
Provider shall issue a certificate by first class post as detailed in Requirement E5.16.23
above for PEU Enforcement but this must also highlight again the additional right of
Representation.
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A certificate issued in response to a Pre Enforcement Notification Letter has a different
timeline to the certificate issued to PEU Vehicles.
The timeline for PER Certificates is fourteen (14) days (grace period) +twenty eight
(28) days (Representation period) +the Pre Notification service period (this being the
date the Registered Keeper/Person Liable would have received notification that he/she
was due to become a Persistent Evader).
All such periods shall be Parameterised fields which can be amended without recourse
to the formal Change Control Request Procedure.

If the Registered Keeper/Person Liable pays the bond and makes a Representation
then the Representation shall be dealt with in the normal manner. All bond payments
will be requested to be made via cheque or credit card and the Service Provider shall
not bank any bond payment until the Representation has been fully considered in line
with the TfL business rules. If rejected then the bond payment can be banked. If the
Representation is accepted then the Service Provider shall not process the payment
and shall notify the Registered Keeper/Person Liable in the Notice of Acceptance.
Depending on the outcome of the Representation the Service Provider may be required
to:
issue a Notice of Acceptance;
issue a Notice of Rejection;
issue both a Notice or Acceptance or Rejection in relation to different PCNs;
cancel PCNs; or
reissue PCNs.
CCS0000140731


If the Registered Keeper/Person Liable pays all outstanding charges and makes a
Representation, this Representation shall be dealt with in the normal manner as
detailed in this Statement of Requirements.

Any rejected Representations shall require notification of the right to Appeal in the
same manner as normal rejected Representations.

The Clamp, Removal and Pound management module shall provide the functionality to
process bond payments and issue certificates from the Vehicle Pound in line with the
above requirements. This will enable motorists who claim, and are able to prove that
the PCNs or earlier Pre Enforcement Notification Letter have not been received, to pay
the bond rather than the full amount outstanding, and make a formal Representation.
5.17 Legal Claims
MIS
The Service Provider shall be responsible for identifying and recording all legal claims
made against TfL. For the avoidance of doubt a legal claim is considered to be any
notification of formal legal action issued by a court. The Service Provider shall escalate
such claims to TfL within three (3) hours of receipt and suspend any relevant PCNs
and associated Enforcement Action (including any Bailiff action).
CCS0000140731

MIS
The Service Provider shall record an event on the Enforcement Operations System
against the relevant PCNs to show that a legal claim has been made.
MIS
The Service Provider shall act upon any instruction given by TfL with regards to a legal
claim. This shall include, but not be limited to, gathering required evidence to defend
the case, such as:
copies of the notices sent;
correspondence received and responses sent;
copies of financial transactions; and
call recordings etc.
If required, the Service Provider shall draft a suitable response (to be approved by TfL)
to be sent to the claimant.

If required, the Service Provider shall provide witness statements and/or relevant
people to attend any court hearing to give evidence in regards to a legal claim.
MIS
The Service Provider shall settle any financial award or judgement made against TfL
from the Service Providers funds within forty eight (48) hours of notification of the sum
to be paid.
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The Service Provider shall normally meet any costs awarded against TfL or agreed
settlement where the Service Provider has not complied with the requirements of this
Agreement and its actions or omissions have led to the initial claim or the settlement of
it.
MIS
The Service Provider shall update the Enforcement Operations System with the
outcome of any legal claim to show if settlement was agreed, if the case proceeded to
court and if so, the final judgement and costs awarded.
MIS
The Service Provider shall flag any costs involved with a legal claim on the
Enforcement Operations System. If required by TfL, the Service Provider shall cancel
or write-off the relevant PCNs as appropriate.

Copies of any correspondence received directly by TfL and sent directly by TfL shall be
provided to the Service Provider. On receipt, the Service Provider shall scan and
associate this Data with the relevant PCNs.
5.18 Escalation Management
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MIS
The Service Provider shall operate a Workflow System for escalating relevant cases to
TfL for consideration.
MIS
The Service Provider shall ensure that the Enforcement Operations System allows for
an auditable tracking System that shows:
at what stage cases are at (any given time);
how long the cases have been escalated for;
type of escalation;
reason for escalation; and
who is responsible and has been responsible for them.
MIS
The Service Provider shall ensure that its Workflow System allows full visibility of the
advice given and reporting tools to allow for monitoring of all escalations.
MIS
The Service Provider shall ensure that all escalations are sent through the
Enforcement Operations System directly to TfL and items shall be assigned to a named
TfL Workflow group.
MIS
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include, but shall not be limited to the following TfL Workflow groups:
Representation;
Appeal;
Clamp and Removal Representation;
Clamp and Removal Appeal;
Statutory Declaration;
Out of Time Statutory Declaration/N244 Applications;
legal claim;
Complaint;
Bailiff Enquiry;
Confidence Check query;
PCN payment query;
FOI request; and
EIR request
These Workflow groups shall be amended and changed within twenty four (24) hours
notice following written authorisation from TfL without recourse to schedule 9: Change
Control Request Procedure and at no addition cost to TfL.
MIS
The Service Provider shall ensure that the Enforcement Operations System ensures
that each record shows:
the date escalated;
the date a response is required by (response times to be specified by TfL, for
example in Appeals cases this will be the evidence due date);
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relevant PCN(s) number;
VRM;
a sub-category (full list to be provided by TfL) such as diversion, PCO etc.;
name of person escalating;
confirmation that case has been approved by team leader/supervisor as suitable for
escalation;
reason for escalation (unlimited text field); and
what is required from TfL (e.g. advice, cancellation decision, further information
etc).
All of the above fields shall be Parameterised Data fields. These can be amended and
changed within twenty four (24) hours notice following written authorisation from TfL
without recourse to schedule 9: Change Control Request Procedure and at no
MIS
The Service Provider shall allow TfL to return the required advice/evidence to the
Service Provider via the Workflow System, which will include:
name of TfL staff member providing the guidance;
date and time stamp of return;
category of response (list to be determined by TfL); and
full details of response in an unlimited text field that can be checked for spelling and
grammar, formatted to include bold text, bullet points and other standard word
processing functions.
All of the above fields shall be Parameterised Data fields. These can be amended and
changed within twenty four (24) hours notice following written authorisation from TfL
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without recourse to schedule 9: Change Control Request Procedure, and at no

the ability to insert and upload documents to the response including but not limited to
PDF files, photographs, schematics, process maps, Visio diagrams etc.

Each escalation event and details shall be stored by the Service Provider against the
relevant PCNs or Customer Record on the Enforcement Operations Systems and the
Service Provider shall ensure that the Enforcement Operations System allows the
ability to view the escalations, the response from TfL and any other associated
documents.

The Service Provider shall ensure that all escalations Data shall be capable of being
stored and reported on to enable trend analysis and Personnel (both TfL and Service
Providers) management reporting and monitoring.

CCS0000140731


6 PCN PAYMENT AND ENQUIRY
Introduction
The Customer services aspect of PCN processing services shall operate via a PCN
Payment and Enquiry Service. Processing of all Enforcement related queries,
payments and communications will be carried out through the following channels:
telephone (IVR and CSR);
internet (Web and email); and
postal processing (post, facsimile and courier).
6.1 General
E6.1.1 R1 Mandatory

The Service Provider shall provide dedicated teams responsible for the resolution of
Enforcement related queries for identified stakeholder groupings such as Fleet
Vehicles, Residents, Blue Badge Holders, Hire and Lease company Enquiries and the
Public Carriage Office.
E6.1.2 R1 Mandatory

The Service Provider shall provide as a minimum the following channels of
communication:
telephone (IVR and Customer Service Representative);
internet (Web and email); and
postal processing (post, facsimile and courier).
E6.1.3 R1 Mandatory
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MIS
The Service Provider shall accept PCN payments via all channels and ensure that all
payments are processed within the timescales defined in schedule 5: Service Level
Agreement.
E6.1.4 R1 Mandatory

The Service Provider shall adhere to the guidelines specified by TfL from time to time
on all correspondence.
E6.1.5 R1 Mandatory
MIS
The Service Provider shall log, escalate and resolve all Complaints in accordance with
schedule 5: Service Level Agreement.
E6.1.6 R1 Mandatory

The Service Provider shall ensure that the prime language for the Schemes and
Services is UK English and its Personnel are educated to the standard of at least
GCSE grade C in English language.
E6.1.7 R1 Mandatory

The Service Provider shall provide a foreign language service employed and managed
by the Service Provider for the translation of telephone calls and correspondence made
in the secondary languages. Such a service shall be available at all times when the
PCN Payment and Enquiry Service is in operation.
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E6.1.8 R1 Mandatory

The secondary languages specified above are:
English;
those specified in GLA regulations; and
common visitor languages (e.g. main EU languages).
E6.1.9 R1 Mandatory

If required by TfL, the Service Provider shall accommodate additional languages as
directed by TfL. The implementation of the provision of such additional languages shall
be agreed in accordance with schedule 9: Change Control Request Procedure.
MIS
The Service Provider shall ensure that all transactions and communications for each
Contravention are traceable throughout the PCN processing timeline and beyond on a
unique and individual basis.
MIS
The Service Provider shall ensure that the Enforcement Operations System identifies
the channel by which each transaction or communication was received and made. This
requirement is also applicable to any additional PCN payment and Enquiries channels
that may be added in the future.
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MIS
The Service Provider shall use the Workflow System for passing any tasks to another
team member or function within the Service Providers operations. This requirement is
applicable to all tasks within PCN processing services.

The Service Provider shall advise and gain agreement from TfL before contacting
Customers on matters not directly related to the Enforcement of the Schemes or other
Services for which the Service Provider is responsible, even if such matters appear
related, for example road safety and travel awareness campaigns.

The Service Provider shall devise a detailed set of Enforcement Operations Frequently
Asked Questions that shall be approved by TfL. The Enforcement Operations FAQs will
become an integral part of the training provided by the Service Provider to its Contact
Centre Personnel.

The Enforcement Operations FAQs devised by the Service Provider shall cover (in
detail) all relevant steps of the Enforcement process and the most common questions
likely to be asked by those in receipt of PCNs or engaged in the Enforcement process
in any way including, but not limited to:
the reasons for PCN issue under each relevant Enforcement regime;
the Representations and Appeals process; and
the Statutory Declaration and Debt Recovery processes.
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The Enforcement Operations FAQs shall contain common responses to more generic
questions relating to each of the relevant road user Scheme(s) and any other
Enforcement processes for which the Service Provider is responsible.
MIS
The Service Provider shall devise and implement an Enforcement Operations FAQ
database which shall ensure the Enforcement Operations FAQs are presented in a
structured format and will allow the Service Providers Personnel or the Customer (via
the Services Website) to search for responses to questions by keywords.
MIS
The Service Provider shall ensure that the FAQ database automatically updates and
reconfigures itself to ensure that the most commonly asked questions are presented to
CSRs and Customers in the form of a list of no less than ten (10) of the most
commonly asked questions.
MIS
The Service Provider shall ensure that the Enforcement Operations FAQ database
accessed by Customers via the Services Website asks Customers to rate the answers
provided in terms of usefulness. The Service Provider shall use such ratings to present
Customers asking the same or similar questions in the future with the same response
ahead of other possible responses.
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MIS
accessed by Customers via the Web pages links to an Enquiry screen, which will allow
the Customer to ask a question via an email format submission, which the Service
Provider shall process in the normal manner for Customer queries submitted by the
Services Website.

The Service Provider shall ensure that the Enforcement Operations FAQ database is
an integral part of the Enforcement Operations System provided and maintained by the
Service Provider.

functionality is easily accessible to all Personnel employed by the Service Provider and
to TfL Personnel through the TfL Interface and is developed from the current set of
Enforcement related FAQs.
MIS
The Service Provider shall include additional FAQs and ensure that existing FAQs are
updated within twenty four (24) hours notice from TfL without recourse to schedule 9:
Change Control Request Procedure.
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The Service Provider shall process all written Enquiries, including electronic Enquiries
in accordance with appendix 29: Written PCN Enquiries and shall carry out the
appropriate investigation into the Enquiry and send the appropriate response.

The Service Provider shall implement any change(s) required to processes and
procedures resulting from updates made by TfL to appendix 29: Written PCN Enquiries
within twenty four (24) hours notice from TfL without recourse to the formal Change
Control Request Procedure.
MIS
The Service Provider shall record each Enquiry against the relevant PCN and suspend
the progression of the PCN until a response has been sent to the Enquiry.
MIS
The Service Provider shall record the outcome of any investigation into the Enquiry
onto the Enforcement Operations System. These shall be Parameterised events that
can be amended and changed with twenty four (24) hours notice following written
authorisation from TfL without recourse to schedule 9: Change Control Request
Procedure and at no additional cost to TfL. For the avoidance of doubt, the Service
MIS
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The Service Provider shall ensure that any Enquiry which results in either the writing-
off of a PCN balance or the cancellation of a PCN shall be dealt with in accordance
with appendix 29: Written PCN Enquires.
MIS
The Service Provider shall record the reason for any write-off or cancellation of PCNs
onto the Enforcement Operations System. Reasons shall be agreed with TfL and shall
be Parameterised and flexible and may be amended and changed within twenty four
(24) hours notice following written authorisation from TfL without recourse to schedule
9: Change Control Request Procedure and at no additional cost to TfL. For the
avoidance of doubt, the Service Provider is not authorised to make any such changes
without formal approval from TfL.

The Service Provider shall associate any evidence relevant to the reason(s) for
cancellation and if necessary scan onto the PCN record.
MIS
The Service Provider shall ensure that only authorised Personnel may write-off or
cancel a PCN.
MIS
The Service Provider shall have necessary audit controls in place to ensure that PCNs
shall not be written-off or cancelled outside of the agreed processes.
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MIS
TfL may, on occasion, instruct the Service Provider to suspend the progress, cancel or
write-off PCNs. In this event the Service Provider shall associate and scan onto the
relevant PCN all instructions or details relevant to the case (e.g. cancellation approval
form).
MIS
The Service Provider shall ensure that all requests for suspension are completed on
the day of receipt to prevent unnecessary escalation of the PCN and instruction to
write-off or cancel a PCN are completed within forty eight (48) hours of notification.
MIS
The Service Provider shall not (under any circumstances) cancel or write off any PCN
on the instructions of any non-Authorised TfL Personnel and shall notify the Head of
Enforcement immediately should any such request be made. The Service Provider
shall determine whether the relevant member of TfL Personnel was so authorised by
reference to a list of approved TfL Personnel and signatures of those authorised to
issue cancellations and write-off instructions provided by TfL.
E6.1.36 R1 FYI

TfL provides the Service Provider with copies of all incoming mail it receives directly
and where TfL has directly responded to these cases, copies of the response(s).
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MIS
The Service Provider shall ensure that documents provided by TfL are associated and
scanned to the relevant PCNs within seventy two (72) hours of receipt.
MIS
The Service Provider shall record an event against the PCN history to show that TfL
has received and responded directly to an item of correspondence.

The Service Provider shall provide any additional Enforcement Operations reference
information, leaflets and Data in relation to the Scheme(s) to the Contact Centre or
Enforcement Operations Personnel and shall ensure that the information is accurate
and up to date.

The Service Provider shall ensure, through training and effective communication that
all of its Personnel are familiar with the most recent version of the Enforcement
Operations FAQs on all aspects of the Scheme(s) or other Enforcement Processes for
which the Service Provider is responsible.

The Service Provider shall ensure that there are effective mechanisms for updating the
Enforcement Operations FAQ database to enable the instant addition or removal of
FAQs and accommodate exceptional events such as a major Security Incident that
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results in the suspension of the Scheme(s).

The Service Provider shall escalate any questions raised by Customers which the
Service Provider is unable to answer to TfLs PMAs in accordance with the escalation
procedure to be agreed with TfL.

On receipt of responses from TfLs PMAs to the questions not on the Enforcement
Operations FAQ database. The Service Provider shall, where instructed, ensure that
the Enforcement Operations FAQ database is immediately updated with the new
question and TfLs PMAs approved response.

The Service Provider shall notify relevant Other Service Providers in the event that the
Service Provider identifies any error or omission by those Other Service Providers that
has resulted in a Complaint, Enquiry or Representation to the Service Provider.
MIS
The Service Provider shall keep an electronic log of all such instances where they have
notified any relevant Other Service Providers of an issue identified during the operation
of the Services and shall share such a log directly with TfLs Enforcement Operations
management team and the Project Review Meeting.
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MIS
The Service Provider shall ensure that the electronic log contains all relevant
information including the affected Customer(s), the nature of the referral to the relevant
Service Provider, the name of the relevant Service Provider, the outcome of any
Representation or Appeal, Enquiry or Complaint and the action taken by the Service
Provider.
MIS
The Service Provider shall update the electronic log daily and make it available to TfL
through the TfL Interface.
MIS
The Service Provider shall record onto its Enforcement Operations System every PCN
payment or Enquiry contact against the correct PCN record or records if the query
relates to more than one (1) PCN.
MIS
The Service Provider shall ensure that the Enforcement Operations System generates
a unique Customer Record for any communication made by a Customer who is
unregistered within the Enforcement Operations System through the issue of an
appropriate PCN. The minimum level of information required in such records shall be a
query reference number and the nature of the query.
MIS
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The Service Provider shall link and reference contact query reference numbers with
any future queries or Penalty Charges that may arise.

The Service Provider shall always quote the contact query reference number back to
the Customer.

The Service Provider shall ensure that the communication is traceable by the query
reference number if quoted by the Customer at any time in the future.

Where unique and non-PCN related queries are recorded, the Service Provider shall
provide the following facilities:
mechanisms to prevent the creation of multiple different versions of Customer
Records;
authorised Operatives to create custom (i.e. freeform) correspondence for
Customers, which shall be agreed with TfL; and
post information to Customers, including information about the Scheme(s) or other
Enforcement processes that the Service Provider is responsible for.

The Service Provider shall devise and operate a process for identifying, resolving and
closing duplicate records of Customer contacts to be agreed with TfL.
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The Service Provider shall promptly communicate any changes required to Customer
Data held on the Core IT System via the relevant Interface prior to the Operative
closing down that task for which the need for correction was identified to the Core IT
System. This shall prevent any further actions being taken on the basis of incorrect or
out-of-date Data.
6.2 PCN Payments
E6.2.1 R1 Mandatory

The Service Provider shall clearly advise the Customer on how payment shall be made
regarding the outstanding balance of any PCNs, which remain partially or fully unpaid.
E6.2.2 R1 Mandatory

The Service Provider shall record cheque numbers for payments received against the
associated PCN number in the Service Providers finance system.
E6.2.3 R1 Mandatory

The Service Provider shall provide the facility to trace dishonoured cheques to the
source transaction and take appropriate action in line with TfLs finance guidelines.
E6.2.4 R1 Mandatory

The Service Provider shall retain and store a scanned image of any cheques, payment
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slips and the front and back of any envelopes in which payments are received against
the relevant PCNs. The Service Provider shall retain such images as long as the case
is held on the Enforcement Operations System in accordance with appendix 14: Data
Retention Policy. The Service Provider shall make such images available to Operatives
and TfL Personnel through the TfL Interface via a query on a particular PCN using the
E6.2.5 R1 Mandatory

The Service Provider shall conduct online debit/credit card authorisation in accordance
with appendix 27: Interface Catalogue.
E6.2.6 R1 Mandatory

The Service Provider shall interface to a credit card authoriser in order to authorise
debit/credit card payments from debit and credit cards. Such cards shall include any
commonly accepted payment card in use for five percent (5%) or more of such
transactions within the UK. These cards currently include, but are not limited to:
Visa;
MasterCard;
American Express;
Diners Club;
Maestro; and
Visa Debit cards.
E6.2.9 R1 Mandatory
MIS
For all payments where the cardholder is not present, the Service Provider shall ask
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and record the cardholders name, address and the cards valid from (if applicable)
and end dates, issue number where applicable and shall further verify the payment
via the three (3) digit security code on the reverse of the card.

The Service Provider shall ensure that all credit card payments require a three (3) digit
security code prior to payment.

The Service Provider shall protect payment card details from misuse by Customers
and/or Operatives and prevent the presentation of payment card details already
entered into the Enforcement Operations System to Customers and Operatives at all
times except in cases where operationally necessary in agreement with TfL.

Where Customer verification of card details already entered on the Enforcement
Operations System is required, the Service Provider shall ensure that the Enforcement
Operations System supports the input of part of the number (i.e. xxxx xxxx xxxx 1234)
so that the verification shall be made without the display of the whole number to the
Operative or Customer.

The Service Provider shall provide payment Enquiry functionality to perform payment
Enquiries on the Enforcement Operations System and shall return a record of payment
details for each PCN on the Enforcement Operations System.
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MIS
The Service Provider shall ensure that where a PCN payment is accepted, no
underpayment letter shall be sent and that the Enforcement Operations System and
finance systems both hold detail as to the reasons why a PCN case has been closed
on receipt of an amount less than the amount outstanding.

functionality to effectively reconcile payments made for multiple PCNs.
MIS
The Service Provider shall have effective measures in place for notifying Customers
making payments for multiple PCNs of any problems or queries relating to their
payments. In particular the Service Provider shall ensure that a Customer is notified in
writing and, where possible, through telephone communication of any payment
received for multiple PCNs where the amount tendered does not cover all the listed
PCNs.
MIS
For each PCN payment offered, the Service Provider shall check if a Warrant of
Execution has been passed to the Bailiff to commence Debt Recovery for the PCN in
question.
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MIS
Where a Warrant of Execution has been passed to the Bailiffs, the Service Provider
shall not process the payment but shall either inform the Customer of the correct
course of action as detailed in the Enforcement Operations FAQ or return their
payment with a covering letter to the Customer explaining the options available to the
Customer (i.e. pay Bailiff).
In circumstances specified by TfL and to be stipulated in TfLs PCN Payment business
rules, payments which would normally be refused will be accepted or Bailiff action
suspended pending further investigation. The Service Provider shall ensure that the
Systems will allow for such actions by authorised Personnel only.
MIS
The Service Provider shall return the postal order or cheque to the Customer along
with a letter communicating the reason for the failed payment and the process for de-
clamping or release.
MIS
The Service Provider shall communicate the reason(s) for the failed payment verbally
in the case of telephone payment and via a message on the Web for Web payments.
The Service Provider shall copy the correspondence to the Bailiff, or in the case of
telephone or Web payment, generate a message to the appropriate Bailiff advising of
the communication and case details.

The Service Provider shall ensure that the PCN Payment and Enquiry Service has the
capability, through the integrated Clamp, Removal and Pound management module
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and Enforcement Operations FAQs to process payments for clamped or removed
Vehicles and answer specific queries relating to clamping and removal, including, but
not limited to:
the reasons for clamping and removal activity and how it may be avoided;
how the Vehicle release may be attained;
the powers TfL has to Clamp and Remove Persistent Evaders and Vehicles without
valid Tax discs; and
the location where the Customers Vehicle is held.
MIS
The Service Provider shall ensure that the Enforcement Operations System records
details and is capable of invoice reporting on any payments related to any Penalty
Charge including, but not limited to, refunds, underpayments, overpayments, channel
payments, Third Party payments, cancellations and re-charges.
MIS
The Service Provider shall process Enquiries and payments made in respect of
outstanding Penalty Charges, Clamp and Removal actions via the following channels:
telephone (IVR and CSR);
Web;
postal processing; and
email.
MIS
Where the Customer does not submit the correct payment amount in respect of an
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outstanding PCN, the Service Provider shall notify the Customer in writing within twenty
four (24) hours of the underpayment, including details of:
PCN underpayment;
amount owing; and
amount that the PCN will increase to without full payment.
The PCN shall be progressed in the normal manner in accordance with the PCN
processing timeline.

The exception to the above requirement will be the acceptance of underpayments due
to a Complaint or Enquiry. The Service Provider shall provide an override facility to
deal with such events.

The Service Provider shall implement processes to deal with partial payments against
outstanding Penalty Charges and account for part payments against multiple liabilities
in accordance with a payment priority sequence to be provided by TfL.
MIS
Postal delays are incorporated into the PCN processing timeline however the Service
Provider shall automatically generate underpayment letters with suitable reporting
functionality.

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[Information Redacted]

The Service Provider shall establish and maintain an account for payments received
which cannot be allocated to the relevant PCN(s). For such payments the Service
Provider shall record all relevant details such as name of account holder, account sort
code and account number, bank details and cheque number and be able to search for
confirmation that such payments have been received and deposited should Customers
make a claim of payment in due course. If the Service Provider is able to confirm
receipt of such a payment then it will apply the payment as full and final Settlement of
the relevant PCN(s).
MIS
The Service Provider shall identify all overpaid amounts over six (6) Months as
overpayments, and credit the same to TfL.
MIS
The Service Provider shall automatically offer, produce and remit Receipts to the
Customer for payments made via all channels through the PCN Payment and Enquiry
Service unless the opt-out option provided to the Customer has been selected by it.

The Service Provider shall ensure that the PCN Payment and Enquiry direct contact
details are on the reverse of any Receipt.
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The Service Provider shall ensure the Enforcement Operations System is able to
complete all requested multiple Customer tasks within the area of Enforcement
Operations, such as the payment of multiple PCNs with one or more debit/credit card
payments.
6.3 Refunds
E6.3.1 R1 Mandatory
MIS
The Service Provider shall ensure that system functionality, reason codes and
processes are provided to support all aspects of TfLs refund policy as specified in
appendix 33: Refund Policy, so that refunds may be made at all stages of the
Enforcement process, all fees relevant to Clamp and Removal and/or Bailiff action.
E6.3.2 R1 Mandatory
MIS
The Service Provider shall ensure that the System functionality is such that all required
information relating to the refund/reimbursement, including ex-gratia payments, is
available and visible upon enquiry to the PCN record. This information shall include,
but is not limited to include:
amount of refund;
reason of refund;
status (such as and not limited to requested, pending, authorised, paid, returned
and reissued);
method of payment (default or other elective choice);
full payee details if not the Registered Keeper/Person Liable; and
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payment transaction reference (such as a cheque number or other relevant
identifier for reconciliation purposes).
E6.3.3 R1 Mandatory

The Service Provider shall ensure that the refund functionality shall be capable of
producing more than one (1) refund per PCN and/or able to refund to more than one
(1) person with relevant safeguards in place.
E6.3.4 R1 Mandatory

The Service Provider shall ensure that any PCN payments made can be refunded to
the Customer, Registered Keeper/Person Liable or otherwise, when required.
Examples of such situations includes:
refunds for any Penalty Charges already settled by the Customer (fully or partially)
which are subsequently cancelled at the request of TfL;
acceptance of a Representation or Appeal; and
costs awarded against TfL in favour of the Appellant.
E6.3.5 R1 Mandatory
MIS
The Service Provider shall ensure that the refund is recorded in the Enforcement
Operations System and the record shall include the reason, amount paid, method of
payment and details of payee.
E6.3.6 R1 Mandatory

The Service Provider shall ensure that the refund functionality is capable of grouping
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refunds and producing one (1) single refund payment for multiple refunds, fully or
partially, relevant to, and not limited to, multiple PCN refunds against one (1) VRM,
Registered Keeper/Person Liable, payees, case reference or other.
E6.3.7 R1 Mandatory

The Service Provider shall ensure that the refund shall be sent to the relevant person
making the payment who may not necessarily be the Registered Keeper/Person Liable.
E6.3.8 R1 Mandatory

The Service Provider shall pay a refund back to the Customer:
if the Service Provider is aware of an overpayment being made and is able to
identify the payee;
on request by TfL or the Local Government Ombudsmen as the result of a
Complaint or otherwise;
the Customer requests the amount overpaid and the Service Provider verifies such
a request;
the Customer has paid a PCN but subsequently makes a Representation/Appeal
which has been accepted, non-contested or been successful.
E6.3.9 R1 Mandatory

ability to override the refund generation process in certain circumstances to be
confirmed by TfL.
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MIS
The Service Provider shall make the necessary refund and adjustments in the event of
a claim made by a Customer for an overpayment after the amount has been
transferred to TfL.

The Service Provider shall work in accordance to any amendments made by TfL to
TfLs refund policy as specified in appendix 33: Refund Policy. All such changes shall
not constitute a Change through schedule 9: Change Control Request Procedure and
shall not incur any additional cost to TfL. For the avoidance of doubt, the Service
MIS
The Service Provider shall ensure that TfL approves all refunds above an agreed level
before payment in accordance with appendix 33: Refund Policy.
MIS
The Service Provider shall refund the Customer using the method of payment utilised
by the Customer for the transaction to which the refund relates. Exceptions to this are:
PCNs paid in cash, in which case the Service Provider shall pay the refund by
cheque unless the Customer specifically states that a cheque is not acceptable, in
which case the Service Provider shall pay the refund by postal order; and
refunds applied for by the executors of the estate of a Customer who is now
deceased, in which case the Service Provider shall pay the refund by cheque to the
executors upon presentation of the required evidence.
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6.4 General PCN Search Functionality
E6.4.1 R1 Mandatory

The Service Provider shall provide the ability to carry out searches on the Enforcement
Operations System based on all Data fields including, but not limited to the following:
Contravention Type;
PCN number;
Contravention location;
VRM;
start and end date of offence;
PCN state;
PCN status;
Customer identifier;
postcode and house number;
query reference number; and
Clamp or Removal action.
E6.4.2 R1 Mandatory

The Service Provider shall ensure that all searches allow searching on partial elements
of each Data field. For example a search in the VRM field ABC would return all
records with ABC in the VRM field.
E6.4.3 R1 Mandatory

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The Service Provider shall be able to use search and query functionality to search by
PCN, which shall return all financial transactions for that PCN.
E6.4.4 R1 Mandatory

The Service Provider shall provide a PCN Enquiry functionality to perform PCN event
Enquiries on the Enforcement Operations System which shall return a record of all
Enforcement Actions taken or events having occurred for each PCN on the
E6.4.5 R1 Mandatory

The Service Provider shall ensure that the Enforcement Operations Systems PCN
Enquiry facility shall allow a search for multiple PCN records.
E6.4.6 R1 Mandatory

The Service Provider shall ensure that a PCN Enquiry shall return a summary record
for each PCN that has the same VRM and same Registered Keeper/Person Liable
details as the specified PCN record.
E6.4.7 R1 Mandatory

The Service Provider shall ensure that by selecting an individual PCN record the
Enforcement Operations System shall drill down to detailed PCN Enquiry for that
specific record returning all details relating to the specified PCN record alone.
E6.4.8 R1 Mandatory
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The Service Provider shall ensure that a single PCN Enquiry to perform a detailed PCN
Enquiry on the Enforcement Operations System shall return all details relating to the
specified PCN record alone.
E6.4.9 R1 Mandatory

The Service Provider shall ensure that the VRM Enquiry shall retrieve all PCN history
for a specified VRM.

Customer Web or telephone access to PCN records shall be by PCN number or VRM
only. Where a request is made in relation to a PCN record, the Service Provider shall
only disclose details relating to the PCN where the Customer provides:
PCN number;
VRM number and verified additional details including dates of offences, make,
model and colour of the Vehicle or elements of the Registered Keeper/Person
Liables name or address; or
dates of Contraventions,
Where the Customer has not been able to provide the required details then the Service
Provider shall not disclose information relating to the number and value of outstanding
PCNs but shall advise the Customer that further details are required.
MIS
Where full payment has been received for a PCN, the Service Provider shall instruct
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the Core IT System to delete the relevant Evidential Record in accordance with the
Interface Specification and appendix 14: Data Retention Policy.
6.5 PCN Payment & Enquiry Service via the Telephone
E6.5.1 R1 Mandatory

The Service Provider shall provide and operate a PCN Payment and Enquiry Service
by telephone. The Service Provider shall staff the PCN Payment and Enquiry Service
with highly trained and skilled Personnel with a detailed knowledge of the Enforcement
processes for the Congestion Charging Scheme and other relevant Scheme(s).
E6.5.2 R1 Mandatory

The Service Provider shall provide a local rate (e.g. 0845) telephone number for the
PCN Payment and Enquiry Service. The Service Provider shall pre-agree this number
with TfL before installation.
E6.5.3 R1 Mandatory
MIS
The Service Provider shall receive calls to the PCN Payment and Enquiry Service by
the following routes:
transferred via a specified option from other areas of the relevant Schemes IVR
system;
the Service Providers own IVR system using a dedicated (0845) telephone number
as detailed on each item of Outgoing Correspondence issued; and
transferred from TfL.
E6.5.4 R1 Mandatory
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MIS
The Service Provider shall time and date stamp all calls to the PCN Payment and
Enquiry Service from the moment that a Customer begins to hear a ring-tone so that it
is possible to identify when the Customer telephoned the PCN Payment and Enquiry
Service.
E6.5.5 R1 Mandatory
MIS
The Service Provider shall provide, operate and maintain the facilities for PCN payment
and PCN Enquiries via the automated IVR PCN Payment and Enquiry Service twenty
four (24) hours each day, including bank holidays and other non-charging days.
E6.5.6 R1 Mandatory

The Service Provider shall agree the IVR scripts and the methods of delivery with TfL.
E6.5.7 R1 Mandatory

The Service Provider shall use suitable IVR and ACD structure(s) for the operation of
the Schemes, to be approved by TfL, on a separate dedicated number to be provided
by TfL.
E6.5.8 R1 Mandatory

The Service Provider shall not make any changes to the IVR or ACD structures or
related messages without the express prior consent of TfL in writing.
E6.5.9 R1 Mandatory
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MIS
The Service Provider shall ensure that its ACD is able to distribute calls between the
relevant members of the Service Providers team as required.

With regards to the Enforcement Operations Contact Centre welcome message, call
guidelines, IVR script and all approved Changes or additions to these, the Service
Provider shall ensure that the Customer is provided with the following:
prior to all transactions, the minimum information necessary with regard to Data
Protection (to be agreed with TfL);
prior to all transactions, callers must be informed that all calls will be recorded or
monitored, and told the purpose(s) of the recording or monitoring;
an additional option in the IVR menu which allows Customers to hear further Data
Protection information and the terms and conditions of the relevant Scheme(s);
an additional option in the IVR menu for PCN Enquiries which provides a recorded
message explaining the PCN process; and
if requested by TfL, a question in the IVR script and the Contact Centre guidelines
for use by CSR, about whether the Customer does or does not wish to receive
direct marketing (such question to be approved by TfL).

The Service Providers IVR system shall be locally based or networked if not held
locally, to allow immediate changes to be made to the IVR structure.

CCS0000140731

Where requests for changes to the IVR are made by TfL, the Service Provider shall
implement the changes within the following timescales:
requests for changes to IVR messages shall be implemented no more than four (4)
hours from the time and date that the request is made by TfL and jointly agreed by
both TfL and the Service Provider for live deployment. IVR messages are defined
as existing vocabulary that is already part of the production system, such changes
shall not constitute Changes under schedule 9: Change Control Request Procedure
and shall be implemented at no additional cost to TfL;
requests for changes to the ordinal structure of the IVR shall be implemented no
more than two (2) Working Days from the time and date that the request is made by
TfL and jointly agreed by both TfL and the Service Provider for live deployment,
such changes shall not constitute Changes under schedule 9: Change Control
Request Procedure and shall be implemented at no additional cost to TfL; and
structural Changes to the Core IVR application, which fall within the IVR system,
shall be dealt with under schedule 9: Change Control Request Procedure.
MIS
Where the Customer reverts to a CSR during an IVR transaction, the Service
Providers CSR shall request a single piece of information so that the Customer is not
obliged to repeat the information they have given up to that point via the IVR system.
This single piece of information is likely to be the PCN number, PCN Enquiry number
or VRM.

In the event of a service failure of the automated IVR system during normal Working
Hours and outside Working Hours, the Service Provider shall staff the IVR immediately
with sufficient resources to meet Contact Centre Performance Requirements. The
CCS0000140731

Service Provider shall inform TfL within two (2) hours of any such occurrences.

The Service Provider shall ensure that Customers who do not have a suitable
telephone or choose not to use the IVR service shall be routed through to a CSR
during Working Hours, or, out of Working Hours, shall be provided with a message
asking them to call back during Working Hours.

The Service Provider's PCN Payment and Enquiry Service IVR scripts shall be subject
to TfLs approval. The Service Provider shall ensure that any additions or amendments
to the script shall be made with the approval of TfL prior to operation.

The Service Provider shall ensure that its IVR systems menu permits automated
information about the Congestion Charging Scheme or other relevant Scheme(s)
enforced by the Service Provider to be played to the Customer.
MIS
The Service Provider shall ensure that Customers are able to pay for PCNs using the
IVR on entry of a correct PCN payment reference number.

CCS0000140731

If an invalid PCN payment reference number is entered by the Customer more than
twice, the Service Provider shall ensure that its IVR system does not accept payment
from the Customer and the Service Provider shall re-route the call directly to the CSR.
Where the IVR payment is unsuccessful outside of the Contact Centre Working Hours
a suitable message directing them to the Web payment channel or phoning the Contact
Centre during Working Hours shall be played.

The Service Provider shall ensure that its IVR system is secure and shall be able to
authenticate the Customer using the service where accessed using the PCN number
and VRM number.
MIS
The Service Provider shall ensure that all interactions via the IVR system are capable
of being reported for the purpose of Management Information.

The Service Provider shall ensure that the IVR system is flexible and presents callers
with various options that shall enable:
automated processing of PCN payments;
ability for Customers to pay one (1) or multiple PCNs for one (1) or more Scheme(s)
based on a unique PCN reference number to be generated on issue of each PCN;
ability for Customers to listen to automated updates of the status of their PCN(s) or
Representation through the provision of the unique PCN reference number;
ability for Customers to transfer to a CSR at any stage throughout the
CCS0000140731

communication process during the PCN Payment and Enquiry Service Working
Hours;
ability for Customers to listen to a recorded Data Protection statement to be
provided by TfL; and
ability for Customers to select an option to transfer to the Congestion Charging
Scheme Contact Centre or to other Contact Centres established for other Schemes,
which the Service Provider is responsible for enforcing.
MIS
The Service Provider shall operate an integral call logging system where every call
received by the PCN Payment and Enquiry Service shall be logged with the following
details:
PCN number or an alternative identifier;
date;
time;
name of the CSR (if applicable); and
outcome of the call.
MIS
The Service Provider shall provide CSRs with Enforcement Operations information
approved in writing by TfL including but not limited to, agreed FAQs, scripts and
question flows which shall be used whenever possible to respond to Customer
Enquiries and deliver the appropriate service outcome and to ensure that all relevant
information is captured. Such information shall be subject to regular review and the
Service Provider shall update such information and provide refresher training to
Personnel as requested by TfL which shall not constitute a Change through schedule
CCS0000140731

9: Change Control Request Procedure.
MIS
The Service Provider shall ensure that the PCN Payment and Enquiry Service via both
IVR and CSR options include the option to re-route the Customer to other areas of the
Schemes IVR at any stage during Customer communications.

The Service Provider shall ensure that the PCN Payment and Enquiry Service via
telephone provides and operates a facility for the distribution of information not
included in the scripts or guidelines, for example urgent messages or Personnel
bulletins in the event of an emergency.

The Service Provider shall make available a minimum of ten (10) pre-recorded
emergency messages for immediate access in the event of emergencies.

The Service Provider shall ensure that the PCN Payment and Enquiry Service on the
Enforcement Operations System shall provide a display, visible to all Service Provider
Personnel and visitors, of the number of calls waiting and the number of calls in the
queues. This display shall provide Data on grade of service and connected
abandonment rates for that day and for the last sixty (60) minutes.
CCS0000140731


The Service Provider shall record and monitor all calls for training, monitoring and
dispute resolution purposes.
6.6 Customer Service Representative (CSR)
E6.6.1 R1 Mandatory

The Service Provider shall staff the PCN Payment and Enquiry Service with CSRs
during the hours of 08:00 to 20:00 on Monday to Friday inclusive and from 09:00 to
15:00 on Saturdays.
E6.6.2 R1 Mandatory

The Service Provider shall ensure that all CSRs demonstrate a detailed knowledge and
understanding of relevant operational Scheme(s) and other relevant Enforcement
processes as may be necessary.
E6.6.3 R1 Mandatory

The Service Provider shall ensure that Enforcement Operations Contact Centre CSRs
do not provide incorrect information in response to any question raised outside of the
Enforcement Operations FAQs.
E6.6.4 R1 Mandatory

The Service Provider shall accurately log a summary of notes and conversations
between the Customer and the CSR against the appropriate PCN number and relevant
CCS0000140731

case.
E6.6.5 R1 Mandatory

The Service Provider shall implement an escalation procedure to achieve timely
resolution for all Customer Enquiries and Complaints. For Customer Enquiries and
Complaints which cannot be resolved immediately by the CSRs over the telephone, the
Service Provider shall make available dedicated resources for the timely and accurate
resolution of the Customer Enquiry or Complaint.
E6.6.6 R1 Mandatory

The Service Provider shall provide CSRs with workstation access to all the necessary
information about all Scheme(s) in order to permit Customer Enquiries to be answered
over the telephone. This includes, but is not limited to:
access to all payment records;
access to all previous call logs;
access to all Service Providers System functions and Data in accordance with the
agreed access rights;
access to all Customer details and Information available via electronic Interfaces
with the Core IT System and Third Parties; and
access to all FAQs.
E6.6.7 R1 Mandatory

The Service Provider shall implement a mechanism for re-sending PCN details (in
writing) where a Customer cannot gain access to the details of the PCN they wish to
pay for example if the PCN has been lost and they cannot recall the VRM or verify the
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required details as agreed with TfL.
E6.6.8 R1 Mandatory
MIS
The Service Provider shall complete all telephone calls made to the PCN Payment and
Enquiry Service within the agreed Parameters of the Service Levels as detailed in
schedule 5: Service Level Agreement.
E6.6.9 R1 Mandatory
MIS
A call shall only be deemed to be completed if the Customer either:
speaks in person to a CSR and the call is completed; or
selects an IVR option to listen to information and the transfer is complete; or
selects an IVR option to undertake an automated transaction and the transfer is
complete.
MIS
For the avoidance of doubt, where a Customer call is terminated in any of the following
circumstances, such calls are not deemed to be completed:
automatically or manually by the Service Provider including but not limited to the
use of message plans (such calls shall be deemed blocked);
by the Customer (such calls shall be deemed abandoned);
by the Service Provider (such calls shall be deemed blocked);
deliberately or due to a technical fault (such calls shall be deemed blocked);
due to a technical capacity problem (such calls shall be deemed blocked); or
failure in the IVR or in the ACD system (such calls shall be deemed blocked).
CCS0000140731

MIS
The Service Provider shall ensure that each time a Customer elects to speak to a CSR,
the CSR shall respond to the call and not terminate the call until the Customers
Enquiry, Complaint or transaction has been handled (except for where the Customer is
abusive or making a nuisance call).

The Service Provider shall not use any method or mechanism (whether manual or
automated) outside the agreed performance regimes set for the message plan to
constrain the number of calls received by the PCN Payment and Enquiry Service
telephone numbers.

The Service Providers CSR shall offer the option to repeat the following details to the
Customer after PCN payment:
PCN number;
VRM(s) using the phonetic alphabet;
date of the Contravention(s);
Penalty Charge amount;
Customers payment or debit or credit card details, so that the Customer can
confirm that these details have been recorded correctly; and
where the option to receive a Receipt is selected by the Customer, the address to
where the Receipt shall be sent.
CCS0000140731

MIS
The Service Provider shall provide results of all internal monitoring activity to TfL in a
Monthly internal monitoring report.
MIS
The Service Providers management reports shall include Data for all calls made
directly to the PCN Payment and Enquiry Service telephone number and for all calls
transferred to the PCN Payment and Enquiry Service telephone numbers.
6.7 Call Recording
E6.7.1 R1 Mandatory

The Service Provider shall record and store for retrieval all calls received by the
Contact Centre.
E6.7.2 R1 Mandatory

The Service Provider shall advise all Customers transferring to a Contact Centre CSR
that their call shall be recorded for the purpose of staff training, monitoring and dispute
resolution.
E6.7.3 R1 Mandatory

The Service Provider shall retain all recorded calls in a common format (such as
CCS0000140731

Windows Media file or MP3).
E6.7.4 R1 Mandatory

The Service Provider shall store all calls relating to active PCNs against the relevant
PCNs for the purpose of Representations and Appeals processing, Complaint handling
and other queries.
E6.7.5 R1 Mandatory

The Service Provider shall retain all recorded calls not relating to a PCN for a minimum
of six (6) Months.
E6.7.6 R1 Mandatory

The Service Provider shall ensure that it is possible for call recordings to be transferred
to CD or similar media for the purpose of Appeals hearings.
E6.7.7 R1 Mandatory

The Service Provider shall provide the functionality to search for and retrieve call
recordings based on, but not limited to:
relevant CSR;
telephone number the call was made on (where possible);
range of times and dates;
PCN and/or PCN payment reference number; and
subject category as identified by the CSR (e.g. payment, Representation, general
CCS0000140731

query), to be approved by TfL.
E6.7.8 R1 Mandatory
MIS
The Service Provider shall make available to TfL via dedicated and remote TfL
workstations, real-time statistics about, but not limited to the number of incoming calls
and call waiting times, and the ability for TfL Personnel to select and listen to any active
call and access to recorded calls.
6.8 PCN Payment & Enquiry Service via the Internet
E6.8.1 R1 Mandatory
MIS
The Service Provider shall provide, host and maintain dedicated and secure Web
pages for the PCN Payment and Enquiry Service for each of the Contravention Types
that the Service Provider is responsible for enforcing.
E6.8.2 R1 Mandatory

The Web pages provided by the Service Provider shall allow the payment of PCNs
issued to Customers using debit and/or credit cards and an Enquiry facility that shall
allow the Customer to view:
guidance on the Enforcement of the Schemes;
Images of the Contravention;
key details of the Contravention Type, the PCN(s) including date, time and location
of the Contravention;
status of the PCN at the time of Enquiry;
information on Representations that the Customer may have submitted; and
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copies of Notices of Acceptance and/or Notices of Rejection that the Service
Provider may have sent.
E6.8.3 R1 Mandatory
MIS
The Service Provider shall ensure that the Web Enquiry facility enables the Customer
to view camera location information such as site schematics, digital images of the site
location etc.
E6.8.4 R1 Mandatory

The Service Provider shall ensure that the Web facility enables the Customer to
download various forms and PDF files relating to the Enforcement of the Schemes
including, but not limited to:
FAQs
relevant guidance notes and forms;
copies of PCNs, Representations, appeals forms; and
application forms for relevant discounts offered by TfL.
E6.8.5 R1 Mandatory
MIS
The Service Provider shall provide and operate System functionality to enable the
processing of electronic Enforcement correspondence such as Representations. Such
functionality will not be required to be operational at Operational Commencement Date
but may be introduced at some stage in the future after consultation with TfL. In this
case, the Service Provider shall follow the appropriate guidelines and principles laid out
by TfL.
CCS0000140731


The Service Provider shall ensure that for access to the Web based PCN Payment and
Enquiry Service the Customer shall be required to enter either the PCN payment
number or the PCN number.

The Service Provider shall allow Customers to access records of all PCNs closed,
cancelled, written-off or at any other status for the duration that the PCN is held on the
Enforcement Operations System in accordance with appendix 14: Data Retention
Policy.

Where a PCN has been archived from the System, the Service Provider shall ensure
that the Enquiry service retains the PCN number, date of issue and date closed and
also, message advising that no further information held shall be provided.

The Service Provider shall ensure that the PCN field on the Customer entry page shall
default to a character string in the format of the PCN number consisting of two (2)
alphabetic characters followed by eight (8) numeric characters to be agreed with TfL
such as TL00000000.

The Service Provider shall present the Customer with a list of all PCNs that have been
CCS0000140731

issued to the same VRM for any Contravention over the previous thirteen (13) Months
where the Registered Keeper/Person Liable details of the matching PCN are identical
to those of the PCN entered by the Customer.

If either the PCN payment number or the PCN number does not exactly match the
details held on the Enforcement Operations System, the Service Provider shall display
an appropriate error message advising the Customer of the fields that do not match
those held on the Enforcement Operations System.

The list of PCNs issued by the Service Provider shall include all PCNs issued by the
Service Provider for any Contravention of any Enforcement regime for which the
Service Provider is responsible for under this Agreement.

On presentation of the list of PCNs issued, the Service Provider shall present the
Customer with a default list in order of date of offence with the most recent offence at
the top of the list regardless of Contravention.

At the top of the relevant results page, the Service Provider shall ensure that the
Customer is able to define various different views including:
list of PCNs by relevant Contravention Type;
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list of PCNs by status (e.g. discount, full);
list of PCNs by date of issue (rather than date of Contravention);
list of unpaid PCNs; and
list of paid PCNs.

The Service Provider shall ensure that the PCN Payment and Enquiry Service
homepage provides high-level guidance and links to more detailed guidance (to be
provided by TfL).

The Service Provider shall ensure that the PCN Payment and Enquiry Service presents
the Customer with a summary of the total number of PCNs issued, outstanding, closed
and suspended. In addition, the Service Provider shall ensure that a total showing the
total amount outstanding to close all the PCNs listed is stated on the homepage.
MIS
The Service Provider shall ensure that Customers have the option to pay for multiple
PCNs in one transaction (quick pay) and close all the PCNs listed by clicking on a link
provided on the search results page.

The Service Provider shall ensure that the Enforcement Operations System displays
the following information for each of the listed PCNs shown on the search results
CCS0000140731

page(s):
PCN number;
date, time and location of Contravention;
current status of the PCN; and
current amount outstanding.

The Service Provider shall ensure that the PCN status shall be meaningful to the
Customer e.g. a PCN that is under consideration for Representation should state
suspended but should also state Representation received or similar. Such
descriptions are to be agreed with TfL.

At the view images page the Service Provider shall ensure that the Enforcement
Operations System presents the Customer with the interpreted VRM, the Mono
Platepatch for the PCN as well as the Mono Contextual Image for open/suspended
PCNs only.

Where the interpreted VRM does not match the VRM in the Mono Contextual Images
because of a NRS misread or Manual Checking error, the Service Provider shall
ensure that the Enforcement Operations System presents the Customer with text that
advises what the Customer should do if the Images are not of their Vehicle. Such text
shall be subject to agreement with TfL. An example of this is: If you have any queries,
please contact the Contact Centre on <0845>number between <Timings>.
CCS0000140731

MIS
The Service Provider shall ensure that the links on the view images page shall allow
the Customer to return to the search results page or to pay the PCN to which the
Images relate.

The Service Provider shall ensure that the Customers are able to select any
combination of the open and suspended PCNs listed for payment by adding the PCNs
to a shopping basket from the search results page.

On completion of their selection, the Service Provider shall ensure that the Customers
are able to select the option to proceed to a checkout where they shall be able to pay
for their selection, remove items from their selection or cancel their selection.

The Service Provider shall be capable of supporting the payment of all PCNs for all
Contravention Types up to and including Order for Recovery status (on the PCN
processing timeline).
MIS
If the Customer wishes to receive a Receipt by post, the Service Provider shall ensure
CCS0000140731

that the Enforcement Operations System shall automatically send out a Receipt to the
Customers home address.
MIS
The Service Provider shall provide a further option to the Customer to receive an
electronic copy of the Receipt via email. If such an option is selected, the Service
Provider shall check that a valid email address is entered by the Customer, and
automatically send an electronic Receipt with a unique Receipt number to the email
address.

The Service Provider shall ensure that the provision of an email address is not
mandatory to progress payment if a Receipt is not requested.

The Service Provider shall present the Customer with a Receipt page for all
transactions. This shall:
advise the Customer of the details of their payment;
advise the Customer of the Receipt number;
advise the Customer that a copy shall be sent to the provided postal and/or email
address; and
provide an option to print the screen version of the Receipt.

CCS0000140731

On completion of the transaction, the Service Provider shall present the Customer with
a successful transaction confirmation screen with links to the PCN search screen or to
the homepage of other areas.

The Service Provider shall also provide a print option if the Customer wishes to print
the details of the transaction (from the Receipt page).
MIS
The Service Provider shall present the Customer with an option to register their credit
card details for a quick pay payment process in order that when such a Customer
uses the PCN payment facility again in the future they may pay for additional PCNs
without submitting their details again.
MIS
The Service Provider shall ensure that such a facility has appropriate security
protection such as username and password protection. The Service Provider shall
ensure that this functionality forms an integral part of the quick pay facility.

The Service Provider shall ensure that the Customer is able to select an option to pay
for any additional PCNs issued against the registered VRM(s) automatically.
CCS0000140731

MIS
The Service Provider shall provide an option for Customers to sign up to receiving
Monthly statements and the Service Provider shall submit such Monthly statement to
the Customer via email or post (depending on which option the Customer has
selected). The Service Provider shall ensure that these Monthly statements summarise
all PCNs issued against a VRM and all payments made using the registered payment
details.

The Service Provider shall ensure that information on the Services Website in relation
to any PCN is in real time and is at the same status as PCNs on the Enforcement
Operations System. The Service Provider shall ensure that payments made for PCNs
via the Services Website are reflected against the PCN record on the Enforcement
Operations System.

The Service Provider shall make available to Customers a current set of FAQs relating
to the Enforcement aspects of the Scheme on the Services Website.

The Service Provider shall provide appropriate text to ensure that Customers fully
understand that the Enquiry or Complaint is not a channel for challenging a PCN
(unless the electronic Representation facility is enabled).
CCS0000140731

MIS
The Service Provider shall make all forms otherwise available to the Customer in hard
copy available for downloading and printing from the Services Website.
The Service Provider shall ensure that this is possible upon identification of the PCN
number or unique PCN payment number at all stages throughout the PCN processing
timeline and shall include but not be limited to Representation forms and refund
application forms.
6.9 PCN Payment & Enquiry Service via Post
E6.9.1 R1 Mandatory
MIS
The Service Provider shall process all mail received in relation to PCN processing
services in accordance with this Statement of Requirements and schedule 5: Service
Level Agreement.
E6.9.2 R1 Mandatory

The Service Provider shall provide at least two (2) mail box numbers (one (1) for
Representations and general correspondence, the other for PCN payments), or
equivalent, for Customers wishing to communicate through mail channels. The Service
Provider shall provide this facility at its own expense and shall ensure that the
appropriate PO Box is stated on relevant correspondence.
E6.9.3 R1 Mandatory

The Service Provider shall provide a secure room for the processing of mail.
CCS0000140731

E6.9.4 R1 Mandatory

The Service Provider shall ensure that the secure post opening and scanning room is
constantly monitored via 24/7 CCTV digital recording system.
E6.9.5 R1 Mandatory

The Service Provider shall comply with all legal requirements on opening and scanning
of mail.
E6.9.6 R1 Mandatory

The Service Provider shall ensure that at all times when post-opening activity is taking
place (in a secure post-opening and scanning room), one (1) or more supervisors (or
other managers of the appropriate grade, experience and authority within the Service
Providers organisation) are available to supervise and manage as required.
E6.9.7 R1 Mandatory

The Service Provider shall ensure that no member of its Personnel opens any item of
mail outside the secure post opening and scanning room at any time.
E6.9.8 R1 Mandatory

The Service Provider shall scan both sides of all incoming Enforcement mail including
envelopes and any attached Documents.
CCS0000140731

E6.9.9 R1 Mandatory
MIS
The Service Providers postal services supervisor shall complete an inspection log at
the end of each shift (confirming the status of all aspects of postal processing) and
make this log available to the postal services supervisor of the following shift.
MIS
The Service Provider shall log, scan, assign to the relevant Workflow queue and send
all Scheme related non-Enforcement correspondence to the Core IT System.
MIS
The Service Provider shall log, scan, assign to the relevant Workflow queue and
dispatch (in hard copy) all Scheme related non-Enforcement correspondence to the
relevant Service Element within twenty four (24) hours of receipt.
MIS
The Service Provider shall keep an additional copy of the logged Scheme related non-
Enforcement correspondence that was sent to the relevant Service Element.

The Service Provider shall store all logs of non-Enforcement related correspondence
(which are Scheme related) and make them available to view at all times by TfL.
CCS0000140731


The Service Provider shall store all scanned images on the Enforcement Operations
System and associate them with any relevant PCNs. For the avoidance of doubt, an
envelope containing a cheque for three (3) PCNs would be scanned onto the
Enforcement Operations System and would be accessible to officers querying any of
the three (3) PCNs. Any exceptions to this such as items that cannot be scanned due
to size, thickness or other physical issues shall be as defined by TfL from time to time.
MIS
The Service Provider shall identify and log all items that cannot be scanned due to
size, thickness or other physical issues shall be defined by TfL in accordance with the
above requirement.

The Service Provider shall handle original Documents securely in accordance with the
guidelines specified by TfL.
MIS
The Service Provider shall return, by first class recorded delivery, all original
Documents (for example in the event that a Customer provides an original V5C with
their Representation) within forty eight (48) hours of receipt.
MIS
CCS0000140731

The Service Provider shall ensure that in cases where the scanned Documents
(received from the Customer) is not legible enough for processing purposes, the
originals are requested from the Customer and are requested to be made available
within one (1) Working Day of the request.
MIS
The Service Provider shall contact the Customer for additional information, where the
Customers original Document is not legible.

The Service Provider shall ensure that the scanning processes include checking the
quality of scanned images that has been processed.
MIS
The Service Provider shall ensure that by noon on the day of receipt of the post any
item that has been scanned shall be accessible by the relevant Workflow queue as
agreed with TfL, except during abnormal delivery times caused by public holidays and
postal strikes. The Service Provider shall communicate all such abnormal working
times to TfL within twenty four (24) hours of their occurrence.

In the event of a postal dispute, the Service Provider shall make adequate provision for
completing all aspects of PCN processing in accordance with the PCN progression
timeline as outlined in PCN processing timeline section of this Statement of
Requirements. For the avoidance of doubt, all relevant Performance Indicators shall
CCS0000140731

continue to apply as detailed in schedule 5: Service Level Agreement.

The Service Providers mail scanning teams shall provide primary Data in the form of
Customer communications and payment to the Service Providers processing teams.

The Service Provider shall ensure that the Data is provided to the processing teams in
a form that enables them to read, understand and process the information provided.

The Service Provider shall provide and operate a mechanism for managing stored
incoming mail (along with any attachments).
MIS
The Service Provider shall give all incoming mail a unique identifier prior to scanning
and processing.

Where batch processing of mail is undertaken, the Service Provider shall apply
sufficient and adequate controls such as the use of batch totals and segregation of
duties to ensure the completeness and accuracy of input.
CCS0000140731

MIS
The Service Provider shall be able to process all incoming mail received in relation to
PCN processing including but not limited to the following:
Customer Enquiries and Complaints in relation to the PCN processing services;
Communications in relation to PCN Enforcement; and
PCN payment.
MIS
If the Customer has stated a preference for postal communication, the Service Provider
shall record and comply with the request.

The Service Provider shall archive or securely destroy all original correspondence
according to appendix 14: Data Retention Policy.

The Service Provider shall ensure that all confidential waste is disposed through an
accredited secure waste disposal contractor.

The Service Provider shall place controls on postal processing activities to ensure that
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incoming correspondence is not misplaced or misallocated.
MIS
The Service Provider shall record the time and date on which documents are received
and associate with the relevant document record on the Enforcement Operations
System.

The Service Provider shall link together multiple items that arrive in the same envelope
on the same PCN and/or Customer Record as suitable. These shall include but not be
limited to:
receipt of Representations;
receipt of Enforcement correspondence;
receipt of non-Enforcement correspondence (e.g. Discount application for the
Business Operations Service Element); and
cheque payment.

The Service Provider shall have the facility to accept and process batches of
Enforcement-related correspondence received from other Service Elements (i.e. the
Business Operations Service Element) via the Core IT System.

The Service Provider shall verify that all batches of Enforcement-related
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correspondence received from the Core IT System correspond to the log included with
the batch.

The Service Provider shall raise any discrepancies on batches of Enforcement-related
correspondence received from the Core IT System by telephone and email to the
relevant Service Element (i.e. Business Operations Service Element) for resolution.

Where there is a unique identifier already provided by TfL on the mail, the Service
Provider shall ensure that the unique identifier is entered onto the Enforcement
Operations System and the incoming mail is linked to the correct existing matching
record.
E6.9.39 R1 FYI

Mail will be returned for reasons which include but are not limited to:
addressee gone away;
addressee unknown;
address incomplete;
refused;
no such address;
address inaccessible;
no answer;
not called for; and
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mail returned by a Third Party stating that the recipient is no longer at the address
or has gone away and this may be accompanied with a covering letter.
Mail may be returned with the phrase return to sender written on the un-opened
envelope.
MIS
The Service Provider shall process all returned mail using the same processes as for
other mail, including the scanning of the front and back of the envelope, and shall enter
it into the Workflow System for action by the appropriate Service Provider team.
MIS
The Service Provider shall process returned mail in accordance with appendix 35:
Criteria for Dealing with Returned Mail for Enforcement Operations. As an example,
some categories of returned mail shall be investigated by the Service Provider to
ascertain the reason for the return. This should include, but not be limited to, verifying
that the address details are correct by referencing a postcode database or contacting
an occupant of the last known address to request a forwarding address. The Service
Provider shall comply with any guidelines provided by TfL from time to time.
MIS
The Service Provider shall process all returned mail by associating the scanned
documents with the relevant PCN.
MIS
CCS0000140731

The Service Provider shall ensure that all returned PCNs with the reason addressee
gone away/addressee unknown are passed to a tracing team who will attempt to trace
the whereabouts of the Registered Keeper/Person Liable by using various databases
including but not limited to the electoral roll, TfL customer database, credit reference
agencies and council tax records.
MIS
Where an investigation is carried out in accordance with requirement E6.9.43 and a
new address is obtained for a returned PCN, the Service Provider shall re-issue the
PCN and shall ensure that an event Registered Keeper / Person Liable details updated
as a result of tracing investigation is recorded on the Enforcement Operations System.

The Service Provider shall implement revised mail guidelines following reviews by TfL
based on experience gained in providing the services and in line with schedule 10:
Contract Management and Reporting.
MIS
The Service Provider shall ensure that where PCN payments, Representations or any
other items of post that may affect the progression of a PCN have been received such
details are logged and records updated on the day of receipt to ensure that the PCN
does not progress at the end of the day.

CCS0000140731

In the event that any items of post are not scanned or processed in accordance with
these requirements, the Service Provider shall store such items in a secure location in
order to be processed at a later date.
MIS
The Service Provider shall reduce manual input of PCN payment and automate the
postal PCN payment process as much as possible. In order to do this, as a minimum,
the Service Provider shall make full use of bar codes (or other suitable technology or
solution that the Service Provider may propose).

The Service Provider shall record cheque numbers onto the Enforcement Operations
System and associate it with the relevant PCN(s).

The Service Provider shall print, onto the reverse of every cheque received and
processed, the relevant PCN number(s) or primary PCN number if insufficient space
and date and time of processing.
MIS
The Service Provider shall immediately draw all items of post that contain cash to the
attention of a supervisor responsible for witnessing the counting of cash received and
the relevant supervisor shall countersign the receipt.
CCS0000140731

MIS
The Service Provider shall deposit all cash received in the designated TfL account and
maintain a log of such transactions.

The Service Provider shall be solely responsible for devising suitable batch processes
to manage the incoming workload and payments, TfL shall approve such processes
and the processes must conform to Good Industry Practice.

To ensure high levels of accuracy and ease of reconciliation, the Service Provider shall
consider processing batches in payment types including, but not limited to the
following:
remittances with a cheque for a discount Penalty Charge;
remittances with a cheque for the full Penalty Charge;
remittances with a cheque for the increased Penalty Charge;
remittances with a cheque for the increased plus court fee Penalty Charge;
remittances by credit/debt card for the discount Penalty Charge;
remittances by credit/debit card for the full Penalty Charge;
remittances by credit/debit card for the increased Penalty Charge;
remittances by credit/debit card for the increased plus court fee Penalty Charge;
remittances with a cheque for an amount which is not a standard discount or full
payment;
CCS0000140731

multiple remittances with a single cheque;
single remittance with multiple cheques;
remittances with a postal order;
payments without a remittance;
payments where a Receipt has been requested;
unidentified payments; and
payments in other currencies.

The Service Provider shall ensure that each receipted payment batch consists of the
corresponding remittance slips and the payments (for example cheque, postal order,
etc).

The Service Provider shall collate batches in the sequence of remittance slip cheque,
remittance slip cheque.

Where a payment is received from a Customer (via the postal channel) to carry out
multiple PCN payments and no or incorrect PCN number(s) are given or the total
amount received does not cover the total amount required to complete the transaction,
the Service Provider shall make a payment according to the age of the debt with the
oldest PCN being paid first.
CCS0000140731


If more than one (1) PCN payment is outstanding, the Service Provider shall ensure
that payment is taken only for those PCNs requested by the Customer for payment.
MIS
Where the Service Provider takes part payment against a PCN, the Service Provider
shall contact the Customer in writing by

first class post within twenty four (24) hours of
processing the payment to inform them of the amounts outstanding against all
outstanding PCNs due to be paid.
MIS
The Service Provider shall ensure that the Data scanned by the Service Provider's mail
processing teams is available to the Service Provider's other work processing teams.
These include, but are not limited to, postal processing, PCN processing and
accounting teams.

Where the Service Provider requests further information from the Customer, the
Service Provider shall retain the requested Documents on the Enforcement Operations
System until a response is received from the Customer or until the Service Provider
makes a further request for information. The Service Provider shall make such further
requests within ten (10) Working Days of the Service Providers initial request.
MIS
CCS0000140731

The Service Provider shall ensure that Customer requests made via the post are linked
to the corresponding PCN record or that a new Customer Record is created where the
request relates to a new Customer without a PCN.
MIS
The Service Provider shall validate postal orders and debit/credit card payments at the
same time as entering Customer details. The Service Provider shall communicate
payment failure to the Customer within twenty four (24) hours by telephone or by return
of post.
MIS
Where the Service Provider requires further information from the Customer before the
transaction can be processed, the Service Provider shall attempt to make initial contact
with the Customer by telephone followed by other means so as to resolve the situation
within forty eight (48) hours of receipt of the transaction request.
6.10 Complaints

The Service Provider shall process Complaints made in respect of the PCN processing
services via the following channels:
telephone;
Web;
postal processing; and
email.
CCS0000140731


The Service Provider shall implement an internal Complaint and escalation procedure
for Enforcement-related Complaints and Enquiries. The Service Provider shall ensure
that this process allows integration with TfLs Complaints and Enquiries process,
currently available on TfLs website.
MIS
The Service Provider shall escalate the following to TfLs PMAs in the first instance:
Complaints or Enquiries from MPs, Local Government Ombudsmen and other
notable figures of authority, including, but not limited to royalty, senior military
personnel and senior trade union representatives;
all media Enquiries or Complaints;
Complaints relating to infringements of the DPA, civil liberties, equality or human
rights;
Complaints against the actions of the Service Provider in any regard other than
routine Complaints of inadequate Customer service, which shall be addressed in
the first instance by the Service Provider;
Complaints against Other Service Providers or Sub-Contractors involved in any of
the relevant Scheme(s); and
information requests.
MIS
The Service Provider shall make available and maintain a Complaints procedure Web
page for prospective complainants.
CCS0000140731


The Service Provider shall agree with TfL and make available a Complaints form in
accordance with TfLs corporate website development standards. The current
Complaint form template is available on TfLs website.

The Service Provider shall pursue all search avenues to identify the PCN, VRM or
Customer Record to which a Complaint(s) relates. If after three (3) days the search is
unsuccessful, the Service Provider shall send a letter to the Customer requesting
further information to allow the PCN, VRM or Customer Record to be identified.
MIS
Once the correct PCN, VRM or Customer record relating to a Complaint has been
identified, the Service Provider shall scan the items of correspondence relating to the
Customer and index against the relevant PCN or Customer Record.

CCS0000140731


7 OUTGOING CORRESPONDENCE
Introduction
Outgoing Correspondence encompasses producing, printing, despatching, receiving
and processing various categories of Enforcement correspondence relating to the
Schemes. There will be flexibility to tailor the correspondence in order to allow usage
with different Contravention Types. Ad-hoc Outgoing Correspondence will be produced
for non-standard communications with the Customer.
7.1 General
E7.1.1 R1 Mandatory
MIS
The Service Provider shall produce, print and despatch various categories of Outgoing
Correspondence relating to PCN processing services.
E7.1.2 R1 Mandatory

The Service Provider shall provide the flexibility to tailor the correspondence to be used
with different Contravention Types.
E7.1.3 R1 Mandatory

All Enforcement correspondence produced by the Service Provider shall conform to
TfLs requirements as detailed in this section.
E7.1.4 R1 Mandatory
MIS
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The Service Provider shall produce ad-hoc Outgoing Correspondence for non-standard
communications between the Customer and the Service Provider.
E7.1.5 R1 Mandatory

The Service Provider shall have the ability to provide, on request, Outgoing
Correspondence and materials in formats including, but not limited to:
plain English;
large print (as specified by the RNIB);
braille; and
audio format.
E7.1.6 R1 Mandatory

The Service Provider shall format all printed outputs for the Schemes and other
Enforcement processes for which it is responsible for as directed by TfL.
E7.1.7 R1 Mandatory

The Service Provider shall obtain the prior approval of TfL before printing any output
designs and layouts.
E7.1.8 R1 Mandatory

The Service Provider shall ensure that all Outgoing Correspondence references the
relevant Service Providers PO Box number, PCN payment and Enquiry direct
IVR/ACD telephone number and email address.
CCS0000140731

E7.1.9 R1 Mandatory

The Service Provider shall inform TfL when it requires Public Information Material for
the operation of the Schemes, other Enforcement processes for which it is responsible
for and where necessary supply the required Data for the creation of this material.

The Service Provider shall enclose a number of leaflets and/or inserts in all items of
Outgoing Correspondence at no extra cost to TfL with the exception of additional
postage costs and the cost of production/supply of the leaflets.

The Service Provider shall provide the facility to enclose leaflets and inserts in all
Enforcement Outgoing Correspondence (including PCNs, Charge Certificates and
Orders for Recovery).

The Service Provider and its appointed printing contractor (where applicable) shall
have storage facilities on-site and be responsible for accepting delivery, storing,
maintaining and re-ordering bulk volumes of communications and publicity materials
relating to the Schemes.

CCS0000140731

The Service Provider shall ensure that the Enforcement Operations System provides a
facility for a subset of Users to create freeform Outgoing Correspondence and to send
standard (template) Enforcement and non-Enforcement information to Customers.
MIS
The Service Provider shall be able to process all Enforcement Outgoing
Correspondence for the Schemes, which include but shall not be limited to:
Enquiry responses;
replies to Representations and Enforcement-related letters;
acknowledgement of receipt of Appeals and letters informing the Customer of the
status of an Appeal;
payment Receipts;
Charge Certificates;
PCNs;
Notices to Owner;
Enforcement Notices;
Orders for Recovery;
cheques;
Warrants of Execution;
Complaints;
Appeal Packs and evidence; and
underpayment letters,
in accordance with this Statement of Requirements and schedule 5: Service Level
Agreement.
CCS0000140731


The Service Provider shall have the functionality to print all relevant documents and
Enforcement Outgoing Correspondence in colour when necessary.

The Service Provider shall ensure that the page size of mails to be printed is flexible.
As a minimum, the Service Provider shall be able to print from A5 to A3.
MIS
The Service Provider shall provide automatic integration of Customer information held
on the Enforcement Operations System (such as Customer name, address and PCN
details) into standard letter templates.
MIS
The Service Provider shall create personalised letters to Customers and populate such
letters with Customer Account Information extracted from the Core IT System and other
relevant Data automatically extracted from the appropriate Systems.

The Service Provider shall provide details of security arrangements relating to the
printing of valuable and/or sensitive items, including, but not limited to:
cheques;
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postal orders; and
Enforcement correspondence (including PCNs, Charge Certificates, Orders for
Recovery and Warrants of Execution).

The Service Provider shall have the facility to receive and respond to bulk-mailing
requests from TfL and other organisations involved in the delivery of the Scheme.
MIS
The Service Provider shall print and despatch all PCNs (received cases where the
Registered Keeper/Person Liable is known) in accordance with schedule 5: Service
Level Agreement. PCNs and subsequent Enforcement Notices such as Charge
Certificates, Orders for Recovery or Warrants of Execution shall be printed either
directly by the Service Provider or by a bulk printing facility sourced and managed by
the Service Provider at no additional cost to TfL.
MIS
The Service Provider shall ensure that PCNs and all subsequent Enforcement
correspondence for each individual offence are printed in the format as approved by
TfL and populated with all the required and relevant fields and Data from the
Enforcement Operations System specific to that offence.

The Service Provider shall draft all letters in accordance with all relevant Legislation
CCS0000140731

applicable at the relevant time.

Any standard text required on the PCN and all subsequent Enforcement
correspondence may be subject to legislative change, a decision made by TfL or a
recommendation made by the Adjudication Service or the Service Provider. The
Service Provider shall comply with these changes subject to one (1) weeks written
notice from TfL. The Service Provider shall ensure that any standard text that appears
on all PCNs or subsequent Enforcement correspondence that is printed on the pre-
printed stationery is Parameterised and flexible for change. Any such changes shall not
constitute a Change through schedule 9: Change Control Request Procedure and shall
not incur any additional cost to TfL.
MIS
The Service Provider shall ensure that it is impossible for Operatives to write an
Enforcement letter without the required action being taken on the Enforcement
Operations System. For example, the Service Provider shall not despatch a Notice of
Rejection without first rejecting the Representation and updating the Enforcement
Operations System.
MIS
The Service Provider shall ensure that it is impossible to make an action on the
Enforcement Operations System where a letter is required without writing and sending
the correct letter. For example, the Service Provider shall not cancel a PCN without the
appropriate letter being sent to the Customer.
CCS0000140731

MIS
The Service Provider shall ensure that any Outgoing Correspondence is sent only to
the Registered Keeper/Person Liable or an authorised Third Party for the Vehicle which
incurred the Penalty Charge, and where this is a company or if the individual name is
not known, the Outgoing Correspondence addresses the Registered Keeper/Person
Liable as Sir or Madam.
MIS
For all letters generated by the Enforcement Operations System, the Service Providers
operatives shall have the ability to:
re-order the sequence of paragraphs;
enter any length of free text into any part of the letter, i.e. no limit;
automatically spell and grammar check the letters using the mandatory and
effective integral UK English spell checker unless otherwise stated;
view the letter in a perfect print preview format (for the avoidance of doubt, the
System shall display the letter on the Operatives screen exactly as it shall appear
in print including page layout when over multiple pages);
print the letter locally and produce multiple copies where required (regardless of
whether a bulk printer is employed or not);
easily amend or change the letter and/or its templates entirely if errors are found
during subsequent Quality Checking, prior to being committed for bulk print
fulfilment;
allow reprint in a similar timely and efficient manner;
store the letter in original and amended formats;
use various fonts, font sizes, colours; and
use bold, italic, bullet points, underlining and numbering anywhere in the body of
CCS0000140731

the letter.

automatically runs a UK English spell and grammar check on all Outgoing
Correspondence upon print request. This shall be an integral part of the Enforcement
Operations System.

For every PCN issued, the Service Provider shall include a double-sided A4 leaflet
relevant to the offence(s) committed, the original text of such leaflets and subsequent
changes to it to be provided by TfL. Any such changes shall not constitute a Change
through schedule 9: Change Control Request Procedure and shall not incur any
additional cost to TfL. The Service Provider shall comply with these changes subject to
one (1) weeks written notice from TfL. For the avoidance of doubt, the Service

The Service Provider shall use a recognised word processing tool that provides all the
editing and printing functionality required for all Outgoing Correspondence. The Service
Provider may request TfLs input in choosing such a package.

The Service Provider shall include the name and signature of its Personnel who
created the correspondence in all Outgoing Correspondence sent to Customers.
CCS0000140731


The Service Provider shall produce Notices of Acceptance and Notices of Rejection in
accordance with the relevant business rules as specified in appendix 24: Criteria for
Dealing with Representations.

The Service Provider shall have the facility to produce and print foreign Outgoing
Correspondence where required and shall be responsible for paying the appropriate
postage and other costs incurred.
MIS
The Service Provider shall ensure that the Enforcement Operations System reports a
print request notification and stores print service request notifications for each print
request.
MIS
The Service Provider shall ensure that the Enforcement Operations System reports a
print error notification and provides an automated print service error notification alert
whenever a print error occurs.
MIS
The Service Provider shall store all print error notifications.
CCS0000140731

MIS
The Service Provider shall ensure that the Enforcement Operations System has an
automated reconciliation process, which shall raise an alarm if the total number of
items printed by the Service Provider or the bulk printer differs with the total number of
items that the Service Provider or the bulk printer created and despatched.
MIS
automatically instructs the re-print of any letters not printed or which have failed to print
in the correct format or have resulted in a printer jam.
E7.1.40 R1 FYI
MIS
Failure by the Service Provider to print and despatch items following the appropriate
action on the Service Providers system shall result in Service Failure Deductions in
accordance with schedule 5: Service Level Agreement.

The Service Provider shall print all Enforcement correspondence with the correct date
of issue. For example, a PCN printed on a day after collection of the last post for that
day must have an issue date of the next postal collection day.
MIS
CCS0000140731

The Service Provider shall ensure that the Enforcement Operations Systems PCN
processing timeline is linked to issue dates rather than printing dates of Enforcement
correspondence.
MIS
The Service Provider shall post all Outgoing Correspondence by first class post and
frank with the date of the postage, except where otherwise instructed. TfL may direct
the Service Provider to use or change to another alternative option as necessary.

Where the Service Provider undertakes the printing of the Warrant of Execution, the
Service Provider shall print the Warrants of Execution on paper and store securely for
collection by a representative of the relevant Bailiff firm.
MIS
The Service Provider shall ensure that all items of Outgoing Correspondence
containing free text are subject to a quality and approval review by a Quality Check
team as agreed with TfL. The Service Providers Quality Check team shall finalise the
Quality Check process by adding a note or assigning a score on the Enforcement
Operations System regarding the standard of the Outgoing Correspondence.
MIS
The Service Provider shall ensure that the Quality Check occurs before the item of
Outgoing Correspondence is sent for printing. The Service Provider shall ensure that
any Outgoing Correspondence that has failed to meet the required score and does not
CCS0000140731

meet the required standards of TfL (by failing) is re-drafted and re-checked by the
Quality Check team before it is sent for printing.

The Service Provider shall store re-drafted and/or reprinted Correspondence in a
format that facilitates consistent feedback and ongoing training for the Quality Check
team.
MIS
The Service Providers Quality Check team shall provide regular feedback and facilitate
a consistent approach to letter writing to the Service Providers Personnel by reporting
on any changes made.
MIS
The Service Provider shall provide the functionality to permit an authorised supervisor
(within the Service Providers PCN Payment and Enquiry Service) to update incorrect
Registered Keeper/Person Liable details on the Enforcement Operations System and
thus permit letters to be created with the correct information.

The Service Provider shall provide and maintain a document library that contains
standard letter templates and paragraphs for insertion into letters. The standard letters
and paragraphs will be provided by TfL or produced by the Service Provider and
agreed with TfL. The Service Provider shall provide adequate controls in place to
prevent misuse as well as accidental use of letter templates and/or paragraph.
CCS0000140731


All standard letter templates and paragraphs will be subject to review and change by
TfL. All such changes shall not constitute a Change through schedule 9: Change
Control Request Procedure and shall not incur any additional cost to TfL. All changes
must be approved by a TfL Enforcement Operations manager and shall be impacted
and ready for use by the Service Provider within twenty four (24) hours of receipt of the
relevant instructions from TfL.
Any changes impacted will not affect any previous Outgoing Correspondence. The
Service Provider shall store all previous standard letter templates and paragraphs on
the Enforcement Operations System with a clear audit trail detailing when changes
were made.

The Service Provider shall provide the functionality to locate and retrieve PCN Data
(from the Enforcement Operations System) via the relevant Data field which shall
date of issue;
name and address fields;
PCN reference numbers relevant to the notification;
VRM;
relevant event dates;
requests for additional information; and
where relevant, amounts outstanding against the relevant PCNs.
CCS0000140731

MIS
The Service Provider shall update the Registered Keeper/Person Liable names and
addresses only where the required evidence has been received for a change of details.
MIS
The Service Provider shall ensure that the Enforcement Operations System allows the
name and address of the Registered Keeper/Person Liable in the Outgoing
Correspondence to be updatable under all circumstances, for example where the
Registered Keeper/Person Liable is deceased.
7.2 Ad-hoc Correspondence
E7.2.1 R1 Mandatory

The Service Provider shall translate all non-English Enforcement incoming
correspondence and appropriate evidence into English.
E7.2.2 R1 FYI

The Service Provider is not required to translate bespoke Outgoing Correspondence
from English into any other language.
E7.2.3 R1 Mandatory

Whenever the Service Provider receives a letter relating to a case where a Warrant of
Execution has been issued, the Service Provider shall contact the relevant Bailiff on the
same day that the letter is received, to inform them to suspend progression with the
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case until the Service Provider has responded to the letter.

8 CLAMP, REMOVAL AND POUND MANAGEMENT MODULE
Introduction
Clamp, Removal and Pound management deals with searching for Persistent Evader
Vehicles via the OSE Service Provider. Where such Vehicles are found, they will be
clamped, removed and taken to the Pound. Persistent Evader Vehicles will be stored at
the Pound until the Registered Keeper / Person Liable makes the appropriate
payment(s). If the Registered Keeper / Person Liable fails to make the appropriate
payment(s) within the given time limit, the Vehicle will be disposed of and any resulting
income from the disposal of the Vehicle will be used to pay the outstanding debt.
Where applicable, any balance remaining will be refunded to the Registered Keeper /
Person Liable.
8.1 General
E8.1.1 R1 Mandatory

The Service Provider shall provide the OSE Service Provider with a Clamp, Removal
and Pound management module that will be an integral part of the Enforcement
Operations System.
E8.1.2 R1 Mandatory
MIS
The Service Provider shall be responsible for:
updating the lists of Persistent Evaders on a daily basis;
recording any action recorded by the OSE Service Provider against a Persistent
Evader; and
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reflecting all such Data against relevant PCNs.
The Service Provider shall ensure that all such Data is available to view by Service
Providers Personnel and Customers via the Web channel.
E8.1.3 R1 Mandatory

lists of Persistent Evaders of the various Scheme(s) that the Service Provider is
responsible for enforcing.
E8.1.4 R1 Mandatory
MIS
the functionality to classify a Persistent Evader of individual Scheme(s) that the Service
Provider is responsible for enforcing. For example, a Vehicle with two (2) Congestion
Charging Scheme PCNs outstanding and one (1) LEZ Scheme PCN outstanding may
or may not be classified as a Persistent Evader and the Enforcement Operations
System shall have flexible functionality for the generation of the relevant Persistent
Evader lists depending on TfL policy at the time.
E8.1.5 R1 Mandatory

The Service Provider shall make Persistent Evader lists available for viewing and
downloading by the OSE Service Provider through a Web-enabled Interface or any
other technical solution agreed with TfL and the OSE Service Provider. Such a solution
could be a remote terminal connected via a dedicated communications link which
would enable the Persistent Evader list to be downloaded onto a hand-held computer
terminal or mobile camera unit.
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E8.1.6 R1 Mandatory

The Service Provider shall be responsible for providing the Persistent Evader list
Interface.
E8.1.7 R1 Mandatory

The Service Provider shall ensure that the Web-enabled Interface (or other agreed
technical solution) is available to the OSE Service Provider through secure access.
E8.1.8 R1 Mandatory

The Service Provider shall make available up to fifty (50) User licences for the OSE
Service Provider to access the Clamp, Removal and Pound management module
within the Enforcement Operations System.
E8.1.9 R1 Mandatory

The Service Provider shall control access to the Clamp, Removal and Pound
management module in consultation with the OSE Service Provider and TfL.
MIS
The Service Provider shall administer User names, logins and provide technical
support to the OSE Service Provider for the Term of the Agreement.
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MIS
The Service Provider shall provide the OSE Service Provider and TfL with User usage
reports on a Monthly basis, which, as a minimum shall identify:
the total number of active Users,
summary of usage for each User and,
new Users added and removed during the reporting Month.
MIS
The Service Provider shall add or remove User access within twenty four (24) hours of
notification by an authorised member of OSE Service Providers or TfLs Personnel.

The Service Provider shall ensure that the Clamp, Removal and Pound management
module provides the OSE Service Provider with the functionality to export the
Persistent Evader list in various formats including CSV, Microsoft Excel, etc.

The Service Provider shall ensure that the Persistent Evader list export facility is
flexible and configurable to the OSE Service Provider in order that export may be
carried out depending on various factors including:
all Persistent Evaders of all Schemes;
Persistent Evaders of each Contravention Type;
Persistent Evaders created within a start and end date; and
Persistent Evaders with the most recent offence after a specified date.
CCS0000140731

MIS
The Clamp, Removal and Pound management module shall have the facility for the
OSE Service Provider to update an Enforcement Action against any Persistent Evader.
The Enforcement Actions that the OSE Service Provider may need to record against a
Persistent Evader include:
authorised for clamping;
authorised for removal;
authorised for de-clamping;
authorised for release from Pound;
gone on arrival;
driver returned;
clamped (where clamped action is applied, the Enforcement Operations System
shall automatically generate an additional clamping charge which shall be a flexible
Parameter which can be set to any amount up to five hundred pounds (500));
de-clamped paid;
de-clamped payment waived;
de-clamped removed (where this action is made then the Enforcement Operations
System shall automatically generate an additional removal charge which shall be a
flexible Parameter, which can be set to any amount up to five hundred pounds
(500));
de-clamped unauthorised;
removed;
en-route to Pound;
impounded (where impounded the Enforcement Operations System shall require
the OSE Service Provider to select a Pound from a list populated by the OSE
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Service Provider which shall contain the name, address and contact details of each
individual Pound);
released paid;
released payment waived;
released unauthorised;
de-canted (where de-canted the Enforcement Operations System shall require the
OSE Service Provider to select new Pound details);
scrapped (where scrapped the Enforcement Operations System shall require the
OSE Service Provider to select a scrap dealer from a list populated by the OSE
individual scrap dealer); and
auctioned (where auctioned the Enforcement Operations System shall require the
OSE Service Provider to select an auction house from a list populated by the OSE
individual auction house).
MIS
The Service Provider shall log each action against all relevant PCNs relating to the
Persistent Evader on the Enforcement Operations System and shall make this
available to Customers through the Web channel and all Service Provider Personnel
via access to the Enforcement Operations System.
MIS
automatically generates a time and date for each action, which will be the time the
relevant action occurred. The Service Provider shall provide functionality for this time
and date to be manually entered or amended. Where the date and time is manually
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entered or amended the Service Provider shall ensure there are sufficient notes on the
Enforcement Operations System for this to be readily identified.

functionality to add additional actions that may or may not attract an additional charge
to be raised against the Persistent Evader if the action is selected. Such additional
actions shall be subject to approval by TfL but shall not constitute a Change through
schedule 9: Change Control Request Procedure and shall not incur any additional cost
to TfL.
MIS
For any impounded Vehicle, the Service Provider shall ensure that the Enforcement
Operations System adds a storage charge at midnight following the day of removal for
each Vehicle in the Pound and thereafter every twenty four (24) hours for each day it
remains in the Pound.

The Service Provider shall ensure that the Enforcement Operations System provides
the OSE Service Provider with a Pound and payment module to assign a Pound space
number to a Vehicle once impounded.

the OSE Service Provider with the functionality to update Pound space numbers but
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shall not allow more than one (1) Vehicle to occupy one (1) Pound space number.

The Service Provider shall ensure that the Enforcement Operations System has a
degree of logic that prevents an action to be recorded against a Vehicle which is not
actually possible. For example, it should not be possible to record the release of a
Vehicle unless such Vehicle has previous record of clamp or removal.

The Service Provider shall ensure that the Enforcement Operations System allows any
logic to be overridden by a member of the OSE Service Provider Personnel but any
such override must require the entry of text that is stored against the Persistent Evader,
which explains why the override has been made.

provide the OSE Service Provider with the facility to accept payment for Penalty
Charges at any stage, unless previously stated, even where they are not related to a
Persistent Evader.
MIS
take record of and reflect any payment accepted and entered by the OSE Service
Provider.
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MIS
The Service Provider shall ensure that the Enforcement Operations Systems payment
function presents the OSE Service Provider with a list of all PCNs (relating to the
Persistent Evader actions) which requires payment before release.

The Service Provider shall ensure that the Enforcement Operations System presents
the OSE Service Provider with an option to include additional PCNs relating to the
same Vehicle, which are not included in the Persistent Evader record (e.g. PCNs
issued to the Vehicle still at discount status).

The Service Provider shall ensure that the Enforcement Operations Systems payment
function requires the payment of all outstanding PCNs before Vehicle release but has
an override functionality that enables the OSE Service Provider to accept payment for
a selection of the PCNs or none at all and at different values than those currently
outstanding.
MIS
Where such an override facility is used then the Service Provider shall ensure that the
Enforcement Operations System records the reasons for the override and the operator
ID, and will be generated in a daily report.
CCS0000140731

MIS
Where the OSE Service Provider releases a Vehicle (with TfL authorisation) without
charge due to an error by the Service Provider or an Other Service Provider, the
Service Provider shall ensure that the Enforcement Operations System flags the case
up for internal investigation.
MIS
The Service Provider shall investigate relevant internal cases and take appropriate
action such as cancelling the PCNs and notifying the Business Operations Service
Element of any matter that requires its action.

The Service Provider shall ensure that for a clamped or removed Vehicle, the
Persistent Evader shall not be able to make payment for single or multiple PCNs
through the Contact Centre or Services Wesbite unless a complete payment has been
made for all the outstanding PCNs and associated charges.

Where a Vehicle is clamped or removed, the Service Provider shall ensure that the
default position is that full payment for all outstanding PCNs and all other Enforcement
charges relevant to the particular Contravention Type is paid before release.
MIS
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OSE Service Provider to record the relevant payment details and methods in the same
way that a payment is processed by the Service Provider via the Contact Centre and
allows the amendment of Registered Keeper/Person Liable details in the same way as
is available via other areas of the Enforcement Operations System.
MIS
OSE Service Provider to record proof of identity against an Enforcement transaction.
E8.1.36 R1 FYI
MIS
The OSE Service Provider shall be responsible for processing cash, credit and debit
card payments and shall use their own merchant acquirer services.
MIS
The Service Provider shall ensure that the Enforcement Operations System requires
the entry of all relevant payment details by the OSE Service Provider.

a single Receipt following the processing of any payments. The Receipt shall include a
detailed breakdown of all charges paid (including PCNs and additional Enforcement
charges).
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OSE Service Provider to reprint any Penalty Charges raised or PCNs issued that is
associated with a Persistent Evader.

The Service Provider shall provide the OSE Service Provider with a suitable scanner or
electronic Interface to upload Images of Vehicles, which the OSE Service Provider has
enforced, and paperwork relating to the Clamp, Removal or disposal of a Vehicle.

The Service Provider shall ensure that the Enforcement Operations System requires
the OSE Service Provider to associate uploaded Images and documents to a particular
Persistent Evader.
MIS
The Service Provider shall ensure that any documents uploaded by the OSE Service
Provider and associated to a Persistent Evader are linked to the relevant PCNs and
made available for viewing by the Customer via the Services Website and by all
relevant Service Provider Personnel.
MIS
Where the OSE Service Provider records that a Vehicle has been scrapped or
auctioned, the Service Provider shall ensure that the Enforcement Operations System
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allows the OSE Service Provider to record the amount received for such disposal and
record this information against the relevant Persistent Evader record.
MIS
ability to accommodate and has flexible and variable Parameters for penalties, Clamp,
Removal and storage charges for each Contravention Type. For example:
Contravention
Type
PCN
Discounted
PCN
Full
PCN
Increased
Clamp Removal Storage
Congestion
Charging
50 100
150 or
155
65 160 25
LEZ 500 1000
1500 or
1505
200 400 50
TGB 40 80
120 or
125
50 150 15

MIS
Where the Service Provider is responsible for the issuing of PCNs for a particular
Contravention Type, the Service Provider shall set all the relevant Parameters related
to such Contravention Types. Such Parameters are subject to amendments as
instructed by TfL. Any such changes shall not constitute a Change through schedule 9:
Change Control Request Procedure and shall not incur any additional cost to TfL. For
the avoidance of doubt, the Service Provider is not authorised to make any such
changes without formal approval from TfL.
CCS0000140731

MIS
Where the Service Provider is not responsible for the issuing of PCNs (e.g. DVLA
Enforcement), then the OSE Service Provider is responsible for maintaining the correct
fees and the Service Provider shall ensure that it has the ability to add new regimes or
amend the Penalty Charges for any regime under its control using the Web Interface
provided by the Service Provider.

ability to communicate (in real-time) with remote units including but not limited to
clamping vans, removal vans and hand-held computer terminals. The information to be
relayed in real time will include but not be limited to job allocation (the VRM and
location of Vehicles to be clamped and/or removed), the update of events as previously
specified, confirmation that an Enforcement Notice has been issued and service
messages.

Where an Enforcement Notice has been issued by the OSE Service Provider and the
notification received by the Enforcement Operations System, the Service Provider shall
make and store on the Enforcement Operations System (against the relevant
Persistent Evader), an exact copy of the Enforcement Notice.

Where a payment has been received, or a Vehicle released without payment, the
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Service Provider shall ensure that the Enforcement Operations System prints off a
Representation against clamping form (populated with the relevant PCN numbers).
E8.1.50 R1 FYI

The Representation against clamping form (populated with the relevant PCN
numbers) will be handed by the OSE Service Provider to the payee/Person Liable at
the time of collection of the Vehicle or, in instances where payment is not made in
person, sent to the payee/Person Liable address using the bulk printer facility.

automatically identify relevant letters required in the OSE Service Provider process
including, but not limited to:
initial disposal notice to Registered Keeper/Person Liable;
final disposal notice to Registered Keeper/Person Liable; and
notification of disposal to Registered Keeper/Person Liable.

Prior to the generation of the initial notice to the Registered Keeper/Person Liable, the
Service Provider shall ensure that the Enforcement Operations System requests (via
the on-line DVLA enquiry functionality) the current Registered Keeper/Person Liable of
the Vehicle that has been clamped and removed. Where the Registered
Keeper/Person Liable is different to the Registered Keeper/Person Liable details
already held on the Enforcement Operations System, the Enforcement Operations
System shall automatically be amended by the Service Provider to reflect the new
Registered Keeper/Person Liable details.
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All Outgoing Correspondence identified as ready for remittance shall be flagged for
approval by the OSE Service Provider and all subsequent Outgoing Correspondence
shall be sent to the new Registered Keeper/Person Liable details.

The Service Provider shall generate all Outgoing Correspondence via the bulk printing
facility.

The Service Provider shall provide, install and maintain for the Term of the Agreement
an In Vehicle Clamping and Removal System (IVCR) Software package for use in no
less than four (4) mobile enforcement units. The IVCR will be used by the OSE Service
Provider using Hardware which they will be responsible for providing and maintaining.

The Service Provider shall install, maintain and support additional copies of the IVCR
to support additional mobile enforcement units as and when requested through
schedule 9: Change Control Request Procedure and at no additional cost to TfL.

The IVCR shall connect the mobile enforcement units to the main Enforcement
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Operations System provided by the Service Provider in real-time and, as a minimum,
shall enable the following:
the uploading of up to date Persistent Evader lists directly onto the mobile
enforcement units to enable the OSE Service Provider to link such lists to the ANPR
software to identify Persistent Evaders;
the uploading of up to date Penalty Charge information directly onto the mobile
enforcement units to enable the OSE Service Provider to link such lists to the ANPR
software to identify Vehicles that have one (1) or more Penalty Charges applicable
to an identified Vehicle;
allow the verification of identified Persistent Evaders to check and ensure, post
identification of a Persistent Evader but prior to Enforcement, that the Vehicle
remains a Persistent Evader according to the main Enforcement Operations System
provided by the Service Provider. For example, if a payment has been made for
PCNs that alter the Persistent Evader status of a Vehicle, or the current Registered
Keeper/Person Liable details held by the DVLA are different to those held on the
Enforcement Operations System of the Registered Keeper / Person Liable, then this
check shall identify that the Vehicle is no longer a Persistent Evader and that
Enforcement action should not be taken;
the updating of the status and exact time of a Persistent Evader action and all
relevant PCNs on the Enforcement Operations System to "Clamped", "Removed",
"De Clamped" and "Gone On Arrival" and any other relevant status that the Service
Provider may feel is appropriate; and
The ability for the OSE Service Provider to issue Penalty Charge Notices for the
relevant contraventions to an identified PC Vehicle (a Vehicle which is identified as
having one or more Penalty Charges outstanding).
For the avoidance of doubt, the Enforcement System and In Vehicle Clamping and
Removal System shall provide the OSE Service Provider with the ability to issue a valid
Penalty Charge Notice in accordance with E4.6.12 for previous contraventions which
the Service Provider has been unable to issue a Penalty Charge Notice due to the
absence of Registered Keeper/Person Liable details from the DVLA.
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The Service Provider shall provide the functionality, as part of the IVCR, for the OSE
Service Provider to print and issue a new, valid PCN (an OSE-PCN) in accordance with
E4.6.12 for the relevant contraventions to an identified Penalty Charge Vehicle (a
Vehicle which is identified as having one (1) or more Penalty Charges outstanding) to
which the Service Provider has been unable to issue a PCN due to the absence of
Registered Keeper / Person Liable details from the DVLA.
The OSE-PCN shall be in a format to be agreed by TfL.

The date of issue for the OSE-PCNs shall change the status of the PCN on the Service
Providers Enforcement Operations System and other interfaced Systems as required
(e.g. Core IT System) to a PCN with status PCN served on-street and shall "reset" the
PCN timeline to the same point as that used for recording the date of issue of Service
Provider issued PCNs.

OSE-PCNs shall increase to Charge Certificate stage in the same manner as a Service
Provider issued PCN but the Service Provider shall not be required to issue a Charge
Certificate or progress beyond this point in the PCN timeline (i.e. will be removed from
batches sent to TEC) in respect of OSE-PCNs.

Payment for OSE-PCNs shall be accepted by the Service Provider and
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Representations and Appeals against OSE-PCNs shall be the responsibility of the
Service Provider.
The OSE Service Provider shall also be able to accept payment for such PCNs through
the Clamp, Removal and Pound management module provided by the Service
Provider.

The Service Provider shall be required to provide the specification and details of the
Hardware that the OSE Service Provider shall need to provide to operate the IVCR and
print PCNs.

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9 FACILITIES, PERSONNEL, STAFFING AND TRAINING
Introduction
The efficiency and success of the Enforcement Operations is greatly dependent upon
the appropriate staffing and training approach undertaken by the Service Provider. The
Service Provider is expected to create an organisational structure that allows the timely
and accurate processing of PCNs and a consistently high level of service to the
Customer.
Recruitment, induction training, regular feedback and communication from supervisory
Personnel and Data sharing amongst the various team members will be required in
order to achieve a consistently high level of service.
TfL is committed to such endeavours and shall request regular feedback on the current
staffing and training from the Service Provider. TfL will provide a number of PMAs
(based on site) who will be responsible for providing support to the PCN processing
service and who will undertake regular monitoring activities and provide feedback to
the Service Provider.
9.1 Facilities
E9.1.1 R1 Mandatory

The Service Provider shall provide and support permanent, dedicated access (together
with appropriate security measures and disabled access) at the Premises for a
minimum of twenty five (25) Enforcement Operations TfL Personnel. The location and
suitability of these facilities requires approval by TfL.
This provision shall include, but not be limited to:
desks;
MS Office workstations;
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Pedestal units;
supporting Hardware;
supporting Software;
scanners;
letter quality printers;
fax;
ISDN lines;
access to TfL network;
access to suitable toilet, shower facilities and changing areas;
lockable storage facilities for personal belongings, consumable items (e.g.
stationery) and equipment;
dedicated storage facilities for Case Files and other items of sensitivity;
kitchen and communal rest areas including access to facilities for meal breaks and
TfL Personnel briefings;
dedicated meeting room capable of holding twelve (12) people each;
one (1) parking space for each Authorised TfL Personnel member;
sufficient parking spaces for visiting TfL Personnel; and
use of on-site facilities, available to the Service Providers Personnel at the
Premises.
E9.1.2 R1 Mandatory

The Service Provider shall make such facilities (for TfL Personnel) available on a 24/7
basis, regardless of the Contact Centre Working Hours, for the benefit of those
authorised TfL Personnel on site outside of normal Working Hours.
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E9.1.3 R1 Mandatory

The Service Provider shall ensure that any leases entered into in respect of
accommodation in relation to the Services are in its own name and secured for the
Initial Term with the option to extend to the maximum Term of this Agreement or other
specified period as agreed with TfL.
9.2 Organisation
E9.2.1 R1 Mandatory

The Service Provider shall structure its organisation to enable clear, accurate and
regular communication between its Personnel and TfLs Personnel.
E9.2.2 R1 FYI

The current TfL Enforcement Operation team structure is outlined in Figure 7.
Figure 7: Current Enforcement Operations Team Structure
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E9.2.3 R1 Mandatory

The Service Provider shall nominate a person responsible for the delivery of
Enforcement Operations who shall be available for contact by TfL at all times (24/7).
E9.2.4 R1 Mandatory

The Service Provider shall advise TfL on a rolling weekly basis of the name and
contact details of the appointed individual responsible for the delivery of the
Enforcement Operations and available for contact by TfL at all times.
9.3 Service Provider Recruitment and Staffing
E9.3.1 R1 Mandatory

[Removed as requirement is covered by Z14.3.2]
Administrator
Head of
Enforcement
Operations
PA to Head of
Enforcement
Operations

&
Appeals Manager
Enforcement
Corresponden

3 Enforcement

t 2 Assistant MIS
Managers

Services Assistant

Investigations
Manage
Enforcement
r

Managers
10 Policy & Monitoring
Advisors

Enforcement
Validation and
Verification
Manager
9 Policy &
Monitoring
Advisors
Police
Liaison Officer
Senior Management
Information &
Operational Modeller
MIS Administrator /
J unior MIS Analyst
6 Management
Information & KPI
Analysts
MIS and Contract
Performance
Manager Officer
4 Representations
and Appeals
Assistant Managers
5 Enforcement
Correspondence
& Investigations
Managers
Representations
Business
Support &
Development
Officer
CCS0000140731

E9.3.2 R1 Mandatory

E9.3.3 R1 Mandatory

E9.3.4 R1 Mandatory

E9.3.5 R1 Mandatory

9.4 Service Provider Personnel Training
E9.4.1 R1 Mandatory

The Service Provider shall provide all necessary induction and on-going training and
supporting materials to all its Personnel for any changes required as a result of
operating the Enforcement Operations. For the avoidance of doubt, this shall include,
but shall not be limited to: FAQs; intranet pages; CSR screen guidance; mail room item
tracking and scanning; Customer service; Contact Centre guidelines; and training and
materials relevant to Enforcement Operations.
E9.4.2 R1 Mandatory
CCS0000140731


E9.4.3 R1 Mandatory

E9.4.4 R1 Mandatory

The Service Provider shall prepare, deliver and maintain on an on-going basis
appropriate training procedures for each of their teams as detailed in their proposed
organisation structure. The Service Provider shall ensure that the training procedure is
in accordance with the applicable Legislation. This shall include but not be limited to:
Manual Checks;
PCN processing;
Representations;
Appeals; and
Debt Recovery.
E9.4.5 R1 Mandatory

E9.4.6 R1 Mandatory

The Service Provider shall submit to TfL for its approval a high-level training strategy
for all Personnel involved in the delivery of the Enforcement Operations. This strategy
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shall include, but not be limited to, the Service Providers approach to training and its
proposals on induction training, periodic refresher training and Personnel development
training.
E9.4.7 R1 Mandatory

The Service Provider shall submit to TfL for its approval on a six (6) Monthly basis a
detailed Training Plan for all Personnel involved in the delivery of Enforcement
Operations. The plan shall include, but not be limited to, the Service Provider's
approach to training and its proposals on induction training, periodic refresher training
and Personnel development training.
E9.4.8 R1 Mandatory

The Service Provider shall deliver introductory and on-going training on a regular basis
to TfLs Personnel in the use of the Enforcement Operations System.
E9.4.9 R1 Mandatory

The Service Provider shall devise and implement training (including ongoing training,
for the Service Providers Personnel and nominated TfL Personnel) on new technology,
where a technology change is necessary for the provision of Enforcement Operations.
9.5 TfL Personnel and Training
E9.5.1 R1 Mandatory

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E9.5.2 R1 Mandatory

E9.5.3 R1 Mandatory

E9.5.4 R1 Mandatory


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10 TECHNICAL
Introduction
This section covers generic technical requirements for the Enforcement Operations
System.
10.1 Conceptual Data Model
MIS
The Service Provider shall ensure that the Enforcement Operations System includes
the following non-exhaustive list of conceptual Data constructs:
Customer;
refund;
PCN;
PCN states and status;
notice events;
Penalty Charge payments;
Documents;
address (PAF compatible);
Vehicle (VRM, make and model);
Contravention; and
Evidential Record (encrypted package of five (5) Vehicle Images together with Data
consisting of a VRM and capture location details).
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The Service Provider shall ensure that the Enforcement Operations System allows
query access against each of the conceptual entities by any attribute(s).
10.2 Components of the System
MIS
The Service Provider shall participate in migration activities to the Core IT System.
MIS
The Service Provider shall migrate Penalty Charge records from the Central Document
Management Repository managed by the Core IT System whilst carrying out Data
cleansing as required. It is anticipated that around two million (2,000,000) records shall
require migration from the old Service Provider to the Enforcement Operations System.
In addition, archived Penalty Charge records totalling around one million (1,000,000)
shall require migration and a mechanism shall be provided for viewing the archived
records.
MIS
The Service Provider shall maintain a policy for archiving of Penalty Charge records
together with the related document records and financial records in accordance with
TfLs Data Retention Policy.

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Interfaces to TfL and Third Parties as described in appendix 27: Interface Catalogue.

The Service Provider shall ensure that the Enforcement Operations System stores and
allows access copies of encrypted Evidential Records received from the Core IT
System.

The Service Provider shall ensure that the Enforcement Operations System allows
printing of original encrypted Evidential Records for use in Appeal Packs via an isolated
and secure Interface to the Core IT Systems Evidential Record WORM storage
systems. This is an essential requirement for the preservation of Evidential Integrity
through all Enforcement processes.

ability to decrypt Evidential Records but not the functionality to edit or amend Images or
edit the interpreted VRM. Any required VRM reinterpretation will be performed by the
relevant Detection and Enforcement Infrastructure Service Provider.

sufficient capacity to support the number of Users required to meet the Service Levels
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set out in schedule 5: Service Level Agreement.

The Service Provider shall ensure that the Enforcement Operations System has
integrated general ledger systems and integrates with the Service Providers finance
system to manage receipt and banking of all appropriate PCN payments.
MIS
The Service Provider shall ensure that the Enforcement Operations System has an
integrated PCN Payment and Enquiry website, accessible to the public, which allows
Data inputs into and queries of the Enforcement Operations System.
MIS
The Service Provider shall provide an integrated Workflow system which shall allow
tasks assignment to specific Users or to groups of Users.
MIS
The Service Provider shall integrate its Workflow system with a Document
Management System in order to facilitate the processing of stored Documents e.g.
tasks to process incoming Documents shall be created upon receipt of incoming
correspondence.
MIS
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The Service Provider shall ensure that the Workflow system allows management of
Workflow queues and User access to the queues, including re-allocation of items
between Users and queues.
MIS
The Service Provider shall ensure that the Workflow system provides tools to monitor
and report on the progress of Workflow tasks. This shall include the facility to provide
an automated alert if an incoming Document has not been processed within an agreed
Parameterised timescale, currently twenty four (24) hours.

The Service Provider shall ensure that the Workflow System allows those with the
requisite authority to:
view and action tasks in any Workflow queue; and
allocate tasks from one (1) member of Personnel to another.

The Service Provider shall ensure that the Workflow System provides a mechanism to
prevent tasks being assigned to members of Personnel who are either no longer
employed by the Service Provider or not available to action tasks within the required
timescales.

The Service Provider shall store all incoming and outgoing Documents in the format
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received.

The Service Provider shall scan all incoming Documents received in paper format
before being stored. For the avoidance of doubt, this shall include but not be limited to
cheques, envelopes and payment slips.
MIS
The Service Provider shall ensure that the communications and documents received by
the Service Provider or sent to the Service Provider via email or electronic fax shall be
stored electronically in the Document Management System.

The Service Provider shall carry out migration of scanned document Images from the
Central Document Management Repository managed by the Core IT System, and shall
link the Document images to the Penalty Charge records to which they relate.
MIS
The Service Provider shall archive Document images along with related Penalty
Charge records in accordance with schedule 15: Information Compliance.
MIS
The Service Provider shall ensure that the time and date on which Documents are first
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received and then scanned are recorded in the Document Management System and
associated with each Document record.

The Service Provider shall ensure that all items held in the Document Management
System are linked to the related Customer, PCN and VRM record(s) held on the

The Service Provider shall ensure that all incoming Documents or correspondence
stored in the Document Management System are associated with the appropriate
Workflow queue for processing.
MIS
The Service Provider shall ensure that the Document Management System can scan,
save and retrieve Documents such that the associated transactions are processed in
accordance with the Performance Indicators detailed in schedule 5: Service Level
Agreement.

The Service Providers IVR system shall allow calls that have been re-routed from
other relevant IVR systems to be received and processed within the Enforcement
Operations IVR system as specified by TfL.
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The Service Providers IVR system shall allow calls to be re-routed to other relevant
IVR systems for processing as specified by TfL.

The Service Provider shall ensure that the IVR operates using keypad based
responses from the Customer. The Service Provider may also offer voice recognition
based capability but only as an addition to keypad based response.

Where a Customer does not have touch-tone telephone allowing keypad based
responses, the Service Provider shall ensure that the Customers call is routed directly
to a CSR.

The Service Provider shall update the information on the PCN Payment and Enquiry
website within no more than one (1) Working Day of any changes to a relevant Scheme
Order as notified by TfL.

The Service Provider shall ensure that the Services Website includes a specific area
within which information updates can be made within sixty (60) minutes of a request by
TfL, or by the Service Provider where this has been agreed with TfL. This shall not
constitute a Change under the Change Control Request Procedure and shall incur no
CCS0000140731

additional costs to TfL.

The Service Provider shall document and agree with TfL procedures for categorising
changes to the PCN Payment and Enquiry website requested by TfL to allow
differential periods for implementation of the changes according to urgency and
complexity.

TfL will require functionality to allow submissions of Representations electronically via a
secure Web based form. The Service Provider shall design the PCN payment and
Enquiry website such that implementation of this requirement is facilitated as far as
possible but only enabled when specifically requested by TfL.
MIS
The Service Provider shall ensure that the finance system will interface to TfLs finance
systems to allow the transfer of financial information to TfLs ledgers.

The Service Provider shall ensure that its finance system provides linkage to external
systems to authorise and take credit/debit card payments.
MIS
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The Service Provider shall ensure that the MIS automatically generates all the reports
from the MIS repository as defined in section 17: Reporting, Performance Management
and Audit of the Common SoR.

The Service Provider shall ensure that the MIS provides a facility for User driven
analysis of the Data held in the MIS repository.
10.3 Service Levels
MIS
The Service Provider shall provide the ability to measure availability of the Enforcement
Operations System including sudden downtimes.
MIS
The Service Provider shall ensure that the Enforcement Operations System availability
will be calculated and reported by Month.

The Service Provider shall make available its Enforcement Operations System to TfL
outside of Working Hours, other than during agreed scheduled maintenance periods.

CCS0000140731

The Service Provider shall ensure that the distribution of screen response times
measure each screen function over each Working Day.
MIS
The Service Provider shall measure screen response times and report them
retrospectively to TfL.

TfL shall agree Service Levels for the Interfaces between any Third Parties interfacing
with the Enforcement Operations System. The availability of these Interfaces is
specified in schedule 5: Service Level Agreement.

The Service Provider shall ensure that the credit/debit card authorisation process does
not adversely affect overall transaction performance.
10.4 Security and Systems Access

The Service Provider shall provide and maintain at the Service Providers cost a read-
only Interface for up to thirty (30) Personnel at TfLs Premises in London to access all
Data held on the Enforcement Operations System. This Interface shall include on-line
access to Workflow including, but not limited to, full case histories and all associated
incoming and Outgoing Correspondence. The Service Provider should provide a
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separate price for additional licences in blocks of five (5).

The Service Provider shall ensure that the read-only Interface allows TfL Personnel to
enter text comments against selected PCN records and escalate cases to senior
Service Provider Personnel for specific action.
10.5 Data Integrity

The Service Provider shall ensure that whenever an address is manually entered onto
the Enforcement Operations System, it shall be validated against a current PAF on
entry of the Data and shall be stored in a PAF compatible format.
MIS
The Service Provider shall ensure that whenever a VRM is manually entered onto the
Enforcement Operations System, it shall be validated on entry against the standard
VRM formats. Where a VRM has a non-standard format, it shall be possible to
proceed with the entry following a suitable warning that VRM entered is not a standard
UK format.

The Service Provider shall ensure that the Enforcement Operations System has a
mechanism to prevent the creation of duplicate Customer Records.
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MIS
the facility to monitor duplicate Customer Records. The Service Provider shall ensure
that it is not possible for the Enforcement Operations System to have any duplicate
PCN numbers.

the facility to carry out fuzzy searches on Customer, PCN and VRM records to enable
CSRs to match incoming Data with pre-existing Data on the Enforcement Operations
System where there are mismatches between the Data due to Data entry errors. The
Service Provider shall agree the scope of the fuzzy search facility with TfL.

The Service Provider shall ensure that the Enforcement Operations System provides a
DVLA on-line check that, when a VRM and date of Contravention is entered, the
Enforcement Operations System shall send the request via the Core IT System to the
DVLA and receive back all relevant information.

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11 INTERFACES
Introduction
The Service Provider shall be required to build and operate a number of automatic and
manual Interfaces for the successful delivery of the Enforcement Operations Services.
11.1 General

The Service Provider shall build and operate a number of Interfaces (electronic and
manual) with the following Service Providers and authorities:
TfL;
EDRA;
Core IT System;
Bailiffs;
the TEC;
the OSE Service Provider;
the Adjudication Service;
the Detection and Enforcement Infrastructure Service Provider;
Retail Solution Element;
Business Operations Service Element;
Selected Partners including local authorities, the PCO and the police; and
Other Service Providers as specified by TfL.
More information about the Interfaces described in the Statement of Requirements is
available in the Interface Specification and appendix 27: Interface Catalogue. The list
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is not exhaustive, and some further Interfaces shall be defined as part of the functional
specification process.

The Service Provider shall design (against the pre-existing external specification
Interfaces), build, test, implement and maintain the Enforcement Operations System
end of all electronic and manual Interfaces with TfL, Core IT System and other Third
Parties as detailed in the Interface specification and appendix 27: Interface Catalogue.

The Service Provider shall provide a specification for the construction and operation of
each required Interface as part of the Functional Requirements. This specification is to
be signed off by TfL.

The Service Provider shall include manual Interfaces within the processes as outlined
in the Interface Specification as well as any further Interfaces as requested by TfL.

The Service Provider shall allocate sufficient resources to ensure timely operation of
manual Interfaces.

CCS0000140731

Where no Interface with the Core IT System has been specified and the Service
Provider believes an Interface is required, the Service Provider shall raise a Change for
approval by TfL via schedule 9: Change Control Request Procedure.
E11.1.8 R1 FYI

[This requirement has been removed because it was an FYI.]

Where Data is provided by external systems on an ad-hoc basis, including but not
limited to CD-ROM and email attachment, the Service Provider shall have the
functionality to upload this information to be processed within the Enforcement
Operations System.

The Service Provider shall be responsible for ensuring that all Interfaces, whether
electronic or manual, comply with schedule 14: Security Policy. This includes, but is
not limited to, ensuring that all communications are secure and access to the Data is
limited to authorised Personnel only.
MIS
The Service Provider shall ensure that the batch Interfaces operate within a
Parameterised schedule. This shall allow changes to the timing of the batch schedule
without code changes. Where the schedule has been hard-coded, the Service Provider
shall not be afforded any performance or financial relief under schedule 9: Change
CCS0000140731

Control Request Procedure.
MIS
The Service Provider shall provide a paper and electronic document with details of the
batch schedule to TfL within forty eight (48) hours of receipt of a request.
11.2 Operational Requirements

For each electronic Interface with TfL, Core IT System or a Third Party, the Service
Provider shall provide at least one (1) alternative communication channel for the
purposes of providing Business Continuity capability, including but not limited to:
fax;
email;
telephone; and
transfer of information on floppy disc or CD-ROM.

On request by TfL, the Service Provider shall provide a second alternative
communication channel for the Interfaces specified by TfL.
MIS
Where an alternative failover communication channel is used, the Service Provider
shall ensure that adequate additional security measures and authentication processes
CCS0000140731

to prevent fraud are in place, in accordance with schedule 14: Security Policy.

The Service Provider shall operate an alternative communication channel immediately
upon failure of an electronic Data Interface.

The Service Provider shall use appropriate industry standard methods to guarantee
that Data is delivered successfully across an Interface.

In the event that an electronic Data Interface is not fully tested and operational by the
Operational Commencement Date, the Service Provider shall provide a Business
Continuity manual process for that Interface.
MIS
The Service Provider shall keep a log of details regarding the use of all Interfaces.
This is to allow investigation of any allegations of improper use or Unauthorised Access
to Data.

The information recorded in the Interface use log shall include, but not be limited to:
User ID;
CCS0000140731

date;
time; and
key Data transferred including any VRM or Customer number in context.
MIS
The Service Provider shall store the Interface use log in a secure, unalterable manner
and shall make available for audit by the appropriate authorised Personnel in
accordance with appendix 14: Data Retention Policy.

The Service Provider shall make the communications channels and Data secure, in
accordance with schedule 14: Security Policy, except where specifically agreed by TfL
that security is the responsibility of another party.
MIS
The Service Provider shall provide Performance Indicator Reports for the purposes of
measuring the availability and performance of the Interfaces.

For all electronic Interfaces with the Core IT System, the Service Provider shall be
responsible for providing network connectivity from the Premises to the Core IT System
and the necessary access to Hardware/Software to install and maintain Interface
reliability and allowing removal of this service if requested by TfL.
CCS0000140731


For electronic Interfaces with TfL, the Service Provider shall be responsible for
providing network connectivity to TfLs Systems, including all Hardware/Software
required by TfL to use the Enforcement Operations System, at the Service Providers
cost.

For electronic Interfaces with Third Parties, the Service Provider shall provide network
connectivity to the gateway of the Third Partys systems.

The Service Provider shall provide any agreed Hardware/Software to facilitate
electronic Interfaces.
11.3 Front End to Core IT System Interface

When processing Representations, Appeals and relevant correspondence the Service
Provider shall investigate all relevant information relating to the case regardless of the
Scheme to which a PCN relates.
E11.3.2 R1 FYI

In order to assist the Service Provider in investigating all relevant information to a case,
CCS0000140731

Other Service Providers may be required to provide all relevant Customer and internal
interactions to the Core IT System. Such information shall include but not be limited to:
copies of all Receipts and financial records for Penalty Charge payments, refunds
etc.;
all incoming and Outgoing Correspondence, internal memos, emails etc.;
all recorded calls;
copies of processed and rejected applications for Discounts and Exemptions;
relevant Exemption lists, access to databases and lists of compliant Vehicles; and
Detection and Enforcement Infrastructure site schematics, cabinet alarms, maps
and site commissioning manuals and Data.

The Service Provider shall build a flexible, User-friendly and fully integrated front-end
application with the Enforcement Operations System and the Interface to the Core IT
System in accordance with the requirements detailed in the Interface Specification.

The Service Provider shall ensure that the front-end application of the Enforcement
Operations Systems retrieves and presents all the relevant information in a format that
is consistent with the information a Customer or Business Operations Operative would
have seen. For example, the format and layout of a payment Receipt presented to an
Enforcement Operations CSR should be identical to the format and layout of a payment
Receipt sent or viewed by a Customer or Business Operations CSR.

CCS0000140731

The Service Provider shall retrieve all relevant Data and information to process
Representations, Appeals, Complaints and Customer queries correctly relating to an
Enforcement action from the Core IT System as per the Interface Specification. At a
high level, the Data and information that the Service Provider shall require via the Core
IT System through the Interface and present to relevant officers shall include but not be
limited to:
transactional Data such as details of all payments made against Vehicles issued
with PCNs, refunds, Penalty Charges and Receipts;
internal processing Data such as notes made against relevant Vehicles or
Customers and action taken by Service Provider Personnel such as escalation of
Complaints;
digital records of telephone interaction with Customers and recorded calls;
all relevant Incoming Correspondence associated to a case or Customer processed
by Other Service Providers such as scanned copies of Complaints, applications for
discounts etc;
all relevant copies of Outgoing Correspondence issued by Other Service Providers;
and
copies of site schematics and camera information provided by the Detection and
Enforcement Infrastructure Service Provider(s) relevant to a camera location for
issued PCNs.

The Service Provider shall ensure that the front-end application of the Enforcement
Operations Systems enables all relevant Service Provider Personnel to undertake
detailed searches of the Data stored by the Core IT System in order to investigate
Representations, consider Appeals and deal with all Customer Enquiries and
Complaints.
CCS0000140731

CCS0000140731

The Service Provider shall provide System functionality that enables the compilation of
all Data retrieved from the Core IT System into Appeal Packs for onward transmission
to the Adjudication Service for contested Appeals to be sent via the electronic
Interface.

Criteria for dealing with Representations V2.0 from 19/06/06 V
PC050303L5050220
Transport for London -IN CONFIDENCE 1/82
TfL Street Management
Congestion Charging Scheme
Criteria for dealing with Representations and Appeals
PC050303L5050220
Confidential

CRITERIA FOR DEALING WITH REPRESENTATIONS AND APPEALS

Document Reference
ENF_029_V2.0_Criteria for Dealing with Representations and Appeals
PC050303L5050220

Document Control

Version Status Date Author Change since previous version
V0.1 05/03/03 Paul Cowperthwaite This document replaces Criteria for Dealing with non-standard Representations v0.3.

V0.2 24/03/03 Paul Cowperthwaite Comments from Peter Crane
V0.3 31/03/03 Paul Cowperthwaite Comments in response to comments from Nina Benson.
V1.0 04/04/03 Paul Cowperthwaite Final Version
V1.1 28/01/04 Paul Cowperthwaite Renewal business rules added.
V1.2 13/04/04 Paul Cowperthwaite Year on updates following discussions with GLA and Directors.
V1.3 29/04/04 Paul Cowperthwaite Comments from TfL legal and DP manager and final internal review.
V1.4 Issue 01/06/04 Paul Cowperthwaite Updated following implementation meetings with Capita
V2.0 Issue 19/06/06 Paul Cowperthwaite Incorporates PND, policy guidance for queries, updated following meetings with Capita.

If this document is an approved version please destroy or mark Superseded all previous versions
Copyright on the whole and every part of this document is owned by Transport for London. No reproduction of the whole or any part of
this document is to be made without the authority of Transport for London. This document is confidential to Transport for London. No part
of this document or information contained in this document may be disclosed to any party without the prior consent of Transport for London

PC050303L5050220

CRITERIA FOR DEALING WITH REPRESENTATIONS AND APPEALS

This document supersedes previous clarification issued to the Combined Service Provider (CSP) for dealing with Representations and
Appeals. It specifically replaces all previous copies of the documents Criteria for Dealing with Representations.

The rules detailed must be applied when determining whether to accept or reject representations (and to challenge any Appeals and
outlines the escalation route to TfL (PMAs) where the circumstances of the representation are not covered by the business rules. TfL
discretion may over ride any decision outlined. These rules are subject to amendment by Transport for London and will be reviewed
on a regular basis.

Contents
Guidelines 5
Definition of first representation 7
First Representation 7
First representation scenarios 7
Third Party Representations 8
- Company or organisation 9
- by family member 9
-authorised representative 10
- keeper deceased. 10
- legal representative ..10
- Third party representation and late rep. 10
- Third party representation refused, made on ground 2, 3, 4, 5 process . 11
Late Representations 11
-Late representation ground waived 12
Mitigation 14
Decision Criteria .. 15
Never was the registered keeper . 15
- Never owned 15
- mismatch 16
- Ringer/Clone 16
PC050303L5050220
Ceased to be person liable before the contravention 17
- sold ... 18
Became the person liable after the contravention 19
- bought 19/20
Payment Rules introduction 20
Pay Next Day (PND) 20
Charge paid for the vehicle at the time and manner 21
-Forgot to pay 21
- Paid - PND... 21/6
- Web Problems .. 27
- Call Centre/IVR . 27
- Pay Point problems 28
- Metric problems 28
- SMS Text.. 29
- Fleet .... 29
- Payment Queue30
- Fast track 30
- Cherished number plates 30
No Penalty Charge is payable under the charging scheme 30
- Exempt by taxation class 30
- Discount 100% (excluding Blue Badge) 31
- Alternate fuel vehicle 32
- Police 32
- Emergency Services Vehicle 33
- Selected Partner 33
- PCO 34/5
- Hackney Carriage 36
- Charity Voluntary Organisation .. 36
- Military Vehicle 36
- Blue Badge .. 37
- Resident 38
- Diplomatic Vehicle 39
Vehicle used kept on road without consent 42
- Stolen 42
- Taken 43
PC050303L5050220
Charge exceeds amount applicable in circumstances 43
- Incorrect Amount on PCN 43
- Paid - Partial payment 43
Mitigation Grounds/Factors only 44 to 49
- Advise Breakdown Time of Contravention Dead End Death Delivery
- Detained Diversion Emergency Funeral Got Lost Hospital
- Ignorance Local Authority Enf. Prison Leaving Zone Not in Zone
- Petrol Road Layout Sick/ Ill Signs not seen Swerved
- VIP Was not the Driver
PMA Escalation Cases.. 49
- Signs (missing), cameras, legal challenge 49/50
Vehicle on Hire.. (See Also Separate Hire Agreement Guidance) 50
Discount renewal (data corrections). 52
- Discount Renewal Data Corrections .. 52
Paying the Charge Representation/Appeal/Enquiry Process Rules . 53
Freedom of Information Act 57

Appendix A Mitigation Aide.. 60/82
PC050303L5050220
1. Guidelines

1.1. Any employee of the CSP must use these rules to determine the response to a representation. Any representation received
that does not fall into one of these categories or requires additional clarification must be escalated to Transport for Londons
(TfL) Representations and Appeals Policy & Monitoring Advisors (PMAs) for consideration, this would also refer to cases
that may meet the criterion outlined but it is felt that due to the extenuating circumstances of the case a different decision
may be required. This must be done through the agreed escalation procedure. These rules apply equally to any Appeals
received and therefore any reference to a representation can be taken as also referring to any Appeal.

1.2. The following tables in the section Decision Criteria highlight the 6 legal grounds on which a representation or appeal may
be made. Gives illustrative details of what the customer may say, the evidence that may be provided and where relevant the
investigation required, and from this the appropriate decision.

1.3. It should be noted that whilst the legal grounds are shown, the customer does not have to indicate in their representation on
which ground the representation is being made. Representations must not be rejected on the basis that the customer has
not indicated which ground they are making the representation on. Representations can be made for any reason and they
must be considered in accordance to this guidance

1.4. The box the customer ticks on the form may be selected in error, in the sense that the box ticked may not directly relate to
the relevant decision criteria listed below. Consider the substance of the representation (e.g. as set out in the "details of
your representation" section) and then identify the relevant ground and criteria. The criteria are intended to cover possible
reasons why a representation may be made. In cases of doubt, where it is unclear what ground(s) or criteria apply, escalate
consideration of the representation as detailed above.

1.5 Representations, which are not signed by the customer, must not be rejected on this basis as there is no legal requirement
to sign a representation. However the presence of a signature may indicate a third party has made the representation and
not the registered keeper. Care should be taken where the registered keeper is a Company, see third party reps. - company.

1.6. Representations which are not received on the representation form should also be considered and not rejected on this
basis, the legislation merely defines a representation must be made in writing. Therefore a hand written letter, typed letter or
e-mail are acceptable forms of representations, this list is not inclusive and other written formats are also acceptable and
must be considered in accordance with this guidance

PC050303L5050220
1.7 The decision to accept or reject refers to the final decision with regard to the Penalty Charge Notice (PCN). It must in all
cases result in the appropriate letters being sent. These business rules clearly outline what letters should be sent and in
certain cases to whom.

1.8 It should be noted that the decision to accept a representation will not in all cases, result in the cancellation of the PCNs.
Where the regulations allow liability to be transferred to a newly nominated keeper a new PCN may be sent, this would
apply where the vehicle is on hire or sold etc.

1.9. When considering the representation it is important that each case should be treated on its own merits. However, the CSP
must ensure that the person investigating the PCN checks for previously and subsequently issued PCNs and any decisions
taken on representations received regarding these PCNs, so as to ensure consistency i.e. first representations.

1.10. All data corrections identified as part of the investigation must be referred to the relevant section for immediate modification
to prevent further PCNs being issued on the same basis e.g. incorrect VRM entries on BB accounts, resident accounts or
Annual charges purchased. Again these examples are not inclusive.

1.11 Any payment (partial or full) made for the PCN should also be considered and referred to when responding to the
representation. Please therefore refer to the specific section in these rules that provide clear instructions on how these
should be dealt with.

1.12 A number of representation decisions relate to the first representation a detailed explanation of first representation is given
in section 2. Those that relate to First representation specifically refer to this and by clicking the hyperlink
First representation will display the relevant rules.

1.13 Section 3 deals with representations made by a third party and offers guidance on how the representation should be
considered and dealt with and can be obtained by clicking on the hyperlink Third party Representation.

1.14 A number of representation grounds refer to Late representation ground waived the details of which are outlined in section
4 The hyperlink under the representation reason shown as late representation ground waived enables a quick reference to
the late representation reasons.

1.15 Section 7 deals with the rules that are specific to the renewal of the registration with TfL for the discount process and
should be referred to when dealing with such representations.

PC050303L5050220
1.16 To take account of PND 2 separate sets of paragraphs are now available on the intranet and it is important that the CSR
processing the representation correctly identifies the contravention/ set of paragraphs relevant to each contravention.

2. Definition of First Representations Contents

2.1 A number of the business rules apply to 1
st
Representation. Previously rules have mentioned 1
st
contravention or 1
st

occurrence to bring all these rules into line, ensuring consistency the following rules should be applied to determine if it is
the 1
st
Representation.

2.2 Where a representation is accepted under the first representation business rules basis it is very important that the Notice of
Acceptance has very clear and specific reasons why the representation has been accepted. This is because the customer
may be required to undertake some work themselves such as registering with TfL as a Blue badge holder to prevent further
PCNs or to correct some other way in which they may interact with TfL

Definition the following scenarios apply Group

Multiple Representation received against all PCNs
Same ground and same circumstances apply to all PCNs refer to
specific rule, reference all relevant PCNs
Single Representation against 1 PCN received, additional PCNs
issued but not referenced in representation
Multiple Representation received, additional PCNs issued but not
referenced
The acceptance of these representations is dependent on the representation being made within the statutory time limit (unless either valid
reason for lateness given or PCN issued due to Service Provider error). Any PCN outside the statutory time period will not be included.

Therefore

1
st
Representation does not apply to those PCNs issued outside of the statutory representation period and will be excluded.

1
st
Representation rule does not apply where grounds and circumstances differ (these are considered separately in accordance to the
evidence supplied).

1
st
Representation will include all PCNs in the group with same ground and circumstances.
Further PCNs issued before person could reasonably have received the Notice of Acceptance that have a representation made against them
PC050303L5050220
on the same ground and same circumstances apply should be accepted. The period that will be taken as reasonable is 5 working days
with the first working day being the day the relevant NOA was issued (see 2.3 and 2.4)

2.3 This rule will apply for any further representations made against PCNs for contraventions occurring within 5 working days
of the first representation accept decision. The first working day being the day of the first decision e.g. decision done
Tuesday 14 J une 2005, this rule will apply to representations made against PCNs for contraventions between 14/6/05 to
20/6/05. This period allows for post/delivery of the mail before the customer is likely to be aware of the information in the
Notice of Acceptance.

2.4 Any second or subsequent representations on this ground which are received after the date specified in 6.1 (or 6.5.3 when
relevant) where the same/similar error has been made are to be rejected. If there is any doubt as to whether it is a similar
case it should be referred to PMA with full details for advice).

3. Representations made on behalf of registered keepers, (Third Party) Contents

3.1 The registered keeper of the vehicle should be the person making a representation;

3.2 TfL can use discretion to consider and accept that a representation from a 3
rd
party has been made on a registered keepers
behalf.

3.3 Note: Where TfL accept that, or receive authorisation that the 3
rd
party can make the representation on behalf of the registered
keeper and write to the 3
rd
party with our eventual decision, the registered keeper will remain liable until any representation is
accepted and the PCN cancelled or liability transferred. See example below:

Hire Company receive a PCN as they are the registered keeper of the vehicle, they provide authorisation for us to deal with
the hirer of the vehicle who says he paid the charge. Whilst we write to the hirer and reject any representation he has made
on behalf of the hire company, the hire company would still remain liable until an acceptable hire agreement has been
provided to transfer liability to the hirer.

3.4 Any Representations which are not considered and are deemed as being from a 3
rd
party should not have any Appeal forms
sent, as there is no right of appeal

3.5 Once a representation has been refused as third party, if the subsequent receipt of an authorisation for a third party to act is
received within the 28 day time limit the original representation must be considered in full and the appropriate responses sent
as detailed in the following tables, see also Late Representations.
PC050303L5050220

Nominee Response

Keeper is
Company or
organisation.
Deal with
representation
Detail Response comes on Company letter headed paper which reflects the keepers name or with other supporting
documents, e.g. letters, invoices and bill of sales etc, regardless of any signature,
Or is from an employee / member of that organisation who is authorised to respond, which may include (but not
exclusively):
Company secretary
Legal representative of company
Fleet manager / Administrator
Head of Administration / Diplomat / Employee of a Diplomatic Mission
Senior employee such as Director, Chief Executive, Head of Department, Finance manager
Or there is a clear statement saying they are authorised on behalf of Company name to make the
representation,
Or In the case of a hire company there is a hire agreement which reflects the registered keeper name (or is on
the accepted PMA hire company list) regardless of who has signed the representation form or letter enclosed
with it.
Decision Deal With Representation
The response must go to the registered keeper. Mark the letter for the attention of the person who made the
representation on their behalf by amending address line 1 to include the name of the individual. [The registered
keeper is still the liable person where the representation is rejected]

On behalf of
keeper
Family
member
Deal with
representation
Detail Response comes from immediate family member on behalf of the family member i.e.
Husband / Wife / Civil Partner/ Father / Mother / Son / Daughter.
Representation states they are making representation on behalf of family member
Clear statement saying I am making the representation on behalf of my (see above)
This will include cases where the registered keeper is a child and parent is acting for them.

The response must go to the registered keeper and an exact copy of the response must be sent to the relevant
authorised person with the authorised 3
rd
party Notice of Rejection/Acceptance covering letters (the Copy
must not have the appeals form attached) [The registered keeper is still the liable person where the
representation is rejected]

PC050303L5050220

On behalf of
Keeper
authorised
representative
Detail Response comes from
Carer
Social worker
Psychiatric Nurse or GP
Citizen Advice Bureau
Member of Parliament (MP) or Local Councillor
Clear statement saying they are making representation on behalf of keeper, in their position of
The response must go to the registered keeper and an exact copy of the response must be sent to the relevant
authorised person with the authorised 3
rd
party Notice of Rejection/Acceptance covering letters (the Copy
must not have the appeals form attached) [The registered keeper is still the liable person where the
representation is rejected]

Keeper
deceased
Details Response comes from a third party stating keeper is deceased. The relevant Business rule should be applied.

Decision Deal with Representations and Respond in accordance to business rule to party making representation DO
NOT write to registered keeper.

On behalf of
the keeper
legal
representative
Detail Response comes from legal representative instructed by registered keeper such as Lawyer, Solicitor,
Advocate or Barrister or any nominated legal representative.
Statement saying they have been instructed on behalf of
Statement saying they have been appointed by
Statement saying they act for
Person granted power of attorney
Appropriate document is supplied showing power of attorney.
Decision Deal with representation and ensure that the
Response (actual NOR/NOA) must be sent to the legal representative and copied to registered
keeper. [The registered keeper is still the liable person where the representation is rejected]

3.6 Representations that are also from a third party and Late (see section 4 Late Representations), the letters issued to the
registered keeper and person making the representation regarding the refusal to consider the representation must be amended
using the appropriate Late Representation paragraph provided to also reflect that the representation is late. This enables the
customer, where relevant to address and correct both aspects of the representation.

PC050303L5050220
3.7 However, where the Representation is made on behalf of the registered keeper and is not acceptable in the instances outlined
above but is made under Ground 2, 3, 4 or 5, only (NOT grounds 1 to 6) and the VRM entry error or Evidence etc. provided
is sufficient to merit Accept, as outlined in this current version of the CDR the following process should be undertaken:

Process the representation as valid
Accept the representation
Update Northgate notes referencing the receipt number/evidence relevant and that the rep has been accepted following
evidence from an unauthorised third party.
Issue a letter of acceptance detailing the reasons for the acceptance e.g. payment error to the registered keeper/recipient of the
PCN to confirm that the PCN has been cancelled following evidence submitted from a third party.
Issue an ad-hoc letter to the third party, acknowledging receipt of their correspondence, explaining that despite the absence of
an authority from the registered keeper/recipient of the PCN, we have cancelled the PCN and that the matter is now closed and
the registered keeper/recipient of the PCN has been notified accordingly.

4. Late Representations Contents

4.1 When dealing with representations the criteria outlined in the Allowable Criteria table below should be applied for deciding if a
representation that is received outside the statutory period (28 days) should be deemed as late and disregarded or the lateness
accepted and the representation considered as if in time. This criterion will apply at any stage of the enforcement process up to
and including Order for Recovery/Debt Registration Accepted.

4.2 All cases should be considered on their own individual merits.

4.3 Cases where representation is made at warrant stage must be referred to either the Enforcement or Reps and Appeals PMA
for Advise as follows:

If states they are complaining about attitude, actions of, and fees of bailiff or similar escalate to ENFORCEMENT PMAS using
appropriate workflow queue
If states made a Rep and no response, already paid PCN, made Stat Dec, Appealed or similar escalate to REPS AND
APPEALS PMA using appropriate workflow queue

4.4 The CSP staff member investigating the representation should check to determine when the representation has been
received and if it is received outside the allowable period for representations. In the following circumstances the late
representation is to be considered as a normal in time representation.
PC050303L5050220

Allowable Criteria Reason Code

Proof Required

Reason Code

Long term sickness

A letter from the hospital confirming the period of sickness or a hospital discharge letter which
gives the full period in hospital. The details of the letter must be relevant to the contravention [i.e.
illness/hospital stay should occur at the same time as PCN served]

LREP03

Proof Required

Reason Code
Holiday / working
Away (including
serving in Armed
Forces
Travel ticket, hotel booking confirmation and /or a receipt from the accommodation. The holiday
details must be relevant to the contravention.
Accept statement from individual if they state delay in responding has been due to service in
Armed Forces abroad

LREP02

Proof Required

Reason Code
Temporary
Imprisonment
A letter from the police or the court confirming the period of imprisonment or notice of discharge
from custodial sentence. Details of the imprisonment must be relevant to the contravention.

LREP02

Proof Required

Reason Code

Postal Strike
Either
Confirmation from Royal mail of industrial action
Instruction from TfL

LREP01

4.5 If considered as a representation the PCN should be reverted to the appropriate status [i.e. so that Charge Certificates are not
served and/or further enforcement action is not taken as a result of the Penalty Charge underlying such a PCN becoming
outstanding].

4.6 In addition to the above reasons for lateness, where the representation reasons identified in the decision criteria at part 6
are annotated with the hyperlink Late representation ground waived as detailed in the example below, the representation is
also to be treated as in Time and not refused as late and the representation worked in accordance to the specific rule. This
will apply to any PCN up to and including Order for Recovery. REGARDLESS OF PROOF OF LATENESS

EXAMPLE
Ground Summary
PC050303L5050220

Details

Decision
Reason
Code

Never
Owned
States they never owned or were not the keeper on the date of contravention. System shows that
DVLA keeper details have been superceded and one of the following circumstances apply.
No start or end date was entered from previous details (Either hire or sale)
Details entered were incorrect
ACCEPT
Reissue
to
previous
keeper

RACC10
Late representation ground waived

4.7 Any correspondence that does not meet these criteria should ordinarily not be considered and the customer should be advised
that they are out of time by issuing the late representation rejection letter and should pay the PCN. DO NOT SEND ANY
PATAS APPEALS FORM, there is no right of Appeal where the representation is not considered and disregarded on the
grounds of lateness. In cases of doubt escalate to PMA for Advise

4.8 If the representation is also not from the Registered Keeper the third party notification process must also be followed with the
relevant amendment of the letter issued. See (Third Party Representation para 3.6)

4.9 If the correspondence is a 2
nd
or further representation after an initial rejected representation and the decision is to refuse the
2
nd
or further representation as being late i.e. late representation, then the late refusal response should be amended as
appropriate to state the following:

The PCN issued to you outlined the time limits for making a representation. A previous representation was considered
and rejected on [insert date of NOR], the Notice of Rejection contained both the reasons for rejecting the representation
and the relevant options available to you and the applicable time limits.

4.10 If there has also been no new/additional evidence provided in the 2
nd
rep, or further representation to be refused as late, the
late refusal response should state:

TfL sees no reasons, on the evidence provided, to exercise discretion to either reconsider or change our initial decision.

4.11 If a late representation is made and a CSP error is identified, Lateness should be ignored and the representation considered in
accordance to the decision criteria.

PC050303L5050220
5. Mitigation and Discretion Contents

5.1 Mitigation and Discretion are those facts or a combination of factors that do not or wholly do not satisfy one of the 6 criterion for
making a Representation or Appeal. They therefore do not on their own merit mean that the representation (or Appeal) will be
successful. However TfL can consider the application of its own discretion over the enforcement of these PCNs when
considering these wider factors to determine if the PCN should be cancelled. Examples of mitigation are as follows:

Emergency visit to hospital
Paid for one vehicle but took second vehicle into the zone
Forgot to pay the charge due to working late
Driving a hire vehicle and did not know the VRM.

5.2 In considering the application of discretion TfL are recognising that certain mitigating factors reflect extenuating circumstances
that have given rise to the issue of the PCN and by accepting these factors TfL are using the discretion available to it as the
authority that issued the PCN in choosing not to pursue the enforcement of the PCN.

5.3 Not all factors of mitigation will lead to the cancellation of the PCN through the application of discretion, therefore in more cases
than not, this will lead to the representation being rejected. These business rules now identify the rules that are mitigating
circumstances and the response must advise of the consideration of the mitigating circumstances and whether TfL is willing to
apply its discretion. This must be addressed in the NOR or the NOA, this is very important.

5.4 The requirement to fully address factors of mitigation is part of the legal process for considering representations. It is not
acceptable to repeat in the NOR the grounds the customer has stated e.g.

Customer states in the representation I did not pay the charge as I had to take my dog to the vet. To state in the NOR
in your representation you state that you did not pay the charge as you took your dog to the vet is not acceptable.

5.5 It is correct to identify this as mitigation but it must be dealt with by showing that consideration has been given to the issues
raised, but as in this instance it amounts to mitigation only it would be insufficient to cancel the PCN.

5.6 Mitigation must be identified by the CSR and the relevant standard paragraph must be used, this is available on the intranet
system.

5.7 The following business rules have been divided to reflect those rules that reflect one of the six grounds and possible mitigation
Comment [T1]: Paragraphs
Comment [g2]:
Comment [g3R2]:
PC050303L5050220
and those that are wholly mitigation. There is a need to use the relevant standard paragraph available through the intranet
system. Those rules that are recognised as mitigation are identified by the hyperlink Mitigation. This hyperlink will refer back to
these rules. In addition there is a separate section on Mitigation only and you can see these rules by clicking HERE.

5.8 The standard paragraph is to be inserted into the NOR, NOA or item of correspondence where this is shown and the reasons
why discretion is not applied should be stated using the Mitigation Aide at Appendix A

5.9 Whilst the Death of the registered keeper would also reflect as Mitigation, the mitigation paragraphs and process should not be
used in such an instance of the keeper being deceased see relevant rules.

5.10 In addition the decision Criteria for representations identifies those issues which are solely Mitigating Factors only.

6. Decision Criteria Contents

Ground Summary:
Never was the registered keeper in relation to the vehicle is question

Detail

Decision
Reason
Code
Never
Owned
States they never owned vehicle, but no details or evidence provided

REJECT

RREJ 10

Detail

Decision
Reason
Code
Never
Owned
States they never owned and never kept the vehicle and provides one of the following:
Confirmation letter from DVLA or affidavit.

ACCEPT

RACC10

Detail

Decision
Reason
Code

Never
Owned

States they never owned or were not the keeper on the date of contravention. System shows that
DVLA keeper details have been superceded and one of the following circumstances applies.
No start or end date was entered from previous details (Either hire or sale)
Details entered were incorrect

ACCEPT
Reissue
to
previous

RACC10
PC050303L5050220

keeper

Detail

Decision
Reason
Code

Mis-Match
States vehicle was not at location Image check confirms VRM is indeed different or
make/model/colour mismatch

ACCEPT

RACC31

Detail

Decision
Reason
Code

Ringer/Clone
States vehicle was never at the location (cloned / ringer), but provides no evidence image
confirms same VRM, make, model & colour

REJECT

RREJ 12
Additional Information: Ask for evidence to confirm. Evidence can be one of the following
Proof of vehicle at a different location acceptable evidence includes Tracker report, statements
from colleagues, neighbours asserting vehicle at different location
Photos of vehicle that show a difference in the vehicles (i.e. number plate maker/ garage name)
Proof of involvement of another enforcement agency (i.e. previous dealings with Police or local
authority that have confirmed vehicle is cloned ringed).
Proof that a crime has been previously reported (including Police station and crime reference
number) (i.e. person has had previous dealing with Police regarding the cloned vehicle such as
a speeding fine, which has resulted in the Police recording the vehicle as cloned / ringed)
Affidavit affirming vehicle was not in the CC Zone.
PC050303L5050220

Detail

Decision
Reason
Code

Ringer/Clone
States vehicle was never at the location (cloned / ringed) and provides one of the following
Proof of vehicle at a different location acceptable evidence includes Tracker report, statements
from colleagues, neighbours asserting vehicle at different location
Photos of vehicle that show a difference in the vehicles (i.e. number plate maker/ garage name)
Proof of involvement of another enforcement agency (i.e. previous dealings with Police or local
authority that have confirmed vehicle is cloned ringed).
Proof that a crime has been previously reported (including Police station and crime reference
number) (i.e. person has had previous dealing with Police regarding the cloned vehicle such as
a speeding fine, which has resulted in the Police recording the vehicle as cloned / ringed
Affidavit affirming vehicle was not in the CC Zone.

ACCEPT

RACC30


Ground Summary
Had ceased to be the person liable before the date on which the vehicle was used or kept on a road in a
charging area

Details

Decision
Reason
Code
PC050303L5050220

Sold
States sold vehicle before contravention date; provides name and address of new keeper but no
other proof included.
Name and address should be complete and capable of being validated. Postcode check should
always be carried out. Use PAF search as follows
1. Check Post Code
2. Check Post Code & House Number
3. Check House Number, Road & Town
4. Check Minor Spelling alterations
5. Check Partial address (What is known)
6. Check Partial Post Code (i.e. SW18)
If no details returned review (if available) previous PCN to determine if mail may have been
returned.
If details are clearly false/fictional, e.g. Mickey Mouse, Disney Land) or are not a deliverable
address i.e. the Dog and Duck Car Park reject.
If address is in a valid format (i.e. house number/name. Street name, town) but fails PostCode
check, PCN can still be reissued.

ACCEPT

Reissue
to New
Keeper

RACC11


Detail

Decision
Reason
Code

Sold
States they had sold vehicle before the contravention date, but no details provided of whom the
vehicle was sold to or when.

REJECT

RREJ 11
Additional Information:
Ask for details to confirm the date the vehicle was sold, name and address of new keeper and date
DVLA were notified of the change of keeper.

Details

Decision
Reason
Code

Sold
States sold vehicle before contravention date and provides either
a valid receipt / invoice for sale of vehicle
completed DVLA registration document
Confirmation letter from DVLA of sale.

ACCEPT
Reissue
to New

RACC11
PC050303L5050220

Keeper

Ground Summary: Became the person liable after the date of the contravention

Details

Decision
Reason
Code

Bought
States bought vehicle after contravention date and provides name and address of previous keeper;
no other proofs supplied.
Name and address should be complete and capable of being validated. Postcode check should
always be carried out. Use PAF search as follows
1. Check Post Code
2. Check PostCode & House. Number
3. Check House. Number, Road & Town
4. Check Minor Spelling alterations
5. Check Partial address (What is known)
6. Check Partial Post Code (i.e. SW18)

If no details returned review (if available) previous PCN to determine if mail may have been
returned.

If details are clearly false/fictional, e.g. Mickey Mouse, Disney Land) or are not a deliverable
address i.e. the dog and Duck Car Park reject.
If address is in a valid format (i.e. house number/name, Street name, Town) but fails Post Code
check, PCN can still be reissued

ACCEPT

Reissue
the PCN
to the
previous
keeper

RACC12


Details

Decision
Reason
Code

Bought
States bought vehicle after contravention date, but no details provided of whom the vehicle was
bought from.

REJECT

RREJ 11
In Notice of Rejection ask for details date when the vehicle was purchased, name and address of
seller.
PC050303L5050220

Details

Decision
Reason
Code

Bought
States vehicle bought after contravention date and provides a valid receipt for vehicle purchased
(this should show that vehicle was bought after the contravention date) or a completed DVLA
registration document or confirmation letter from DVLA of becoming registered keeper after date of
the contravention.

ACCEPT

RACC12


6.1. Payment Rules Contents

6.1.1 These revised Payment Business Rules came into effect from 4 J uly 2005. From this date all ground 2 paid the charge
representations will use these rules. The extent of any considerations required relate only to the relevant vehicle and for the
period that the person was the registered keeper or the hirer of it.

6.1.2 The following amended payment representation rules should be applied to;
all in time representations
all Late Representations (regardless of reason for lateness up to and including Order for Recovery), as reflected by the
notation of Late representation ground waived.
All new appeals (not those that have already been contested). If the grounds are met the appeal is to be non-contested, with
an explanation given as to why we are non-contesting (see section 9.3 and 9.1).

6.2 The relevant receipt which is considered under these criteria that may give rise to an accepted representation must be
one that is either purchased in advance, on the day of the contravention, is a specific 1 day Previous Charging Day
receipt for 10 purchased as part of Pay Next Day (PND) for the contravention date or is a full charge purchased AND
within the PND via the relevant payment channels for PND purchases, currently via Web and Call Centre/IVR,.

6.3 The PND period for a contravention expires at the end of the following charging day. PND applies for contraventions from 16
J une 2006, examples are, (and not limited to) as follows:

Wednesday contravention, normal PND period expires midnight Thursday(*)
Friday contravention, normal PND period expires midnight of the following Monday(*)
*exceptions may be where the Monday is a bank Holiday, Christmas/Boxing day or may fall on a designated free day.

PC050303L5050220
6.4 The CSP must ensure that the relevant PND period is correctly identified and considered correctly and PND paragraphs used
in any enforcement correspondence issued.

Click HERE to go to the Paying the Charge processing rules at Section 9. Contents

Ground Summary: That the charge payable for the use or keeping of the vehicle on a road on the occasion in
question was paid at the time and manner required by the charging scheme.

Details

Paid
States Paid and provides Credit Card and or bank statement showing deduction, and /or credit debit card number. Request
Finance to perform appropriate search as per Perform Enforcement Searches Procedure.

On receipt of the information from Finance Apply the appropriate Rule e.g. VRM entry error, date entry error etc. taking
account of the PND requirements at point 6.2 to 6.4. as defined in the table below.

If the search cannot be completed i.e. due to missing evidence i.e. credit card number/cheque number then ensure that these
details are requested in any rejection notice.

Details

Decision
Reason
Code

Paid

States paid, but no proofs provided (e.g. bank/credit card statement without full card number)
CSP cannot trace any pertinent payment
Mitigation

REJECT

RREJ 05
Additional Evidence: Ask Customer to provide proof of Charge payment for the vehicle captured
and on the date of contravention.

Details

Decision
Reason
Code
Paid States simply forgot to pay and/ or was not aware of Pay Next Day

Mitigation
REJECT RREJ 70
PC050303L5050220

Details

Decision
Reason
Code

Paid

Provides a Receipt number / Copy of Receipt / Original receipt for charge details checked by CSP
and payment confirmed for correct VRM and date.

ACCEPT

RACC07


Details

Decision
Reason
Code

Paid

Says paid:
Either the customers evidence or search on system shows that they paid for wrong VRM because
they either paid for a different vehicle or there was an error made in recording the vehicle
registration number they paid for regardless of payment channel and receipt purchased meets
relevant PND requirements of 6.2.

This rule includes all types of VRM entry errors regardless of character length or transposition.
(Mistakes such as entering your car make or model are now to be accepted i.e. paid for J aguar
instead of their actual VRM)

THIS IS THE FIRST REPRESENTATION

Accept

Acceptance
reason as
per payment
channel


Details

Decision
Reason
Code
PC050303L5050220
Paid

Says paid:
Either the customers evidence or search on system shows that paid for wrong VRM because paid
for a different vehicle or there was an error made in recording the vehicle registration number they
paid for regardless of payment channel and receipt purchased meets relevant PND requirements of
6.2.

This rule includes all types of VRM entry error

THIS IS NOT THE FIRST REPRESENTATION

Mitigation

REJECT

RREJ 01

Details

Decision
Reason
Code

Paid
States as a registered resident and normally buys a two week discounted charge but has
purchased a normal daily charge for 8 for the correct VRM only


ACCEPT

RACC07
Additional Info,
Accept reps for 2 week period commencing on date of purchase of charge, advise customer to
ensure correct purchase of the charge


Details

Decision
Reason
Code

Paid
States as a registered resident and normally buys a two week discounted charge but has
purchased a normal daily charge for 8 for the correct VRM only and


Or for an Incorrect VRM
Mitigation

REJECT

RREJ 01

Details

Decision
Reason
Code
PC050303L5050220
Paid

Says paid but paid for wrong VRM because paid for a different vehicle, or Registered Customer
vehicle paid for is either Primary or Secondary vehicle.


ACCEPT

RACC04

Details

Decision
Reason
Code
Paid

Says paid but paid for wrong VRM because paid for a different vehicle, or Registered Customer
vehicle paid for is either Primary or Secondary vehicle.

Mitigation

REJECT

RREJ 01

Details

Decision
Reason
Code
Paid

Provides a Receipt number / Copy of Receipt / Original receipt for charge Details checked and
shows payment for different day of travel where relevant receipt must have been purchased
prior to or on the day of contravention.

Payment made via Call centre, IVR, web, metric, post, Paypoint or Ad hoc Fleet


ACCEPT

RACC04


In NOA include Pay Next Day information paragraph

Details

Decision
Reason
Code
PC050303L5050220

Paid

shows payment for different day of travel where relevant has been purchased prior to or on the
day of contravention.

Payment made via Call centre, IVR, web, metric, post, Paypoint or Ad Hoc Fleet


Mitigation

REJECT

RREJ 02

In NOR Include relevant payment method paragraph for contravention date and Pay Next Day
information paragraph

Details

Decision
Reason
Code

Paid next
day

States thought could Pay Next Day and provides a receipt number / Copy of Receipt / Original
receipt for charge purchased through a Non PND channel showing paid for VRM (including VRM
error) and charge purchased after contravention date. (See 6.2).
Mitigation

REJECT

RREJ 01 Additional Info:

IN NOR include relevant payment method paragraph for contravention date and Pay Next Day

Details

Decision
Reason
Code
Paid

shows payment for different day of travel where relevant receipt has been purchased after the day
of contravention but within PND period see 6.2.
AND
Payment made via Call centre, IVR, Web,


ACCEPT

RACC04
Comment [d4]: The table needs
expanding in order to view the entire
contains of the box
Comment [d5]: The table needs
expanding in order to view the entire
contains of the box

PC050303L5050220


In NOA Include Pay Next Day information paragraph

Details

Decision
Reason
Code

Paid

shows payment for different day of travel where relevant receipt has been purchased after the day
of contravention but within PND period see 6.2.
AND
Payment made via Call centre, IVR, Web,


Mitigation

REJECT

RREJ 02

In NOR Include relevant payment method paragraph for contravention date and Pay Next Day

Details

Decision
Reason
Code

Paid

States paid charge investigation shows that CSP had not processed charge (i.e. backlog or lost
by customer services) and customer was not informed.

ACCEPT

RACC01


Contents

Details

Decision
Reason
Code

Paid

States paid on investigation, Not a Registered Resident, discounted charge paid instead of full
charge.
Mitigation

REJECT

RREJ 04
PC050303L5050220

Details

Decision
Reason
Code

Paid

Provides a Receipt number / Copy of Receipt / Original receipt for full charge VRM was entered
incorrectly by CSP, this does not apply to resident or BB see their specific rules.

ACCEPT
Call Centre
RACC02

Postal
RACC03

Details

Decision
Reason
Code

Paid

States paid charge investigation shows fault with payment channel (i.e. lost web payment, metric,
or Pay point transaction).

It is vital that all relevant information is checked including system faults, Pay point failures, and
individual metric machine failures. This includes manual payments.

ACCEPT

Paypoint:
RACC37

Metric:
RACC38

Web:
RACC63

Details

Decision
Reason
Code
Web

States web site unavailable investigation shows no web problems.
Mitigation
REJECT RREJ 35

Details

Web

States web site unavailable investigation shows significant web outage.

ACCEPT

RACC63

Details

Decision
Reason
Code
Call Centre

States were unable to get through to call centre investigation shows no problems with call centre
Mitigation
REJECT RREJ 34

Details

Decision
Reason
Code
Call Centre

States unable to get through to call centre investigations shows call centre unavailable (i.e. fire
alarm system failures)

ACCEPT

RACC43
PC050303L5050220

Details

Decision
Reason
Code
IVR

States unable to get through to pay charge by IVR was kicked out of IVR system Investigation
shows that there were NO problems with the IVR system.

REJECT

RREJ 34
Mitigation

Details

Decision
Reason
Code
IVR States unable to get through to pay charge by IVR was kicked out of IVR system Investigation
shows that there were significant problems with the IVR system.
ACCEPT RACC43


Details

Decision
Reason
Code

Paypoint

Claims Paypoint machine was not working investigation confirms no known faults either with
network or individual outlet problem reported.
Mitigation

REJECT

RREJ 36

Details

Decision
Reason
Code

Paypoint

Claims Paypoint machine was not working investigation confirms either Paypoint network error or
individual outlet problem reported

ACCEPT

RACC37

Details

Decision
Reason
Code
Metric

Claims metric machine was not working investigation shows metric machine not faulty
Mitigation
REJECT RREJ 37

Details

Decision
Reason
Code
Metric

Claims metric machine was not working investigation shows metric machine faulty ACCEPT RACC38


Details

Decision
Reason
Code
PC050303L5050220
Text

States text payment method not working investigation shows no problems.
Mitigation
REJECT RREJ 38

Details

Decision
Reason
Code
Text

States text payment method not working investigation shows significant problems with system.
ACCEPT

RACC39

Details

Decision
Reason
Code
Text

States tried to pay by SMS, payment failed and received SMS error message. Claims SMS error
message confusing. Message was issued prior to RELEASE 11.

ACCEPT

RACC39

Details

Decision
Reason
Code
Text

States tried to pay by SMS, payment failed and received SMS error message. Claims SMS error
message confusing. Message was issued after RELEASE 11.
Mitigation

REJECT

RREJ 38

Details

Decision
Reason
Code
Fleet

States vehicle should have been on fleet list investigation shows no system problems or data
entry problems by CSP
Mitigation

REJECT

RREJ 31

Details

Decision
Reason
Code

Fleet

States vehicle should have been on fleet list investigation shows either system problems or error
made by CSP.

ACCEPT

RACC41

Details

Decision
Reason
Code
Fleet

States vehicle should have been on fleet list investigation shows fleet operator error.
Mitigation
REJECT RREJ 31

Details

Decision
Reason
Code
PC050303L5050220
Payment
queue

States tried to pay but queue too long so could not wait.
Mitigation

REJECT

RREJ 05

Details

Decision
Reason
Code
Fast Track

Misunderstood fast track (i.e. believed payment debited automatically)
Mitigation
REJECT RREJ 05

Details

Decision
Reason
Code
Cherished
Number
Plate - Paid

States paid but vehicle subject to cherished number plate transfer.
Customer provides proof vehicle subject to cherished number plate transfer on the day and has
paid the charge for the contravention date documents could include a confirmation letter from
DVLA, or an approved V317

ACCEPT

RACC04

Details

Decision
Reason
Code
Cherished
Number
Plate - Paid

States paid but vehicle subject to cherished number plate transfer.
Customer provides no proof vehicle subject to cherished number plate transfer on the day and or
has paid the charge for the contravention date or
Mitigation

REJECT

REJ 01

Contents
Ground Summary : That no Penalty charge is payable under the charging scheme

Details

Decision
Reason
Code

Exempt
States vehicle is exempt from charge due to tax class, but does not provide any proof image
does not confirm exemption, this may include a motor tricycle/Tricycle/Ape Van.

REJECT

RREJ 23
PC050303L5050220
In Notice of Rejection ask for details of proof of tax class e.g. copy of V5 if relevant and/or include
Paragraph relating to Motor tricycles/Ape Vans.
Mitigation

Details

Decision
Reason
Code

Exempt
States vehicle is exempt from charge due to tax class and provides proof (DVLA taxation
certificate, V5)

ACCEPT

RACC27


Details

Decision
Reason
Code

Exempt

States vehicle is exempt from charge due to tax class, but does not provide any proof Image
shows exempt vehicle e.g. bus or motor bike (but not motor tricycle/Tricycle/Ape Van)

ACCEPT

RACC27


Details

Decision
Reason
Code

Discount
States is entitled to 100% discount from scheme (excluding blue badge) and has registered
investigation shows no application received.
Mitigation

REJECT

RREJ 22

Details

Decision
Reason
Code

Discount
investigations shows application received but not processed within period allowed for registration
(10 days)

ACCEPT

RACC25


Details

Decision
Reason
Code
Discount States entitled to 100% discount from scheme (excluding blue badge) and has registered
registration not received in time.
Mitigation

REJECT

RREJ 22
PC050303L5050220

Details

Decision
Reason
Code

Discount
investigation shows error made by CSP in registration (e.g. wrong VRM recorded, not activated, or
customer misinformed).

ACCEPT

RACC25


Contents

Details

Decision
Reason
Code
Discount States is entitled to 100% discount from scheme (excluding blue badge) and has registered but
sold vehicle and did not nominate new qualified vehicle or has use of hire or courtesy car and did
not nominate this vehicle.

ACCEPT

RACC26

Details

Decision
Reason
Code

Discount
States is entitled to 100% discount from scheme (excluding blue badge) and has registered but
sold vehicle and did not nominate new qualified vehicle or has use of hire or courtesy car and did
not nominate this vehicle.
Mitigation

REJECT

RREJ 22

Details

Decision
Reason
Code
Alternate
Fuel

States is alternative fuel vehicle, but not registered with scheme.
Mitigation

REJECT

RREJ 22

Details

Decision
Reason
Code

Police

States police vehicle, but no proof provided Image does not support claim

REJECT

RREJ 23
PC050303L5050220
Additional information: In Notice of Rejection ask for further details, including a supporting letter
signed by senior police officer (superintendent or above) or if a Metropolitan Police vehicle
appropriate form an authorised signatory
Mitigation

Details

Decision
Reason
Code

Police
States police vehicle/used on police Business (including British Transport Police) and proof
provided in the form of a letter signed by senior police officer (superintendent or above or Manager
of Transport) or Metropolitan Police form (from the authorised Approved list of names provided).

ACCEPT

RACC29


Details

Decision
Reason
Code
Emergency
Services
States emergency services vehicle, but no proof provided Image does not support claim

REJECT

RREJ 23
Additional information: In Notice of Rejection ask for further details, including a letter on suitably
headed paper signed by senior officer (i.e. Station Manager / Head of service or from an authorised
signatory on the London Fire and emergency Planning Authority LEFPA)
Mitigation

Details

Decision
Reason
Code
Emergency
Services
States emergency services vehicle and provides evidence supported with a letter from the relevant
emergency service confirming that the vehicle was used for the purpose described at the time and
date of the contravention (from the Station Manager / Head of Service or from the authorised
signatory of the London Fire and Emergency Planning Authority (LEFPA) proforma)

ACCEPT

RACC29


Details

Decision
Reason
Code
PC050303L5050220
Selected
Partner
States they are exempted or discounted from scheme due to working for a Selected Partner such
as Local Authority. Vehicle VRM was entered incorrectly (2 or fewer digit error or transposed)
regardless of who nominated VRM.

ACCEPT

RACC25/R
ACC26

Details

Decision
Reason
Code

Selected
Partner
States they are exempted or discounted from scheme due to working for a Selected Partner such
as Local Authority. Vehicle was not added to the account.
Mitigation

REJ ECT

RREJ 31

Details

Decision
Reason
Code

PCO
States vehicle is private hire vehicle (Mini Cab) and proof of PCO registration is provided
ACCEPT

RACC28


Details

Decision
Reason
Code

PCO
States vehicles registered; evidence shows that Upload of VRMs from PCO failed.

ACCEPT

RACC28


Details

Decision
Reason
Code

PCO
States vehicle/hackney carriage was registered with PCO; evidence included to show that PCO
failed to update details correctly including the VRM being entered incorrectly (regardless of number
of digit errors) or VRM not being entered within time.
Confirmation from PCO must be included with representation that the vehicle should have been
registered at the time of contravention.

ACCEPT

RACC28


PC050303L5050220

Details

Decision
Reason
Code

PCO
States vehicle is taxi / hackney carriage, but no proof of PCO registration is provided to support the
representation
Mitigation

REJECT

RREJ 24
Additional Information: In Notice of Rejection ask for details of PCO registration

Details

Decision
Reason
Code

PCO
States vehicle is taxi / hackney carriage and proof of PCO registration provided covering the
contravention date

ACCEPT

RACC28


Details

Decision
Reason
Code

PCO
States vehicle is a private hire vehicle (Mini Cab), but no proof of PCO registration is provided to
support the representation.
Mitigation

REJECT

RREJ 24
Additional Information: In Notice of Rejection ask for details of PCO registration

Details

Decision
Reason
Code

PCO

States operator either failed to register or incorrectly registered the vehicle.
Mitigation

REJECT

RREJ 24

Details

Decision
Reason
Code

PCO
States as driver they are exempt (produces letter/driver permit, which confirms that they as a driver
have been PCO registered); however vehicle has not been registered by Operator.

REJECT

RREJ 24

Details

Decision
Reason
Code

PCO

States they were attending a vehicle inspection at PCO (vehicle failed inspection).

REJECT

RREJ 24

Details

Decision
Reason
Code
PC050303L5050220

PCO
States they were attending a vehicle inspection at PCO (vehicle passed inspection), confirmation
included.

ACCEPT

RACC28

Details

Decision
Reason
Code
Hackney
carriage/
Taxi

States they are driving a taxi, vehicle is registered with another authority not PCO.
Mitigation

REJECT

RREJ 24

Details

Decision
Reason
Code

Charity

Charity / Voluntary organisation states should be exempt because of their status.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code
Military
Vehicle
States UK military vehicle; image confirms or letter from Officer (Lieutenant, or flying officer or
above) or Ministry of Defence enclosed confirming vehicle being used appropriately.

ACCEPT

RACC29

Details

Decision
Reason
Code
Foreign
Military

States vehicle is exempt due to being a foreign military vehicle.
Mitigation

REJECT

RREJ 23

Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder proof provided (copy of badge) thought they were automatically
exempt.

ACCEPT

RACC21

Details

Decision
Reason
Code
PC050303L5050220

Blue Badge
States is Blue Badge holder and thought they were automatically exempt, but no proof provided.

REJECT

RREJ 21
Additional Information: Evidence required: in Notice of Rejection ask for a copy of blue badge
Mitigation

Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder and thought they were automatically exempt.
THIS IS NOT FIRST REPRESENTATION
Mitigation

REJECT

RREJ 20

Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder and registered with scheme investigation shows error made by CSP
in registration (e.g. wrong VRM recorded, not activated, or customer misinformed).

ACCEPT

RACC22

Additional requirements: Ensure erroneous data is corrected immediately


Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder. Registered with scheme and first contravention investigation shows
registration not received in time.

ACCEPT

RACC22

Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder. Registered with scheme investigation shows registration not
received in time.
Mitigation

REJECT

RREJ 20

Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder. Registered with scheme investigation shows customer did not
register or nominate the vehicle

ACCEPT

RACC21
PC050303L5050220

Details

Decision
Reason
Code

Blue Badge
States is Blue Badge holder. Registered with scheme investigation shows customer did not
register vehicle.
Mitigation

REJECT

RREJ 20

Details

Decision
Reason
Code
Blue Badge States was driving a blue badge holder (REGISTERED KEEPER IS NOT BB HOLDER)
Apply appropriate blue badge rule i.e. vehicle registered incorrectly, first representation etc.

As per appropriate rule

Details

Decision
Reason
Code
Blue Badge States knows a blue badge holder e.g. BB Holder is relative or friend and they were therefore
exempt but BB holder not in vehicle.
Reasons include running an errand, thought as they knew BB holder they were exempt, owner of
vehicle.
Mitigation

REJECT

RREJ20
Details
Decision
Reason
Code
Resident States is resident of zone. Not registered with scheme
Mitigation

REJECT

RREJ 25

Details

Decision
Reason
Code
Resident States is a resident of the zone, registered and forgot to pay.
Mitigation

REJECT

RREJ 25

Details

Decision
Reason
Code
Resident States is resident of zone and is attempting to register but not registered in time.
Mitigation

REJECT

RREJ 25

Details

Decision
Reason
Code

Resident
States is resident of zone and is attempting to register but process not complete investigations
shows application received but not processed within period allowed for registration (10 days)

ACCEPT

RACC43
PC050303L5050220


Details

Decision
Reason
Code

Resident
States is resident of zone and registered investigation shows error made by CSP in registration
(e.g. wrong VRM recorded, not activated, or customer misinformed)

ACCEPT

RACC25

Additional requirements: Ensure erroneous data is corrected immediately


Details

Decision
Reason
Code

Resident
Registered as resident, sold vehicle and did not nominate new vehicle; has use of hire or courtesy
car and did not nominate this vehicle. Discount Charge has still been paid.


ACCEPT

RACC04

Details

Decision
Reason
Code

Resident
Registered as resident, sold vehicle and did not nominate new vehicle; has use of hire or courtesy
car and did not nominate this vehicle. Discount Charge has still been paid.
Mitigation

REJECT

RREJ 01

Details

Decision
Reason Code
Resident States sent in application to change registered vehicle, PCN is for the old vehicle for which charge
was paid, Application processed on the day of the PCN to remove old vehicle.

Accept

RACC04

Investigation shows VRM changed on day of contravention

Diplomatic
Representations received from a Diplomatic Mission, regarding a diplomatic vehicles

Details

Decision
Reason
Code
PC050303L5050220

Diplomatic
vehicle

Representation received from a diplomatic mission regarding a diplomatic vehicle and ONLY
states:

As a Diplomat under the Vienna Convention on Diplomatic Relations or Vienna Convention
on Consular Relations (any Article), and/or
They consider the Congestion Charge as a tax which under the Vienna Convention on
Diplomatic Relations or Vienna Convention on Consular Relations (any Article),
means that they are exempt from paying the Congestion Charge or do not have to the
Congestion Charge

REJECT

SEE
NOTES

RREJ 69

Additional info:

The representation must be refused using the specific Diplomatic NOR Template inserting the
relevant Diplomatic Mission paragraph.

Long version for: US/German/Swiss Missions or more forceful reps from other missions

Short version normally for other missions


Details

Decision
Reason
Code
PC050303L5050220

Diplomatic
vehicle
Representation received from a diplomatic mission regarding a diplomatic vehicle AND also makes
reference to other points/grounds in the representation (as an example, paid the charge, resident
renewal, sold vehicle and not limited to this list) in addition to being:

A Diplomat under the Vienna Convention on Diplomatic Relations or Vienna Convention on
Consular Relations (any Article), and/or
They consider the Congestion Charge as a tax which under the Vienna Convention on
Diplomatic Relations or Vienna Convention on Consular Relations (any Article),
means that they are exempt from paying the Congestion Charge or do not have to pay the
Congestion Charge

THE REPRESENTATION MUST BE CONSIDERED ON THESE ADDITIONAL POINTS IN
ACCORDANCE TO THIS CDR. THE DECISION TO ACCEPT OR REJECT WILL BE BASED ON
THESE POINTS, NOT THE DIPLOMATIC STATUS OF KEEPER OR THE VEHICLE.

ACCEPT
or
REJECT

Based on
the
criteria in
this CDR

SEE
NOTES

Use the
relevant
ACCEPT
reason code
which has
led to
accept
decision

Additional Info:

REP REJECTED
relevant Diplomatic Mission paragraph and addressing all other points

REP ACCEPTED

The NOA must be amended and use the specific Diplomatic NOA paragraph.

Your representation has been accepted by TfL not because of your Diplomatic status or that of the
vehicle but on the wider points that you have raised in your representation.


PC050303L5050220

Details

Decision
Reason
Code

Diplomatic
vehicle
Representation received from a diplomatic mission regarding a diplomatic vehicle AND the
representation is made solely on any other grounds such as paid the charge, resident renewal,
sold vehicle or other grounds in the CDR (and not limited to this list) and NOT the diplomatic status
of the vehicle or keeper

THE REPRESENTATION MUST BE CONSIDERED ON THESE ADDITIONAL POINTS IN
ACCORDANCE TO THIS CDR. THE DECISION TO ACCEPT OR REJECT WILL BE BASED ON
THESE POINTS, NOT THE DIPLOMATIC STATUS OF KEEPER OR THE VEHICLE.

ACCEPT
or
REJECT

Based on
the
criteria in
this CDR

SEE
NOTES

Use the
relevant
ACCEPT or
REJ ECT
reason code
in the CDR
which has
led to
decision

Additional info:

REP REJECTED
relevant Diplomatic Mission paragraph and addressing all other points

REP ACCEPTED

The NOA must be amended and use the specific Diplomatic NOA paragraph.

Your representation has been accepted by TfL not because of your Diplomatic status or that of the
vehicle but on the wider points that you have raised in your representation.

Contents

Summary That the vehicle had been used or kept or permitted to be used or kept on a road by a
person who was in control of the vehicle without the consent of the registered keeper
Ground

Details

Decision
Reason
Code
PC050303L5050220

Stolen
States vehicle was stolen / taken without consent, but does not provide any proof

REJECT

RREJ 40
Additional Information: Further details required: crime reference number and police station to
which crime was reported

Details

Decision
Reason
Code

Stolen
States vehicle was stolen / taken without consent and provides proof (crime reference number and
police station to which it was reported) CSP validates details with police station

ACCEPT

RACC51

Details

Decision
Reason
Code

Taken
States vehicle was taken but user did not have consent (i.e. relative friend borrowed car)
Mitigation

REJECT

RREJ 40

Ground Summary: That the Penalty Charge exceeds the amount applicable in the circumstances of
the case

Details

Decision
Reason
Code
Incorrect
charge
States amount on PCN is incorrect, not the amount prescribed in regulations confirm details on
PCN are correct

REJECT

RREJ 61

Details

Decision
Reason
Code

Part Paid
Says paid discounted sum confirm if payment at discounted rate received and date payment
received if received in time Write off balance (do not record as accept on system)

N/A

RACC71

Details

Decision
Reason
Code

Part Paid
Says paid the discounted sum investigate to confirm if payment equal to discounted sum
received and date payment received if received out of time

REJECT

RREJ 61

Details

Decision
Reason
Code
Part Paid States other sum paid (e.g. 8.00) REJECT RREJ 61
Additional Daily Charge payment rules may be found at Paid Contents

PC050303L5050220
Factors which are Wholly Mitigation

Where Mitigation has been identified in this section the relevant paragraphs must be used in the
Notice of rejection

Details

Decision
Reason
Code

Emergency
States drove into zone due to an emergency (emergency would consist as emergency visit to
hospital within zone i.e. relative rushed to hospital) but no details provided

REJECT

RREJ 26 Additional information: In Notice of Rejection ask for a letter from the hospital confirming it was
for an emergency visit for further consideration.

Details

Decision
Reason
Code

Emergency
States drove into zone due to Medical Emergency, and provides proof of emergency visit to
hospital (this is not a routine scheduled hospital visit)

ACCEPT

RACC36


Details

Decision
Reason
Code

Hospital

States was visiting hospital. Was a routine or scheduled appointment Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Sick / Ill

States was taken ill (non emergency) Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Death
States registered keeper deceased and proof of death provided (death certificate or confirmation
from solicitors handling the estate)

ACCEPT

RACC36

See 3
rd
party rules, write to person making the representation not the registered keeper.


Details

Decision
Reason
Code
PC050303L5050220

Death
States Registered keeper deceased but provides no proof of death (death certificate or
confirmation from solicitors handling the estate))

REJECT

RREJ 26

See 3
rd
party rules, write to person making the representation not the registered keeper.


Details

Decision
Reason
Code

Death
States was going to register a death or travelling to hospital due to death of relative and proof of
death provided (death certificate is dated day of contravention)

ACCEPT

RACC36


Details

Decision
Reason
Code

Death
States was going to register a death or travelling to hospital due to death of relative, but proof of
death is not provided (or the death certificate is not dated on the day of the contravention)

REJECT

RREJ 26

Where no death certificate is provided, in Notice of Rejection ask for copy of death certificate.


Details

Decision
Reason
Code

Funeral
States was driving to or attending a funeral
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Petrol
States had to enter zone to get fuel.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Diversion
States drove into zone due to a diversion Investigation as above. No known diversion shown.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code
PC050303L5050220

Diversion

States Drove into zone due to a diversion investigation confirms diversion into the zone.
Investigation or evidence may include any of the following:
System check of notified diversion
Contact with LTCC/Police who confirm diversion into zone
IF ANY DOUBT ESCALATE TO PMA

ACCEPT

RACC33

Mitigation

Details

Decision
Reason
Code

Local
Authority
States vehicle had been subject to enforcement action by a local authority (clamp / removed) and
this was why the vehicle was within the charging zone, but no evidence is produced to substantiate
this claim

REJECT

RREJ 28
Additional Information: Further information/evidence required: copy of clamp removal release
sheet and/or further details
Mitigation

Details

Decision
Reason
Code

Local
Authority
States vehicle had been subject to enforcement action by a local authority (clamp / removed on or
before the contravention). Evidence is produced to prove that the vehicle was within the charging
zone on the contravention date either as a direct result of this enforcement action, or following the
recovery of the vehicle within the zone by the keeper following resolution of the enforcement action.

ACCEPT

RACC34
Mitigation

Details

Decision
Reason
Code

Detained
States was detained by police, but does not provide any evidence
REJECT

RREJ 28 Additional Information: Evidence required: copy of custody sheet
Mitigation

Contents

Details

Decision
Reason
Code
PC050303L5050220

Detained

States was detained by police and provides evidence (custody sheet)

ACCEPT

RACC34

Mitigation

Details

Decision
Reason
Code

In Prison

Claims unable to or cannot pay as they are in prison.
Mitigation

REJECT

RREJ 28

Details

Decision
Reason
Code

Breakdown
States vehicle broke down, resulting in entry exit of the zone during operational hours
even if evidence is received from the Recovery firm to confirm
Mitigation

REJECT

RREJ 28

Details

Decision
Reason
Code
Not in Zone States not at location/in the zone, Image check confirms not a VRM Mismatch.

Additional Information: If provides a satellite navigation or GPS data tracking report as part of
representation ensure that relevant paragraph is included in the Notice of Rejection.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Ignorance

States was unaware of congestion charging Scheme or Zone or PND.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code
Got Lost States got lost so drove into zone.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code
Roads Claims that was sent into zone due to road layout.
PC050303L5050220
Mitigation REJECT RREJ 30

Details

Decision
Reason
Code
Dead End Claims road is dead end so should not be in zone
Mitigation

REJECT

RREJ 30

Details

Decision
Reason
Code
Swerved States swerved or forced into zone
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code
Delivery States was making a delivery or entered zone to load / unload
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Advice
States received incorrect advice from either call centre or retail, including PND, but no evidence
provided and cannot be proven
Mitigation

REJECT

RREJ 03

Details

Decision
Reason
Code

Advice
States received incorrect advice from either call centre or retail, including PND and is proven
(either evidence is provided or known incident)

ACCEPT

RACC40

Mitigation

Details

Decision
Reason
Code

Advice
States received incorrect advice from Policeman/Traffic warden/Tour guide/Taxi driver or other
Mitigation

REJECT

RREJ 03
Contents

Details

Decision
Reason
Code
Leaving
Zone

States they were leaving zone and not entering

REJECT

RREJ 28
PC050303L5050220
Mitigation

Details

Decision
Reason
Code

VIP

Claims they are famous / important and shouldnt have to pay.
Mitigation

REJECT

RREJ 26

Details

Decision
Reason
Code

Wasnt driver
States another person driving.
REJECT

RREJ 32 Advise In NOR that whilst someone else may have driven the car the registered keeper is liable
Mitigation

Details

Decision
Reason
Code

Timing
Claims not to be in zone during charging hours. Their own clock s showed the time before or after
charging hours or they heard time from 3
rd
party.
Mitigation

REJECT

RREJ 29

Details

Decision
Reason
Code
Signs States did not see signs or signs did not tell then how to pay e.g. tourist, not from London
Mitigation

REJECT

RREJ 30

PMA Escalation cases Contents

The following scenarios require immediate escalation to PMA for investigation

Details

Decision
Reason
Code
Signs States zone entry signs missing Escalate
to PMA
RREJ 30 OR
RACC42

Details

Decision
Reason
Code
Cameras States problem with camera investigate evidential integrity log and then pass results to PMA Escalate
to PMA
RREJ 27OR
RACC32 Late representation ground waived
PC050303L5050220

Details

Decision
Reason
Code

Legal

Makes challenge on legal ground e.g. Human Rights, Error in scheme order, wording on PCN.
Escalate
to PMA

RREJ 33


Hire Contents

The rules to follow when the representation is made on the basis of the Vehicle was on Hire at the time of the contravention are
outlined fully in the separate guidance notes entitled HIRE AGREEMENT GUIDANCE NOTES

7. Discount Renewal Process

7.1 The following business rules should be applied in the circumstances when the representation occurs as a result of the renewals
process applying the First Representation rule where relevant.

7.2 The consideration of the First representation will be specific to the representation occurring due to the renewal, regardless of a
previous decisions i.e. a previous blue badge 1st contravention prior to being registered, then apply these rules.

7.3 Any Notice of Acceptance or Notice of Rejection must advise the customer of when the relevant renewal request was sent and
when it had to be completed by. If the renewal has not been completed then customer should be advised to complete and
submit the renewal application as soon as possible, that the full daily charge should be paid and that future PCNs would stand.

7.4 Where these cases are identified, staff should make full use of Northgate Notes to explain reason for accepting or rejecting and
refer to location of evidence (if applicable).

7.5 All data corrections identified must be processed immediately to prevent re-occurrence of the same issue.

Details

Decision
Reason
Code
100%
discount

States Forgot to renew

PC050303L5050220
holder
(including
Blue badge
holders)

Additional information:
THIS IS FIRST REPRESENTATION
Advise Customer to make renewal application and that full daily charge must be paid until renewal
application has been completed
ACCEPT RACC21

Details

Decision
Reason
Code
100%
discount
Holder
(including
Blue Badge
holders)

States Forgot to renew

REJECT

RREJ 05

Additional information:
THIS IS NOT THE FIRST REPRESENTATION, in NOR: refer to earlier decision and advise
contained regarding need to renew etc
Mitigation

Details

Decision
Reason
Code
100%
discount
holder
(including
Blue Badge)
Renewal received but not processed, processed incorrectly, i.e. not applied / wrong VRM entered
(this regardless of entry error)

ACCEPT
all
relevant
PCNs

RACC01
Data correction must be completed. Customer must be advised of action

Details

Decision
Reason
Code

Resident
States Forgot to renew and did not pay daily charge

REJECT
all
relevant
PCNs

RREJ 05
Advise in NOR they need to both renew and pay daily charge at full rate until renewed, and only
pay at discounted rate when renewal has been approved.
Mitigation
Contents

Details

Decision
Reason
Code
PC050303L5050220

Resident

States Forgot to renew and has continued to purchase a discounted charge after the expiry of the
residents account

ACCEPT
all
relevant
PCNs

RACC02

Advise in NOA of the need to renew the residents discount and pay daily charge at full rate until
renewed to stop PCN being issued, and only pay at discounted rate when renewal has been
approved. Advise that renewal must be made a.s.a.p. arrange for application form to be sent
This is the FIRST REPRESENTATION

Details

Decision
Reason
Code

Resident

Still has not renewed, still pays discounted charge
REJECT

RREJ 04 THIS IS NOT THE FIRST REPRESENTATION
Reject. In NOR refer the customer to the previous decision
Mitigation
Details Decision Reason
Code

Resident
States Tried to renew or had renewed and application for renewal was rejected and the customer
was advised accordingly.

REJ ECT

RREJ 21 OR
22 OR 25
as
appropriate
THIS RULE APPLIES WHETHER THEY HAVE CONTINUED TO PAY DISCOUNT CHARGE OR
NOT.
Mitigation

Details

Decision
Reason
Code

Resident

Renewal received but not processed, processed incorrectly, i.e. not applied / wrong VRM entered
(this regardless of entry error)

ACCEPT
all
relevant
PCNs

RACC01

Data correction must be completed. Customer must be advised of action

Details

Decision
Reason
Code

Claims to have not received renewal letter

ACCEPT

RACC26
PC050303L5050220
All renewals

Additional information: Confirm correct address used for renewal letter, Re-send renewal letter.
This is the FIRST REPRESENTATION
Advise full daily charge must be paid until renewed.
all
relevant
PCNs

Details

Decision
Reason
Code

All renewals

Claims to have not received renewal letter

REJECT

RREJ 22
Investigation shows PCN issued after previous representation response was sent.
Reject but provide details on how to renew. Mitigation

Details

Decision
Reason
Code

All renewals

Claims to have received conflicting misleading advice (i.e. the incorrect renewal letter that was
sent)

ACCEPT

RACC40
Explain process and how to correctly renew. Arrange for Customer Service/apps admin to contact
them to rectify position.

8. Paying the Charge Representation, Appeal and telephone enquiry Processing rules Contents

8.1 Rejected representations where applicable must make reference to previously accepted representations.

8.2 Representation concerning charge payment which fall outside of the Payment rules grounds or those referenced in the CDR
should be escalated to a PMA for guidance.

8.3 NOTE: The relevant daily charge that is being considered as part of the representation must have an actual purchase date
that meets PND requirements see 6.2 for the actual day of the contravention. This will therefore mean that any charges
purchased after the contravention date that are not PND charges through a PND channel are not accepted and any
representation on this basis must be refused.

9. Revised Enforcement Correspondence.

PC050303L5050220
9.1 All of the Paying the Charge representations which are accepted by using the first representation rules should use the relevant
Notice of Acceptance taking account of which takes account of

9.1.1 The Payment channel e.g. Paypoint/Web/Metric/Call centre etc, and
9.1.2 The specific error made e.g. wrong VRM or date following wording in the Notice of Acceptance. No apology should be issued.

9.2 All cases which are rejected due to the above rules and any subsequent appeal must reference the fact that a previous
representation has been accepted and the customer was informed that future representations would not be accepted, see 9.4
onwards.

9.3 All of those cases which are non contested at appeal/Stat dec stage should use the appropriate cancellation notice that advises
the customer we will not cancel PCNs in further such cases, (see 9.10).

9.4 As stated, a number of the business rules apply to 1
st
Representation. Previously rules have mentioned 1
st
contravention or 1
st

occurrence to bring all these rules into line, ensuring consistency the above rules should be applied to determine if it is the 1
st

Payment Representation.

9.5 Where a representation is accepted under the first payment business rules basis it is very important that the Notice of
Acceptance has very clear and specific reasons why the representation has been accepted. This is because the customer may
be required to undertake some work themselves, such as registering with TfL as a Blue badge holder to prevent further PCNs,
ensuring PND charges are correctly purchased or to correct information in some other or how they may interact with TfL. These
payment rules follow on from this principle and it is very important they are followed.

9.6 The first representation (either formal or by telephone) therefore on ground 2 on or after 4 July 2005 where payment of the
charge has been demonstrated/where payment can be confirmed will be accepted and the relevant Notice of Acceptance
(based on payment method and error, date or VRM) will be issued to the customer that will outline the reasons for the error and
acceptance.

9.6.1 The first representation rule will apply to any further representations for contraventions occurring within 5 working days
of this decision. The first working day being the date of the NOA issued for the initial first representation decision e.g.
decision done Tuesday 14 J une 2005, this rule will apply to representations received for contraventions for the period
14/6/05 to 20/6/05. This period allows for post/delivery of the mail before the customer is likely to be aware of the
information in the Notice of Acceptance.

PC050303L5050220
9.7 For any further or subsequent PCNs which were issued after the date specified in 9.6 (or calculated under 9.6.1 when relevant)
where the representations are made on this ground where the error made is the same/similar error are to be rejected. If there is
any doubt as to whether it is a similar case it should be referred to PMA with full details for advice).

9.8 The relevant Notice of Rejection paragraph must be included and must reference the date(s) shown on all previous Notice of
Acceptances for representations accepted on the basis of paid the charge ground 2 (even those prior to 4 J uly 2005).

9.9 Appeals and Stat Decs (where appropriate) will be processed in line with these business rules.

9.10 Any appeals/stat decs where it is shown that these business rules apply e.g. New evidence after a representation reject
decision should be non contested and have the appropriate paid the charge cancellation letter sent which clearly reminds the
customer of the correct requirements when purchasing the charge.

9.11 Any appeals/stat decs where the case is to be challenged will use the wording from the intranet for the case summaries
to show why the Appeal/Stat dec. is being challenged. The evidence required to be provided to support the cases will be as
follows:

9.11.1 Copies of all the representations and Notice of Acceptances for the PCNs referenced in the Notice of Rejection (see
point 8.1 and 9.7 and 9.8), and if relevant,
9.11.2 Copies of all representations and Notice of Rejections that may have been previously non contested such as new
evidence etc (even those prior to 4 J uly 2005) at Appeal/Stat dec. stage on this ground, and if relevant,
9.11.3 All Copies of the appropriate cancellation letter(s) sent which informed the customer of the correct requirements when
purchasing the charge issued when Any appeals/stat decs where Non Contested because these business rules applied
e.g. N/C under first rep rule at appeal or New evidence after a representation reject decision, and if relevant
9.11.4 Details of any PCNs identified and cancelled through the identification of a payment error via a telephone enquiry should
also be referenced and copies of the associated letter sent see 9.12.7 should be included.
9.11.5 Items referenced at 9.11.1 to 9.11.4 will all be included in the Miscellaneous evidence section of the pack at section
J
9.11.6 They will be referred to through the case summary paragraphs provided.
9.11.7 Representations previously referred to in a Notice of Rejection that are no longer held on the system due to them being
deleted under Data Protection policies should also be referred to, however it should be explained in the case summary
that:

since the representation decision was made this information is no longer retained.

PC050303L5050220
9.12 Telephone Enquiries will be considered on the same basis as formal representations, it is very important that the
customer is spoken to by Enforcement staff to ensure the customer is fully advised of why the PCN was issued due to the
payment error. Comprehensive notes must be recorded on Northgate to assist with any further formal representations or
telephone enquiries and must include the specific details of the call and that the customer was told:

9.12.1 The daily charge receipt reference that they paid for
9.12.2 The VRM recorded upon it
9.12.3 What should have been recorded/entered e.g. 0 (zero) inserted instead of o (Oscar), transposed characters etc.
9.12.4 That they have been reminded to pay for the correct VRM displayed on the vehicle, for the correct day at the correct
rate, and advising of the relevant PND provisions.
9.12.5 TfL will not cancel further PCNs where the charge has been paid incorrectly.
9.12.6 In addition any data corrections must be confirmed with the customer and referenced and made that day to prevent
further PCNs being issued to that vehicle as a result of the error on that receipt.
9.12.7 The customer must be issued the Telephone enquiry Cancellation letter which must be referenced in the Northgate
notes and associated to the relevant PCN in CORE for future reference.

9.13 If there is a further telephone call from the customer about subsequent PCNs they must be reminded of the previous
conversation, details and reasons for cancelling the PCN, this call must also be recorded on Northgate.

9.13.1 If data corrections required from the earlier conversation have not been completed, cancel the PCN and ensure that
this is marked Capita error (data correction not completed).
9.13.2 If data corrections have been completed as required previously advise the customer that the correct VRM was
confirmed and led to previous cancellations and the PCN will not be cancelled as a result of the telephone conversation
and advise them they should pay the PCN or make a formal written representation.
9.13.3 If data corrections are not relevant to the PCN in question again remind the customer of the earlier conversation, content
and information given which should reflect the points at 9.12.1 to 9.12.5 (where relevant)

Click HERE to return to Pay the Charge Decision Criteria

10. Data Corrections

10.1 All data corrections of any customer accounts and receipt charges (Weekly, Monthly or Annually) must be arranged as per
current business requirements and must be completed on the day the representation is considered and resolved. This is to
reduce/limit/remove the possibility of any further PCNs being issued to the customer due to this problem/error.

PC050303L5050220
10.2 Failing to complete this aspect may open up the PCN to the consideration of Capita error under KPI/QPI monitoring.

11 QPI monitoring

11.1 QPI6/7 and 8 will be considered on the basis of these requirements to identify when an error appropriate to each category
should apply.

12. Freedom of Information Act (FOI) Contents

Background

12.1 The Freedom of Information Act (FOI) was introduced from 1 J anuary 2005 and requires TfL to provide information requested
as a result of this Act. The request should normally be made through the FOI co-ordinator for TfL but such requests may be
made in any item of correspondence. It is expected that all questions raised in Enforcement correspondence (including but not
limited to PCN payments, Representations and Appeals) are addressed in responses sent out by the CSP.

12.2 From 1
st
J anuary 2005, The CSRs must recognise as part of FOI valid questions and should continue to investigate the issues
and source the information required, address them and respond to the questions raised in the appropriate response relevant to
the consideration of a Representation and Appeal through the statutory process. E.g. When was the metric machine I used last
serviced/repaired, or when was the camera synchronised to the Rugby Atomic clock.

12.3 However in addition, where a specific reference is made to Freedom of Information or the Environmental Information
Regulations, and/or the information requested cannot be obtained or is not relevant to the Representation and Appeals
process, (e.g. how many charges were purchased during 2005, or How many PCNs have been issued for contraventions at
XXXX location), The CSRs must insert the standard paragraph available from The Capita Intranet system into the response to
provide the TfL FOI postal address should the person want to pursue the question further under FOI or the EIRs. This
paragraph must be inserted into the acceptance, rejection or any other enforcement letter including appeal packs by the CSRs.

12.4 It must be reiterated that the Freedom of Information Act (FOI) is not the same as the Data Protection Act (DPA) and they
should not be confused.

12.4 Subject Access Requests (SAR) through the Data Protection Act should continue to be processed as they are now. These are
requests for a copy of information about or relating to the person themselves such as images associated with their PCNs.

PC050303L5050220
12.5 It is understood that where such a Subject Access request is made as part of a representation, the person is sent a SAR form
unless they have also enclosed the 10 fee in which case the request is forwarded to the Customer Relations personnel who
process subject access requests.

12.6 Standard paragraphs

For use where the person has referred to Freedom of Information or that the representation is clearly asking for
information which may be provided under the Freedom of Information Act:

We have considered fully your representation, however, in doing so we have identified that your representation contains
a request for information that is more specifically a request that can be pursued under the Freedom of Information Act
and/or the Environmental Information Regulations. Requests for this information should be made directly in writing to the
following address:
FOI requests
Congestion Charging
Windsor House
42-50 Victoria Street
London
SW1H 0TL

Requests made under the Environmental Information Regulations may also be made by telephone.
Please contact 0845 900 1234.

Or if an enquiry that is not a representation

We have considered fully your enquiry, however, in doing so we have identified that your enquiry contains a request for
information that is more specifically a request that can be pursued under the Freedom of Information Act and/or the
Environmental Information Regulations. Requests for this information should be made directly in writing to the following
address:
FOI requests
Congestion Charging
Windsor House
42-50 Victoria Street
London
SW1H 0TL
PC050303L5050220

Requests made under the Environmental Information Regulations may also be made by telephone.
Please contact 0845 900 1234.

Contents

Policy Advise Incorporated {I} into this Document or now superceeded {S}:

Policy {I} or {S} Title Issued

1. {S} VRM Payment Errors guidance to be included in training and supplementary
information to be included on the CAPITA Enforcement Intranet 16/06/04

2. {S} Guidance on Late Representations as requested, to be included in training and supplementary
information to be included on the CAPITA Enforcement Intranet as appropriate. 16/06/04

4. {I} Criteria for dealing with representations amendment to SMS Text Payment guidance. 16/06/04

9. {I} Rep. from Metropolitan Police, third party registered keeper, no authority from keeper for the
Metropolitan Police to make representations on their behalf 02/08/04

15. {I} Clarification of 4. Additional Criteria - Representation made on behalf of registered keeper
(keeper is company or organisation). 22/09/04
18. {I} Representation made by a third party (no authority to make representation from the
registered keeper). 23/09/04
Satellite Navigation and Global Positioning Services (GPS). 22/01/05

60. {I} Consolidated Charge Payment Rules- Fleet Customers 26/07/05

69. {I} Ape Tricycle Vehicles 20/10/05

PC050303L5050220

Contents

Appendix A Mitigation Aide

1. This Aide provides the CSP a number of sentences that reflect why TfL does not consider it appropriate to use Discretion where
Mitigation has been identified.

2. Sentences should be added to the NOA/NOR/Case summary wherever possible.

3. This is not a definitive list. The sentences should be selected where the circumstance is appropriate. This is based upon the full
investigation the CSR has made into the case, i.e. taking account of previous PCNs, if a registered customer, previously paid a
daily charge for the VRM etc.

4. In any case of doubt it should be referred to PMA.

Ground
Possible Sentence to use depending upon evidence/facts of case
Bought vehicle
TfL records show that the Driver and Vehicle Licensing Agency (DVLA) have provided your name and address as
the registered keeper of the vehicle
We have checked with the DVLA and they confirm you as the registered keeper of the vehicle
You have provided no proof from the DVLA that you are not the registered keeper of the vehicle at the time of the
contravention
TfL have been notified by the previous keeper that they sold the vehicle to you prior to the contravention date
The regulations permit that where the vehicle is not registered with the DVLA TfL can serve a PCN on whom we
believe is responsible for the vehicle at the time of the contravention
TfL have been notified by the current keeper that they bought the vehicle from you after the contravention date
Having contacted the DVLA again they still confirm that their records show you as the registered keeper
Diverted
TfL does not consider that incorrect or inaccurate information from a third party is sufficient reason to cancel the
PCN
The congestion charging zone has been well publicised through all media channels both nationally and locally
There are regulatory road signs at every entry and exit point of the charging Zone
Planned diversions have a well signed diversionary route for you to follow, along which the cameras have been
disabled. Should you choose not to follow this route a daily charge should be purchased.
PC050303L5050220
The diversion in question did not require you to enter the congestion charging zone
The Diversion was outside the charging zone
The diversion affected traffic already within the charging zone
The operating hours of the congestion charge zone are well known and publicised
You are aware of the zone as we have issued to you PCNs previously.
You are aware of the zone as you are a registered customer with TfL.
TfL consider that you are aware of the zone as charges have been purchased by you/ for your vehicle previously
Forced/swerved
TfL does not consider this a sufficient reason for you not to purchase the daily charge for using the charging zone.
You are aware of the zone and the requirements to pay the charge as we have issued PCNs to you previously.
Heavy Traffic
TfL does not consider this a sufficient reason for you not to purchase the daily charge, as you have made a
conscious decision to enter the zone.
emphasising the need to purchase the charge correctly.
Never Owned
TfL records show that the Driver and Vehicle Licensing Agency (DVLA) have provided your name and address as
the registered keeper of the vehicle
We have checked with the DVLA and they confirm you as the registered keeper of the vehicle
You have provided no proof from the DVLA that you are not the registered keeper of the vehicle at the time of the
contravention
TfL have been notified by the previous keeper that they sold the vehicle to you prior to the contravention date
The regulations permit that where the vehicle is not registered with the DVLA TfL can serve a PCN on whom we
believe is responsible for the vehicle at the time of the contravention
TfL have been notified by the current keeper that they bought the vehicle from you after the contravention date
Having contacted the DVLA again they still confirm that their records show you as the registered keeper
Paid - Call Centre
Error
Our staff have been highly trained to use the phonetic alphabet and to repeat the VRM and date of travel back to
our customers prior to completing the transaction
PC050303L5050220
We use an on-line vehicle Make and Model check to help validate charges purchased. This enables us to check the
make and model of the vehicle registration you provide; where the make and model you provide does not match
that of the DVLA we seek confirmation from you that you have in fact provided the correct registration mark to us
before proceeding with any charge purchase.
TfL consider that you are aware of the zone and the need to provide accurate information as charges have been
purchased by you/ for your vehicle previously in this way
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased
We have applied discretion in the past and accepted representations from you in these circumstances and advised
you to check thoroughly when purchasing future charges that you were paying for the correct vehicle.
Details of how to pay the charge through all our payment channels can be obtained via our website (cclondon.com)
or call centre on 0845 9001234
There has been extensive publicity on the need to pay the charge for the correct vehicle registration in order to
comply with the scheme order
TfL have previously notified you of how to purchase the charge correctly when you have more than one vehicle on
your account.
It is your responsibility to maintain your account with us and notify us of any changes to your account such as a
change of vehicle as soon as they occur
TfL have noted that our records show that you have purchased the charge correctly using this payment channel
previously
TfL has a call queuing system which was in operation and your call would have been placed in a queue and dealt
with.
POST PND ONLY: The introduction of Pay Next Day has made paying the charge more easier to avoid a PCN and
out staff have been trained to identify the specific date the charge is for
POST PND ONLY: The facility to Pay Next Day has been supported by a widespread publicity campaign.
Paid - IVR
The Voice Recognition system is an entirely automated process requiring you to clearly provide the information
relevant to the purchase of your vehicle and it relies solely upon the information you provide.
TfL has no record of any faults/unavailability of the service for the day in question
TfL has a call queuing system which was in operation and fully functional at the time of the call. Your call would
have been placed in a queue and dealt with.
The Voice Recognition system does enable you to select an option to speak to an operator if you select this option.
your account.
PC050303L5050220
previously
We have checked our records and found that charge has not been purchased for your VRM for the contravention
date
POST PND ONLY: The introduction of Pay Next Day has made paying the charge more easier to avoid a PCN and
our automated systems clearly outlines if the charge to be purchased is for a previous days charge or not
Paid - Metric
date
We have also searched our records using known common errors that our customers make and cannot establish
that a charge has been purchased for the VRM
Bank or credit card statements do not show the relevant receipt reference, VRM or date of travel to which the
transaction relates and may be for any other day or vehicle, particularly as the charge can be paid up to 90 days in
advance.
Congestion Charging receipts that are issued have a unique serial number. This is used to identify the VRM, date
of travel and amount the charge was purchased and helps us establish that the charge was either purchased
correctly or not.
As we do not have a record of a charge correctly being purchased for your VRM for the contravention date, the
PCN was correctly issued and we can only assume that any charge you purchased was for the wrong vehicle
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased, to assist in this
manner each machine has easy to follow step by step instructions.
your account.
TfL would advise that you could have purchased the charge up to 90 days in advance.
previously
TfL have checked and established there were no errors with this machine on the date of the contravention at the
time of the
PC050303L5050220
Any machine that is not working displays an error message, therefore you could have sought to purchase the
charge through another payment channel
POST PND ONLY: The introduction of Pay Next Day has made paying the charge more easier to avoid a PCN.
POST PND ONLY: The livery of all Metric machines has been amended and clearly states that Pay Next Day
charges cannot be purchased at Metric machines and does direct customers to our website and call centre for such
charges.
Paid - no proof
Congestion Charging receipts all bear a unique serial number. This enables TfL to identify the VRM, date of travel
and amount the charge was purchased and establish if the charge was either purchased correctly or not. PCNs are
not against vehicles were the charge has been correctly purchased and given no copy of or the receipt number has
been provided it is our view the charge on this occasion was not correctly purchased.
date
We have also searched our records using known common errors that our customers make and cannot establish
that a charge has been purchased for the VRM
Bank or credit card statements do not show the relevant receipt reference, VRM or date of travel to which the
transaction relates and may be for any other day or vehicle, particularly as the charge can be paid up to 90 days in
advance.
Congestion Charging receipts that are issued have a unique serial number. This is used to identify the VRM, date
of travel and amount the charge was purchased and helps us establish that the charge was either purchased
correctly or not.
As we do not have a record of a charge correctly being purchased for your VRM for the contravention date, the
PCN was correctly issued and we can only assume that any charge you purchased was for the wrong vehicle
With no acceptable proof of purchase of the relevant daily charge we cannot be satisfied that you have purchased
the charge in the time and the manner required by the Scheme Order
POST PND ONLY: The introduction of Pay Next Day has made paying the charge more easier to avoid a PCN
Paid - Paypoint
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased and that your
receipt is fully checked prior to leaving the retail outlet, any error you identify can be corrected at the point the
receipt is issued at no charge.
PC050303L5050220
your account.
It is your responsibility to ensure that you purchased the charge at the correct rate.
Paypoint outlets use payment slips for you to record the VRM on, the date(s) of travel and the rate of purchase of
the charge which should ensure you purchase the charge correctly.
previously
TfL have checked and established there were no errors with the machine or network on the date of the
contravention
Our web site (ccLondon.com) has a search facility to assist in locating the nearest Paypoint outlet.
Paypoint facilities are located nationally and identifiable by the congestion charge logo on the publicity
posters/signs they have
Paid - SMS
TfL have sent you the terms and conditions of use which explain clearly how the SMS payment system operates
and the steps that you must follow.
It is your responsibility to check all messages received from us, we may be advising you of a payment failure and
that you may not have purchased the charge
It is your responsibility to ensure that your Credit/Debit card details, registration mark and mobile phone number are
kept up to date; any changes to any one of these must be notified to TfL immediately.
The error message we sent to you clearly advised a payment had not been made for the daily charge and you
could have reasonably ensured the charge was paid through other channels.
TfL does not take any responsibility for any failings regarding any networks. They are not maintained by TfL and as
outlined in the terms and conditions must be taken on an as available basis. You reasonably could have insured
that the charge was purchased through any other payment channel.
The late payment process is clearly outlined in the SMS terms and conditions
How to pay for another vehicle, other than the ones recorded upon your fast track account is detailed fully in the
PC050303L5050220
terms and conditions
To pay by SMS you must firstly register with TfL and full information is available on our web site (ccLondon.com) or
call centre on 0845 9001234
previously
TfL have checked and established there were no system or network errors that may have affected the receipt or
processing of the message on the date of the contravention
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased and the VRM is
correctly stated.
POST PND ONLY: The introduction of Pay Next Day has made paying the charge more easier to avoid a PCN,
even in such circumstances
POST PND ONLY: The facility to Pay Next Day is not appropriate to SMS, our publicity clearly states this
Paid - Web
TfLs website has step by step instructions and reminders to prompt you as you purchase the charge in this manner
and provides you with your receipt details upon completion of the transaction
your account.
previously
PC050303L5050220
TfL have checked the operation of our website for that day and have established that their were no faults that would
have prevented the charge from being purchased
POST PND ONLY: With the introduction of Pay Next Day TfL has made a number of changes to our website
regarding paying the charge, to make paying the charge more easier to avoid a PCN by clearly distinguishing
between charges that are relevant to Pay Next Day or not.
Paid - wrong date
It is your responsibility to ensure that you pay the charge for the correct VRM and date of travel.
TfL consider that you are aware of the zone and the need to purchase charges correctly as you have done so in the
past.
As a registered customer with TfL you are aware of the congestion charging zone and TfL feels it reasonable that
you be aware of the need to pay for the charge for the correct VRM and date of travel
Paid - wrong
vehicle
It is your responsibility to ensure that you pay the charge for the correct VRM.
past.
PC050303L5050220
your account.
Paid - discounted
rate
It is your responsibility to ensure that you pay the charge for the correct VRM and at the correct rate.
past.
You are aware of the zone as we have previously issued PCNs to you.
your account.
The Residents Application pack issued to you clearly advised you that the full daily charge must be paid until TfL
wrote to you to advise that your application had been processed and accepted. Charges purchased prior to this
acceptance are void.
Only registered residents are entitled to purchase the charge at the discounted rate, any charges purchased by
someone other than a registered resident do not comply with the requirement to purchase the charge in the time
PC050303L5050220
and the manner required and are void.
Ringer/Clone
You have not provided to TfL acceptable proof the vehicle was or may have been at a different location such as a
Tracker report.
TfL is satisfied that the vehicle is your vehicle when comparing the DVLA details and the images. Photos showing
any identifiable differences in the vehicles (e.g. number plate maker/ garage name etc)
You have provide no photos showing any identifiable differences in the vehicles (e.g. number plate maker/ garage
name etc) which we may consider.
No proof that any other enforcement agency may have accepted the vehicle has been cloned/ringed for us to
consider.
Evidence that a crime has been previously reported to the Police providing the Police station, telephone and crime
reference number so that we may validate the statement and the Police accepted that your vehicle has been
cloned/ringed.
TfL is satisfied having examined all available evidence that it is your vehicle captured by our cameras within the
charging zone
Attempted to Pay
TfL does not consider that given the circumstances of the case that an attempt to pay is sufficient reason to cancel
the PCN and that a charge reasonably could have been purchased.
We have applied discretion and accepted representations from you in these circumstances in the past and advised
you to check thoroughly when purchasing future charges that you were paying for the correct date and vehicle.
It is your responsibility to ensure that you pay the charge for the correct VRM and date of travel.
past.
PC050303L5050220
TfL have made paying the charge as easy as possible and have provided a number of options in how the charge is
paid and when.
The congestion charging zone has been well publicised through a wide range of media channels both nationally
and locally
There are regulatory road signs at every entry and exit point of the charging Zone and they provide details of the
operator of the scheme which could have been used to make contact with our web site or call centre
TfL considers it reasonable that attempts to pay the congestion charge could have taken place at an earlier time.
The deadline for payments is well publicised through a wide range of media channels both nationally and locally
POST PND ONLY: As Pay Next Day now permits payment after the day of travel and increases the time to pay the
charge to avoid a PCN
Did not know how
to pay or Ignorance
There are regulatory road signs at every entry and exit point of the Charging Zone and they provide details of the
operator of the scheme, in this case transport for London which could have been used to make contact with our
web site or call centre
and locally
TfL has previously sent to you literature that outlines how and when the charge should be purchased
You are aware of the zone as we have issued PCNs to you previously, therefore TfL considers it reasonable you
should have taken steps to find out more and or pay the relevant charge.
Funeral
Whilst we sympathise with you over the recent loss, it does not provide an exemption or discount against payment
of the daily charge
It is your responsibility to ensure that you pay the charge for the correct VRM and date of travel even in such
PC050303L5050220
circumstances.
past.
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased even in
circumstances such as this which could have removed any undue stress.
TfL would advise that you can purchase the charge up to 90 days in advance, and in doing so could have removed
any undue stress.
TfL have made paying the charge as easy as possible and have provided a number of options in how the charge is
paid and when.
and locally
There are regulatory road signs at every entry and exit point of the charging Zone and they provide details of the
Resident
and locally
PC050303L5050220
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased at the correct
rate
TfL has previously sent to you literature that outlines how to register with TfL and how and when the charge should
be purchased until any discount registration application is complete.
As we have issued PCNs to you previously and would be aware of the charging zone, TfL considers it reasonable
you should have taken steps to find out more and or pay the relevant charge.
It is your responsibility to ensure that you pay the charge for the correct VRM and at the correct rate.
past.
you are aware of the need to pay for the daily charge correctly or that you could have contacted our call centre or
visited our web site for more information.
your account.
The Residents Application pack issued to you clearly advised you that the full daily charge must be paid until TfL
wrote to you to advise that your application had been processed and accepted. Charges purchased prior to this
acceptance are void.
Only registered residents are entitled to purchase the charge at the discounted rate, any charges purchased by
someone other than a registered resident do not comply with the requirement to purchase the charge in the time
and the manner required and are void.
PC050303L5050220
Residents of the zone do not get automatic entitlement to the residents discount, this is because residents are
required to register and provide suitable proofs of residency to TfL first, before purchasing the charge at the
discounted rate, until done so any charges at the reduced rate are void.
The congestion charging zone and discount eligibility has been well publicised through a wide range of media
channels
As you have changed a vehicle on your account in the past TfL considers it reasonable that you are aware of the
correct process to follow.
As you have on a previous occasion re-applied to renew your residents discount TfL considers it reasonable that
you are aware of the correct process to follow, the documentation to provide, fees involved and the need to
purchased the full daily charge until your renewal application has been approved.
POST PND ONLY: The facility to Pay Next Day has been supported by a widespread publicity campaign which
made clear the Pay Next Day provisions for residents.
Not In Zone
You have not provided to TfL acceptable proof the vehicle was or may have been at a different location such as a
Tracker report.
TfL is satisfied that the vehicle is your vehicle when comparing the DVLA details and the images. Photos showing
any identifiable differences in the vehicles (e.g. number plate maker/ garage name etc)
You have provide no photos showing any identifiable differences in the vehicles (e.g. number plate maker/ garage
name etc) which we may consider.
No proof that any other enforcement agency may have accepted the vehicle has been cloned/ringed for us to
consider.
TfL is satisfied having examined all available evidence that it is your vehicle captured by our cameras within the
charging zone
There are regulatory road signs at every entry and exit point of the charging zone which would clearly indicate to
you that you are about to enter or exit the zone.
Road Layout
There are regulatory road signs at every entry and exit point of the charging Zone, making it clear the zone has
been used and which you could have reacted to and purchased the charge.
Planned diversions have a well signed diversion routes for you to follow, along which the cameras have been
The boundary, location and operating hours of the congestion charge zone are well known and publicised both
nationally and locally
PC050303L5050220
You are aware of the zone as we have issued PCNs to you previously.
PCN
even in such circumstances or of you were in any doubt
made clear the Pay Next Day provisions.
Got Lost
Planned diversions have a well signed diversion routes for you to follow, along which the cameras have been
The boundary, location and operating hours of the congestion charge zone are well known and publicised both
nationally and locally
You are aware of the zone as we have issued PCNs to you previously.
TfL does not consider this a sufficient reason for you not to purchase the daily charge for entering the charging
zone.
PCN
even in such circumstances or of you were in any doubt
Charity
There is no exemption or discount for such vehicles in the Scheme Order which has been subject to consultation
The publicity for the charging zone is clear about who needs to pay and when and the vehicles that are exempt or
discounted from the charge.
PC050303L5050220
operator of the scheme, in this case Transport for London which could have been used to make contact with our
The boundaries, locations and operating hours of the congestion charge zone are well known and publicised
and locally
Our Website or Call Centre would have verified for you that the vehicle was not exempt and a charge should be
paid.
Selected Partner
There is a clear process in place which has been utilised many times by selected partners that must be followed,
errors or omissions are not attributable to TfL.
operator of the scheme, in this case Transport for London which could have been used to make contact with our
The boundaries, locations and operating hours of the congestion charge zone are well known and publicised
and locally
PC050303L5050220
Our Website or Call Centre would have verified for you that the vehicle was not exempt and a charge should be
paid.
Police and
Emergency
Services
The Scheme Order is clear on which vehicles the exemption or discount applies and we are satisfied that having
checked this vehicle is not such a vehicle.
operator of the scheme, in this case transport for London which could have been used to make contact with our
and locally
past.
PC050303L5050220
PCO
checked this vehicle is not such a vehicle.
The exemption for the vehicle only applies when the PCO provide written confirmation to you.
past.
Our Website or Call Centre would have verified for you that the vehicle was not exempt and that a charge should
be paid.
A simple check with the PCO would have removed any doubt.
Disabled tax class
vehicle
checked this vehicle is not such a vehicle at the time of the contravention.
TfL has previously sent to you literature that outlines how and when the charge should be purchased.
past.
PC050303L5050220
be paid.
We have applied discretion in the past and accepted representations from you based on these circumstances but
advised you of the need to purchase the charge in future or to take the necessary steps to ensure that your vehicle
was correctly registered with us or the DVLA.
Blue Badge
The Scheme Order is clear on which vehicles the discount applies and we are satisfied that having checked this
vehicle is not such a vehicle at the time of the contravention.
There is no automatic exemption, this must be applied for and approved in advance.
channels
past.
It is your responsibility as the keeper of the vehicle to ensure that the charge is correctly purchased.
be paid.
The registration pack for Blue Badge holders are clear about who needs to pay and when and those vehicles that
are exempt or discounted from the charge and when any approved discount applies from.
The registration pack for Blue Badge holders made it clear we would confirm when any approved discount applied
PC050303L5050220
from.
POST PND ONLY: The introduction of Pay Next Day has made paying the charge more easily to avoid a PCN in
such circumstances.
Emergency Visit
The charge can be purchased up to 90 days in advance before the date of travel.
The evidence suggests this was a hospital visit you knew about in advance of the day of travel.
Whilst we sympathise with the events that detailed, TfL considers it reasonable of you to provide some evidence of
the details to support your case so that we can decide what our next steps are and if it is reasonable for us to
cancel the PCN on this occasion.
This would appear to be an outpatient visit and therefore would require an advance appointment.
advised you of the need to purchase the charge in future.
The NHS Reimbursement Scheme would appear appropriate in such cases ***** validate circumstances
against NHS reimbursement scheme*****
be paid.
past.
such circumstances.
PC050303L5050220
Hospitalisation
The charge can be purchased up to 90 days in advance before the date of travel.
The evidence suggests this was a hospital visit you knew about in advance of the day of travel.
This would appear to be an outpatient visit and therefore would require an advance appointment.
Whilst we sympathise with the events that detailed, TfL considers it reasonable of you to provide some evidence of
the details to support your case so that we can decide what our next steps are and if it is reasonable for us to
advised you of the need to purchase the charge in future.
The NHS Reimbursement Scheme would appear appropriate in such cases ***** validate circumstances
against NHS reimbursement scheme*****
be paid.
past.
such circumstances.
Discount
The Scheme Order is clear on which vehicles the discounts apply and we are satisfied that having checked this
There is no automatic exemption in the circumstances which you outline, this must be applied for and approved in
advance.
PC050303L5050220
channels
past.
be paid.
The registration pack for the discount made it clear we would confirm when any approved discount applied from.
The registration packs for discounts to the scheme are clear about who needs to pay and when and those vehicles
that are exempt or discounted from the charge and when any approved discount applies from.
such circumstances.
Death - no proof of
Whilst we sympathise with the circumstances that you outline, TfL considers it is reasonable to ask for some
evidence of the death that you outline so that we can decide what our next steps are and if it is reasonable for us to
Death - registering
Whilst we sympathise with the recent loss that you outline, TfL considers it is reasonable to ask for some evidence
of the registration of the death that you outline and would request you to provide a photocopy of the death
certificate so that we can decide what our next steps are and if it is reasonable for us to cancel the PCN on this
occasion.
PC050303L5050220
Death - registered
keeper
Whilst we sympathise with the circumstances that you outline, TfL considers it is reasonable to ask for some
evidence of the death that you outline so that we can decide what our next steps are and if it is reasonable for us to
Whilst we sympathise with the recent loss that you outline, TfL does consider it reasonable to ask for some
evidence of the registration of the death that you outline and would request you to provide a photocopy of the death
certificate so that we can decide what our next steps are and if it is reasonable for us to cancel the PCN on this
occasion.
Timing
TfL's systems are synchronised to the most accurate time keeping system and the contravention date and time is
verified when the image is captured.
detained/in prison TfL does not consider that this removes liability for the penalty charge or prevents payment of the charge
Diplomatic Refer to PMA

Contents
The Guide to Data Protection
Introduction
What are the
data protection basics?
What is the role of the ICO?
What are the key defnitions?
A
Data Protection
2
A
3
In this part
The role of
the Information
Commissioners Offce
Key defnitions in
the Data Protection Act
1
Data protection basics
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1 The Data Protection Act 1998 establishes a framework of
rights and duties which are designed to safeguard personal data. This
framework balances the legitimate needs of organisations to collect
and use personal data for business and other purposes against the
right of individuals to respect for the privacy of their personal details.
The legislation itself is complex and, in places, hard to understand.
However, it is underpinned by a set of eight straightforward,
common-sense principles. If you make sure you handle personal data
in line with the spirit of those principles, then you will go a long way
towards ensuring that you comply with the letter of the law.
2 A list of the data protection principles is at the front of
Part and there is a summary of them on the back cover of the
pack. This Guide looks at the principles in detail. It explains the purpose
and effect of each principle and its relationship to other aspects of
the data protection regime. It also uses practical examples to illustrate
how the principles apply in practice. We hope that, by answering many
frequently asked questions about data protection, the Guide will prove
a useful source of practical advice to those who have day-to-day
responsibility for data protection. The Guide covers the whole of the
United Kingdom and refects the law as it stands on 1 October 2009.
3 The Guide is our interpretation of what the Data Protection
Act requires and of how the data protection principles are intended
to apply. It gives advice on good practice, but compliance with our
recommendations is not mandatory where they go beyond the
strict requirements of the Act. The Guide itself does not have the
force of law.
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4 We begin by summarising the answers to some of the most
frequently asked questions about data protection. More detailed
advice about these issues can be found in later chapters.
Does the Data Protection Act apply to me?
5 This might seem an obvious question. However, the Act
applies to a particular activity processing personal data rather than
to particular people or organisations. So, if you process personal data,
then you must comply with the Act and, in particular, you must handle
the personal data in accordance with the data protection principles. We
explain the meaning of these defned terms in (see 2
18). Broadly, however, if you collect or hold information about
an identifable living individual, or if you use, disclose, retain or destroy
that information, you are likely to be processing personal data. The
scope of the Data Protection Act is therefore very wide as it applies to
just about everything you might do with individuals personal details.
Do I need to notify the Information Commissioner?
6 If you are processing personal data you usually have to
notify the Information Commissioner about this. Failure to notify is a
criminal offence.
7 Notifcation is how an organisation informs us of certain
details about its processing of personal data. The Information
Commissioner is required to maintain a register and we use these
details to make an entry in the register describing the processing.
The register is available to the public for inspection on our website.
8 The main purpose of notifcation and the public register is
transparency and openness. It is a basic principle of data protection
that the public should know (or be able to fnd out) who is processing
personal data, plus other details about the processing (such as why it
is being carried out).
9 So notifcation serves the interests of individuals by helping
them understand how organisations process personal data.
Data protection basics
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10 However, it is not intended (nor practical) that the register
should contain very detailed information about an organisations
processing. The aim is to keep the content general, with enough detail
to give an overall picture of the processing. You only need to give
more detail to satisfy specifc statutory requirements or if there is
particular sensitivity.
11 The Act provides an exemption from notifcation for some
organisations. The exemption is available for:
organisations that process personal data only for:
staff administration (including payroll);
advertising, marketing and public relations (in connection with their
own business activity); and
accounts and records;
some not-for-proft organisations;
organisations that process personal data only for maintaining a
public register;
organisations that do not process personal information on computer; and
individuals who process personal data only for domestic purposes.
12 You can fnd a Notifcation Handbook, including a step-by-
step guide to the notifcation process and more information about the
exemption, on our website.
Are there any other exemptions from the Act?
13 The Data Protection Act contains a number of other
exemptions from the rights and duties in the Act. You must process
personal data in accordance with the Act unless one of these
exemptions applies.
14 The exemptions either allow for the disclosure of information
where there would otherwise be a breach of the Act or allow
information to be withheld that would otherwise need to be disclosed.
They are designed to accommodate special circumstances, for
example when processing personal data:
in connection with criminal justice, taxation or regulatory activities;
that is required to be made public;
where disclosure is required by law or is necessary for legal
proceedings; or
to provide a confdential reference.
15 It is important to note that each exemption is intended to
apply only in very specifc circumstances. So just because, for example,
you are using personal data in connection with the criminal justice
system or for regulatory purposes, you cannot disregard the whole of
the Data Protection Act.
16 Even if you are entitled to an exemption for your processing,
this will not be a blanket exclusion of the rights and duties in the Act.
You will need to look at the exemption carefully, in the light of your
particular circumstances, to see what effect it has.
17 The application and effect of the Acts main exemptions is
described in more detail in
Do I have to reply to a subject access request?
18 Yes, unless an exemption applies. One of the main rights
which the Act gives to individuals is the right of access to their
personal data. An individual may send you a subject access request
requiring you to tell them whether you are processing their personal
data and, if so, to provide them with a copy and with certain other
information. The right of subject access is explained in more detail in

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What does fair processing mean?
23 The frst data protection principle requires you to process
personal data fairly and lawfully. Ensuring fairness in everything you do
with peoples personal details is, in our view, central to complying with
your duties under the Data Protection Act. In practice, it means that
you must:
have legitimate reasons for collecting and using the personal data;
not use the data in ways that have unjustifed adverse effects on the
individuals concerned;
be open and honest about how you intend to use the data, and
give individuals appropriate privacy notices when collecting their
personal data;
handle peoples personal data only in ways they would reasonably
expect; and
make sure you do not do anything unlawful with the data.
24 Fairness generally requires you to be transparent clear
and open with individuals about how their information will be used.
Transparency is always important, but especially so in situations
where individuals have a choice about whether they wish to enter
into a relationship with you. Assessing whether information is being
processed fairly depends partly on how it is obtained. In particular, if
anyone is deceived or misled when the information is obtained, then
this is unlikely to be fair.
25 explains in more detail how to comply with the frst
data protection principle, and gives examples of good practice in
handling personal data.
What is a privacy notice?
26 One of the requirements of the Acts fair processing
provisions is that certain information is given to the individuals
concerned. The oral or written statement that individuals are given
when information about them is collected is often called a privacy
notice or a fair processing notice.
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19 In most cases you must respond to a valid subject access
request within 40 calendar days of receiving it. However, you do not
have to grant subject access in respect of personal data to which an
exemption applies. An exemption might apply because of the special
circumstances in which you are processing (see previous page) or
because of the nature of the data. This is sometimes the case, for
example, with data relating to an individuals physical or mental health
(see 46).
20 In addition, certain restrictions similar to exemptions are
built into the Acts subject access provisions. For example, there are
restrictions on the disclosure of personal data about more than
one individual.
What should I do if an individual complains about what I am
doing with their personal data?
21 You should carefully consider such a complaint. It is good
practice to provide a reasoned response to all complaints and,
depending what the complaint is about, the Data Protection Act may
require you to do so. The Act may also require you to stop, or change,
what you are doing with an individuals personal data following a
complaint. In particular, you might have to:
correct or delete information about an individual which is inaccurate;
stop processing their personal data for direct marketing; or
stop processing their data completely or in a particular way
(depending upon the circumstances).
22 More information about the rights of individuals in this regard
can be found in
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31 Individuals should generally be able to choose whether or
not their personal data is disclosed to another organisation, unless
one of the Acts specifc exemptions applies. If you did not make your
intention to disclose information to a third party absolutely clear at
the outset, at a time when the individual could choose not to proceed,
then you will usually need to get the individuals consent before making
such disclosures.
Can I send personal data overseas?
32 You may transfer personal data to countries within the
European Economic Area on the same basis as you may transfer it
within the UK. However, you may only send it to a country or territory
outside the European Economic Area if that country or territory
ensures an adequate level of protection for the rights and freedoms
of individuals in relation to processing personal data. More information
about what this means in practice, and about how to transfer personal
data overseas, is set out in
Must I encrypt all the information I store on computer?
33 Not necessarily. The Data Protection Act does not require
you to encrypt personal data. However, it does require you to have
appropriate security measures in place to guard against unauthorised
use or disclosure of the personal data you hold, or its accidental loss
or destruction. Encryption might be a part of your information security
arrangements for example, in respect of confdential personal data
stored on laptops or portable storage devices. On the other hand,
you might not need to encrypt data which always remains on your
premises, provided you have suffcient other controls on who can
access it and for what purpose. Even where you do encrypt personal
data, you will probably need to take additional steps to comply with
the Acts information security requirements. More information about
complying with these requirements is set out in
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27 We have published a Privacy Notices Code of Practice on
our website to help organisations draft clear privacy notices and to
ensure they collect information about people fairly and transparently.
In general terms, a privacy notice should state:
your identity and, if you are not based in the UK, the identity of your
nominated UK representative;
the purpose or purposes for which you intend to process the
information; and
any extra information you need to give individuals (in the
circumstances) to enable you to process the information fairly
(see 28).
28 When deciding how to draft and communicate a privacy
notice, try to put yourself in the position of the people you are
collecting information about. Ask yourself:
do they already know who is collecting the information and what it
will be used for?
is there anything they would fnd deceptive, misleading, unexpected
or objectionable?
are the consequences of providing the information, or not providing it,
clear to them?
Can I use personal data for a new purpose or disclose it to
a third party?
29 It depends. You should explain why you want to use an
individuals personal data at the outset, based on your intentions at
the time you collect it. If over time you devise new ways of using that
information, perhaps because of changes in technology, you will be
able to use their personal data for the new purpose if it is fair to do so.
30 As you develop the goods and services you offer, you should
think about whether your customers are likely to reasonably expect
you to use their personal data to offer them these products. If you
are unsure about this, you should explain your intentions and, at the
very least, give your existing customers an easy way to opt out. If you
intend to make a signifcant change to what you do with personal data,
you will usually need to get your customers consent.
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What should I do if I lose personal data?
34 If, despite the security measures you take to protect the
personal data you hold, a breach of security occurs, it is important to
deal with the breach effectively. The breach may arise from a theft, a
deliberate attack on your systems, the unauthorised use of personal
data by a member of staff, accidental loss, or equipment failure.
However the breach occurs, you must respond to and manage the
incident appropriately. You will need a strategy for dealing with the
breach, including:
a recovery plan, including damage limitation;
assessing the risks associated with the breach;
informing the appropriate people and organisations that the breach
has occurred; and
reviewing your response and updating your information security.
35 There is more about how to respond to a security breach
in and in our more detailed Guidance on information security
breach management on our website.
1 The Information Commissioner is the UKs independent
authority who upholds information rights in the public interest,
promoting openness by public bodies and data privacy for individuals.
The Information Commissioner has responsibilities in respect of
freedom of information as well as data protection. However, as this
Guide is about data protection only, this chapter focuses on what we
do to promote data privacy.
2 Some of the terms used in this chapter have particular
meanings in the Data Protection Act, such as personal data and
processing. We use organisation and you in place of data
controller, and individual instead of data subject (the terms used in
the Act). The defnitions of all these terms, and of other key concepts
in the Act, are explained in
In brief what does the ICO do?
3 The Data Protection Act makes the Information
Commissioner responsible for:
promoting good practice in handling personal data, and giving advice
and guidance on data protection;
keeping a register of organisations that are required to notify him
about their information-processing activities;
helping to resolve disputes by deciding whether it is likely or unlikely
that an organisation has complied with the Act when processing
personal data;
The role of
the Information
Commissioners Offce
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taking action to enforce compliance with the Act where appropriate; and
bringing prosecutions for offences committed under the Act (except
in Scotland, where the Procurator Fiscal brings prosecutions).
In more detail
How does the ICO promote good practice?
4 The Information Commissioner has a legal duty to promote
good practice and encourage organisations to follow it. This includes
(but is not restricted to) promoting compliance with the Data
Protection Act. By advising organisations on data protection issues
that may be unfamiliar or complex, we can ensure they are fully aware
of their responsibilities and of the potential effects of their activities
on individuals. By underpinning such advice with codes of practice and
other guidance, we also aim to promote good information-handling
among large numbers of organisations. Coupled with our approach
to enforcement (see 8 20), the overall aim of our
promotional work is to make it easier for those organisations who seek
to handle personal data well and tougher for those who do not.
5 The Information Commissioner is also responsible for making
sure individuals understand data protection law and how it benefts
them. We produce clear and practical guidance to make individuals
aware of their rights as well as helping organisations get data
protection right. Our Customer Services Team also offers a frst point
of contact for people who need advice or wish to complain.
6 You can fnd a list of the ICO codes of practice and other
guidance on our website.
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7 We also make sure that data protection is at the forefront
of peoples minds when forming new policies and ways of working.
We aim to ensure that legislation and new initiatives have a privacy-
friendly approach built in right from the start by:
actively promoting data protection aims and good practice to
businesses, government, parliamentarians and opinion formers;
instigating research; and
responding to consultations.
How do we enforce the Data Protection Act?
Can we rule on whether there has been a breach of the Act?
8 Anyone who believes they are directly affected by the
processing of personal data may ask us to assess whether it is likely or
unlikely that such processing complies with the Data Protection Act.
This is called a compliance assessment. We will make an assessment
provided we are satisfed about the identity of the person making
the request, and that we have enough information to identify
the processing. We have wide discretion to decide how to do the
assessment. In deciding how to deal with it we may take into account:
whether the request appears to raise a matter of substance;
any undue delay in making the request; and
whether the person making the request is entitled to make a subject
access request.
9 If our assessment is that it is likely that an organisation has
failed to comply with the Act (or is failing to do so), we may ask it
to take steps to comply with the data protection principles. Where
appropriate, we may order the organisation to do so (see 11
14). However, we have no power to award compensation to
individuals only the courts can do this (see ).
10 We have published guidance on our website on When and
how to complain. This tells individuals how to complain to us, and how
to ask us to make a compliance assessment.
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16 The power to impose a fnancial penalty only applies if:
the breach was deliberate; or
the organisation knew (or should have known) that there was a risk
of a breach which was likely to cause substantial damage or distress,
but failed to take reasonable steps to prevent it.
17 This power will not come into force until we have published
guidance on how it will be used. The intention is that fnancial penalties
will only be imposed in respect of deliberate or reckless handling of
personal data which seriously breaches the data protection principles.
Do we have powers of audit and inspection?
18 We have power to conduct an assessment or audit of
an organisations processing of personal data in order to establish
whether that processing follows good practice. Following an audit we
will inform the organisation of our conclusions.
19 At present, we can only conduct an audit with the consent
of the organisation concerned. However, a Bill is presently before
Parliament which would give the Information Commissioner the power
to issue assessment notices. An assessment notice would allow us
to inspect a government department or an organisation of a
designated description to determine whether it is complying with
the data protection principles. We would not need the organisations
consent to do so.
What is an enforcement notice?
11 If we consider it appropriate to do so, we may serve an
enforcement notice if the Information Commissioner is satisfed that
an organisation has failed (or is failing) to comply with any of the
data protection principles. In deciding whether to do this, we have to
consider whether the failure to comply has caused, or is likely to cause,
damage or distress to anyone.
12 An enforcement notice may require an organisation:
to take (or not to take) specifed steps to comply with the principle or
principles in question; or
for the same purpose, not to process any personal data (or personal
data of a specifed description), either at all, or for a specifed purpose,
or in a specifed manner.
13 We also have power to serve an information notice where
we reasonably require any information to decide whether or not an
organisation has complied, or is complying, with the data protection
principles. This is a notice requiring an organisation to provide the
information requested within the period specifed in the notice. We
can also serve an information notice in response to a request for a
compliance assessment.
14 Failure to comply with an enforcement notice or an
information notice is a criminal offence. However, anyone
who is served with such a notice may appeal against it to the
Information Tribunal.
Can we impose penalties for breaching the Act?
15 We have a statutory power to impose a fnancial penalty on
an organisation if the Information Commissioner is satisfed that:
there has been a serious breach of one or more of the data protection
principles by the organisation; and
the breach was likely to cause substantial damage or distress.
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What about powers of search and entry?
20 We may apply to a circuit judge or, in Scotland, a sheriff for
a warrant to enter and search premises and to seize evidence, where
there are reasonable grounds for suspecting either a breach of the
data protection principles or that an offence under the Act has been
or is being committed. This power applies to any premises where we
suspect there is evidence. We will give the occupier of the premises
seven days notice that we require access to the premises, before
applying for the warrant, unless the case is urgent or giving notice
would defeat the object of the entry. It is an offence for a person to
intentionally obstruct us in carrying out a warrant or to fail, without
reasonable excuse, to give us such help as we reasonably need.
When is it a criminal offence to breach the Data Protection Act?
21 Some criminal offences have already been mentioned in this
chapter, but not every breach of the Act is an offence. In particular,
failure to comply with the data protection principles is not, on its own,
a criminal offence. Such a failure may still cause problems for the
organisation concerned for example, the organisation may face a
claim for compensation from individuals who have suffered
damage and distress or have a fnancial penalty imposed by the
Information Commissioner.
22 Most of the offences created by the Act can be tried
in a magistrates court or the Crown Court. In Scotland, they
may be tried in the Sheriff Court or the High Court of Justiciary.
Usually, prosecutions under the Act are brought by the Information
Commissioner. In Scotland they are brought by the Procurator Fiscal.
A person found guilty is liable, if the case is heard by magistrates or a
sheriff, to a fne not exceeding 5,000, or on conviction in the Crown
Court or in the High Court of Justiciary, to an unlimited fne.
23 If a company or other corporation commits a criminal
offence under the Act, any director, manager, secretary or similar
offcer or someone purporting to act in any such capacity is personally
guilty of the offence, as well as the corporate body, if:
the offence was committed with their consent or connivance; or
the offence is attributable to neglect on their part.
24 In addition, where the affairs of a corporate body are
managed by its members, any member who exercises the functions
of management as if they were a director can also be guilty of the
offence that results from their acts or omissions.
25 The criminal offences created by the Act include:
unlawfully obtaining, disclosing, or procuring the disclosure of
personal data;
selling, or offering to sell, personal data which has been unlawfully
obtained;
processing personal data without notifying the Information
Commissioner (and other offences related to notifcation);
failing to comply with an enforcement notice or an information notice,
or knowingly or recklessly making a false statement in compliance
with an information notice;
obstructing, or failing to give reasonable assistance in, the execution
of a search warrant;
requiring someone, for example during the recruitment process, to
exercise their subject access rights to supply certain information
(such as records of their criminal convictions), which the person
wanting it would not otherwise be entitled to. This offence, known as
enforced subject access, is not yet in force; and
the unlawful disclosure of certain information by the Information
Commissioner, his staff or agents.
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1 In this Guide we have tried as far as possible to avoid using
technical terms. However, in some circumstances you will need to
consider the meaning of a relevant defned term to judge whether and
how the Data Protection Act applies. This chapter sets out the key
defnitions in the Act, explains what they mean, and shows how they
often relate to each other.
Extracts from the Data Protection Act are shown like
this in the Guide.
What type of information is protected by the
Data Protection Act?
2 The Act regulates the use of personal data. To understand
what personal data means, we need to frst look at how the Act defnes
the word data.
Data means information which
(a) is being processed by means of equipment
operating automatically in response to instructions
given for that purpose,
(b) is recorded with the intention that it should be
processed by means of such equipment,
What are our international responsibilities?
26 We have a duty to co-operate with European and other
international partners, including the European Commission and other
data protection authorities. This co-operation includes:
sharing information and good practice;
helping with complaints, investigation and enforcement; and
working together to improve understanding of data protection law,
and produce common positions and guidance where appropriate
and necessary.
27 In the EU, we co-operate across all areas, including activities
related to the internal market; justice, freedom and security; and police
and judicial co-operation.
28 We work with groups established under legislation as well as
with groups and initiatives we instigate, or others who aim to promote
and improve the data protection framework and its application
around the world. As information fows and data sharing are no longer
restricted by geographical borders and locations, there is a need to see
the data protection framework in a global context and to work with
other frameworks and groups around the world to establish agreement
and understanding so that we can continue to uphold the rights and
responsibilities in the legislation.
Key defnitions in the Data
Protection Act
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(c) is recorded as part of a relevant fling system
or with the intention that it should form part of a
relevant fling system,
(d) does not fall within paragraph (a), (b) or (c) but
forms part of an accessible record as defned by
section 68, or
(e) is recorded information held by a public authority
and does not fall within any of paragraphs (a) to (d).
3 Paragraphs (a) and (b) make it clear that information that is
held on computer, or is intended to be held on computer, is data.
So data is also information recorded on paper if you intend to put it
on computer.
4 Relevant fling system (referred to in paragraph (c) of the
defnition) is defned in the Act as:
any set of information relating to individuals to
the extent that, although the information is not
processed by means of equipment operating
automatically in response to instructions given
for that purpose, the set is structured, either by
reference to individuals or by reference to criteria
relating to individuals, in such a way that specifc
information relating to a particular individual is
readily accessible.
5 This is not an easy defnition. Our view is that it is intended
to cover non-automated records that are structured in a way which
allows ready access to information about individuals. As a broad rule,
we consider that a relevant fling system exists where records relating
to individuals (such as personnel records) are held in a suffciently
systematic, structured way as to allow ready access to specifc
information about those individuals. For further guidance see the
FAQs about relevant fling systems on our website.
6 Accessible record (referred to in paragraph (d) of the
defnition) means:
a health record that consists of information about the physical or
mental health or condition of an individual, made by or on behalf of
a health professional (another term defned in the Act) in connection
with the care of that individual;
an educational record that consists of information about a pupil,
which is held by a local education authority or special school (see
Schedule 11 of the Act for full details); or
an accessible public record that consists of information held by a local
authority for housing or social services purposes (see Schedule 12 for
full details).
7 Accessible records were included in the defnition of data
because pre-existing access rights to information were not restricted
to automatically processed records, or records held in non-automated
systems falling within the defnition of relevant fling systems. So, to
preserve all these pre-existing access rights, the defnition of data covers
accessible records even if they do not fall in categories (a), (b), or (c).
8 The Freedom of Information Act 2000 created a new
category of data which extended the defnition of data in the Data
Protection Act to include any information held by a public authority
which would not otherwise be caught by the defnition. Where
information requested under the FOI Act includes information about
identifable individuals, public authorities must consider whether its
release would breach the Data Protection Act. The new category of
data (which is often referred to as category (e) data) is designed to
ensure that before releasing any personal information under the FOI
Act, public authorities consider whether this would be fair. Processing
category (e) data is exempt from most of the rights and duties created
by the Data Protection Act.
9 You can fnd a more detailed Technical guidance note
What is data? on our website.
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What is personal data?
Personal data means data which relate to a living
individual who can be identifed
(a) from those data, or
(b) from those data and other information which
is in the possession of, or is likely to come into the
possession of, the data controller,
and includes any expression of opinion about the
individual and any indication of the intentions of
the data controller or any other person in respect of
the individual.
10 It is important to note that, where the ability to identify
an individual depends partly on the data held and partly on other
information (not necessarily data), the data held will still be
personal data.
Example
An organisation holds data on microfche. The microfche records
do not identify individuals by name, but bear unique reference
numbers which can be matched to a card index system to identify
the individuals concerned. The information held on the microfche
records is personal data.
11 The defnition also specifcally includes opinions about the
individual, or what is intended for them.
Example
A managers assessment or opinion of an employees performance
during their initial probationary period will, if held as data, be personal
data about that individual. Similarly, if a manager notes that an
employee must do remedial training, that note will, if held as data, be
personal data.
12 We have produced A quick reference guide What is
personal data? and there is also a detailed Technical guidance note on
determining what is personal data on our website.
Sensitive personal data means personal data
consisting of information as to -
(a) the racial or ethnic origin of the data subject,
(b) his political opinions,
(c ) his religious beliefs or other beliefs of a
similar nature,
(d) whether he is a member of a trade union (within
the meaning of the Trade Union and Labour Relations
(Consolidation) Act 1992),
(e) his physical or mental health or condition,
(f) his sexual life,
(g) the commission or alleged commission by him of
any offence, or
(h) any proceedings for any offence committed or
alleged to have been committed by him, the disposal
of such proceedings or the sentence of any court in
such proceedings.
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13 The presumption is that, because information about these
matters could be used in a discriminatory way, and is likely to be of
a private nature, it needs to be treated with greater care than other
personal data. In particular, if you are processing sensitive personal
data you must satisfy one or more of the conditions for processing
which apply specifcally to such data, as well as one of the general
conditions which apply in every case (see ).The nature of the
data is also a factor in deciding what security is appropriate.
14 The categories of sensitive personal data are broadly drawn
so that, for example, information that someone has a broken leg is
classed as sensitive personal data, even though such information is
relatively matter of fact and obvious to anyone seeing the individual
concerned with their leg in plaster and using crutches. Clearly, details
about an individuals mental health, for example, are generally much
more sensitive than whether they have a broken leg.
15 Many individuals choose to make their political allegiance
public, for example by wearing badges or rosettes or by putting a
sticker in their window. There is a condition for processing sensitive
personal data that covers information made public by the individual
concerned (see 12).
16 Religion or ethnicity, or both, can often be inferred with
varying degrees of certainty from dress or name. For example, many
surnames are associated with a particular ethnicity or religion, or
both, and may indicate the ethnicity and religion of the individuals
concerned. However, it would be absurd to treat all such names as
sensitive personal data, which would mean that to hold such names
on customer databases you had to satisfy a condition for processing
sensitive personal data. Nevertheless, if you processed such names
specifcally because they indicated ethnicity or religion, for example
to send marketing materials for products and services targeted at
individuals of that ethnicity or religion, then you would be processing
sensitive personal data. In any event, you must take care when making
assumptions about individuals as you could be collecting inaccurate
personal data.
What activities are regulated by the Data Protection Act?
17 The Act regulates the processing of personal data.
Processing, in relation to information or data, means
obtaining, recording or holding the information
or data or carrying out any operation or set of
operations on the information or data, including
(a) organisation, adaptation or alteration of the
information or data,
(b) retrieval, consultation or use of the information
or data,
(c) disclosure of the information or data by
transmission, dissemination or otherwise making
available, or
(d) alignment, combination, blocking, erasure or
destruction of the information or data.
18 The defnition of processing is very wide and it is diffcult
to think of anything an organisation might do with data that will not
be processing.
Who has rights and obligations under the Data Protection Act?
19 This Guide describes how the Act protects the rights of
individuals whom the data is about (data subjects), mainly by placing
duties on those who decide how and why such data is processed (data
controllers). We generally use the terms organisation and you rather
than data controller, and individual instead of data subject.
25 24
A 3
20 However, it is important to understand:
what these terms mean and their signifcance; and
the difference between a data controller and a data processor, as
they are treated differently under the Act.
Data subject means an individual who is the subject
of personal data.
21 In other words, the data subject is the individual whom
particular personal data is about. The Act does not count as a data
subject an individual who has died or who cannot be identifed or
distinguished from others.
Data controller means a person who (either alone
or jointly or in common with other persons)
determines the purposes for which and the manner in
which any personal data are, or are to be, processed.
22 A data controller must be a person recognised in law, that
is to say:
individuals;
organisations; and
other corporate and unincorporated bodies of persons.
23 Data controllers will usually be organisations, but can
be individuals, for example self-employed consultants. Even if an
individual is given responsibility for data protection in an organisation,
they will be acting on behalf of the organisation, which will be the
data controller.
24 In relation to data controllers, the term jointly is used where
two or more persons (usually organisations) act together to decide the
purpose and manner of any data processing. The term in common
applies where two or more persons share a pool of personal data that
they process independently of each other.
Example
A network of town-centre CCTV cameras is operated by a local
council jointly with the police. Both are involved in deciding how the
CCTV system is run and what the images it captures are used for.
The council and the police are joint data controllers in relation to
personal data processed in operating the system.
Example
A government department sets up a database of information about
every child in the country. It does this in partnership with local
councils. Each council provides personal data about children in its
area, and is responsible for the accuracy of the data it provides. It
may also access personal data provided by other councils (and must
comply with the data protection principles when using that data).
The government department and the councils are data controllers in
common in relation to the personal data on the database.
25 Data controllers must ensure that any processing of personal
data for which they are responsible complies with the Act. Failure to
do so risks enforcement action, even prosecution, and compensation
claims from individuals.
Data processor, in relation to personal data, means
any person (other than an employee of the data
controller) who processes the data on behalf of the
data controller.
27 26
A 3
Example
A utilities company engages a company which operates call centres
to provide many of its customer services functions on its behalf.
The call centre staff have access to the utilities companys customer
records for the purpose of providing those services but may only use
the information they contain for specifc purposes and in accordance
with strict contractual arrangements. The utilities company remains
the data controller. The company that operates the call centre is a
data processor.
26 Data processors are not directly subject to the Act. However,
most data processors, if not all, will be data controllers in their own
right for the processing they do for their own administrative purposes,
such as employee administration or sales.
Example
An organisation engages a company which provides business
services to administer its employee payroll function. The organisation
also engages a marketing company to carry out a satisfaction survey
of its existing customers. The business services company will need
information about the organisations employees, and the marketing
company will need information about its customers. Both companies
will be processing the information on behalf of the organisation,
and so they are both data processors. However, they will also be
processing personal data about their own employees and, in respect
of that personal data, they will be data controllers.
27 Data controllers remain responsible for ensuring their
processing complies with the Act, whether they do it in-house or
engage a data processor. Where roles and responsibilities are unclear,
they will need to be clarifed to ensure that personal data is processed
in accordance with the data protection principles. For these reasons
organisations should choose data processors carefully and have in
place effective means of monitoring, reviewing and auditing their
processing. We have published a good-practice note on Outsourcing:
a guide for small and medium-sized businesses on our website, which
gives more advice about using data processors.
Who determines the purpose and manner of processing?
28 A person is only a data controller if, alone or with others,
they determine the purposes for which and the manner in which any
personal data are processed. In essence, this means that the data
controller is the person who decides how and why personal data is
processed. However, we take the view that having some discretion
about the smaller details of implementing data processing (ie the
manner of processing) does not make a person a data controller.
Example
A Government department decides to help people in fuel poverty
(the broad purpose). It also decides to use beneft records, which
are clearly personal data, to identify who it will target (arguably, the
broad manner). It then commissions a private-sector company to do
certain matching according to clear criteria, but allows the company
to use some discretion in deciding how they do this (eg what
software to use). In this example, the department would be the data
controller and the company would be a data processor, even though
it decides the details of the processing method.
29 So, when deciding who is a data controller, we place
greatest weight on purpose identifying whose decision to achieve a
business purpose has led to personal data being processed.
What about processing that is required by law?
30 The Data Protection Act says:
Where personal data are processed only for
purposes for which they are required by or under any
enactment to be processed, the person on whom the
obligation to process the data is imposed by or under
that enactment is for the purposes of this Act the
data controller.
29 28
A 3
31 Our view is that this provision applies wherever there is a
statutory duty that involves the publication or use of personal data. We
do not think that it should be interpreted more narrowly as applying
only where there is an express statutory duty to process personal
data because obligations imposed by legislation other than the Data
Protection Act do not usually refer to processing personal data.
32 So, if performing a legal duty necessarily involves processing
personal data, the person required to process such data will be the
data controller and will be legally responsible for ensuring that the
processing complies with the Act.
Example
An Electoral Registration Offcer is required by law to draw up,
maintain and publish the electoral roll. The Data Protection Act
makes it clear that the Electoral Registration Offcer is a data
controller for the electoral roll information.
33 This is the case even if processing personal data is an
inevitable, but not the main, part of performing the legal duty. If
performing a legal duty directly or indirectly involves processing
personal data, the organisation under the duty will be the data
controller in relation to such data processing.
34 Sometimes, an organisation is subject to a duty that
requires processing personal data, but delegates its performance to
another person. In these circumstances the person with the overall
responsibility for achieving the purpose, or performing the function,
bears the responsibilities of the data controller. We place greatest
weight on purpose rather than manner of processing identifying
whose decision to achieve a business purpose (or to carry out a
statutory function) has led to personal data being processed.
Example
A government department that is responsible for paying benefts
to individuals contracts with a private company to administer the
benefts. The question is whether the government department
remains the data controller for processing personal data on benefts,
regardless of the scope given to the company in deciding how to do
this at a practical level. The government department retains overall
responsibility for administering the provision of the benefts, so it
remains the data controller.
How long do data protection rights and duties last?
35 Your duties under the Act apply throughout the period when
you are processing personal data as do the rights of individuals in
respect of that personal data. So you must comply with the Act from
the moment you obtain the data until the time when the data has
been returned, deleted or destroyed. Your duties extend to the way
you dispose of personal data when you no longer need to keep it
you must dispose of the data securely and in a way which does not
prejudice the interests of the individuals concerned.
36 Changes in an organisations circumstances do not reduce
an individuals rights under the Act. Even if an organisation goes out of
business, individuals are still entitled to expect that their personal data
will be processed in accordance with the data protection principles.
However, responsibility for ensuring this happens may shift, depending
on the circumstances.
Example
A travel agency is run as a partnership by Mr A and Mr B. As a
consequence of a downturn in business, the travel agency ceases
trading abruptly. Its premises are locked up and its computers (which
contain customer information) lie idle. Mr A and Mr B remain responsible
for ensuring that their customers personal data remains secure and
that whatever happens to it complies with the Data Protection Act.
This duty will continue even if the partnership is dissolved.
31 30
A 3
Example
A high-street retailer (which operates as a limited company) goes
into administration. Control of the companys assets including an
extensive customer database passes from the board of directors
to the administrators, who decide to sell some of the assets.
Because the administrators now control the purpose and manner in
which the database is used, they become data controllers in respect
of the personal data it contains. The administrators must comply
with the Data Protection Act in connection with any possible sale of
the customer database.
What are the other key defnitions in the Data Protection Act?
37 Most of the concepts explained above are defned in
section 1 of the Data Protection Act. However, there are other
important defnitions. In particular, section 70 sets out supplementary
defnitions and section 71 lists provisions defning or explaining
expressions used in the Act. The following is a list of some of the other
defned terms used in the Act.
38 Inaccurate data: The Act states:
For the purposes of this Act data are inaccurate if they
are incorrect or misleading as to any matter of fact.
39 Personal data may not be inaccurate if it faithfully represents
someones opinion about an individual, even if the opinion proves
incorrect (for example, a doctors medical opinion about an individuals
condition). In these circumstances, the data would not need to be
corrected, but the data controller may have to add a note stating
that the data subject disagrees with the opinion.
Recipient, in relation to personal data, means any
person to whom the data are disclosed, including any
person (such as an employee or agent of the data
controller, a data processor or an employee or agent
of a data processor) to whom they are disclosed
in the course of processing the data for the data
controller, but does not include any person to whom
disclosure is or may be made as a result of, or with
a view to, a particular inquiry by or on behalf of that
person made in the exercise of any power conferred
by law.
40 The Act provides that a data controllers notifcation of
processing must include a description of any recipient or recipients
to whom the data controller intends or may wish to disclose the data.
Data controllers must therefore provide a description of possible
recipients, including employees, agents and data processors, rather
than a specifc list of actual recipients.
41 The Act also provides that an individual making a
subject access request is entitled to be given a description of the
recipients or classes of recipients to whom [personal data] are
or may be disclosed. This is so that individuals can have a better
understanding of what is done with their personal data. However, the
defnition of recipient goes on to say, in effect, that people need
not be identifed as recipients just because information is disclosed
to them as part of an inquiry they have legal power to make. This is
to prevent an offcial investigation being compromised if an individual
making a subject access request is tipped off that an investigation
is or soon will be under way such as a police, customs or trading
standards investigation.
33 32
A 3
Third party, in relation to personal data, means any
person other than
(a) the data subject,
(b) the data controller, or
(c) any data processor or other person authorised to
process data for the data controller or processor.
42 The usual meaning of the term third party is someone
other than the two main parties involved, for example someone other
than the husband and wife in divorce proceedings. In relation to data
protection, the main reason for this particular defnition is to ensure
that a person such as a data processor, who is effectively acting as the
data controller, is not considered a third party.
43 Although a data controllers employee to whom information
is disclosed will be a recipient, they will usually not be a third party.
This is because the employee will usually be acting in their employment
capacity, and so will be acting on behalf of the data controller. If a
data controllers employee receives personal data from their employer
outside the normal course of their employment, the employee will be a
third party in relation to their employer.
Example
A data controller may decide to disclose to one of its employees
(Tom) personal data relating to another of its employees (Dick),
for Tom to use as evidence in possible legal action (unconnected
with Toms employment). In this situation, Tom is not receiving the
information in the course of his employment with the data controller,
so will be a third party.
35 34
44 The term third party is used in the Data Protection Act
relating to accuracy; to fair processing; and in two of the conditions
for processing. Although the term third party is not used in the Acts
provisions about subject access, we explain (in 29
32) what to do when a subject access request involves
personal data about another individual.
Data Protection
The data
protection
principles
What are the data
protection principles?
What must I do to comply
with them?
B
1
B
2
In this part
Processing personal
data fairly and lawfully
Processing
personal data for
specifed purposes
The data
protection principles
37
B
Information standards
the amount of personal
data you may hold
keeping personal data
accurate and up to date
retaining personal data
The rights of individuals
5
3
6
4
Information security
Sending personal data
outside the European
Economic Area
The conditions
for processing
9
7
8
39 38
B
Schedule 1 to the Data Protection Act lists the data protection
principles in the following terms:
1. Personal data shall be processed fairly and
lawfully and, in particular, shall not be processed
unless
(a) at least one of the conditions in Schedule 2
is met, and
(b) in the case of sensitive personal data, at least
one of the conditions in Schedule 3 is also met.
2. Personal data shall be obtained only for one or
more specifed and lawful purposes, and shall not
be further processed in any manner incompatible
with that purpose or those purposes.
3. Personal data shall be adequate, relevant and not
excessive in relation to the purpose or purposes
for which they are processed.
4. Personal data shall be accurate and, where
necessary, kept up to date.
5. Personal data processed for any purpose or
purposes shall not be kept for longer than is
necessary for that purpose or those purposes.
The data
protection principles
6. Personal data shall be processed in accordance
with the rights of data subjects under this Act.
7. Appropriate technical and organisational
measures shall be taken against unauthorised or
unlawful processing of personal data and against
accidental loss or destruction of, or damage to,
personal data.
8. Personal data shall not be transferred to a country
or territory outside the European Economic
Area unless that country or territory ensures
an adequate level of protection for the rights
and freedoms of data subjects in relation to the
processing of personal data.
This Part of the Guide looks at the data protection principles in more
detail and explains what you need to do to comply with them.
41 40
B 1
1 The Data Protection Act requires you to process personal
data fairly and lawfully. This chapter explains how to comply with
this requirement, and gives examples of good practice in handling
personal data.
2 The requirement to process personal data fairly and lawfully
is set out in the frst data protection principle and is one of eight such
principles at the heart of data protection. The main purpose of these
principles is to protect the interests of the individuals whose personal
data is being processed. They apply to everything you do with personal
data, except where you are entitled to an exemption (see ).
3 So the key to complying with the Data Protection Act is to
follow the eight data protection principles.
4 Later chapters in this Part of the Guide deal with the other
data protection principles in more detail.
1
Processing personal
data fairly and lawfully
In brief what does the Data Protection Act say about
handling personal data fairly and lawfully?
6 The Data Protection Act says that:
Personal data shall be processed fairly and lawfully
and, in particular, shall not be processed unless
(a) at least one of the conditions in Schedule 2
is met, and
(b) in the case of sensitive personal data, at least one
of the conditions in Schedule 3 is also met.
7 This is the frst data protection principle. In practice, it means
that you must:
have legitimate grounds for collecting and using the personal data;
not use the data in ways that have unjustifed adverse effects on the
individuals concerned;
be transparent about how you intend to use the data, and give individuals
appropriate privacy notices when collecting their personal data;
handle peoples personal data only in ways they would reasonably
expect; and
make sure you do not do anything unlawful with the data.
43
42
B 1
In more detail
What are the conditions for processing?
8 The conditions set out in Schedules 2 and 3 to the Data
Protection Act (referred to in 6) are known as the conditions
for processing. Organisations processing personal data need to be
able to satisfy one or more of these conditions. This will not, on its
own, guarantee that the processing is fair and lawful fairness and
lawfulness must still be looked at separately.
9 The conditions for processing are more exacting when
sensitive personal data is involved, such as information about an
individuals health or criminal record.
10 You can fnd a list of the conditions for processing in ,
with an explanation of what they mean in practice.
What does fair processing mean?
11 Processing personal data must above all else be fair, as
well as satisfying the relevant conditions for processing. Processing
broadly means collecting, using, disclosing, retaining or disposing of
personal data, and if any aspect of processing is unfair, there will be
a breach of the frst data protection principle even if you can show
that you have met one or more of the conditions for processing.
12 Fairness generally requires you to be transparent clear and
open with individuals about how their information will be used. Transparency
is always important, but especially so in situations where individuals have
a choice about whether they wish to enter into a relationship with you.
If individuals know at the outset what their information will be used for,
they will be able to make an informed decision about whether to enter
into a relationship, or perhaps to try to renegotiate the terms of that
relationship. Assessing whether information is being processed fairly
depends partly on how it is obtained. In particular, if anyone is deceived
or misled when the information is obtained, then this is unlikely to be fair.
13 The Data Protection Act says that information should be
treated as being obtained fairly if it is provided by a person who is
legally authorised, or required, to provide it.
Example
Personal data will be obtained fairly by the tax authorities if it is
obtained from an employer who is under a legal duty to provide
details of an employees pay, whether or not the employee consents
to, or is aware of, this.
14 However, to assess whether or not personal data is
processed fairly, you must consider more generally how it affects the
interests of the people concerned as a group and individually. If the
information has been obtained and used fairly in relation to most of the
people it relates to but unfairly in relation to one individual, there will be
a breach of the frst data protection principle.
15 Personal data may sometimes be used in a manner that
causes some detriment to (negatively affects) an individual without
this necessarily being unfair. What matters is whether or not such
detriment is justifed.
Example
Where personal data is collected to assess tax liability or to impose
a fne for breaking the speed limit, the information is being used in a
way that may cause detriment to the individuals concerned, but the
proper use of personal data for these purposes will not be unfair.
16 Some organisations share personal data with other
organisations. For example, charities working in the same feld may
wish to use or share supporters information to allow reciprocal
mailings. Some companies even trade in personal data, selling or
renting the information. The individuals concerned must still be treated
fairly. They should be told that their information may be shared, so
they can choose whether or not to enter into a relationship with the
organisation sharing it.
45 44
B 1
17 Why and how personal data is collected and used will be
relevant in assessing fairness. Fairness requires you to:
be open and honest about your identity;
tell people how you intend to use any personal data you collect about
them (unless this is obvious);
usually handle their personal data only in ways they would reasonably
expect; and
above all, not use their information in ways that unjustifably have a
negative effect on them.
Is it possible to use or disclose personal data for
a new purpose?
18 It depends on whether it would be fair to do so. You should
explain why you want to use an individuals personal data at the
outset, based on your intentions at the time you collect it. If over time
you devise new ways of using that information, perhaps because of
changes in technology, you will be able to use their personal data for
the new purpose if it is fair to do so.
Example
A mail-order book and record seller has had some customers for
many years and has regularly sent them catalogues of books and
records. After a while the company also started selling audio tapes,
CDs and DVDs. It is likely to be fair to start sending catalogues
advertising DVDs to long-established customers, who are unlikely to
be surprised that the company has diversifed. However, customers
are less likely to consider it reasonable if the company uses the
interests they have shown by their purchases to promote another
companys themed holidays (for example, holidays in Salzburg for
opera buffs). Passing details of customers and their interests to
other companies for marketing is likely to be unfair unless they have
agreed to this.
Example
A bank records information about some of the individuals who
are shareholders of its corporate account holders. It collects and
holds this information to comply with its duties under anti-money
laundering regulations. Unless the bank had obtained their prior
consent, it would be unfair to use this information to send marketing
material to the individuals concerned inviting them to open personal
accounts with the bank.
19 As you develop the goods and services you offer, you should
think about whether your customers are likely to reasonably expect
you to use their personal data to offer them these products. If you
are unsure about this, you should explain your intentions and, at the
very least, give your existing customers an easy way to opt out. If you
intend to make a signifcant change, such as proposing to disclose
customer information to others, you will usually need to get your
customers consent.
Is it ever acceptable to disclose personal data to other
organisations for them to use for their own purposes?
20 It depends. You may be approached by a third party seeking
personal data about one of your employees or customers. For example,
the police may want information in connection with an investigation,
or an individual may want information to pursue legal action. In such
cases, you may choose to disclose the information if the conditions of
a relevant exemption are satisfed (see ).
21 Unless one of these specifc exemptions applies, individuals
should generally be able to choose whether or not their personal
data is disclosed to another organisation. If your intention to disclose
information in this way was not made absolutely clear at the outset,
at a time when the individual had the option not to proceed in their
business relationship with you, then you will usually have to get the
individuals consent before making such disclosures.
47 46
B 1
22 A decision to share personal data with another organisation
does not take away your duty to treat individuals fairly. So before
sharing personal data, you should consider carefully what the recipient
will do with it, and what the effect on individuals is likely to be. It is
good practice to obtain an assurance about this, for example in the
form of a written contract.
What about disclosures that are in the best interests of the
individual concerned?
23 In some circumstances disclosure to another organisation
may be justifed in the individuals best interests but where none of the
statutory exemptions apply.
Example
A representative of a utility company calls at a property to cut off
the electricity or gas. He fnds that the property has been burgled
and is not secure. The householder is out (and cannot be contacted).
He therefore telephones the police. This is likely to involve disclosing
the fact that the householders electricity or gas is being cut off for
non-payment. In such circumstances, it is reasonable to assume
that, even if the householder may be embarrassed that others will
know they have not paid their bills, they would be concerned about
the burglary and about the protection of their property.
24 However, such circumstances will be exceptional and will
only arise where you have good reasons to believe that disclosure
is justifed. It is not acceptable to seek to justify disclosing customer
information without consent to another organisation for marketing
on the grounds that it is in the interests of customers to receive
useful offers.
What about privacy notices?
25 The Data Protection Act does not defne fair processing. But
it does say that, unless a relevant exemption applies, personal data will
be processed fairly only if certain information is given to the individual
or individuals concerned. It is clear that the law gives organisations
some discretion in how they provide fair processing information
ranging from actively communicating it to making it readily available.
26 The oral or written statement that individuals are given when
information about them is collected is often called a fair processing
notice, although our recent guidance uses privacy notice instead.
However, it is probably helpful to avoid technical language altogether.
Some of the most accessible notices for the public use phrasing such
as how we use your information.
27 In general terms, a privacy notice should state:
your identity and, if you are not based in the UK, the identity of your
nominated UK representative;
the purpose or purposes for which you intend to process the
information; and
any extra information you need to give individuals in the
circumstances to enable you to process the information fairly.
28 The last of these requirements is vague. However, because
the Data Protection Act covers all sorts of processing, it is hard to
be prescriptive. When deciding whether you should give any other
information in the interests of fairness, you have to take into account
the nature of the personal data and what the individuals concerned
are likely to expect. For example, if you intend to disclose information
to another organisation, fairness requires that you tell the individuals
concerned unless they are likely to expect such disclosures. It is also
good practice to tell people how they can access the information you
hold about them, as this may help them spot inaccuracies or omissions
in their records.
49 48
B 1
29 When deciding how to draft and communicate a privacy
notice, try to put yourself in the position of the people you are
collecting information about. Ask yourself:
do they already know who is collecting the information and what it
will be used for?
is there anything they would fnd deceptive, misleading, unexpected
or objectionable?
are the consequences of providing the information, or not providing it,
clear to them?
30 We have issued a Privacy Notices Code of Practice to
help organisations draft clear privacy notices and to ensure they
collect information about people fairly and transparently. The Code
explains that the duty to give a privacy notice is strongest when
the information is likely to be used in an unexpected, objectionable
or controversial way, or when the information is confdential or
particularly sensitive. It also says there is no point telling people the
obvious when it is already clear what their information will be used for.
Example
When an individual enters into a mobile phone contract, they know
the mobile phone company will keep their name and address details
for billing purposes. This does not need to be spelt out. However,
if the company wants to use the information for another purpose,
perhaps to enable a sister company to make holiday offers, then
this would not be obvious to the individual customer and should be
explained to them.
What is meant by lawful?
31 This is another term that the Data Protection Act does
not defne. However, lawful refers to statute and to common law,
whether criminal or civil. An unlawful act may be committed by a
public or private-sector organisation.
32 If processing personal data involves committing a criminal
offence, the processing will obviously be unlawful. However, processing
may also be unlawful if it results in:
a breach of a duty of confdence. Such a duty may be stated, or
it may be implied by the content of the information or because it
was collected in circumstances where confdentiality is expected
medical or banking information, for example;
your organisation exceeding its legal powers or exercising those
powers improperly;
an infringement of copyright;
a breach of an enforceable contractual agreement;
a breach of industry-specifc legislation or regulations;
a breach of the Human Rights Act 1998. The Act implements the
European Convention on Human Rights which, among other things,
gives individuals the right to respect for private and family life, home
and correspondence.
33 However, although processing personal data in breach of
copyright (for example) will involve unlawful processing, this does
not mean that the ICO will pursue allegations of breach of copyright
(or any other law) as this would go beyond the remit of the Data
Protection Act. Many areas of law are complex, and the ICO is not and
cannot be expected to be expert in all of them.
51 50
B 2
1 Other chapters of this Guide explain that you may only
process personal data if you have a legitimate basis for doing so
(see ), and that any processing must be fair and lawful (see
). This chapter explains the Data Protection Acts additional
requirement that you specify the purpose or purposes for which you
obtain personal data, and that anything you do with the data must be
compatible with this (or, as the Data Protection Act says, not in any
manner incompatible with it).
In brief what does the Data Protection Act say
about specifying the purposes for which personal
data is processed?
Personal data shall be obtained only for one or more
specifed and lawful purposes, and shall not be
further processed in any manner incompatible with
that purpose or those purposes.
2
Processing
personal data for
specifed purposes
4 This requirement (the second data protection principle) aims
to ensure that organisations are open about their reasons for obtaining
personal data, and that what they do with the information is in line
with the reasonable expectations of the individuals concerned.
5 There are clear links with other data protection principles
in particular the frst principle, which requires personal data to be
processed fairly and lawfully. If you obtain personal data for an
unlawful purpose, for example, you will be in breach of both the frst
data protection principle and this one (see 31 33).
However, if you comply with your obligations under the other data
protection principles, you are also likely to comply with this principle, or
at least you will not do anything that harms individuals.
6 In practice, the second data protection principle means
that you must:
be clear from the outset about why you are collecting personal data
and what you intend to do with it;
comply with the Acts fair processing requirements including the
duty to give privacy notices to individuals when collecting their
personal data;
comply with what the Act says about notifying the Information
Commissioner (see 6 12); and
ensure that if you wish to use or disclose the personal data for any
purpose that is additional to or different from the originally specifed
purpose, the new use or disclosure is fair.
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In more detail
Why do I need to specify the purpose (or purposes) for which
personal data is to be processed?
7 You need to be clear about the purpose or purposes for which
you hold personal data so that you can then ensure that you process the
data in a way that is compatible with your original purpose or purposes
(or not incompatible, as the Data Protection Act says). Specifying
those purposes at the outset is likely to help you avoid the possibility of
function creep. It should also help you decide what information to give
individuals to comply with the Acts fair processing requirements.
How should I specify the relevant purpose (or purposes)?
8 If you make sure that you process personal data in
accordance with the other data protection principles, and that you
have notifed the Information Commissioner if you need to do so, you
are likely to comply with the requirement to specify without doing
anything more. Nevertheless, the Act says that there are two ways in
particular in which you can specify the relevant purposes:
in a privacy notice given to individuals at the time their personal
data is collected (see 25 30); or
in a notifcation given to the Information Commissioner.
9 In reality, of course, members of the public do not check
your ICO notifcation entry very often, and you can inform people more
effectively by sending them good privacy notices than just by notifying
the Information Commissioner. You should also remember that
whatever you tell people, and whatever you notify to the Information
Commissioner, this cannot make fundamentally unfair processing fair.
10 Where your organisation is exempt from notifcation, and
processes personal data only for an obvious purpose (and therefore
does not need to give a privacy notice), the specifed purpose should
be taken to be the obvious purpose.
Example
A not-for-proft chess club only uses personal data to organise a
chess league for its members. The club is exempt from notifcation,
and the purpose for which it processes the information is so obvious
that it does not need to give privacy notices to its members.
The specifed purpose of processing should be taken to be the
organisation of a members chess league.
Once personal data has been obtained for a specifed
purpose, can it then be used for other purposes?
11 The Data Protection Act does not prohibit this, but it does
place a limitation on it: the second data protection principle says, in
effect, that personal data must not be processed for any purpose that
is incompatible with the original purpose or purposes.
When is one purpose compatible with another?
12 The Act clarifes to some extent what is meant by
compatibility it says that when deciding whether disclosing personal
data is compatible with the purpose for which you obtained it, you
should bear in mind the purposes for which the information is intended
to be used by any person to whom it is disclosed.
13 An additional or different purpose may still be compatible
with the original one. Because it can be diffcult to distinguish clearly
between purposes that are compatible and those that are not, we
focus on whether the intended use of the information complies with
the Acts fair processing requirements (see ). It would seem odd
to conclude that processing personal data breached the Act on the basis
of incompatibility if the organisation was using the information fairly.
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14 If you wish to use or disclose personal data for a purpose
that was not contemplated at the time of collection (and therefore not
specifed in a privacy notice), you have to consider whether this will
be fair. If using or disclosing the information would be unfair because
it would be outside what the individual concerned would reasonably
expect, or would have an unjustifed adverse effect on them, then you
should regard the use or disclosure as incompatible with the purpose
you obtained the information for.
Example
A GP discloses his patient list to his wife, who runs a travel agency,
so that she can offer special holiday deals to patients needing
recuperation. Disclosing the information for this purpose would be
incompatible with the purposes for which it was obtained.
15 In practice, you often need to get prior consent to use or
disclose personal data for a purpose that is additional to, or different
from, the purpose you originally obtained it for.
Introduction What do we mean by
information standards?
1 As well as creating a framework for collecting and using
personal data, the Data Protection Act sets standards that personal
data must meet before you can use it. The standards are that personal
data should be:
adequate, relevant and not excessive;
accurate and, where necessary, kept up to date; and
kept for no longer than necessary.
2 The next three chapters of the Guide look at each of these
standards. Using examples, they show what each of the standards means
in practice and tackle some common questions and areas of uncertainty.
3 There are clear links between the three standards (the third,
fourth and ffth data protection principles) and you need to be aware
of how they connect. For example, if you dont update information
when circumstances change, information that was originally adequate
becomes inadequate. If information is kept for longer than necessary, it
may be irrelevant and excessive.
the amount of personal
data you may hold 3
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4 In most cases, deleting or adding items of personal data
should ensure that the information you hold complies with all three
standards. However, you must check the quality of the information
you hold before you use it. From then on, you should regularly review
the information to identify when you need to do things like correct
inaccurate records, remove irrelevant ones and update out-of-date
ones. You may not always be able to check the quality of every record
you hold, but you should at least be able to check a sample.
5 In checking that the personal data you hold meets the
information standards, you should consider:
the number of individuals whose personal data you hold;
the nature of the information;
what you use it for, and how you use it;
the way you obtained it;
how long you hold it for; and
the possible consequences for the individuals concerned of retaining
or deleting the information.
In brief What does the Data Protection Act say
about the amount of personal data you may hold?
7 The Act says that:
Personal data shall be adequate, relevant and not
excessive in relation to the purpose or purposes for
which they are processed.
8 This is the third data protection principle. In practice, it
means you should ensure that:
you hold personal data about an individual that is suffcient for the
purpose you are holding it for in relation to that individual; and
you do not hold more information than you need for that purpose.
9 So you should identify the minimum amount of personal
data you need to properly fulfl your purpose. You should hold that
much information, but no more. This is part of the practice known as
data minimisation.
In more detail
What is meant by adequate, relevant and not excessive?
10 The Data Protection Act does not defne these words.
Clearly, though, they need to be considered:
in the context of the purpose for which you are holding the personal
data; and
separately for each individual you hold information about
(or for each group of individuals where the individuals in the group
share relevant characteristics).
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11 So, to assess whether you are holding the right amount of
personal data, you must frst be clear about why you are holding and
using it. You should take into account that this may differ from one
individual to another.
When is an organisation holding too much personal data?
12 You should not hold more personal data than you need. Nor
should the data you hold include irrelevant details.
Example
A debt collection agency is engaged to fnd a particular debtor. It
collects information on several people with a similar name to the
debtor. During the enquiry some of these people are discounted.
The agency should delete most of their personal data, keeping only
the minimum data needed to form a basic record of a person they
have removed from their search. It is appropriate to keep this small
amount of information so that these people are not contacted again
about debts which do not belong to them.
13 Where sensitive personal data is concerned, it is particularly
important to make sure you collect or retain only the minimum amount
of information you need.
14 If you need to hold particular information about certain
individuals only, you should collect it just for those individuals
the information is likely to be excessive and irrelevant in relation to
other people.
Example
A recruitment agency places workers in a variety of jobs. It sends
applicants a general questionnaire, which includes specifc questions
about health conditions that are only relevant to particular manual
occupations. It would be irrelevant and excessive to obtain such
information from an individual who was applying for an offce job.
Example
An employer holds details of the blood groups of all its employees.
Some of them do hazardous work and the information is needed
in case of accident. For the rest of the workforce, though, such
information is likely to be irrelevant and excessive.
15 You should not hold personal data on the off-chance that
it might be useful in the future. However, it is permissible to hold
information for a foreseeable event that may never occur, as in the
above example about blood groups.
When is an organisation holding insuffcient personal data?
16 Personal data should not be processed if it is insuffcient for
its intended purpose.
Example
A CCTV system is installed to identify individuals entering and
leaving a building. However, the quality of the CCTV images is so
poor that identifcation is diffcult. This undermines the purpose for
which the CCTV system was installed.
17 In some circumstances you may need to collect more
personal data than you had originally anticipated using, so that you
have enough information for the purpose in question.
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Example
A group of individuals set up a club. At the outset the club has only
a handful of members, who all know each other, and the clubs
activities are administered using only basic information about the
members names and email addresses. The club proves to be very
popular and its membership grows rapidly. It becomes necessary
to collect additional information about members so that the club
can identify them properly, and so that it can keep track of their
membership status, subscription payments etc.
What about the adequacy and relevance of opinions?
18 Issues about the accuracy of opinions are considered in
. The Data Protection Act does not give individuals the right
to demand that you delete an opinion about them from your records
because they believe it is based on irrelevant information, or has not
taken account of information they think is important. However, the
record of an opinion (or of the context it is held in) should contain
enough information to enable a reader to interpret it correctly. For
example, it should state the date and the authors name and position.
If an opinion is likely to be controversial or very sensitive, or if it will
have a signifcant impact when used or disclosed, it is even more
important to state the circumstances or the evidence it is based on. If
a record contains an opinion that summarises more detailed records
held elsewhere, this should be made clear.
Example
A GPs record may hold only a letter from a consultant and it will be
the hospital fle that contains greater detail. In this case, the record
of the consultants opinion should contain enough information to
enable the more detailed records to be traced.
1 The previous chapter introduced the three information
standards established by the Data Protection Act, and considered the
frst of those standards in detail. This chapter looks at the second of
those standards the accuracy of personal data.
In brief What does the Data Protection Act say
about accuracy and updating?
3 The Act says that:
Personal data shall be accurate and, where
necessary, kept up to date.
4 This is the fourth data protection principle. It is also one of
the three information standards described in the previous chapter.
Although this principle sounds straightforward, the law recognises that
it may not be practical to double-check the accuracy of every item of
personal data you receive. So the Act makes special provision about
the accuracy of information that individuals provide about themselves,
or that is obtained from third parties.
keeping personal data
accurate and up to date 4
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5 To comply with these provisions you should:
take reasonable steps to ensure the accuracy of any personal data
you obtain;
ensure that the source of any personal data is clear;
carefully consider any challenges to the accuracy of information; and
consider whether it is necessary to update the information.
In more detail
When is personal data accurate or inaccurate?
6 The Data Protection Act does not defne the word
accurate, but it does say that personal data is inaccurate if it is
incorrect or misleading as to any matter of fact. It will usually be
obvious whether information is accurate or not. For example, if an
individual has moved house from Chester to Wilmslow, a record
showing that he currently lives in Chester is obviously inaccurate. But
a record showing that he once lived in Chester remains accurate, even
though he no longer lives there. You must always be clear about what a
record is intended to show.
Example
A journalist builds up a profle of a particular public fgure. This
includes information derived from rumours circulating on the
internet that the individual was once arrested on suspicion of
dangerous driving. If the journalist records that the individual was
arrested, without qualifying this, he or she is asserting this as an
accurate fact. However, if it is clear that the journalist is recording
rumours, the record is accurate the journalist is not asserting that
the individual was arrested for this offence.
Example
The Post Offce Address File (PAF) contains UK property postal
addresses. It is structured to refect the way the Royal Mail delivers
post. So it is common for someone to have a postal address linked
to a town in one county (eg Stoke-on-Trent in Staffordshire) even
if they actually live in another county (eg Cheshire) and pay council
tax to that council. The PAF fle is not intended to accurately refect
county boundaries.
What about records of mistakes?
7 There is often confusion about whether it is appropriate
to keep records of things that happened which should not have
happened. Individuals understandably dont want their records to be
tarnished by, for example, a penalty or other charge that was later
cancelled or refunded. However, the organisation may legitimately
wish its records to accurately refect what actually happened in this
example, that a charge was imposed, and later cancelled or refunded.
Keeping a record of a mistake and its correction might also be in the
individuals interests.
Example
A mis-diagnosis of a medical condition continues to be held as part
of a patients medical records even after the diagnosis is corrected,
because it is relevant for the purpose of explaining treatment given
to the patient, or to additional health problems.
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8 It is acceptable to keep records of events that happened in
error, provided those records are not misleading about the facts. You
may need to add a note to a record to clarify that a mistake happened.
Example
An individual fnds that, because of an error, their account with their
existing energy supplier has been closed and an account opened
with a new supplier. Understandably aggrieved, they believe the
original account should be reinstated and no record kept of the
unauthorised transfer. Although this reaction is understandable, if
their existing supplier did close their account, and another supplier
opened a new account, then records refecting what actually
happened will be accurate. In such cases it makes sense to ensure
that the record clearly shows that an error occurred.
Example
An individual is dismissed for alleged misconduct. An Employment
Tribunal fnds that the dismissal was unfair and the individual is
reinstated. The individual demands that the employer deletes all
references to misconduct. However, the record of the dismissal is
accurate. The Tribunals decision was that the employee should not
have been dismissed on those grounds. The employer should ensure
its records refect this.
Does personal data always have to be up to date?
9 This depends on what the information is used for. If the
information is used for a purpose that relies on it remaining current, it
should be kept up to date. For example, your employee payroll records
should be updated when there is a pay rise. Similarly, records should
be updated for customers changes of address so that goods are
delivered to the correct location.
10 In other circumstances, it will be equally obvious when
information does not need to be updated.
Example
An individual places a one-off order with an organisation. The
organisation will probably have good reason to retain a record of
the order for a certain period for accounting reasons and because
of possible complaints. However, this does not mean that it has to
regularly check that the customer is still living at the same address.
11 Also, where information is held only for statistical,
historical or other research reasons, updating the information might
even defeat the purpose of holding it.
How does the general rule that information must
be accurate apply to information I compile?
12 Where you use your own resources to compile personal
data about an individual, then you must make sure the information is
correct. You should take particular care if the information could have
serious implications for the individual. If, for example, you give an
employee a pay increase on the basis of an annual increment and a
performance bonus, then there is no excuse for getting the new salary
fgure wrong in your payroll records.
The exception to the rule what does the Act say about
information individuals provide about themselves, or which
I obtain from third parties?
13 It may be impractical to check the accuracy of personal data
someone else provides. In recognition of this, the Act says that even if
you are holding inaccurate personal data, you will not be considered to
have breached the fourth data protection principle as long as:
you have accurately recorded information provided by the individual
concerned, or by another individual or organisation;
you have taken reasonable steps in the circumstances to ensure the
accuracy of the information; and
if the individual has challenged the accuracy of the information, this is
clear to those accessing it.
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What are reasonable steps?
14 This will depend on the circumstances and, in particular,
the nature of the personal data and what it will be used for. The more
important it is that the personal data is accurate, the greater the effort
you should put into ensuring its accuracy. So if you will be using the
data in making decisions that may signifcantly affect the individual
concerned or others, you will need to put more effort into ensuring
accuracy. This may mean you have to get independent confrmation
that the data is accurate. For example, most employers will only need
to check the precise details of job applicants education, qualifcations
and work experience if it is essential for that particular role, when they
would need to obtain authoritative verifcation.
Example
An organisation recruiting a driver will want proof that the individuals
they interview are entitled to drive the type of vehicle involved. The
fact that an applicant states in his work history that he worked as a
Father Christmas in a department store 20 years ago will not need
to be checked for this particular job.
15 If your information source is someone you know to be
reliable, or is a well-known organisation, it will usually be reasonable
to assume that they have given you accurate information. However, in
some circumstances you will need to double-check for example if
inaccurate information could have serious consequences, or if common
sense suggests there may be a mistake.
Example
A business that is closing down recommends a member of staff to
another organisation. Assuming the two employers know each other, it
may be reasonable for the organisation to whom the recommendation
is made to accept assurances about the individuals work experience at
face value. However, if a particular skill or qualifcation is needed for the
new job role, the organisation would need to make appropriate checks.
Example
An individual sends an email to her mobile phone company
requesting that it changes its records about her willingness to
receive marketing material. The company amends its records
accordingly without making any checks. However, when the
customer emails again asking the company to send her bills to
a new address, they carry out additional security checks before
making the requested change.
What happens when individuals challenge the accuracy of
information held about them?
16 If this happens, you should consider whether the information
is accurate and, if it is not, you should delete or correct it. Sometimes
the individual may be able to provide convincing documentary
evidence that, for example, a date of birth has been recorded
incorrectly. In other circumstances, you may need to make some
checks yourself.
Example
When an individual tells a credit reference agency its record of a
particular account is wrong, the agency will usually have to contact the
lender concerned to confrm that the record is accurate. If the lender
satisfes the credit reference agency that the record is correct then the
agency can retain it. However, if the agency is not satisfed that the
record is accurate, it should amend or remove it. The credit reference
agency will mark the record as being in dispute while the lender looks
into the matter but it must tell the individual whether it has amended
or removed the record within 28 days of receiving the challenge.
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17 Where the accuracy of a record has been challenged by the
individual it relates to, it is good practice to mark the record as being
in dispute (as in the example on the previous page). You are not legally
obliged to do this so, if you are satisfed that a record is correct, you
need not fag it as having been challenged. However, in the case of
credit reference agency records, it is accepted industry practice that
disputed information should be fagged. In any event, the advantage
of fagging a disputed record is that (as long as the other conditions
mentioned in 13 are satisfed) it avoids you breaching the fourth
data protection principle if the information does turn out to be inaccurate.
18 If an individual is not satisfed that you have taken
appropriate action to keep their personal data accurate, they may
apply to the court for an order that you rectify, block, erase or destroy
the inaccurate information (see ).
What about the accuracy of opinions?
19 We have already considered the adequacy of opinions
(see 18), but questions also arise as to the accuracy of an opinion.
20 An expression of an opinion about an individual is classed as
their personal data. Two people may have very different opinions about
the ability or personality of an individual. Personal experiences and
preferences, even prejudices, can colour a persons opinions, so it may
be impossible to conclude with any confdence which, if either, of two
conficting opinions is accurate. People may only be able to state which
of the two they tend to agree with. So when recording information
about an individual, you should record whether it is an opinion, and,
where appropriate, whose opinion it is.
21 Some records that may appear to be opinions do not contain
an opinion at all. For example, many fnancial institutions use credit
scores to help them decide whether to provide credit. A credit score
is a number that summarises the historical credit information on a
credit report and provides a numerical predictor of the risk involved
in granting an individual credit. Credit scores are based on a statistical
analysis of individuals personal data, rather than on a subjective
opinion about their creditworthiness.
22 An area of particular sensitivity is medical opinion, where
doctors routinely record their opinions about possible diagnoses. It is
often impossible to conclude with certainty, perhaps until time has
passed or tests have been done, whether a patient is suffering from
a particular condition. An initial diagnosis (or informed opinion) may
prove to be incorrect after more extensive examination or further
tests. Individuals sometimes want the initial diagnosis to be deleted
on the grounds that it was, or proved to be, inaccurate. However, if
the patients records accurately refect the doctors diagnosis at the
time, the records are not inaccurate, because they accurately refect a
particular doctors opinion at a particular time. Moreover, the record of
the doctors initial diagnosis may help those treating the patient later.
23 How much weight is placed on an opinion is likely to greatly
depend on the experience and reliability of the person whose opinion
it is, and what they base their opinion on. An opinion formed during a
brief meeting will probably be given less weight than one derived from
considerable dealings with the individual. The adequacy requirement
mentioned in 18 is relevant in these cases.
24 If a court is satisfed that you are holding inaccurate personal
data containing an expression of opinion that appears to the court to
be based on that inaccurate data, it can order you to delete that data,
including the expression of opinion (see 4).
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1 This chapter answers some common questions about how
long personal data should be kept. It sets out briefy the duties of
organisations in this regard, and gives examples of good practice in
managing the retention of personal data.
keeping personal data?
3 The Act does not set out any specifc minimum or maximum
periods for retaining personal data. Instead, it says that:
Personal data processed for any purpose or purposes
shall not be kept for longer than is necessary for that
purpose or those purposes.
retaining personal data
5
4 This is the ffth data protection principle. In practice, it means
that you will need to:
review the length of time you keep personal data;
consider the purpose or purposes you hold the information for in
deciding whether (and for how long) to retain it;
securely delete information that is no longer needed for this purpose
or these purposes; and
update, archive or securely delete information if it goes out of date.
In more detail
Why should I worry about retaining personal data?
5 Assuming that you have a good reason for processing the
personal data in question, it is obvious that discarding that data too
soon would be likely to disadvantage your business and, quite possibly,
to inconvenience the people the information is about as well. However,
keeping personal data for too long may cause the following problems:
There is an increased risk that the information will go out of date, and
that outdated information will be used in error to the detriment of
all concerned.
As time passes it becomes more diffcult to ensure that information
is accurate.
Even though you may no longer need the personal data, you must still
make sure it is held securely.
You must also be willing and able to respond to subject access
requests for any personal data you hold. This may be more diffcult if
you are holding more data than you need.
6 We have already mentioned the links between the third,
fourth and ffth data protection principles (see 3). So, for
example, personal data held for longer than necessary will, by
defnition, be excessive and may also be irrelevant. In any event, it is
ineffcient to hold more information than necessary.
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What approach should I take to decisions about retaining
personal data?
7 It is good practice to regularly review the personal data you
hold, and delete anything you no longer need. Information that does
not need to be accessed regularly, but which still needs to be retained,
should be safely archived or put offine.
8 If you hold more than small amounts of personal data, it is
good practice to establish standard retention periods for different
categories of information. You will need to take account of any
professional rules or regulatory requirements that apply. It is also
advisable to have a system for ensuring that your organisation keeps
to these retention periods in practice, and for documenting and
reviewing the retention policy. For example, if any records are not
being used, you should reconsider whether they need be retained.
9 If you only hold a modest amount of personal data, you may
not need a formal data retention policy. You must still comply with the
law, of course, so it is good practice to conduct a regular audit, and to
check through the records you hold to make sure you are not holding
onto personal data for too long, or deleting it prematurely.
What determines the length of a retention period?
10 Personal data will need to be retained for longer in some
cases than in others. How long you retain different categories of
personal data should be based on individual business needs.
A judgement must be made about:
the current and future value of the information;
the costs, risks and liabilities associated with retaining the
information; and
the ease or diffculty of making sure it remains accurate and up to date.
11 The appropriate retention period is also likely to depend
on the following:
What the information is used for
12 How long you should keep personal data depends on the
purpose for which it was obtained and its nature. If it continues to be
necessary to hold the data for one of the reasons set out in Schedules
2 and 3 of the Data Protection Act (such as the performance of
a public function or compliance with employment law), then you
should retain it for as long as that reason applies. On the other hand,
information with only a short-term value may have to be deleted
within days.
Example
A bank holds personal data about its customers. This includes
details of each customers address, date of birth and mothers
maiden name. The bank uses this information as part of its security
procedures. It is appropriate for the bank to retain this data for as
long as the customer has an account with the bank. Even after the
account has been closed, the bank may need to continue holding
some of this information for legal or operational reasons.
Example
Images from a CCTV system installed to prevent fraud at an
ATM machine may need to be retained for several weeks, since a
suspicious transaction may not come to light until the victim gets
their bank statement.
In contrast, images from a CCTV system in a pub may only need to
be retained for a short period because incidents will come to light
very quickly. However, if a crime is reported to the police, the images
will need to be retained until the police have time to collect them.
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13 Where personal data is held for more than one purpose, there
is no need to delete the data while it is still needed for any of those
purposes. However, personal data should not be kept indefnitely just
in case, or if there is only a small possibility that it will be used.
Example
A tracing agency holds personal data about a debtor so that it can
fnd that individual on behalf of a creditor. Once it has found the
individual and reported to the creditor, there may be no need to
retain the information about the debtor it should be removed from
the agencys systems unless there are good reasons for keeping
it. Such reasons could include if the agency has also been asked
to collect the debt, or because the agency is authorised to use the
information to trace debtors on behalf of other creditors.
14 There may often be good grounds for keeping personal data
for historical, statistical or research purposes. The Data Protection
Act provides that personal data held for these purposes may be
kept indefnitely as long as it is not used in connection with decisions
affecting particular individuals, or in a way that is likely to cause
damage or distress. This does not mean that the information may be
kept forever it should be deleted when it is no longer needed for
historical, statistical or research purposes.
The surrounding circumstances
15 If personal data has been recorded because of a relationship
between you and the individual, you should consider whether you need
to keep the information once the relationship ends.
Example
The individual may be a customer who no longer does business with
you. When the relationship ends, you must decide what personal
data to retain and what to delete.
16 You may not need to delete all personal data when the
relationship ends. You may need to keep some information so that you
can confrm that the relationship existed and that it has ended as
well as some of its details.
Example
In the previous example, you may need to keep some personal data
about the customer so that you can deal with any complaints they
might make about the services you provided.
Example
An employer should review the personal data it holds about an
individual when that individual leaves the organisations employment.
It will need to retain enough data to enable the organisation to deal
with, say, providing references or information about the individuals
pension arrangements. However, personal data that is unlikely to be
needed again should be removed from the organisations records
such as the individuals emergency contact details, previous
addresses, or death-in-service benefciary details.
Example
A business receives a notice from a former customer requiring it to
stop processing the customers personal data for direct marketing.
It is appropriate for the business to retain enough information about
the former customer for it to stop including that person in future
direct marketing activities.
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17 In some cases, you may need to keep personal data so you
can defend possible future legal claims. However, you could still delete
information that could not possibly be relevant to such a claim. Unless
there is some other reason for keeping it, personal data should be
deleted when such a claim could no longer arise.
Example
An employer receives several applications for a job vacancy. Unless
there is a clear business reason for doing so, the employer should
not keep recruitment records for unsuccessful applicants beyond
the statutory period in which a claim arising from the recruitment
process may be brought.
Any legal or regulatory requirements
18 There are various legal requirements and professional
guidelines about keeping certain kinds of records such as information
needed for income tax and audit purposes, or information on aspects
of health and safety. If an organisation keeps personal data to comply
with a requirement like this, it will not be considered to have kept the
information for longer than necessary.
Agreed industry practices
19 How long certain kinds of personal data should be kept may
also be governed by specifc business-sector requirements and agreed
practices. For example, we have agreed that credit reference agencies
are permitted to keep consumer credit data for six years.
What should happen to personal data at the end of its
retention period?
20 At the end of the retention period, or the life of a particular
record, it should be reviewed and deleted, unless there is some special
reason for keeping it. Automated systems can fag records for review,
or delete information after a pre-determined period. This is particularly
useful where many records of the same type are held.
21 However, there is a signifcant difference between
permanently deleting a record and archiving it. If a record is archived
or stored offine, this should reduce its availability and the risk of
misuse or mistake. However, you should only archive a record (rather
than delete it) if you still need to hold it. You must be prepared to give
subject access to it, and to comply with the data protection principles.
If it is appropriate to delete a record from a live system, it should also
be deleted from any back-up of the information on that system.
What about keeping shared information?
22 Where personal data is shared between organisations, those
organisations should agree about what to do once they no longer need
to share the information. In some cases, it may be best to return the
shared information to the organisation that supplied it, without keeping
a copy. In other cases, all the organisations involved should delete their
copies of the information.
Example
Personal data about the customers of Company A is shared with
Company B, which is negotiating to buy Company As business.
The companies arrange for Company B to keep the information
confdential, and use it only in connection with the proposed
transaction. The sale does not go ahead and Company B returns the
customer information to Company A without keeping a copy.
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23 The organisations involved in an information-sharing
initiative may need to set their own retention periods, because some
may have good reasons to retain personal data for longer than others.
However, if shared information should be deleted, for example because
it is no longer relevant to the initiative, then all the organisations with
copies of the information should delete it.
1 The Data Protection Act gives rights to individuals in
respect of the personal data that organisations hold about them.
The Act says that:
Personal data shall be processed in accordance with
the rights of data subjects under this Act.
2 This is the sixth data protection principle, and the rights
of individuals that it refers to are:
a right of access to a copy of the information comprised in their
personal data (see );
a right to object to processing that is likely to cause or is
causing damage or distress (see );
a right to prevent processing for direct marketing (see );
a right to object to decisions being taken by automated means
(see );
a right in certain circumstances to have inaccurate personal data
rectifed, blocked, erased or destroyed (see ); and
a right to claim compensation for damages caused by a breach of
the Act (see ).
The rights of individuals
6
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1 This chapter offers an overview of what the Data Protection
Act requires in terms of security, and aims to help you decide how to
manage the security of the personal data you hold. We cannot provide
a complete guide to all aspects of security in all circumstances and for all
organisations, but this chapter identifes the main points. We also provide
details of other sources of advice and information about security.
2 There is no one size fts all solution to information security.
The security measures that are appropriate for an organisation will
depend on its circumstances, so you should adopt a risk-based
approach to deciding what level of security you need.
controller, and individual instead of data subject (the terms
used in the Act). The defnitions of all these terms, and of other key
concepts in the Act, are explained in chapter
about information security?
Information security
7
Appropriate technical and organisational measures
shall be taken against unauthorised or unlawful
processing of personal data and against accidental
loss or destruction of, or damage to, personal data.
5 This is the seventh data protection principle. In practice, it
means you must have appropriate security to prevent the personal
data you hold being accidentally or deliberately compromised. In
particular, you will need to:
design and organise your security to ft the nature of the personal
data you hold and the harm that may result from a security breach;
be clear about who in your organisation is responsible for ensuring
information security;
make sure you have the right physical and technical security, backed
up by robust policies and procedures and reliable, well-trained staff;
and
be ready to respond to any breach of security swiftly and effectively.
In more detail
Why should I worry about information security?
6 Information security breaches may cause real harm and
distress to the individuals they affect lives may even be put at risk.
Examples of the harm caused by the loss or abuse of personal data
(sometimes linked to identity fraud) include:
fake credit card transactions;
witnesses at risk of physical harm or intimidation;
offenders at risk from vigilantes;
exposure of the addresses of service personnel, police and prison
offcers, and women at risk of domestic violence;
fake applications for tax credits; and
mortgage fraud.
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7 Not all security breaches have such grave consequences, of
course. Many cause less serious embarrassment or inconvenience to
the individuals concerned. Individuals are entitled to be protected from
this kind of harm as well.
8 Advances in technology have enabled organisations to
process more and more personal data, and to share information more
easily. This has obvious benefts if they are collecting and sharing
personal data in accordance with the data protection principles, but it
also gives rise to equally obvious security risks. The more databases
that are set up and the more information is exchanged, the greater the
risk that the information will be lost, corrupted or misused.
9 A number of high-profle losses of large amounts of personal
data have brought attention to the issue of information security.
However, these incidents have also made it clear that information
security is an issue of public concern as well as technical compliance.
If personal data is not properly safeguarded, this can seriously damage
an organisations reputation and prosperity and can compromise the
safety of individuals.
What needs to be protected by information
security arrangements?
10 It is important to understand that the requirements of
the Data Protection Act go beyond the way information is stored
or transmitted. The seventh data protection principle relates to the
security of every aspect of your processing of personal data.
11 So the security measures you put in place should seek
to ensure that:
only authorised people can access, alter, disclose or destroy
personal data;
those people only act within the scope of their authority; and
if personal data is accidentally lost, altered or destroyed,
it can be recovered to prevent any damage or distress to the
individuals concerned.
What level of security is required?
12 The Act says you should have security that is appropriate to:
the nature of the information in question; and
the harm that might result from its improper use, or from its
accidental loss or destruction.
13 The Act does not defne appropriate. But it does say that an
assessment of the appropriate security measures in a particular case
should consider technological developments and the costs involved.
The Act does not require you to have state-of-the-art security
technology to protect the personal data you hold, but you should
regularly review your security arrangements as technology advances.
As we have said, there is no one size fts all solution to information
security, and the level of security you choose should depend on the
risks to your organisation.
14 So, before deciding what information security measures
you need to take, you will need to assess your information risk: you
should review the personal data you hold and the way you use it to
assess how valuable, sensitive or confdential it is, and what damage or
distress could be caused to individuals if there were a security breach.
Example
An organisation holds highly sensitive or confdential personal data
(such as information about individuals health or fnances) which
could cause damage or distress to those individuals if it fell into the
hands of others. The organisations information security measures
should focus on any potential threat to the information or to the
organisations information systems.
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15 This risk assessment should take account of factors such as:
the nature and extent of your organisations premises and
computer systems;
the number of staff you have;
the extent of their access to the personal data; and
personal data held or used by a third party on your behalf (under the
Data Protection Act you are responsible for ensuring that any data
processor you employ also has appropriate security (see 26
and 27)).
What kind of security measures might be appropriate?
16 The Data Protection Act does not defne the security
measures you should have in place. However, particular security
requirements that apply within particular industries may impose
certain standards or require specifc measures. In general terms, which
security measures are appropriate will depend on your circumstances,
but there are several areas you should focus on. Physical and
technological security is likely to be essential, but is unlikely to be
suffcient of itself. Management and organisational security measures
are likely to be equally important in protecting personal data.
Management and organisational measures
17 Carrying out an information risk assessment as described
in 14 and 15 is an example of an organisational security
measure, but you will probably need other management and
organisational measures as well. You should aim to build a culture of
security and awareness within your organisation.
18 Perhaps most importantly, it is good practice to identify
a person or department in your organisation with day-to-day
responsibility for security measures. They should have the necessary
authority and resources to fulfl this responsibility effectively.
Example
The Chief Executive of a medium-sized organisation asks the
Director of Resources to ensure that the organisation has
appropriate information security measures, and to make regular
reports on security to the organisations board. The Resources
department takes responsibility for designing and implementing the
organisations security policy, writing procedures for staff to follow,
organising staff training, checking whether security measures are
actually being adhered to and investigating security incidents.
19 Unless there is clear accountability in your organisation for
such security measures, they will probably be overlooked and your
organisations overall security will quickly become fawed and out of date.
20 Not every organisation will need a formal information
security policy this will depend on things like the size of the
organisation, the amount and nature of the personal data it holds, and
the way it uses the data. Whether or not these matters are written into
a formal policy, all organisations will need to be clear about them, and
about related matters such as the following:
co-ordination between key people in the organisation (for example,
the security manager will need to know about commissioning and
disposing of any IT equipment);
access to premises or equipment given to anyone outside the
organisation (for example, for computer maintenance) and the
additional security considerations this will generate;
business continuity arrangements that identify how to protect and
recover any personal data the organisation holds; and
periodic checks to ensure that the organisations security measures
remain appropriate and up to date.
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Staff
21 It is vital that your staff understand the importance of
protecting personal data; that they are familiar with your organisations
security policy; and that they put its security procedures into practice.
So you must provide appropriate initial and refresher training, and this
should cover:
your organisations duties under the Data Protection Act and
restrictions on the use of personal data;
the responsibilities of individual staff members for protecting
personal data, including the possibility that they may commit criminal
offences if they deliberately try to access, or to disclose, information
without authority;
the proper procedures to use to identify callers;
the dangers of people trying to obtain personal data by deception
(for example, by pretending to be the person whom the information is
about or by making phishing attacks) or by persuading you to alter
information when you should not do so; and
any restrictions your organisation places on the personal use of its
computers by staff (to avoid, for example, virus infection or spam).
22 The effectiveness of staff training relies on the individuals
concerned being reliable in the frst place. The Data Protection Act
requires you to take reasonable steps to ensure the reliability of any
staff who have access to personal data.
Example
An organisation verifes the identity of its employees when they are
recruited by asking to see passports or driving licences before they
start work. It also obtains appropriate references to confrm their
reliability. The organisations standard contract of employment sets
out what staff can and cannot do with the personal data they have
access to.
Physical security
23 Technical security measures to protect computerised
information are of obvious importance. However, many security
incidents relate to the theft or loss of equipment, or to old computers
or hard-copy records being abandoned.
24 Physical security includes things like the quality of doors
and locks, and whether premises are protected by alarms, security
lighting or CCTV. However, it also includes how you control access to
premises, supervise visitors, dispose of paper waste, and keep portable
equipment secure.
Example
As part of its security measures, an organisation ensures that the
information on laptop computers issued to staff is protected by
encryption, and that desk-top computer screens in its offces are
positioned so that they cannot be viewed by casual passers-by.
Paper waste is collected in secure bins and is shredded on site at the
end of each week.
Computer security
25 Computer security is constantly evolving, and is a complex
technical area. Depending on how sophisticated your systems
are and the technical expertise of your staff, you may need specialist
information-security advice that goes beyond the scope of this
Guide. A list of helpful sources of information about security is
provided at the end of this chapter. You should consider the
following guiding principles when deciding the more technical side
of information security:
Your computer security needs to be appropriate to the size and use
of your organisations systems.
As noted above, you should take into account technological
developments, but you are also entitled to consider costs when
deciding what security measures to take.
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Your security measures must be appropriate to your business
practices. For example, if you have staff who work from home,
you should put measures in place to ensure that this does not
compromise security.
The measures you take must be appropriate to the nature of the
personal data you hold and to the harm that could result from a
security breach.
What is the position when a data processor is involved?
26 Organisations may use third party data processors to
process personal data on their behalf (see 26 and 27).
This often causes security problems. Particular care is needed because
the organisation (and not the data processor) will be held responsible
under the Data Protection Act for what the data processor does with
the personal data.
27 The Act contains special provisions that apply in these
circumstances. It says that, where you use a data processor:
you must choose a data processor that provides suffcient guarantees
about its security measures to protect the processing it will do for you;
you must take reasonable steps to check that those security
measures are being put into practice; and
there must be a written contract setting out what the data processor
is allowed to do with the personal data. The contract must also
require the data processor to take the same security measures
you would have to take if you were processing the data yourself. A
model data processing contract has been published by the European
Committee for Standardization (see ftp://ftp.cenorm.be/PUBLIC/
CWAs/e-Europe/DPP/CWA15292-00-2005-May.pdf).
What should I do if there is a security breach?
28 If, despite the security measures you take to protect the
personal data you hold, a breach of security occurs, it is important
that you deal with the security breach effectively. The breach may
arise from a theft, a deliberate attack on your systems, from the
unauthorised use of personal data by a member of staff, or from
accidental loss or equipment failure. However the breach occurs,
you must respond to and manage the incident appropriately. Having
a policy on dealing with information security breaches is another
example of an organisational security measure you may have to take
to comply with the seventh data protection principle.
29 There are four important elements to any
breach-management plan:
1. Containment and recovery the response to the incident should
include a recovery plan and, where necessary, procedures for
damage limitation.
2. Assessing the risks you should assess any risks associated with
the breach, as these are likely to affect what you do once the breach
has been contained. In particular, you should assess the potential
adverse consequences for individuals; how serious or substantial
these are; and how likely they are to happen.
3. Notifcation of breaches informing people about an information
security breach can be an important part of managing the incident,
but it is not an end in itself. You should be clear about who needs to
be notifed and why. You should, for example, consider notifying the
individuals concerned; the ICO; other regulatory bodies; other third
parties such as the police and the banks; or the media.
4. Evaluation and response it is important that you investigate the
causes of the breach and also evaluate the effectiveness of your
response to it. If necessary, you should then update your policies
and procedures accordingly.
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30 These issues are considered in greater detail in Guidance on
information security breach management on our website. We have
also produced Notifcation of Data Security Breaches to the ICO.
This is guidance on:
the circumstances in which we expect organisations to notify us of
security breaches;
the information we need in those circumstances; and
what organisations can expect us to do after notifying us.
What other sources of information and advice are there?
31 The table below gives details of some additional sources of
advice on information security.
General advice
www.berr.gov.uk/sectors/infosec/infosecadvice/page10059.html
More specialised advice for small and medium-size businesses
www.berr.gov.uk/sectors/infosec/
An e-learning package
www.bobs-business.co.uk
32 There is an international standard for information
security management:
A detailed look at ISO 27001; includes an audit and
certifcation scheme
www.27001-online.com
www.bsi-global.com
1 This chapter provides practical advice to companies or other
organisations who want to send personal data outside the European
Economic Area (EEA).
sending personal data outside the EEA?
Personal data shall not be transferred to a country
or territory outside the EEA unless that country or
territory ensures an adequate level of protection for
the rights and freedoms of data subjects in relation
to the processing of personal data.
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Sending personal data
outside the European
Economic Area
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4 This is the eighth data protection principle, but other
principles of the Act will also usually be relevant to sending personal
data overseas. For example, the frst principle (relating to fair and
lawful processing) will in most cases require you to inform individuals
about disclosures of their personal data to third parties overseas.
The seventh principle (concerning information security) will also be
relevant to how the information is sent and the necessity to have
contracts in place when using subcontractors abroad.
5 The Act also sets out the situations where the eighth
principle does not apply, and these situations are also considered in
more detail in this chapter.
In more detail
Is it possible to fulfl my objectives and send information
outside the UK without processing personal data?
6 Before making a transfer, you should consider whether you
can achieve your aims without actually processing personal data.
For example, if data is made anonymous so that it is not possible to
identify individuals from it, now or at any point in the future, then the
data protection principles will not apply and you are free to transfer
the information outside the EEA.
What is a transfer?
7 A transfer involves sending personal data to someone in
another country.
Example
A company in the UK uses a centralised human resources system
in the United States belonging to its parent company to store
information about its employees.
Example
A travel agent sends a customers details to a hotel in Australia
where they will be staying while on holiday.
8 A transfer is not the same as the transit of information
though a country. The eighth principle will only apply if the information
moves to a country, rather than simply passing through it on route
to its destination.
Example
Personal data is transferred from country A to country B via
a server in country C, which does not access or manipulate the
information while it is in country C. In these circumstances the
transfer is only to country B.
9 You will be processing personal data in the UK and
transferring it even if:
you collect information relating to individuals on paper, which is not
ordered or structured in any way; and
you send this overseas with the intention that once it is there it will
be processed using equipment operating automatically; or
it will be added it to a highly structured fling system relating
to individuals.
Example
A large insurance broker sends a set of notes about individual
customers to a company acting on their behalf in another country.
These notes are handwritten and are not held on computer or as
part of a relevant fling system in the UK. The notes are to be entered
onto a computer in the other country and added to a customer
management system.
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Netherlands
Norway
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
Austria
Belgium
Bulgaria
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Iceland
Ireland
Italy
Latvia
Liechtenstein
Lithuania
Luxembourg
Malta
Jersey
Switzerland
Argentina
Canada
Guernsey
Isle of Man
10 Putting personal data on a website will often result in
transfers to countries outside the EEA. The transfers will take place
when someone outside the EEA accesses the website. If you load
information onto a server based in the UK so that it can be accessed
through a website, you should consider the likelihood that a transfer
may take place and whether that would be fair for the individuals
concerned. If you intend information on the website to be accessed
outside the EEA, then this is a transfer.
Which countries are in the EEA?
11 There are no restrictions on the transfer of personal data to
EEA countries. These are currently:
Which countries have an adequate level of protection?
12 The European Commission has decided that certain countries
have an adequate level of protection for personal data. Currently, the
following countries are considered as having adequate protection.
13 For an up to date list of such countries, please see the
European Commissions data protection website at: www.europa.
eu.int/comm/justice_home/fsj/privacy/thirdcountries/index_en.htm.
14 Although the United States of America (US) is not included
in the European Commission list, the Commission considers that
personal data sent to the US under the Safe Harbor scheme is
adequately protected. When a US company signs up to the Safe
Harbor arrangement, they agree to:
follow seven principles of information handling; and
be held responsible for keeping to those principles by the Federal
Trade Commission or other oversight schemes.
15 Certain types of companies cannot sign up to Safe
Harbor. There is a list of the companies signed up to the Safe Harbor
arrangement on the US Department of Commerce website at http://
www.export.gov/safeharbor/doc_safeharbor_index.asp.
16 In July 2007, the EU and the US signed an agreement
to legitimise and regulate the transfer of passenger name record
information (PNR) from EU airlines to the US Department of Homeland
Security (DHS). This agreement is regarded as providing adequate
protection for the personal data in question.
If the data protection law in a country has not been
approved as adequate, is it still possible to send personal data
to that country?
17
there is an adequate level of protection. You can:
assess adequacy yourself;
use contracts, including the European Commission approved model
contractual clauses;
get your Binding Corporate Rules approved by the Information
Commissioner; or
rely on the exceptions from the rule.
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How do I assess adequacy?
18 You will need to be satisfed that in the particular
circumstances there is an adequate level of protection. For UK personal
data the Act sets out the factors you should take into account to make
this decision. These relate to:
the nature of the personal data being transferred;
how the data will be used and for how long; and
the laws and practices of the country you are transferring it to.
19 This means doing a risk assessment. You must decide
whether there is enough protection for individuals, in all the
circumstances of the transfer. This is known as an assessment of
adequacy. To assess adequacy you should look at:
the extent to which the country has adopted data protection
standards in its law;
whether there is a way to make sure the standards are achieved in
practice; and
whether there is an effective procedure for individuals to enforce
their rights or get compensation if things go wrong.
20 We realise it may be impractical for you to carry out a
detailed analysis of adequacy involving the legal situation in a non-
EEA country. This analysis might be more appropriate for a business
that regularly transfers large volumes of personal data to a particular
country, rather than a company that might only occasionally transfer
personal data to any of a wide range of countries. For this reason, this
Guide does not give detailed advice on how to carry out an adequacy
test; this is provided in sections 2.3 to 2.6 of The eighth data
protection principle and international data transfers guidance on
our website.
21 In some cases you might reasonably decide there is
adequacy without a detailed test. A common situation is where you
transfer personal data to a processor acting on your instructions
under contract. You are still legally responsible for making sure the
data is processed in line with the principles. In particular, personal data
can only be transferred if there is a contract requiring the processor
to have appropriate security and act only on your instruction. So
individuals information should continue to be protected to the same
standard as in the UK and they will have the same rights they can
exercise in the UK. This is because you remain liable for ensuring that
the processing complies with the data protection principles. When
selecting a processor, you need to satisfy yourself that it is reliable and
has appropriate security.
22 However, the level of protection is unlikely to be adequate if:
the transfer is to a processor in an unstable country; and
the nature of the information means that it is at particular risk.
23 For more information see section 5 of The eighth data
protection principle and international data transfers and the good
practice note on Outsourcing a guide for small and medium-sized
businesses on our website.
24 You may reasonably decide there is adequacy without a
detailed analysis, depending on: the nature of the information; the
circumstances of the transfer; your knowledge of the country; and the
company you are transferring to. Some examples are discussed below.
Example
A university wishes to transfer the academic biographies of its
lecturers and research staff to other universities and potential
students outside the EEA. Nothing of a private nature is included. This
is a well-known practice in the university. The personal data, such as
the staffs qualifcations and publications, is already publicly available.
Any member of staff can have their information withheld if they have
a reason to do so such as concerns about their safety. In this case,
it is diffcult to see a problem with adequacy as the potential for staff
to object has been addressed and there is little further risk of misuse.
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Example
Company A in the UK sends its customer list to company B outside the
EEA so that company B, acting as a processor, can send a mailing to
company As customers. It is likely that adequate protection exists if:
the information transferred is only names and addresses;
there is nothing particularly sensitive about company As line
of business;
the names and addresses are for one-time use and must be
returned or destroyed within a short timescale;
company A knows company B is reliable; and
there is a contract between them governing how the information
will be used.
Example
An employee travels outside the EEA with a laptop containing
personal data connected with their employment. Their employer in
the UK is still the data controller. As long as the information stays
with the employee on the laptop, and the employer has an effective
procedure to deal with security and the other risks of using laptops
(including the extra risks of international travel), it is reasonable to
decide that adequate protection exists.
Example
A multinational company transfers a list of internal telephone
extensions to its overseas subsidiaries. The nature of the information
makes it unlikely that the individuals identifed would suffer signifcant
damage in the unlikely event that an unauthorised source obtained the
list. It is reasonable to decide that adequate protection exists.
25 These examples show that you can, in particular
circumstances, decide whether there is adequacy. You might limit
the types of information you transfer and the types of organisation
you transfer to, or insist that the destination company meet certain
conditions by contract or otherwise.
How can you use contracts to ensure there
is an adequate level of protection?
26 There are several types of contract that you can use to
transfer personal data outside the EEA. The main types are:
contracts based on the standard contractual clauses approved by the
European Commission (EC model clauses); and
other contracts you draw up yourself after a risk assessment to bring
protection up to an adequate level.
EC model clauses
27 The European Commission has approved three sets of
standard contractual clauses (known as model clauses) as providing
an adequate level of protection. If you use these model clauses in
their entirety in your contract, you will not have to make your own
assessment of adequacy.
28 Two of the sets of model clauses relate to transferring
personal data from one company to another company, which will then
use it for its own purposes. In this case you can choose either set of
clauses, depending on which suits your business arrangements better.
The other set of model clauses is for transferring personal data to
a processor acting under your instructions, such as a company that
provides you with IT services or runs a call centre for you.
29 The model clauses are attached as an annex to the European
Commission decisions of adequacy, which approve their use, and you
can fnd them on the Commissions data protection website at:
www.europa.eu.int/comm/justice_home/fsj/privacy/modelcontracts/
index_en.htm.
30 If you are relying on the European Commission adequacy
decisions you cannot change the clauses in any way, for example
by removing parts or adding other clauses to change the meaning,
but the clauses can be incorporated into other contracts. For more
information, see section 3.2 of The eighth data protection principle
and international data transfers guidance on our website.
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Other contracts
31 You can also use your own contracts to help ensure
adequacy for a particular transfer or set of transfers. You can use these
contracts to plug gaps where you have decided that there would be
adequacy, were it not for a particular weakness. For example, you may
want to include a contract clause to require the company receiving the
information to return it to you if your relationship comes to an end or
they go out of business.
32 You do not have to have a separate contract for data
protection. You can include the terms to achieve adequacy into any
general contract that covers your relationship with the other company.
33 You can also use contracts where you are not in a position
to judge adequacy. The contract should be comprehensive to enable
you to satisfy yourself that adequacy exists, without you needing to
analyse the circumstances of the transfer. This kind of contract is likely
to be very similar to a standard contract using the EC model clauses,
which you can use to develop your own terms.
34 If you use contract provisions that differ from the model
clauses, you risk a future challenge to the adequacy of the contracts
level of protection. You must record your reasoning and decisions
and be able to justify your actions if you are asked to. This is in line
with our general approach to compliance with the Act. We are not able
to give you detailed advice on or approve contracts other than
in exceptional circumstances.
In what circumstances will the Information Commissioner
approve transfers by an organisation?
35 The Information Commissioner has the power to authorise
transfers of personal data on the basis that in the particular
circumstances there is an adequate level of protection, but we will not
routinely do this because you will be in a better position to decide if
there is adequacy in the light of your knowledge of the safeguards and
the processing taking place.
36 If we authorise a transfer, we must tell the European
Commission and other data protection authorities in Europe.
37 We will not authorise one-off arrangements between
you and companies in other countries unless there are exceptional
circumstances. We would have to be satisfed that there was no
other reasonable way for you to comply with the eighth principle, for
example by applying any of the exemptions or by making your own
assessment of adequacy.
What are binding corporate rules?
38 Another option is to adopt binding codes of corporate
conduct, known as binding corporate rules or BCR. This option only
applies to multinational organisations transferring information outside
the EEA but within their group of companies. These rules create rights
for individuals, which can be exercised before the courts or data
protection authorities, and obligations for the company. In all cases,
the rules are legally binding on the companies in the multinational
group and will usually be made so by unilateral declarations, intra-
group agreements or the corporate governance of the group. To use
BCR to transfer personal data freely within your group of companies,
they must be approved by all the relevant European data protection
authorities who will co-operate with each other in assessing the
standard of your rules.
39 You may use internal codes of conduct, similar to BCR, to
transfer information from the UK without an authorisation where:
you have conducted a risk assessment; and
you are satisfed that the codes provide the level of safeguards
required by the eighth principle.
40 Where you do not have an authorisation, you risk a future
challenge to the adequacy of the contracts level of protection. You
must record your reasoning and decisions and be able to justify your
actions if you are asked to. This is in line with our general approach to
compliance with the Act.
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41 For more information on BCR, see section 3.3 of
The eighth data protection principle and international data transfers,
the international transfers page and BCR FAQ on our website.
Are there any exceptions to the rule?
42 There are several exemptions from the eighth principle,
where you can transfer personal data even if there is no adequate
protection. However, it is good practice to ensure that there is
adequate protection if it is possible to do so, and only to rely on an
exemption if it is not. Nevertheless, the exemptions are legally available
to you and may in some circumstances provide a simple solution that
only results in a minimal loss of protection for the individual. You will
fnd a detailed analysis of the exemptions in section 4 of The eighth
data protection principle and international data transfers guidance on
our website.
Consent
43 You can transfer personal data overseas if you have the
individuals consent, which should be given clearly and freely and may
later be withdrawn by the individual. We explain what consent means
in more detail in 15 24.
44 A consent will not be valid if the individual has no choice
but to give their consent.
Example
A company asks its employees to agree to the international transfer
of their personal data. The penalty for not agreeing is dismissal,
and so the company may not rely on any consents given by its
employees in these circumstances.
45 The individual must know and have understood what they are
agreeing to. You should specify the reasons for the transfer and, as far as
possible, the countries involved. If you are aware of any particular risks
involved in the transfer, you should tell the individual. In our view, consent
is unlikely to provide an adequate long-term solution to repeated
transfers or ones that arise from a structural reorganisation.
Contract performance
46 You can transfer personal data overseas where it is
necessary for carrying out certain types of contract or if the transfer is
necessary to set up the contract.

47 For a contract between the organisation and the individual,
you may transfer personal data overseas if the transfer is:
necessary to carry out the contract; or
a necessary part of the steps the individual has asked you to take
before a contract is made between you.
48 For a contract between the organisation and someone other
than the individual, you may transfer personal data overseas if:
the individual requests the contract or it is in their interests; and
the transfer is necessary to conclude the contract; or
the transfer is necessary to carry out such a contract.
49 In this context, contracts are not restricted to goods and
services they can include employment contracts. Deciding whether
a transfer is necessary to carry out a contract depends on the nature
of the goods or services provided under the contract rather than how
your business is organised.
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50 A transfer is not necessary if the only reason you need to
make it is because of the way you have chosen to structure your
business (see ).
Example
An individual books a hotel in the USA through a UK travel agent.
The UK travel agent will need to transfer the booking details to the
USA to fulfl its contract with the individual.
Example
The customer of a UK credit-card issuer uses their card in Japan. It
may be necessary for the card issuer to transfer some personal data
to Japan to validate the card and/or reimburse the seller.
Example
A UK-based internet trader sells furniture online. It makes it clear
to customers that it is a retailer, not a manufacturer. Goods are
delivered direct to the customer from the manufacturer. If a
customer orders goods that are manufactured in the Ukraine, the
trader needs to transfer a delivery name and address to the Ukraine
to carry out the contract.
Substantial public interest
necessary for reasons of substantial public interest. This is a high
threshold to meet and it is most likely to be relevant in areas such as
preventing and detecting crime; national security; and collecting tax.
Organisations intending to rely on this exemption should consider each
case individually. The public interest must be that of the UK and not
the third country to which the personal data is transferred.
Vital interests
necessary to protect the vital interests of the individual.
This relates to matters of life and death.
Example
A local health authority could transfer relevant medical records
from the UK to another country where an individual had had a
heart attack and their medical history was necessary to decide
appropriate treatment.
Public registers
53 You can transfer overseas part of the personal data on a
public register, as long as the person you transfer to complies with any
restrictions on access to or use of the information in the register.
Example
The General Medical Council (GMC) can transfer extracts from its
register of medical practitioners to respond to enquiries from outside
the UK, but it is not allowed to transfer the complete register under
this exemption. If the GMC puts conditions on inspecting the register
in the UK, the person the extract is transferred to, and anyone they
then pass it on to, must comply with these restrictions.
Legal claims
54 You can transfer personal data overseas where it is necessary:
in connection with any legal proceedings (including future
proceedings not yet underway);
to get legal advice; or
to establish, exercise or defend legal rights.
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Example
A US parent company is sued by an employee of its UK subsidiary.
Relevant employee information may be transferred to the US parent
as it is required for the defence.
55 The legal proceedings do not have to involve you or the
individual as a party and the legal rights do not have to be yours
or the individuals. Although this exemption could apply widely,
transfers are only likely to fall under this category if they are
connected with legal proceedings or getting legal advice.
Can I transfer personal data overseas if I get a request for it
from the authorities outside the UK on the basis of the laws
in their country?
56 No specifc exemption routinely covers all such requests. However,
in certain circumstances you will be able to send some personal data to the
authorities or other parts of your own organisation in another country where
the authorities in that country have requested it. How far you may do so will
depend on the nature of the request. You will need to consider these cases
carefully and can ask us for advice.
What other sources of information and advice are there?
57 There is a more complete analysis of the eighth data
protection principle, The eighth data protection principle and international
data transfers, on our website. The international transfers page on our
website also has information about the standard contractual clauses
and binding corporate rules.
1 This chapter explains the conditions that need to be satisfed
before you may process personal data.
the conditions for processing?
3 The frst data protection principle requires, among other
things, that you must be able to satisfy one or more conditions for
processing in relation to your processing of personal data. Many (but
not all) of these conditions relate to the purpose or purposes for which
you intend to use the information.
4 The conditions for processing take account of the nature
of the personal data in question. The conditions that need to be met
are more exacting when the information being processed is sensitive
personal data, such as information about an individuals health or
criminal record.
5 However, our view is that in determining if you have a
legitimate reason for processing personal data, the best approach is
to focus on whether what you intend to do is fair. If it is, then you are
very likely to identify a condition for processing that fts your purpose.
109
The conditions
for processing
9
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6 Being able to satisfy a condition for processing will not on
its own guarantee that the processing is fair and lawful fairness and
legality must still be looked at separately. So it makes sense to ensure
that what you want to do with personal data is fair and lawful before
worrying about the conditions for processing set out in the Act.
In more detail
What are the conditions for processing?
7 The conditions for processing are set out in Schedules 2
and 3 to the Data Protection Act. Unless a relevant exemption applies
(see ), at least one of the following conditions must be met
whenever you process personal data:
The individual who the personal data is about has consented
to the processing.
The processing is necessary:
in relation to a contract which the individual has entered into; or
because the individual has asked for something to be done so they
can enter into a contract.
The processing is necessary because of a legal obligation that applies
to you (except an obligation imposed by a contract).
The processing is necessary to protect the individuals vital
interests. This condition only applies in cases of life or death, such as
where an individuals medical history is disclosed to a hospitals A&E
department treating them after a serious road accident.
The processing is necessary for administering justice, or for exercising
statutory, governmental, or other public functions.
The processing is in accordance with the legitimate interests condition.
What is the legitimate interests condition?
8 The Data Protection Act recognises that you may have
legitimate reasons for processing personal data that the other
conditions for processing do not specifcally deal with. The legitimate
interests condition is intended to permit such processing, provided
you meet certain requirements.
9 The frst requirement is that you must need to process the
information for the purposes of your legitimate interests or for those
of a third party to whom you disclose it.
Example
A fnance company is unable to locate a customer who has stopped
making payments under a hire purchase agreement. The customer
has moved house without notifying the fnance company of his new
address. The fnance company engages a debt collection agency to
fnd the customer and seek repayment of the debt. It discloses the
customers personal data to the agency for this purpose. Although
the customer has not consented to this disclosure, it is made for the
purposes of the fnance companys legitimate interests
ie to recover the debt.
10 The second requirement, once the frst has been established,
is that these interests must be balanced against the interests of the
individual(s) concerned. The legitimate interests condition will not be
met if the processing is unwarranted because of its prejudicial effect
on the rights and freedoms, or legitimate interests, of the individual.
Your legitimate interests do not need to be in harmony with those
of the individual for the condition to be met. However, where there
is a serious mismatch between competing interests, the individuals
legitimate interests will come frst.
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Example
In the example on the previous page, it is clear that the interests of
the customer are likely to differ from those of the fnance company
(it may suit the customer quite well to evade paying his outstanding
debt). However, passing his personal data to a debt collection
agency in these circumstances could not be called unwarranted.
11 Finally, the processing of information under the legitimate
interests condition must be fair and lawful and must comply with all
the data protection principles.
Example
Continuing the above example, the fnance company must ensure
that the personal data it passes to the debt collection agency is
accurate (for example, in the known details of the customers
identity); that it is up to date (for example, in the amount
outstanding and the customers last known address); and that it is
not excessive the agency should only get as much personal data as
is relevant or necessary for the purpose of fnding the customer and
recovering the debt.
What conditions need to be met in respect of sensitive
personal data?
12 At least one of the conditions listed in 7 must be met
whenever you process personal data. However, if the information is
sensitive personal data, at least one of several other conditions must
also be met before the processing can comply with the frst data
protection principle. These other conditions are as follows:
The individual who the sensitive personal data is about has given
explicit consent to the processing.
The processing is necessary so that you can comply with
employment law.
The processing is necessary to protect the vital interests of:
the individual (in a case where the individuals consent cannot
be given or reasonably obtained), or
another person (in a case where the individuals consent has been
unreasonably withheld).
The processing is carried out by a not-for-proft organisation and
does not involve disclosing personal data to a third party, unless the
individual consents. Extra limitations apply to this condition.
The individual has deliberately made the information public.
The processing is necessary in relation to legal proceedings; for
obtaining legal advice; or otherwise for establishing, exercising or
defending legal rights.
The processing is necessary for administering justice, or for exercising
statutory or governmental functions.
The processing is necessary for medical purposes, and is undertaken
by a health professional or by someone who is subject to an
equivalent duty of confdentiality.
The processing is necessary for monitoring equality of opportunity,
and is carried out with appropriate safeguards for the rights of individuals.
13 In addition to the above conditions which are all set out
in the Data Protection Act itself regulations set out several other
conditions for processing sensitive personal data. Their effect is to
permit the processing of sensitive personal data for a range of other
purposes typically those that are in the substantial public interest,
and which must necessarily be carried out without the explicit consent
of the individual. Examples of such purposes include preventing or
detecting crime and protecting the public against malpractice or
maladministration. A full list of the additional conditions for processing
is set out in the Data Protection (Processing of Sensitive Personal
Data) Order 2000 and subsequent orders.
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When is processing necessary?
14 Many of the conditions for processing depend on the
processing being necessary for the particular purpose to which
the condition relates. This imposes a strict requirement, because the
condition will not be met if the organisation can achieve the purpose
by some other reasonable means or if the processing is necessary
only because the organisation has decided to operate its business in a
particular way.
Example
An employer processes personal data about its employees on the
basis that it is necessary to do so in connection with their individual
contracts of employment and to comply with the employers legal
obligations. However, the employer decides to outsource its HR
functions to an overseas company and transfers its employees data
to that company. It is not necessary to transfer the data overseas
for these purposes, and the employer would instead have to rely
on consent, or on the legitimate interests condition, to be able to
process its employees personal data in this way.
What is meant by consent?
15 One of the conditions for processing is that the individual
has consented to their personal data being collected and used in the
manner and for the purposes in question.
16 You will need to examine the circumstances of each case
to decide whether consent has been given. In some cases this will be
obvious, but in others the particular circumstances will need to be
examined closely to decide whether they amount to an adequate consent.
17 Consent is not defned in the Data Protection Act. However,
the European Data Protection Directive (to which the Act gives effect)
defnes an individuals consent as:
any freely given specifc and informed indication of his wishes
by which the data subject signifes his agreement to personal data
relating to him being processed.
18 The fact that an individual must signify their agreement
means that there must be some active communication between the
parties. An individual may signify agreement other than in writing, but
organisations should not infer consent if an individual does not respond
to a communication for example, from a customers failure to return
a form or respond to a leafet.
19 Consent must also be appropriate to the age and capacity
of the individual and to the particular circumstances of the case.
For example, if your organisation intends to continue to hold or use
personal data after the relationship with the individual ends, then
the consent should cover this. Even when consent has been given, it
will not necessarily last forever. Although in most cases consent will
last for as long as the processing to which it relates continues, you
should recognise that the individual may be able to withdraw consent,
depending on the nature of the consent given and the circumstances
in which you are collecting or using the information. Withdrawing
consent does not affect the validity of anything already done on the
understanding that consent had been given.
20 You should review whether a consent you have been given
remains adequate as your organisations relationship with an individual
develops, or as the individuals circumstances change.
21 Consent obtained under duress or on the basis of misleading
information does not adequately satisfy the condition for processing.
22 The Data Protection Act distinguishes between:
the nature of the consent required to satisfy the frst condition for
processing; and
the nature of the consent required to satisfy the condition for
processing sensitive personal data, which must be explicit.
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23 This suggests that the individuals consent should be
absolutely clear. It should cover the specifc processing details; the
type of information (or even the specifc information); the purposes of
the processing; and any special aspects that may affect the individual,
such as any disclosures that may be made.
24 As explained above, a particular consent may not be
adequate to satisfy the condition for processing (especially if the
individual might have had no real choice about giving it), and even a
valid consent may be withdrawn in some circumstances. For these
reasons an organisation should not rely exclusively on consent to
legitimise its processing. In our view it is better to concentrate on
making sure that you treat individuals fairly rather than on obtaining
consent in isolation. Consent is the frst in the list of conditions for
processing set out in the Act, but each condition provides an equally
valid basis for processing personal data.
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Rights and
exemptions
What rights do individuals
have about their personal
information?
What are the main
exemptions from the
Data Protection Act?
C
Data Protection
2
C
In this part
Exemptions
1
The rights
of individuals
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C 1
Introduction
1 We explained in that the sixth data protection
principle says that you must process personal data in accordance with
the rights that the Data Protection Act gives to individuals. We also
explained that these rights are:
a right of access to a copy of the information comprised in their
personal data;
a right to object to processing that is likely to cause or is causing
damage or distress;
a right to prevent processing for direct marketing;
a right to object to decisions being taken by automated means;
a right in certain circumstances to have inaccurate personal data
rectifed, blocked, erased or destroyed; and
a right to claim compensation for damages caused by a breach
of the Act.
2 This chapter explains these rights, sets out the duties of
organisations in this regard and gives examples of good practice.
It is divided into six sections, to which deal with each of these
rights in turn.
The rights
of individuals
1
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a The right of access to personal data
In brief what is an individual entitled to?
1 This right, commonly referred to as subject access, is created
by section 7 of the Data Protection Act. It is most often used by
individuals who want to see a copy of the information an organisation
holds about them. However, the right of access goes further than
this, and an individual who makes a written request and pays a fee is
entitled to be:
told whether any personal data is being processed;
given a description of the personal data, the reasons it is being processed,
and whether it will be given to any other organisations or people;
given a copy of the information comprising the data; and
given details of the source of the data (where this is available).
2 An individual can also request information about the
reasoning behind any automated decisions, such as a computer-
generated decision to grant or deny credit, or an assessment of
performance at work (except where this information is a trade secret).
Other rights relating to these types of decisions are dealt with in more
detail in
3 In most cases you must respond to a subject access request
promptly and in any event within 40 calendar days of receiving it.
However, some types of personal data are exempt from the right of
subject access and so cannot be obtained by making a subject access
request (see ).
In more detail
What is an individual entitled to?
4 Under the right of subject access, an individual is entitled
only to their own personal data, and not to information relating to
other people (unless they are acting on behalf of that person). Neither
are they entitled to information simply because they may be interested
in it. So it is important to establish whether the information requested
falls within the defnition of personal data (see 2 16).
In most cases, it will be obvious whether the information being
requested is personal data, but we have produced separate guidance to
help you decide in cases where it is unclear (see 12 for details).
5 Subject access provides a right to see the information
contained in personal data, rather than a right to see the documents
that include that information.
6 Various exceptions to the right of subject access apply in
certain circumstances or to certain types of personal data. These are
explained in
What is a valid subject access request?
7 For a subject access request to be valid, it should be
made in writing. You should also note the following points when
considering validity:
A request sent by email or fax is as valid as one sent in hard copy.
You do not need to respond to a request made verbally but,
depending on the circumstances, it might be reasonable to do so
(as long as you are satisfed about the persons identity), and it is
good practice to at least explain to the individual how to make a valid
request, rather than ignoring them.
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If a disabled person fnds it impossible or unreasonably diffcult to
make a subject access request in writing, you may have to make a
reasonable adjustment for them under the Disability Discrimination
Act 1995. This could include treating a verbal request for information
as though it were a valid subject access request. You might also
have to respond in a particular format which is accessible to the
disabled person, such as Braille, large print, email or audio formats. If
an individual thinks you have failed to make a reasonable adjustment,
they may make a claim under the Disability Discrimination Act.
Information about making a claim is available from the Equality and
Human Rights Commission.
If a request does not mention the Act specifcally or even say that
it is a subject access request, it is nevertheless valid and should be
treated as such if it is clear that the individual is asking for their own
personal data.
A request is valid even if the individual has not sent it directly to the
person who normally deals with such requests so it is important to
ensure that you and your colleagues can recognise a subject access
request and treat it appropriately.
Can I require individuals to use a specially designed form
when making subject access requests?
8 No. Many organisations produce subject access request
forms, and you may invite individuals to use such a form as long as you
make it clear that this is not compulsory and you do not try to use this
as a way of extending the 40-day time limit for responding. Standard
forms can make it easier for you to recognise a subject access request
and make it easier for the individual to include all the details you might
need to locate the information they want.
9 However, any request in writing must be considered as a
valid request, whatever the format.
I have received a request but need to amend the data before
sending out the response. Should I send out the old version?
10 The Act specifes that a subject access request relates to the
data held at the time the request was received. However, in many cases,
routine use of the data may result in it being amended or even deleted
while you are dealing with the request. So it would be reasonable for you
to supply information you hold when you send out a response, even if
this is different to that held when you received the request.
11 However, it is not acceptable to amend or delete the data if
you would not otherwise have done so. For organisations subject to
Freedom of Information legislation, it is an offence to make such an
amendment with the intention of preventing its disclosure.
Do I have to explain the contents of the information I send
to the individual?
12 The Act requires that the information you provide to the
individual is in intelligible form. At its most basic, this means that the
information you provide should be capable of being understood by the
average person. However, the Act does not require you to ensure that
the information is provided in a form that is intelligible to the particular
individual making the request.
Example
An individual makes a request for their personal data. When
preparing the response, you notice that a lot of it is in coded form.
For example, attendance at a particular training session is logged as
A, while non-attendance at a similar event is logged as M. Also,
some of the information is in the form of handwritten notes that are
diffcult to read. Without access to the organisations key or index to
explain this information, it would be impossible for anyone outside
the organisation to understand. In this case, the Act requires you to
explain the meaning of the coded information. However, although
it would be good practice to do so, the Act does not require you to
decipher the poorly written notes, since the meaning of intelligible
form does not extend to make legible.
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Example
You receive a subject access request from someone whose English
comprehension skills are quite poor. You send a response and they
ask you to translate the information you sent them. The Act does
not require you to do this since the information is in intelligible
form, even if the person who receives it cannot understand all of it.
However, it would be good practice for you to help them understand
the information you hold about them.
Can I charge a fee for dealing with a subject access request?
13 Yes, an organisation receiving a subject access request may
charge a fee for dealing with it. If you choose to do this, you need
not comply with the request until you have received the fee. The
maximum fee you can charge is 10. There are different fee structures
for organisations that hold health or education records (where the
maximum fee is 50, depending on the circumstances).
14 Although you need not comply with a request until you
have received a fee, you cannot ignore a request simply because the
individual has not sent a fee. If a fee is payable but has not been sent
with the request, you should contact the individual promptly and
inform them that they need to pay.
15 Some organisations choose not to charge a fee. However,
once you have started dealing with an individuals request without
asking for a fee, it would be unfair to then demand a fee as a way of
extending the period of time you have to respond to the request.
Can I ask for more information before responding to a subject
access request?
16 The Act allows you to confrm two things before you are
obliged to respond to a request.
17 First, you can ask for enough information to judge whether
the person making the request is the individual to whom the personal
data relates. This is to avoid personal data about one individual being
sent to another, accidentally or as a result of deception.
18 The key point is that you must be reasonable about what
you ask for. You should not request lots more information if the
identity of the person making the request is obvious to you. This
is particularly the case, for example, when you have an ongoing
relationship with the individual.
Example
You have received a written subject access request from a current
employee. You know this employee personally and have even had
a phone conversation with them about the request. Although your
organisations policy is to verify identity by asking for a copy of a
utility bill, it would be unreasonable to do so in this case since you
know the person making the request.
19 However, you should not assume that, on every occasion,
the person making a request is who they say they are. In some cases,
it is reasonable to ask the person making the request to verify their
identity before sending them information.
Example
An online retailer receives a subject access request by email from
a customer. The customer has not used the site for some time and
although the email address matches the companys records, the
postal address given by the customer does not. In this situation, it
would be reasonable to gather further information, which could be as
simple as asking the customer to confrm other account details such
as a customer reference number, before responding to the request.
20 The level of checks you should make may well depend on
the possible harm and distress which inappropriate disclosure of the
information could cause to the individual concerned.
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Example
A GP practice receives a subject access request from someone
claiming to be a former patient. The name on the request matches a
record held by the practice, but there is nothing else in the request to
enable the practice to be confdent that the requestor is the patient
to whom the record relates. In this situation, it would be reasonable
for the practice to ask for more information before responding to
the request. The potential risk to the former patient of sending
their health records to the wrong person is such that the practice is
right to be cautious. They could ask the requestor to provide more
information, such as a date of birth, a passport or a birth certifcate.
21 The second thing you are entitled to do before responding
to a subject access request is to ask for information that you
reasonably need to fnd the personal data covered by the request.
Again, you need not comply with the subject access request until you
have received this information. In some cases, personal data may be
diffcult to retrieve and collate. However, it is not acceptable for you
to delay responding to a subject access request unless you reasonably
require more information to help you fnd the data in question.
Example
A chain of supermarkets is dealing with a general subject access
request from a member of staff at one of their branches. The person
dealing with the request is satisfed that the staff member has been
sent all information held in personnel fles and in fles held by his
line manager. However, he complains that not all information about
him was included in the response. The employer should not ignore
this complaint, but it would be reasonable to ask the member of
staff for further details. For example, some of the information may
be in emails, and the employer could reasonably ask for the dates
when the emails were sent, and who sent them, to help fnd the
information requested.
It might also be useful for the employer to ask if the member of staff
is seeking information that does not relate to his employment. For
example, he may be seeking information that relates to a complaint
he made as a customer of the supermarket.
22 As with a request that is sent without the required fee,
you should not ignore a request simply because you need more
information from the person who made it. You should not delay in
asking for this, but should ensure the individual knows you need
more information and should tell them what details you need.
Provided you have done so, the 40-day period for responding
to the request does not begin to run until you have received the
appropriate fee and any additional information that is necessary.
What about subject access requests made on behalf of others?
23 The Act does not prevent an individual making a subject
access request via a third party. Often, this will be a solicitor acting
on behalf of a client, but it could simply be that an individual feels
comfortable allowing someone else to act for them. In these cases, you
need to be satisfed that the third party making the request is entitled
to act on behalf of the individual, but it is the third partys responsibility
to provide evidence of this entitlement. This might be a written authority
to make the request or it might be a more general power of attorney.
Example
A building society has an elderly customer who visits a particular
branch to make weekly withdrawals from one of her accounts. Over
the past few years, she has always been accompanied by her daughter
who is also a customer of the branch. The daughter makes a subject
access request on behalf of her mother and explains that her mother
does not feel up to making the request herself as she does not
understand the ins and outs of data protection. As the information held
by the building society is mostly fnancial, it is rightly cautious about
giving customer information to a third party. If the daughter had a
general power of attorney, the society would be happy to comply. They
ask the daughter whether she has such a power, but she does not.
Bearing in mind that the branch staff know the daughter and have
some knowledge of the relationship she has with her mother, they
might consider complying with the request by making a voluntary
disclosure. However, the building society is not obliged to do so, and
it would not be unreasonable to require more formal authority.
129 128
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24 If you think an individual may not understand what
information would be disclosed to a third party who has made a
subject access request on their behalf, you may send the response
directly to the individual rather than to the third party. The individual
may then choose to share the information with the third party after
having had a chance to review it.
25 There are cases where an individual does not have the
mental capacity to manage their own affairs. Although there are no
specifc provisions in the Data Protection Act, the Mental Capacity Act
2005 or in the Adults with Incapacity (Scotland) Act 2000 enabling
a third party to exercise subject access rights on behalf of such an
individual, it is reasonable to assume that an attorney with authority
to manage the property and affairs of an individual will have the
appropriate authority. The same applies to a person appointed to make
decisions about such matters:
in England and Wales, by the Court of Protection;
in Scotland, by the Sheriff Court; and
in Northern Ireland, by the High Court (Offce of Care and Protection).
What about requests for information about children?
26 Even if a child is too young to understand the implications
of subject access rights, data about them is still their personal data
and does not belong, for example, to a parent or guardian. So it is the
child who has a right of access to the information held about them,
even though in the case of young children these rights are likely to be
exercised by those with parental responsibility for them.
27 Before responding to a subject access request for
information held about a child, you should consider whether the child
is mature enough to understand their rights. If you are confdent that
the child can understand their rights, then you should respond to the
child rather than a parent. What matters is that the child is able to
understand (in broad terms) what it means to make a subject access
request and how to interpret the information they receive as a result
of doing so. When considering borderline cases, you should take into
account, among other things:
the childs level of maturity and their ability to make decisions like this;
the nature of the personal data;
any court orders relating to parental access or responsibility that
may apply;
any duty of confdence owed to the child or young person;
any consequences of allowing those with parental responsibility
access to the childs or young persons information. This is particularly
important if there have been allegations of abuse or ill treatment;
any detriment to the child or young person if individuals with parental
responsibility cannot access this information; and
any views the child or young person has on whether their parents
should have access to information about them.
28 In Scotland, the law presumes that a child aged 12 years
or more has the capacity to make a subject access request. The
presumption does not apply in England and Wales or in Northern
Ireland, but it does indicate an approach that will be reasonable in
many cases. It does not follow that, just because a child has capacity
to make a subject access request, they also have capacity to consent
to sharing their personal data with others as they may still not fully
understand the implications of doing so.
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C 1 a
What should I do if the data includes information about
other people?
29 Responding to a subject access request may involve
providing information that relates both to the individual making the
request and to another individual. The Act says you do not have to
comply with the request if to do so would mean disclosing information
about another individual who can be identifed from that information,
except where:
the other individual has consented to the disclosure; or
it is reasonable in all the circumstances to comply with the request
without that individuals consent.
30 So, although you may sometimes be able to disclose
information relating to a third party, you need to decide whether it is
appropriate to do so in each case. This decision will involve balancing
the data subjects right of access against the other individuals rights in
respect of their own personal data. If the other person consents to you
disclosing the information about them, then it would be unreasonable
not to do so. However, if there is no such consent, you must decide
whether to disclose the information anyway.
31 For the avoidance of doubt, you cannot refuse to provide
subject access to personal data about an individual simply because
you obtained that data from a third party. The rules about third party
data apply only to personal data which includes information about
the individual who is the subject of the request and information about
someone else.
32 We have produced separate guidance on Dealing with
subject access requests involving other peoples information, which
sets out what you need to take into account when making these
decisions. The guidance is on our website.
What about personal data held by credit reference agencies?
33 There are special provisions regulating access to personal
data held by credit reference agencies. Where credit reference
agencies hold personal data relevant to an individuals fnancial
standing (information in a credit reference fle), they must provide a
copy of the information within seven days of a written request and on
payment of a 2 fee. Credit reference agencies will need to verify the
identity of the person making the request before they respond. Our
Credit Explained guidance tells you more about information held by
credit reference agencies. It is available on our website.
If I use a data processor, does this mean they would have to
deal with any subject access requests I receive?
34 Responsibility for complying with a subject access request
lies with you as the data controller. The Act does not allow any
extension to the 40-day time limit in cases where you have to rely on
a data processor to provide the information that you need to respond.
Example
An employer is reviewing staffng and pay, which involves collecting
information from and about a representative sample of staff.
A third-party data processor is analysing the information.
The employer receives a subject access request from a member of
staff. To respond, the employer needs information held by the data
processor. The employer is the data controller for this information
and should instruct the data processor to retrieve any personal data
that relates to the member of staff.
35 If you use a data processor, then you need to make sure that
you have contractual arrangements in place to guarantee that subject
access requests are dealt with properly, irrespective of whether they
are sent to you or to the data processor.
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C 1 a
36 The role of a data processor is explained in 26 and
27.
What if sending out copies of information will be expensive
or time consuming?
37 In some cases, dealing with a subject access request will be
an onerous task. This might be because of the nature of the request,
because of the amount of personal data involved, or because of
the way in which certain information is held. You are not obliged to
supply a copy of the information in permanent form if it would involve
disproportionate effort to do so. You must decide whether supplying
a copy of the information would involve disproportionate effort. Even
if you do not have to supply a copy of the information in permanent
form, the individual still has the other basic rights described in
1 and 2.
38 The Act does not defne disproportionate effort but it is
clear that there is some (albeit limited) scope for assessing whether
complying with a request would result in so much work or expense
as to outweigh the individuals right of access to their personal data.
However, it should be noted that this qualifcation to the right of
subject access only applies in respect of supplying a copy of the
relevant information in permanent form. So you cannot refuse to deal
with a subject access request just because you think that locating the
information in the frst place would involve disproportionate effort.
39 We stress that you should rely on this provision only in
the most exceptional of cases. The right of subject access is central
to data protection law and we rarely hear of instances where an
organisation could legitimately use disproportionate effort as a reason
for not allowing an individual to access their personal data. Even if you
can show that supplying a copy of information in permanent form
would involve disproportionate effort, you should still try to comply
with the request in some other way.
134
Example
An organisation has decided that to supply copies of an individuals
records in permanent form would involve disproportionate effort.
Rather than refuse the individual access, they speak to her and agree
that it would be preferable if she visited their premises and viewed
the original documents. They also agree that if there are documents
that she would like to take away with her, they can arrange to
provide copies.
What about repeated or unreasonable requests?
40 The Data Protection Act does not limit the number of
subject access requests an individual can make to any organisation.
However, it does allow some discretion when dealing with requests
that are made at unreasonable intervals. The Act says that you are not
obliged to comply with an identical or similar request to one you have
already dealt with, unless a reasonable interval has elapsed between
the frst request and any subsequent ones.
41 The Act gives you some help in deciding whether requests are
made at reasonable intervals. It says that you should consider the following:
The nature of the data this could include considering whether it is
particularly sensitive.
The purposes of the processing this could include whether the
processing is likely to cause detriment to the individual.
How often the data is altered if information is unlikely to have
changed between requests, you may decide that you are not obliged
to respond to the same request twice.
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C 1 a
Example
A library receives a subject access request from an individual who
made a similar request one month earlier. The information relates to
when the individual joined the library and the items borrowed. None
of the information has changed since the previous request. With this
in mind, along with the fact that the individual is unlikely to suffer if
no personal data is sent in response to the request, the library need
not comply with this request. However, it would be good practice to
respond explaining why they have not provided the information again.
Example
A therapist who offers non-medical counselling receives a subject
access request from a client. She had responded to a similar
request from the same client three weeks earlier. When considering
whether the requests have been made at unreasonable intervals,
the therapist should take into account the fact that the client has
attended fve sessions between requests, so there is a lot of new
information in the fle. She should respond to this request (and she
could ask the client to agree that she only needs to send any new
information), but it would also be good practice to discuss with
the client a different way of allowing the client access to the notes
about the sessions.
b
137
The right to object to processing likely to
cause damage or distress
objecting to processing?
1 The Act refers to the right to prevent processing. Although
this may give the impression that an individual can simply demand
that an organisation stops processing personal data about them, or
stops processing it in a particular way, the right is often overstated.
In practice, it is much more limited. An individual has a right to object
to processing only if it causes unwarranted and substantial damage
or distress. If it does, they have the right to require an organisation to
stop (or not to begin) the processing in question.
2 So, in certain limited circumstances, you must comply with
such a requirement. In other circumstances, you must only explain to
the individual why you do not have to do so.
In more detail
How can an individual prevent me processing their
personal data?
3 An individual who wants to exercise this right has to put
their objection in writing to you and state what they require you to
do to avoid causing damage or distress. We refer to this notice as an
objection to processing although it is also known as a section 10
notice in practice. The Act limits the extent to which you must comply
with such an objection, in the following ways:
An individual can only object to you processing their own personal data.
Processing an individuals personal data must be causing unwarranted
and substantial damage or distress.
The objection must specify why the processing has this effect.
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C 1 b
4 In addition, an individual has no right to object to processing if:
they have consented to the processing;
the processing is necessary:
in relation to a contract that the individual has entered into; or
because the individual has asked for something to be done so they
can enter into a contract;
the processing is necessary because of a legal obligation that applies
to you (other than a contractual obligation); or
the processing is necessary to protect the individuals vital interests.
Example
A mobile phone company receives a written request from a
customer requiring it to remove the customers details from its
database. This should be treated as an objection to processing.
The customer explains that using their personal data for credit
referencing is causing them distress and has led to them being
refused a credit card. The mobile phone company does not have to
comply with this notice because the credit referencing is necessary
for putting into effect the contract that the customer signed (and
the customer can be said to have consented to it). Consequently,
the right to object to processing does not apply. It would be good
practice for the mobile phone company to write to the customer to
explain why it does not have to comply with the notice.
Example
The same customer cancels his mobile phone contract and
withdraws his consent to the company processing his personal
data. As a result he argues that the mobile phone company must
comply with his objection. Although the right to object does now
apply (because the mobile phone company cannot rely on any of the
conditions for processing mentioned in 4), the company
only has to comply with the objection (ie to stop processing the
customers personal data) if the processing is causing unwarranted
and substantial damage or distress. The company must, however,
respond to the customer within 21 days, explaining whether and to
what extent it will comply with the objection.
In its response, the mobile phone company accepts that being
refused a credit card might be considered fnancially damaging,
but says that the effect on the customer is not unwarranted, since
sharing information about the customers payment history with the
agencies is justifed and because the customer had been informed in
advance that this would happen. The company is therefore entitled
to refuse to comply with the notice.
5 As mentioned in 3, the individuals right to object
to processing only extends to their own personal data, so they cannot
prevent the processing of personal data relating to another individual
or group of individuals. Nevertheless, an individual may still issue an
objection to processing on behalf of another person.
What is meant by damage or distress?
6 The Act does not defne what is meant by unwarranted and
substantial damage or distress. However, in most cases:
substantial damage would be fnancial loss or physical harm; and
substantial distress would be a level of upset, or emotional or mental
pain, that goes beyond annoyance or irritation, strong dislike, or a
feeling that the processing is morally abhorrent.
139 138
C 1 b
Example
An individual is refused a job in the construction industry and
discovers that this is because the prospective employer checked his
name against a blacklist maintained by a third party. The blacklist
consists of the names of people who are regarded as unsuitable to
be employed in the construction industry because they are trade
union activists. The individual writes to the person who maintains
the blacklist asking them to remove his name as it is denying him the
opportunity to gain employment.
In these circumstances, the person who maintains the blacklist
would have great diffculty in establishing any legitimate basis for
processing the individuals personal data in this way because the
assessment of unsuitability is arbitrary and lacks justifcation, and
because the individuals concerned were not told that their names
had been placed on the blacklist. In any event, the individual can
show that he is suffering damage due to this processing and that
this is substantial as it could continue to prevent him getting a job.
It cannot be argued that the damage was warranted, because the
processing was for an improper purpose. The person who maintains
the blacklist would therefore have to comply with the objection.
He must cease processing the individuals personal data in this way,
and must respond to the objection within 21 days confrming that he
has done so.
7 The Act recognises that organisations may have legitimate
reasons for keeping records about people which may have a negative
effect on them. For example, the information you hold may lead to
their arrest, to their being made to pay child maintenance, or to their
being required to buy a TV licence. The Act does not give individuals
the right to prevent this. Even where damage or distress has been
caused, the Act limits the right to prevent processing to cases where
the effects are unwarranted.
Example
An individual writes to his local council asking them to stop using his
personal data for administering and collecting Council Tax. Despite
his argument that the processing is fnancially damaging and very
irritating, it is clear that the cost to the individual is not unwarranted
and that his annoyance at having to pay does not constitute
substantial distress.
8 Any objection to processing must be based on a causal link
between the processing of personal data and the damage or distress
caused to the individual the processing must have caused the
damage or distress.
Example
A bank fles a default with a credit reference agency because
Customer A has failed to repay a personal loan. Due to an
administrative error, the default is fled against Customer B, who has
a similar name to Customer A but has no liability in respect of the
personal loan. If the record of the default causes Customer B to be
refused credit when he would otherwise have been granted credit,
the banks incorrect processing of his personal data has clearly
caused damage.
How should I respond to an objection to processing?
9 An objection to processing will tell you what the individual
wants you to do. So you need to decide whether you will comply with
their request. The Act allows room for a decision that is more nuanced
than simply yes, we will comply or no, we do not have to comply.
141 140
C 1 b
Example
An employee discovers that his electronic HR fle contains a negative
comment about his political allegiances and resulting suitability
for promotion. He writes to his employer demanding that it stops
processing his personal data. The employer is entitled to respond
that it will delete the reference to the individuals political allegiances
and any associated remarks, but that it intends to continue
processing his personal data for legitimate HR purposes.
Example
An employer is investigating allegations of harassment against
one of its employees. The employee in question emails the HR
department demanding that the investigation is discontinued and
that any notes about it are destroyed. The employer is entitled to
refuse to comply with this request because it has legitimate reasons
to keep a record of the investigation, but it can agree to add a note
to the fle recording the employees insistence that the allegations
are untrue.
10 There are several factors you should take into account
when deciding whether and to what extent you intend to comply with
an objection to processing. These factors are listed in the table on the
next page.
Is the objection to
processing in writing?
Does the objection set
out how the processing
is causing damage or
distress?
Is the damage or distress
unwarranted?
Which conditions for
processing can you rely
on to legitimise the
processing?
An objection is valid only if
it is in writing. Like subject
access requests, in writing
includes information sent by
fax or email. Once you receive a
written objection, you have 21
calendar days to respond to the
individual who sent it.
It is diffcult to decide whether
to comply with an objection
to processing if the notice is
unclear. You may wish to ask
the individual who sent it to
clarify what they think is the
problem that processing their
personal data has caused.
Remember that the damage
or distress caused has to be
substantial before you are
obliged to comply.
If you feel that any damage or
distress caused to the individual
is warranted, you do not have to
comply with the objection. You
should be prepared to explain
why you think this is the case.
If you can rely on any of
the frst four conditions listed
in Schedule 2 to the Act
(see 7), the individual
has no right to prevent the
processing in question, and you
do not have to comply with an
objection. You must still send
a response.
Factors to check Points to note
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C 1 b
11 You must respond within 21 days of receiving the objection
to processing. Your response must state what you intend to do and,
if you do not intend to comply with the objection in some way, give
reasons for your decision. Your record of the decisions you made about
the factors listed will help you compose your response.
What happens if I do not comply with an objection
to processing?
12 If you decide that an objection to processing is not justifed
and you do not comply with it, the individual can apply to the
court. The court can decide whether the objection is justifed and, if
necessary, order you to take steps to comply.
c
Directed to particular
individuals
Lots of people receive junk
mail that is not addressed
to a particular person but
to the occupier. This type
of marketing is not directed
at an individual and so is
not direct marketing for the
purposes of the Act. This
kind of mail, posted through
every letterbox on a street,
includes leafets like takeaway
menus and information about
clothing collections.
The right to prevent direct marketing
direct marketing?
1 Individuals have the right to prevent their personal data
being processed for direct marketing. An individual can, at any time,
give you written notice to stop (or not begin) using their personal data
for direct marketing. Any individual can exercise this right, and if you
receive a notice you must comply within a reasonable period.
In more detail
What is direct marketing?
2 The Act includes some help on what is meant by direct
marketing in a data protection context. The following table sets out
the factors that are used to identify direct marketing material.
145 144
C 1 c
3 So you must stop any promotional activity directed at a
particular individual, using that persons personal data to communicate
the promotional activity to them, if they write and ask you to stop.
Should I respond to a notice to stop direct marketing?
4 The Act does not require that you respond to a notice to
stop direct marketing it only requires you to stop. This is because
you have no discretion about whether to comply with such a notice.
However, acknowledging that you have received and acted on a notice
is good practice, where this is appropriate.
The common image of direct
marketing is that of mailshots
or telemarketing. However,
for the purposes of the Act it
also includes all other means
by which you might contact
individuals, such as emails and
text messages.
Direct marketing does not
just refer to selling products
or services to individuals. It
includes promoting particular
views or campaigns, such as
those of a political party or
charity. So, even if you are
using personal data to elicit
support for a good cause rather
than to sell goods, you are still
carrying out direct marketing
and would have to comply with
a written notice to stop.
Communication by
whatever means
Advertising or marketing
material
When an individual sends a notice, should I delete their details?
5 Individuals will often ask you to remove or delete their
details from your database or marketing list. However, in most cases it
is preferable to follow the marketing industry practice of suppressing
their details. Rather than deleting an individuals details entirely,
suppression involves retaining just enough information about them
to ensure that their preferences are respected in future. Suppression
allows you to ensure that you do not send marketing to people who
have asked you not to, and means that you have a record against
which you can check any new marketing lists. If you delete peoples
details, you have no way of ensuring that they are not put back
on your database. Deleting an individuals details may also breach
industry-specifc legal requirements about how long you should hold
personal data.
Do I have to suppress details immediately?
6 The Act says that you should stop processing for direct
marketing purposes within a reasonable period. When considering
whether you have done so, we take into account that a particular
marketing campaign might already be underway when you receive
a notice, and that the individual may subsequently receive further
marketing material. However, we expect that in normal circumstances
electronic communications should stop within 28 days of receiving the
notice, and postal communications should stop within two months.
Do I have any other duties when using personal data for
direct marketing?
7 You must comply with the data protection principles,
including the duty to process personal data fairly. In the context of
direct marketing, this will involve making sure that the people whose
information you are using are aware that they may receive marketing
material from you. You might also consider whether you plan to
pass your marketing lists to other organisations and how you will be
contacting people, such as by post, phone, or email.
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C 1 c
8 It is important to remember that the right to prevent the use
of personal data for direct marketing purposes is a kind of opt-out.
So you could market people until they send written notice telling you
not to. However, if you fail to deal properly with a notice (perhaps due
to a technical diffculty), an individual could apply to the court and
the court could order you to comply with the notice. You should make
every effort to avoid this, so it is good practice to give an individual the
opportunity to object to future contact at the time you collect personal
data from them, such as during a phone call or on a website, or when
they sign an application form for a product or service. You can also use
this opportunity to fnd out how they would like to be contacted.
Can I ask people if they want to opt back in to receiving
direct marketing?
9 If an individual has asked you to stop using their details for
direct marketing purposes, they did so deliberately. You should not
assume that they did so lightly or are happy to receive requests to
change their mind. A notice to stop direct marketing applies to sending
direct marketing material and also to processing personal data for direct
marketing. In other words, the notice the individual gave you is likely to
cover using their personal data to persuade them to allow you to put
them back on your marketing list, and so you should avoid asking.
10 However, we recognise that people can change their minds
and that marketing techniques also change. There is some merit in
making sure the preferences people have previously expressed are up
to date, but you should do this sensitively and should certainly avoid
doing anything that could mean an individual has to inform you that
their preferences have not changed.
Example
A ftness centre regularly mails a newsletter to its members. Some
members have objected to this use of their personal data and the
ftness centre has, quite properly, fagged this objection on their system.
The ftness centre wants to ensure that these previously expressed
wishes have not changed, particularly since the content of the
newsletter has changed considerably over the last few months and
it can also now be sent out as an email. They cannot assume that
people may have changed their minds and it would be good practice
to assume that any objections they received recently are still an
accurate refection of the members wishes.
For older objections, they could mention the changes to the newsletter
and the possibility of receiving it by email in any usual course of
business contact they have with the member, such as a membership
renewal letter, but they should not contact the members concerned
with the specifc intention of showing them what they are missing.
11 We consider that it is acceptable to remind individuals of
their ability to change their marketing preferences if the reminder
forms a minor and incidental addition to a message you are sending
them anyway.
Example
A bank sends out annual statements to its customers detailing
transactions on their deposit accounts during the previous year.
A message is printed at the bottom of each statement to remind
customers that they may wish to review their marketing preferences
and telling them how to update them.
What about the Mailing Preference Service?
12 When sending direct marketing by post, it is good practice to
screen your mailing lists against the lists held by the Mailing Preference
Service (MPS). Individuals can register with MPS to reduce the amount
of direct marketing mail they receive. Although marketers have no
legal duty to check the MPS before sending direct marketing, many
reputable organisations do so.
149 148
C 1 c
Does the same apply to the Telephone Preference Service?
13 No. There are legally enforceable rules which prevent you
making telesales calls to any subscriber who has told you to stop
making such calls to their number. In addition, subscribers can register
with the Telephone Preference Service (TPS) to prevent unsolicited
telesales calls. You cannot make or instigate the making of unsolicited
telesales calls to any number listed on the TPS register. Registration
with the TPS does not override specifc consents which an individual
has given to particular organisations. We have published separate
guidance on Calling customers listed on the TPS that tells you how to
comply with the rules about telesales.
What about electronic marketing?
14 Telephone marketing is regarded as a form of electronic
marketing. Marketing which is conducted this way, or is sent by
other electronic means (by fax, email, or text message) is subject to
extra rules set out in the Privacy and Electronic Communications (EC
Directive) Regulations 2003. We have published separate guidance on
how to comply with these rules, which can be found on our website.
d
Rights relating to automated decision taking
about automated decision taking?
1 The right of subject access allows an individual access
to information about the reasoning behind any decisions taken by
automated means. The Act complements this provision by including
rights that relate to automated decision taking. Consequently:
an individual can give written notice requiring you not to take any
automated decisions using their personal data;
even if they have not given notice, an individual should be informed
when such a decision has been taken; and
an individual can ask you to reconsider a decision taken by
automated means.
2 These rights can be seen as safeguards against the risk that
a potentially damaging decision is taken without human intervention.
We explain below what is meant by automated decision taking and
how the rights work in practice.
3 The number of organisations who take signifcant decisions
about individuals by wholly automated means is relatively small there
is often some human intervention in making the decisions. However,
it is sensible to identify whether any of the operations you perform
on personal data constitute automated decisions. This will help you
decide whether you need to have procedures to deal with the rights of
individuals in these cases.
In more detail
When do the rights arise (what is an automated decision)?
4 The rights in respect of automated decisions only arise if two
requirements are met. First, the decision has to be taken using personal
data processed solely by automatic means.
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C 1 d
Example
An individual applies for a personal loan online. The website uses
algorithms and auto credit searching to provide an immediate yes/
no decision on the application.
Example
A factory workers pay is linked to his productivity, which is
monitored automatically. The decision about how much pay the
worker receives for each shift he works is made automatically by
reference to the data collected about his productivity.
5 So the rights explained here do not apply to any decision
involving human intervention. Many decisions that are commonly
regarded as automated actually involve human intervention.
Example
An employee is issued with a warning about late attendance at
work. The warning was issued because the employers automated
clocking-in system fagged the fact that the employee had been late
on a defned number of occasions. However, although the warning
was issued on the basis of the data collected by the automated
system, the decision to issue it was taken by the employers HR
manager following a review of that data. So the decision was not
taken by automated means.
6 The second requirement is that the decision has to have a
signifcant effect on the individual concerned.
Example
In the previous example on monitoring the productivity of a factory
worker, it is obvious that a decision about how much pay he is
entitled to will have a signifcant effect on him.
7 So these rights do not apply to decisions that only affect the
individual to a trivial or negligible extent.
Example
An individual enters an online personality quiz. She answers
questions about herself on a website, which uses her responses to
automatically generate a personality profle for her. The individuals
data is not retained and the profle is not sent to anyone else. The
automated decisions on which the personality profle is based do not
have a signifcant effect on the individual.
Are all automated decisions subject to these rights?
8 No. Some decisions are called exempt decisions because
the rights do not apply, even though they are taken using solely
automated means and do signifcantly affect the individual concerned.
9 Exempt decisions are:
authorised or required by legislation
OR
taken in preparation for, or in relation to, a contract with the
individual concerned
AND
are to give the individual something they have asked for
OR
where steps have been taken to safeguard the legitimate
interests of the individual, such as allowing them to appeal
the decision
153 152
C 1 d
What rights do individuals have?
10 The Act gives individuals three rights in relation to
automated decision taking.
11 The frst is the right to prevent such a decision being taken.
You must not take an automated decision if an individual has given
notice in writing asking you not to.
12 The second right applies where no such notice has been
given. An organisation that takes an automated decision must inform
the individual concerned that it has done this. It must do so as soon as
is practicable in the circumstances.
13 The third right relates to the options available to an individual
on receiving this information. If an individual is unhappy that an
automated decision has been taken, they have 21 days to ask you to
reconsider the decision or to take a new decision on a different basis.
In most cases, both these options are likely to involve a review of the
automated decision.
Example
An individual complains to a credit provider because his online
application for credit was declined automatically. The application
was declined because the information provided by the individual did
not match pre-defned acceptance criteria applied by the automated
system. The credit provider undertakes manual underwriting checks
to review the original decision.
14 If a court is satisfed that you have failed to comply with
these rights, it may order you to do so.
Rights relating to inaccurate personal data
rights to correct or delete inaccurate information?
1 The fourth data protection principle requires personal data
to be accurate (see ). Where it is inaccurate, the individual
concerned has a right to apply to the court for an order to rectify,
block, erase or destroy the inaccurate information. In addition, where
an individual has suffered damage in circumstances that would
result in compensation being awarded (see ) and there is a
substantial risk of another breach, then the court may make a similar
order in respect of the personal data in question.
In more detail
What if the inaccurate information was received from the
individual concerned or from a third party?
2 It may be impractical to check the accuracy of personal data
someone else provides. In recognition of this, the Act says that even if
you are holding inaccurate personal data, you will not be considered to
have breached the fourth data protection principle as long as:
you have accurately recorded information provided by the individual
concerned, or by another individual or organisation;
you have taken reasonable steps in the circumstances to ensure the
accuracy of the information (see 14 and 15); and
if the individual has challenged the accuracy of the information, this is
clear to those accessing it.
155
e
154
C 1 e
3 In these circumstances the court may (as an alternative
to ordering the rectifcation etc. of the inaccurate data) order that a
statement of the true facts (in terms approved by the court) should be
added to the record that contains it. And, if the court is not satisfed that
you complied with the above requirements, it may order you to do so.
Example
A couple who have a seriously ill baby object to the content of
their childs hospital records, saying they are inaccurate. Some of
the information they object to came from the babys health visitor.
Having tried without success to resolve the dispute informally, they
go to court to ask for the records to be amended.
The court could order the hospital to rectify, block, erase, or destroy
any inaccurate personal data. To the extent that the inaccurate data
was provided by the health visitor, the court could (as an alternative)
order that the data be supplemented by a statement of the true facts.
What about opinions based on inaccurate personal data?
4 This right also applies to personal data that contains an
expression of opinion based on inaccurate personal data.
Example
In the example above, the childs parents claim that one of the
reasons the hospitals records are inaccurate is that they include
a doctors opinion which is based on the inaccurate information
provided by the health visitor. If it agrees, the court may order
that the statement of opinion be rectifed, blocked, erased or
destroyed. Alternatively, it may order that the statement of opinion
be supplemented by a statement recording that it was based on
inaccurate information.
Should other people be told when inaccurate information is
corrected or deleted?
5 If a court has ordered you to rectify, block, erase or destroy
peronal data, then it can also order you to notify any third parties to whom
you have disclosed the information. The court would probably only require
this if it is reasonable to expect that you would be able to comply with
the order. As a matter of good practice, we would expect you to take
reasonable steps to do this whether or not the court requires you to do so.
Example
A bank is ordered to correct inaccurate information about an
individuals liability to repay a loan. The bank routinely provides
information about such matters to the credit reference agencies. The
court may order the bank to inform the credit reference agencies
that the information has been corrected and the bank should do so
in any event.
157 156
C 1 f
f
The right to compensation
the right to compensation?
1 If an individual suffers damage because you have breached
the Act, they are entitled to claim compensation from you. This right
can only be enforced through the courts. The Act allows you to defend
a claim for compensation on the basis that you took all reasonable care
in the circumstances to avoid the breach.
In more detail
Does the Act defne damage?
2 No. But an individual who has suffered fnancial loss because
of a breach of the Act is likely to be entitled to compensation.
Example
A customer of an internet mail order company has been the subject
of a security breach. All his information, including his credit card
details, was freely available on the internet for almost 24 hours
before the site was taken down. He has had to freeze his credit card
account and is worried that he will be a victim of identity fraud.
He does not trust the company not to do this again. They had been
the cause of a previous security breach, and at that time he had
asked to have his details removed from their customer list. He asks
the court to award him compensation. The court may do so if the
individual can show that he has suffered fnancial loss because of the
breach of the Act.
159
What about distress?
3 In many cases, a breach of the Act will not cause an
individual fnancial loss, but it may be distressing to fnd that personal
data has been processed improperly. If an individual has suffered
damage, any compensation awarded may take into account the
level of any associated distress, but distress alone will not usually
be suffcient to entitle an individual to compensation (unless the
processing was for the purposes of journalism, literature or art).
Example
An individuals name is entered onto an employee fraud database
without justifcation. The individual is understandably distressed
to discover the implication that he is a fraudster. However, the
information about him is removed from the database before he
applies for a new job, and so he suffers no damage as a result of
the error. The employee has no entitlement to compensation for
distress alone.
Example
In the previous example, the fact that the individuals name appears
on the fraud database prevents him from obtaining a job he has
applied for. He suffers fnancial damage as a result. He is entitled
to claim compensation for this damage and for the distress he has
suffered as well.
What level of compensation might be involved?
4 There are no guidelines about levels of compensation in
this area. Often, the parties can reach agreement about the amount
of compensation which is appropriate. If they cannot agree, the
court will have to decide. If an individual claims a certain amount in
compensation, they will need to be able to show how your failure to
comply with the Act has resulted in their incurring that amount of loss
or damage.
158
C 1 f
5 The ICO cannot award compensation, or give advice on
the appropriate level of compensation, even where we have made an
assessment that an organisation is likely to have breached the Act.
Can you defend a claim for compensation?
6 You can obviously defend a claim if you have not breached
the Act. If there has been a breach, you can still defend a claim for
compensation, but only if you can show that you took such care as
was reasonably required in the circumstances to comply with the Act.
What you will have to prove will depend on the nature of the breach in
question. What is reasonable will depend on the circumstances.
7 In data protection terms, this means that you have looked
at the way you process and protect personal data and that you put
in place appropriate checks to prevent any problems occurring. Your
defence may rely on describing these checks. Some form of positive
action is often necessary and, if a reasonable step or precaution has
not been taken, then the defence is likely to fail.
In brief are there any exemptions from
the Data Protection Act?
1 The rights and duties set out in the Data Protection Act are
designed to apply generally, but there are some exemptions from the
Act to accommodate special circumstances. The exemptions tend to use
complex language and, while this chapter has tried to clarify matters, it
has had to use some of the same language so as not to mislead.
2 If an exemption applies, then (depending on the
circumstances) you will be exempt from the requirement:
to notify the Information Commissioner; and/or
to grant subject access to personal data; and/or
to give privacy notices; and/or
not to disclose personal data to third parties.
3 Entitlement to an exemption depends in part on your
purpose for processing the personal data in question for example,
there is an exemption from some of the Acts requirements about
disclosure and non-disclosure that applies to processing personal
data for purposes relating to criminal justice and taxation. However,
you must consider each exemption on a case-by-case basis because
the exemptions only permit you to depart from the Acts general
requirements to the minimum extent necessary to protect the
particular functions or activities the exemptions concern.
161
2
Exemptions
160
C 2
In more detail
What are the exemptions from notifcation?
5 Most organisations that process personal data must notify
the ICO of certain details about that processing (see 6 12).
However, the Act provides exemptions from notifcation for:
organisations that process personal data only for:
staff administration (including payroll);
advertising, marketing and public relations (in connection with their
own business activity); and
accounts and records;
some not-for-proft organisations;
organisations that process personal data only for maintaining
a public register;
organisations that do not process personal information on computer.
6 There is more detailed guidance about the notifcation
exemptions in Notifcation exemptions: A self-assessment guide on
our website.
What about exemptions from subject access?
7 The right of an individual to make a subject access request in
relation to personal data you hold about them is explained in
Several of the exemptions mentioned in the rest of this chapter mean
that you do not have to grant subject access in respect of personal
data to which the exemption applies.
8 Also, certain restrictions (similar to exemptions) are built into
the Acts subject access provisions. For example, there are restrictions
on the disclosure of personal data about more than one individual in
response to a subject access request (see 29 32).
Disclosure and non-disclosure how do the exemptions work?
9 Different exemptions work in different ways.
An exemption may:
restrict certain rights of individuals in relation to the processing of
their personal data; and/or
limit the duties of organisations when processing that data.
10 The rights and duties that are affected by one exemption
are not necessarily affected by others. So you should look at each
exemption carefully to see what effect it has. However, the Act
bundles several rights and duties into two groups, and the exemptions
tend to work by disapplying (blocking) one or both of these groups.
The two groups are called the subject information provisions and the
non-disclosure provisions.
11 The subject information provisions are:
an organisations duty to provide individuals with a privacy notice
when their personal data is collected (see 25 30); and
an individuals right to make a subject access request (see ).
12 The non-disclosure provisions are:
an organisations duty to comply with the frst data protection principle,
but not including the duty to satisfy one or more of the conditions for
processing you must still do this (see and ).
an organisations duty to comply with the second, third, fourth and
ffth data protection principles (see );
an individuals right to object to processing that is likely to cause or is
causing damage or distress (see ); and
an individuals right in certain circumstances to have inaccurate
personal information rectifed, blocked, erased or destroyed
(see ).
163 162
C 2
13 An exemption from the non-disclosure provisions
which would, for example, allow you to disclose personal data that
would otherwise be protected from disclosure is not an automatic
exemption from all (or any) of those provisions. This is because
an exemption only applies to the extent that the provisions are
inconsistent with the disclosure in question. So if you think you may
be exempted from any of the non-disclosure provisions, you should
consider each of those provisions in turn and decide:
which, if any, would be inconsistent with the disclosure in question; and
the extent of the inconsistency.
Disclosure and non-disclosure when do the exemptions apply?
14 Several specifc exemptions are set out in Part 4 of, and
Schedule 7 to, the Data Protection Act. There are other exemptions
in regulations made under the Act. The following are some of the
exemptions that often apply.
Crime and taxation
15 The Act recognises that it is sometimes appropriate to
disclose personal data for certain purposes to do with criminal
justice or the taxation system. In these cases, individuals rights may
occasionally need to be restricted.
16 In particular, the Act deals with several situations in which
personal data is processed for the following crime and taxation purposes:
the prevention or detection of crime;
the capture or prosecution of offenders; and
the assessment or collection of tax or duty.
17 Personal data processed for any of these purposes
is exempt from:
an organisations duty to comply with the frst data protection principle,
but not including the duty to satisfy one or more of the conditions for
processing you must still do this (see and ); and
an individuals right to make a subject access request (see ).
Example
The police process an individuals personal data because they
suspect him of involvement in a serious crime. If telling the individual
they are processing his personal data for this purpose would be likely
to prejudice the investigation (perhaps because he might abscond or
destroy evidence) then the police do not need to do so.
18 However, the exemption applies, in any particular case,
only to the extent that applying those provisions would be likely to
prejudice the crime and taxation purposes. You need to judge whether
or not this effect is likely in each case you should not use the
exemption to justify withholding subject access to whole categories of
personal data if for some individuals the crime and taxation purposes
are unlikely to be prejudiced.
Example
A taxpayer makes a subject access request to HMRC for personal
data they hold about him in relation to an ongoing investigation
into possible tax evasion. If disclosing the information which HMRC
have collected about the taxpayer would be likely to prejudice their
investigation (because it would make it diffcult for them to collect
evidence, for example), HMRC could refuse to grant subject access to
the extent that doing so would be likely to prejudice their investigation.
If, however, the taxpayer does not make the subject access request
until some years later when the investigation (and any subsequent
prosecution) has been completed, it is unlikely that complying with
the request would prejudice the crime and taxation purposes
in which case HMRC would need to comply with it.
165 164
C 2
19 Nor would the exemption justify withholding all the personal
data about an individual when only part of the personal data would be
likely to prejudice those purposes.
Example
In the example on the previous page about an ongoing investigation
into possible tax evasion, HMRC would be entitled to refuse subject
access to personal data which would be likely to prejudice their
investigation. However, this would not justify a refusal to grant
access to other personal data they hold about the taxpayer.
20 Personal data is also exempt from the non-disclosure
provisions (listed in 12) if:
the disclosure is for any of the crime and taxation purposes; and
applying those provisions in relation to the disclosure would be likely
to prejudice any of the crime and taxation purposes.
21 The Act does not explain likely to prejudice. However, our
view is that for these exemptions to apply, there would have to be a
substantial chance (rather than a mere risk) that complying with the
provision would noticeably damage one or more of the crime and
taxation purposes.
Example
The police ask an employer for the home address of one of its
employees as they wish to fnd him urgently in connection with a
criminal investigation. The employee is absent from work at the time.
The employer had collected the employees personal data for its
HR purposes, and disclosing it for another purpose would ordinarily
breach the frst and second data protection principles. However,
applying those principles in this case would be likely to prejudice
the criminal investigation. The employer may therefore disclose its
employees home address without breaching the Act.
22 If challenged, you must be prepared to defend your
decision to apply an exemption, to the ICO or the court. So we advise
you to ensure that any such decisions are taken at an appropriately
senior level in your organisation and that you document the reasons
for the decision.
23 These exemptions do not require you to disclose personal
data to the police or to other law enforcement agencies they merely
keep you within the Data Protection Act if you decide to disclose
information in the circumstances in which the exemptions apply. We
have published guidance on our website about Releasing information
to prevent or detect crime that gives more advice on this.
24 Another limb of the crime and taxation exemption is that
personal data which:
is processed for the purpose of discharging statutory functions; and
consists of information obtained for this purpose from someone who
held it for any of the crime and taxation purposes
is exempt from the subject information provisions (listed in 11)
to the extent that applying those provisions to the personal data
would be likely to prejudice any of the crime and taxation purposes.
This prevents the subject information provisions applying to personal
data which is passed to statutory review bodies by law enforcement
agencies, and ensures that the exemption is not lost when the
information is disclosed during a review.
Example
The Independent Police Complaints Commission begins an
investigation into the conduct of a particular police force. Documents
passed to the IPCC for the purposes of the investigation contain
personal data about Mr A which the police force would not have been
obliged to disclose to Mr A in response to a subject access request
because doing so would be likely to prejudice its criminal investigation.
If Mr A then makes a subject access request to the IPCC, he has no
greater right of access to the personal data in question.
167 166
C 2
25 There is another exemption that is designed to prevent the
Data Protection Act being used to force public authorities to disclose
information about the operation of crime detection and anti-fraud systems,
where such disclosure may undermine the operation of those systems.
Regulatory activity
26 The Act provides an exemption from the subject information
provisions (listed in 11) for processing personal data in
connection with regulatory activities. The exemption is not available
to all organisations, and it applies only to the core functions of bodies
that perform public regulatory functions concerned with:
protecting members of the public from dishonesty, malpractice,
incompetence or seriously improper conduct, or in connection with
health and safety;
protecting charities; or
fair competition in business.
27 For the exemption to apply, those functions must also be:
conferred by or under an enactment;
functions of the Crown, a Minister or government department; or
any other public function exercised in the public interest.
28 So the exemption applies to public functions exercised by
various watchdogs whose regulatory role is recognised by the public and
the sector they oversee. Such regulators may be established by law or
as a result of mutual agreement between the participants in their sector
of business. However, the exemption does not apply to investigatory
or complaint-handling functions that may beneft the public but
which organisations undertake when investigating their own activities.
Functions like complaint handling, which are subsidiary activities of most
organisations, do not fall within the scope of the exemption.
29 There is no blanket exemption for regulatory activities not
even for the activities that fall within the scope of the exemption. This
is because personal data that is processed to perform such activities
is exempt from the subject information provisions only to the extent
that applying those provisions would be likely to prejudice the proper
performance of the activities.
Publicly available information
30 Where an organisation is obliged by or under an enactment
to make information available to the public, personal data that is
included in that information is exempt from:
the subject information provisions (listed in 11);
the non-disclosure provisions (listed in 12);
the organisations duty to comply with the fourth data protection
principle (accuracy); and
an individuals right in certain circumstances to have inaccurate
personal information rectifed, blocked, erased or destroyed.
31 The provisions mentioned in the third and fourth bullet
points form part of the non-disclosure provisions. However, they are
mentioned separately here because there is an automatic exemption
in these circumstances. There is no need for the organisation to show
that the provisions are inconsistent with the disclosure.
Example
The Registrar of Companies is legally obliged to maintain a public
register of certain information about companies, including the names
and (subject to certain restrictions) addresses of company directors.
A director complains that his name has been inaccurately recorded on
the register. The Registrar is exempt from the directors right under the
Data Protection Act to have the inaccuracy corrected (the Registrars
duties in relation to the register are governed by other legislation).
169 168
C 2
32 The exemption only applies to the information that the
organisation is required to publish. If it holds additional personal data
about the individuals, the additional data is not exempt even if the
organisation publishes that data.
Disclosures required by law
33 Personal data is exempt from the non-disclosure provisions
(listed in 12) if you are required to disclose it:
by or under any UK enactment;
by any rule of common law; or
by an order of a court or tribunal in any jurisdiction.
34 In these circumstances, the legal obligation overrides any
objection the individuals may have.
Example
An employer is legally required to disclose details of its employees
pay to HMRC in the usual course of administering its PAYE
arrangements. The employer may disclose this information
irrespective of any objection which an employee may raise.
35 If you know that you are likely to be legally required to
disclose certain kinds of personal data, it is good practice to tell
individuals about this when you collect the information from them. This
is because telling individuals about the legal requirement is compatible
with the disclosure of personal data to comply with the requirement.
Legal advice and proceedings
36 Personal data is exempt from the non-disclosure provisions
(listed in 12) where the disclosure of the data is necessary:
for or in connection with any legal proceedings (including prospective
legal proceedings);
for obtaining legal advice; or
for establishing, exercising or defending legal rights.
37 You do not have to disclose personal data in response to
a request from a third party simply because this exemption applies.
You can choose whether or not to apply the exemption to make a
disclosure, and you should do so only if you are satisfed that the
disclosure falls within the scope of the exemption. In other words:
it is necessary for one of the above purposes; and
applying the non-disclosure provision would be inconsistent
with the disclosure.
38 When faced with a request for disclosure, it can be diffcult
to decide whether the necessity test can be satisfed. You may also be
reluctant to make a disclosure of personal data because of your relationship
with the individual. In such circumstances you may decide not to comply
with the request, unless obliged to do so under a court order.
39 Personal data is also exempt from the subject information
provisions (listed in 11) if it consists of information for which
legal professional privilege (or its equivalent in Scotland) could be
claimed in legal proceedings.
171 170
C 2
Confdential references
40 Personal data is exempt from an individuals right of subject
access if it comprises a confdential reference that an organisation
gives (or is to give) in connection with education, training or
employment, appointing offce holders, or providing services. The
exemption only applies to references you give, and not to references
you receive.
Example
Company A provides an employment reference for one of its
employees to company B. If the employee makes a subject access
request to company A, the reference will be exempt from disclosure.
If the employee makes the request to company B, the reference
is not automatically exempt from disclosure and the usual subject
access rules apply.
Management information
41 A further exemption applies to personal data that is
processed for management forecasting or management planning.
Such data is exempt from the subject information provisions (listed in
11) to the extent that applying those provisions would be likely
to prejudice the business or other activity of the organisation.
Example
The senior management of an organisation are planning a re-organisation.
This is likely to involve making certain employees redundant, and
this possibility is included in management plans. Before the plans
are revealed to the workforce, an employee makes a subject access
request. In responding to that request, the organisation does not have
to reveal its plans to make him redundant if doing so would be likely
to prejudice the conduct of the business (perhaps by causing staff
unrest in advance of an announcement of the managements plans).
Negotiations
42 Personal data that consists of a record of your intentions in
negotiations with an individual is exempt from the subject information
provisions (listed in 11) to the extent that applying those
provisions would be likely to prejudice the negotiations.
Example
An individual makes a claim to his insurance company. The claim
is for compensation for personal injuries which he sustained in
an accident. The insurance company dispute the seriousness of
the injuries and the amount of compensation they should pay. An
internal paper sets out the companys position on these matters and
indicates the maximum sum they would be willing to pay to avoid
the claim going to court. If the individual makes a subject access
request to the insurance company, they would not have to send him
the internal paper because doing so would be likely to prejudice
the negotiations to settle the claim.
Domestic purposes
43 The most comprehensive exemption applies when personal
data is processed by a data controller who is an individual (not
an organisation) only for the purposes of their personal, family or
household affairs.
Example
An individual keeps a database of their friends and relatives names,
addresses and dates of birth on their PC. They use the database
for keeping track of birthdays and to produce address labels for
Christmas cards. The domestic purposes exemption applies to this
type of processing.
173 172
C 2
Example
An individual records the highlights of their summer holiday on a
digital camcorder. The recording includes images of people they
meet on holiday. Although those digital images are personal data, the
domestic purposes exemption applies.
44 None of the data protection principles apply in these
circumstances, nor do any of the rights which the Act gives to data
subjects. There is also no need to notify the ICO about processing for
these purposes.
45 So there is an almost total exemption from the Data
Protection Act for individuals who just use personal data for their
own domestic and recreational purposes. However, the Act still
applies to the extent that the ICO may investigate if someone seems
to have gone beyond the scope of the exemption, and we may take
enforcement action where necessary.
Are there any further exemptions?
46 Yes. Exemptions are also available in relation to:
national security and the armed forces;
personal data that is processed only for journalistic, literary
or artistic purposes;
personal data that is processed only for research, statistical
or historical purposes;
personal data relating to an individuals physical or mental health.
This applies only in certain circumstances and only if granting subject
access would be likely to cause serious harm to the physical or
mental health of the individual or someone else;
personal data that consists of educational records or relates
to social work;
personal data relating to human fertilisation and embryology,
adoption records and reports, statements of a childs special
educational needs and parental order records and reports;
personal data processed for, or in connection with, a corporate
fnance service involving price-sensitive information;
examination marks and personal data contained in examination
scripts; and
personal data processed for the purposes of making judicial, Crown,
or Ministerial appointments or for conferring honours.

175 174
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United Kingdom House of Lords
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Munjaz, R (on the application of) v.
Ashworth Hospital Authority [2005] UKHL 58 (13 October 2005)
URL: http://www.bailii.org/uk/cases/UKHL/2005/58.html
Cite as: [2006] Lloyds Rep Med 1, [2006] Lloyd's Rep Med 1, [2005] UKHL 58, [2005] HRLR 42, [2006] 4 All ER 736,
[2005] 3 WLR 793, [2006] 2 AC 148, [2005] MHLR 276, (2005) 86 BMLR 84
[New search] [Buy ICLR report: [2006] 2 AC 148] [Buy ICLR report: [2005] 3 WLR 793] [Help]
Judgments - Regina v. Ashworth Hospital
Authority (now Mersey Care National
Health Service Trust) (Appellants) ex parte
Munjaz (FC) (Respondent)
HOUSE OF LORDS SESSION 2005-06
[2005] UKHL 58
on appeal from: [2003]
EWCA Civ 1036
OPINIONS
OF THE LORDS OF APPEAL
for judgment IN THE CAUSE
Regina v. Ashworth Hospital Authority (now Mersey Care
National Health Service Trust) (Appellants) ex parte Munjaz
(FC) (Respondent)
Appellate Committee
Lord Bingham of Cornhill
Lord Steyn
Lord Hope of Craighead
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
Counsel
Appellants: Respondents:
Munjaz, R (on the application of) v. Ashworth Hospital Authority [2005... http://www.bailii.org/uk/cases/UKHL/2005/58.html
1 of 38 24/11/2013 12:39
John Howell QC
Ms Phillippa Kaufmann
(Instructed by Capsticks)
Nigel Pleming QC
Ms Fenella Morris
(Instructed by Hogans)
Interveners
Mental Health Act Commission
Jonathan Swift
(Written intervention)
(Instructed by Treasury Solicitor)
MIND
Richard Gordon QC
Paul Bowen
(Instructed by Mind Legal Unit)
Secretary of State for Health
Clive Lewis
Ben Hooper
(Instructed by Solicitor, Department of Health)
Hearing dates:
27, 28, 29 and 30 June 2005
on
Thursday 13 OCTOBER 2005
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Ashworth Hospital Authority (now Mersey Care National Health
Service Trust) (Appellants) ex parte Munjaz (FC) (Respondent)
[2005] UKHL 58
LORD BINGHAM OF CORNHILL
My Lords,
In December 2002 the appellant, the Mersey Care National Health Service Trust, as
managers of Ashworth Hospital, implemented a written policy governing the seclusion of
patients detained at the hospital. The issue in this appeal is whether that policy is
unlawful, either because it is inconsistent with the domestic law of England and Wales or
because it fails to comply with the European Convention on Human Rights. Sullivan J at
first instance held the policy to be lawful in both respects: [2002] EWHC 1521 (Admin).
For reasons given in a judgment of the court delivered by Hale LJ, the Court of Appeal
(also including Lord Phillips of Worth Matravers MR and Latham LJ) declared the
policy to be unlawful: [2003] EWCA Civ 1036, [2004] QB 395. In this appeal the Trust
challenges that decision. Its legal submissions are supported by the Secretary of State for
Health as an interested party. Mr Colonel Munjaz seeks to uphold the Court of Appeal
decision. His submissions are supported and elaborated by the National Association for
Mental Health (Mind). The Mental Health Act Commission makes written submissions in
support of Mr Munjaz.
1.
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Ashworth Hospital is one of three hospitals (the others are Broadmoor and Rampton)
which provide high security hospital accommodation and services for persons liable to be
detained under the Mental Health Act 1983. The Secretary of State is bound by sections
1 and 4(1) of the National Health Service Act 1977 to provide such accommodation for
persons who "in his opinion require treatment under conditions of high security on
account of their dangerous, violent or criminal propensities". It is not in doubt that
among those detained at Ashworth there are patients who, for differing periods and in
differing degrees, but sometimes to an extreme degree, exhibit such propensities. The
Trust became the managers responsible for Ashworth with effect from 1 April 2002.
2.
Mr Munjaz is a man now in his late 50s. After a number of spells in prison and hospital
he was admitted to Ashworth from prison under sections 47 and 49 of the 1983 Act on
19 July 1984. He remained an in-patient until March 1992, when he was discharged by a
Mental Health Review Tribunal. About a year later he was arrested and charged with a
number of offences and was admitted, from prison, to a medium secure unit in August
1993. In that unit he became increasingly psychotic, aggressive and violent. He was
placed in seclusion and transferred to Ashworth on 1 March 1994. Since then he has
been secluded on a number of occasions for the protection of others. In these
proceedings he originally complained of four periods of seclusion in the years
2001-2002, the longest of these lasting for 18 days and the shortest for 4. But, as will be
seen, these complaints are not pursued. His claim now relates solely to the general
lawfulness of the policy of the Trust with respect to medical reviews of seclusion and its
application to patients at Ashworth.
3.
The legislative background
The admission, detention and treatment in NHS hospitals of those suffering from mental
disorder are largely governed by the 1983 Act. Part II of the Act governs compulsory
admission to hospital and guardianship. Patients are ordinarily detained in hospital by the
managers of the hospital acting on the authority of medical recommendations. At
common law those who have custody of or treat or look after patients owe them a duty
of care, but this duty is fortified by section 127 of the 1983 Act which makes it a
criminal offence punishable by imprisonment to ill-treat or wilfully neglect a hospital
in-patient.
4.
Section 118(1) of the 1983 Act is central to this appeal and, as amended in 1995,
provides:
5.
"(1) The Secretary of State shall prepare, and from time to time revise, a code of
practice?
(a) for the guidance of registered medical practitioners, managers and staff
of hospitals and mental nursing homes and approved social workers in
relation to the admission of patients to hospitals and mental nursing homes
under this Act and to guardianship and after-care under supervision under
this Act; and
(b) for the guidance of registered medical practitioners and members of
other professions in relation to the medical treatment of patients suffering
from mental disorder."
This is followed by subsection (2) which makes more particular provision for the Code to
address forms of treatment not falling within section 57(1)(a) or specified by the
Secretary of State in regulations made by him for purposes of section 57(1)(b) but
nonetheless calling for special care in ensuring that the patient consents. Subsection (2)
provides:
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"(2) The code shall, in particular, specify forms of medical treatment in addition to
any specified by regulations made for the purposes of section 57 above which in
the opinion of the Secretary of State give rise to special concern and which should
accordingly not be given by a registered medical practitioner unless the patient has
consented to the treatment (or to a plan of treatment including that treatment) and
a certificate in writing as to the matters mentioned in subsection (2)(a) and (b) of
that section has been given by another registered medical practitioner, being a
practitioner appointed for the purposes of this section by the Secretary of State."
Before preparing or altering the Code of Practice the Secretary of State is required to
consult such bodies as appear to him to be concerned (subsection (3)). The Code and any
revised Code must be laid before Parliament, and either House may within a specified
period require its alternation or withdrawal (subsections (4), (5)). The Code must be
published (subsection (6)).
By section 120(1) of the 1983 Act the Secretary of State is required to keep under
review the exercise of the powers and the discharge of the duties conferred or imposed
by the Act so far as they relate to the detention of patients under the Act, and is further
required to make arrangements for persons authorised by him in that behalf to visit and
interview privately patients detained in hospital under the Act and to investigate
complaints made by persons who are or have been detained under the Act. By section
121(2) the Secretary of State must direct that these functions shall be performed by the
Mental Health Act Commission, an authoritative professional body established under
section 11 of the 1977 Act and continued by section 121(1) of the 1983 Act.
6.
As is now well known, section 6(1) of the Human Rights Act 1998 makes it unlawful
for a public authority to act in a way which is incompatible with a Convention right. It is
not in doubt that the Trust is a public authority. The victim of an act made unlawful by
section 6(1) may bring proceedings under section 7(1) and obtain redress under section
8. The main Convention rights here in issue are those provided in article 3, which
prohibits the subjection of any person to torture or inhuman or degrading treatment or
punishment, and article 8, which guarantees to everyone the right to respect for his
private and family life, his home and his correspondence. This guarantee in article 8(1) is
supplemented and qualified by paragraph (2):
7.
"There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic
society in the interests of the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others."
Reference should also be made to article 5. This guarantees to everyone the right to
liberty and security of person, and provides that no one shall be deprived of his liberty
save in specified cases and in accordance with a procedure prescribed by law. The
relevant case for present purposes is "(e) the lawful detention of persons of unsound
mind." Article 5(4) provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful."
If in any proceedings one of the higher courts determines that any provision of primary
legislation is incompatible with a Convention right, the court may so declare: section
4(1),(2) of the 1998 Act. But the courts are subject to an unusual interpretative duty
designed to obviate the need for such a declaration save exceptionally. Section 3(1) of
the Act provides that:
8.
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"So far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention
rights."
The Secretary of State's Code of Practice
Pursuant to his duty under section 118(1) of the 1983 Act, following long and detailed
consultation with appropriate bodies including the Mental Health Act Commission, and
in accordance with the procedure prescribed by statute, the Secretary of State
promulgated in March 1999 the Code of Practice relevant to this appeal. It was prefaced
by a statement of guiding principles to guide interpretation of the Code. These included
principles that people to whom the 1983 Act applies should "receive recognition of their
basic human rights under the European Convention", should "have their needs taken
fully into account, though it is recognised that, within available resources, it may not
always be practicable to meet them in full", and should "be given any necessary
treatment or care in the least controlled and segregated facilities compatible with
ensuring their own health or safety or the safety of other people".
9.
The Code covers a wide field, and most of its contents are irrelevant to this appeal.
Chapter 19 covers "Patients presenting particular management problems". Part of this
section is addressed to seclusion, defined in para 19.16 to mean "the supervised
confinement of a patient in a room, which may be locked to protect others from
significant harm". Its sole aim is to contain severely disturbed behaviour which is likely
to cause harm to others. Thus seclusion should be used as a last resort and for the
shortest possible time and should not be used as a punishment or threat, as part of a
treatment programme, because of shortage of staff or where there is any risk of suicide
or self-harm.
10.
Paragraph 19.17 provides: 11.
"19.17 Hospitals should have clear written guidelines on the use of seclusion
which:
- ensure the safety and well being of the patient;
- ensure the patient receives the care and support rendered necessary by his
or her seclusion both during and after it has taken place;
- distinguish between seclusion and 'time-out' (see paras 18.9-18.10);
- specify a suitable environment taking account of patient's dignity and
physical well being;
- set out the roles and responsibilities of staff;
- set requirements for recording, monitoring, reviewing the use of seclusion
and any follow-up action.
Succeeding paragraphs cover the procedure for seclusion and the frequency of medical
reviews. They are in these terms:
12.
"19.18 The decision to use seclusion can be made in the first instance by a doctor
or the nurse in charge. Where the decision is taken by someone other than a
doctor, the RMO or duty doctor should be notified at once and should attend
immediately unless the seclusion is only for a very brief period (no more than five
minutes).
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19.19 A nurse should be readily available within sight and sound of the seclusion
room at all times throughout the period of the patient's seclusion, and present at all
times with a patient who has been sedated.
19.20 The aim of observation is to monitor the condition and behaviour of the
patient and to identify the time at which seclusion can be terminated. The level
should be decided on an individual basis and the patient should be observed
continuously. A documented report must be made at least every 15 minutes.
19.21 The need to continue seclusion should be reviewed
- every 2 hours by 2 nurses (1 of whom was not involved in the decision to
seclude), and
- every 4 hours by a doctor."
There follow paragraphs in which the Code addresses the conditions in which patients
are to be secluded, the keeping of records and other matters.
The Ashworth policy
In response to para 19.17 of the Code (see para 11 above), and in the light of an earlier
judgment of Jackson J on 28 September 2000, the Trust drew up the policy on seclusion
which is challenged in these proceedings. The Introduction to the policy draws attention
to the special problems presented by patients at Ashworth. In para 2.4 it states:
13.
"The Code of Practice provides guidance on how registered mental health
practitioners, managers and staff of hospitals should proceed when undertaking
duties under the Act. The Code of Practice revised in March 1999 was written to
encompass a wide range of mental health services and does not specifically
consider the special situation of a high security hospital."
The aims of the policy are set out in para 3 in terms which almost reproduce para 19.17
of the Code, quoted in para 11 above.
The policy repeats verbatim the definition of seclusion in the Code (para 4.1: see para
10 above). It repeats the Code's statements on when seclusion should be used and that it
should not be used as a punishment or threat or as part of a patient's treatment (para
4.2-4.3). It addresses the risk of self harm (para 4.4). The aim of the policy is to protect
the public, staff, visitors and patients within the hospital (para 4.5). It deals in detail with
the conditions of seclusion (paras 5.1-5.6).
14.
Para 6 of the policy addresses the decision to seclude and provides: 15.
"6.3 The decision to use seclusion will be made usually in the first instance by the
nurse in charge of the ward. It must be clear which individual made the decision.
The RMO or deputy and the Ward Manager or deputy should be informed
immediately.
6.4 The doctor and Ward Manager or deputy will attend the ward as soon as
possible within the hour to assess the situation and review with the nurse in charge
whether or not seclusion is required to continue and assess alternative responses.
The doctor will record in the notes any agreed level of observation or intervention
in excess of the standard seclusion observation."
A nurse is to be readily available within sight and sound of a room in which a person is
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secluded at all times, and a paper recording of direct visual observation of the patient is
to be made at least every 15 minutes (para 7.1). Para 8 provides for the keeping of
detailed records and for a detailed plan for management of the ending of seclusion to
ensure its ending at the earliest possible time.
Because of their importance in this appeal, paras 9-11 of the policy must be quoted in
full:
16.
"9 Review
9.1 The RMO is responsible for the use of seclusion. Regular reviews must take
place involving the RMO or deputy and Ward Manager or deputy. The details of
these are given below.
9.2 If a doctor was not present at the time of seclusion, he must initiate a review
on arrival within one hour and then at:
9.2.1 First day - medical review at 4, 8, 12 and 24 hours;
9.2.2 Day 2 to day 7 - twice per day;
9.2.3 Day 8 onwards:-
[1] daily review by Ward Manager or Site Manager from different ward;
[ii] three medical reviews every 7 days [one being by the RMO];
[iii] weekly review by multi-disciplinary patient care team to include RMO;
[iv] review by Seclusion Monitoring Group as per paragraph 10 below;
9.3 If at any review at 8 hours or subsequently the doctor is not a consultant
psychiatrist the doctor doing the review must consult with the patient's responsible
medical officer or the duty consultant and this should be fully documented.
9.4 The senior manager/nurse will conduct a review on arrival on the ward within
one hour of the decision to seclude and then in accordance with the agreed review
schedule.
9.5 The nurse in charge will ensure that the patient's Consultant Psychiatrist, or
their deputy is informed at the earliest opportunity. Others involved in the patient's
care should also be informed.
9.6 Two qualified nursing staff will carry out a review of the seclusion every two
hours. They will record the outcome in the observation record and they will both
sign the entry.
9.7 Where practicable one of the nursing staff who carries out a review of
seclusion should not have been involved in the original decision to seclude.
9.8 A Consultant Psychiatrist [who will be the RMO if available or their
designated deputy, e g out of hours or during absence from hospital] must see the
patient within 72 hours or on the first working day. If waiting until the first
working day causes a delay, the duty Registrar must discuss the patient's care with
the duty Consultant or RMO and seek agreement to the delay.
9.9 If the patient remains in seclusion for more than 8 hours continuously or for
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12 hours intermittently within a period of 48 hours, an independent review of the
need to continue seclusion will take place for this purpose. This should involve,
where practicable, one or more clinicians who were not directly involved in the
decision to seclude the patient as well as members of the Patient Care Team.
However, at least one clinician taking part in the review must not have been
involved in the decision to seclude the patient.
9.10 There is an appeal process available to all secluded patients, separate from
and additional to the procedures set out within this paragraph. This process is set
out at paragraph 16.
10 Monitoring arrangements
10.1 All seclusion used within the hospital is reviewed by a multi-disciplinary
group known as the Seclusion Monitoring Group (SMG).
10.2 The functions of the group are as follows:
- to monitor the implementation and adherence to the policy and procedure
for the use of seclusion
- to monitor and review the use of seclusion throughout the hospital
- to monitor and review patients secluded under conditions of paragraph 8
of the seclusion procedure
- to receive and analyse data relating to seclusion and to monitor overall
trends in the use of seclusion
- to review documentation for the collection of information about the use of
seclusion and alternative management strategies
- to examine training and educational needs to support staff mechanisms
and make recommendations to the Hospital Authority Board
- to prepare and submit reports to Clinical Teams, Executive Directors,
Authority Board
- to consider any other matters relating to seclusion that occur
- to share and disseminate good practice, hospital wide.
10.3 The Seclusion Monitoring Group is chaired by the Medical Director and
reports to the Clinical Governance Committee.
11 The use of seclusion for patients posing management problems
11.1 Any patient for whom the clinical team has to institute seclusion in excess of
seven days, will be individually brought to the attention of the Medical Director or
in their absence the Executive Nurse Director, by the chairperson of the patient's
clinical team, with a resume of the reasons for the continuing use of seclusion, the
care and treatment which the patient will be receiving and what is hoped will be
achieved.
11.2 The Medical Director will inform the Chief Executive and request a formal
case presentation to the next planned meeting of the SMG.
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11.3 The Medical Director and Executive Nurse Director, or two representatives
of the Seclusion Monitoring Group acting on their behalf, must see the patient
whether or not they are familiar with the case.
11.4 Following the case presentation at 10.2, monitoring arrangements will be
agreed between the SMG and the patient's clinical team.
11.7 Each patient's case will be reviewed weekly by the clinical team and a
written report sent monthly to the Seclusion Monitoring Group. At the initial
review meeting, and with the patient's consent, consideration will be given by the
team to notifying the patient's key relative(s).
11.8 After six months, the Medical Director and Executive Nurse Director will
participate in a clinical team review. The case will then be discussed at the
Executive Team Meeting.
11.9 The Mental Health Act Commission will be informed if seclusion continues
beyond 7 days and will receive progress reports on a regular basis."
An appendix to the policy provides more detailed guidance on the conduct of the 8-hour
review.
Para 12 lays down a further requirement of record keeping. Para 13 authorises the
nurse in charge of the ward to terminate seclusion at any time. Para 14.2.1 provides that
visiting relatives should, whenever possible, be allowed to visit a secluded patient. Paras
15 and 16 are to this effect:
17.
"15 Monitoring of Seclusion in Ashworth Hospital Authority
15.1 Regular performance management information on the use of seclusion will
be reviewed daily by the Site Managers, regularly by Service Managers and
monthly by Service Management Teams. Information will be reviewed by
Executive Team and Ashworth Hospital Authority Board monthly. Review of
Seclusion Policy and overall auditing will be the responsibility of the Clinical
Governance Committee through the Clinical Audit and Effectiveness Committee.
The Executive Nurse will provide regular reports to the Clinical Governance
Committee.
16 Appeal
16.1 If a patient or patient's representative want to make any representations they
can do so. These representations should be made to the Medical Director, or the
Medical Director's nominated deputy, who will conduct a formal review, taking
into account all representations as well as all the circumstances before making a
decision.
16.2 The procedure is separate from and additional to the review procedure set
out at paragraph 9 above, although any representations made by the patient or the
patient's representative will be taken into account as part of the procedures set out
under paragraph 9. This appeal procedure is to provide a further opportunity for
representations to be made."
Is the Ashworth policy unlawful in domestic law?
Mr Munjaz contends that the Ashworth policy is unlawful under the domestic law of
England and Wales because it provides for less frequent medical review of seclusion,
18.
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particularly after Day 7, than is laid down in the Code. If para 9.2.3 of the policy is
compared with para 19.21 of the Code it is indeed evident that the frequency of medical
reviews is significantly less under the policy than under the Code.
The first question for consideration is whether the Code issued by the Secretary of State
falls within section 118(1) of the 1983 Act. The Trust suggests that it does not, since it
does not relate to "admission", the subject matter of (a), and does not relate to "medical
treatment", the subject matter of (b). The judge held that the Code fell within (1)(b) but
not (1)(a): see para 73 of his judgment. The Court of Appeal, in para 72 of its judgment,
held that guidance on the use of seclusion can be issued under (1)(a) and (1)(b). I prefer
the Court of Appeal's conclusion. "Admission" cannot sensibly be read as referring only
to the process of admission, to the exclusion of all that follows. Similarly, "medical
treatment" as defined in section 145(1) of the 1983 Act, a definition very similar to that
considered and explained by my noble and learned friend Lord Hope of Craighead in
Reid v Secretary of State for Scotland [1999] 2 AC 512, 529-531, is in my opinion an
expression wide enough to cover the nursing and caring for a patient in seclusion, even
though seclusion cannot properly form part of a treatment programme.
19.
If, then, the Code is issued under section 118(1), what is its legal effect in relation to
those to whom it is addressed? The Trust insists that it is guidance. That is what section
118 requires. The Code itself states in its Introduction:
20.
"The Act does not impose a legal duty to comply with the Code but as it is a
statutory document, failure to follow it could be referred to in evidence in legal
proceedings."
It describes itself as guidance. There is a categorical difference between guidance and
instruction. In calling (para 19.17) for hospitals to have clear written guidelines on the
use of seclusion, the Code acknowledges that hospitals are not bound simply to
reproduce the terms of the Code. The Secretary of State has a power to give binding
directions to hospital authorities (see section 17 of the 1977 Act, in any of its recent
amended forms) but that was not the power he was exercising when he issued the Code.
No express obligation was placed on hospitals to follow the guidance, an omission which
contrasts with other provisions, discussed in the authorities, where such an obligation is
found. In response, Mr Munjaz lays emphasis on the consultation which must (and
certainly did) precede the drawing up of the Code, on the parliamentary sanction which
it received, on the issue of the Code by the Secretary of State as the public officer
responsible for the National Health Service and on the high importance of protecting
detained mental patients, a vulnerable and defenceless sector of society, from any risk of
abuse. These considerations, it is said, show that the Code was intended to be very much
more than advice which hospital authorities might choose to follow or not to follow.
It is in my view plain that the Code does not have the binding effect which a statutory
provision or a statutory instrument would have. It is what it purports to be, guidance and
not instruction. But the matters relied on by Mr Munjaz show that the guidance should
be given great weight. It is not instruction, but it is much more than mere advice which
an addressee is free to follow or not as it chooses. It is guidance which any hospital
should consider with great care, and from which it should depart only if it has cogent
reasons for doing so. Where, which is not this case, the guidance addresses a matter
covered by section 118(2), any departure would call for even stronger reasons. In
reviewing any challenge to a departure from the Code, the court should scrutinise the
reasons given by the hospital for departure with the intensity which the importance and
sensitivity of the subject matter requires.
21.
The extensive evidence adduced by the Trust makes clear that the code was very 22.
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carefully considered. This is indeed evident from the policy itself, which reproduces
important parts of the Code and contains cross-references to it. But the policy did depart
from the Code in providing for less frequent medical review after Day 7. As the judge
observed in para 36 of his judgment, the Trust "has explained the justification for the
policy in very considerable detail". Witness statements were made by Dr Collins, who
was Mr Munjaz's responsible medical officer, Dr James, a consultant psychiatrist and the
medical director of the Trust, Dr Finnegan, a consultant psychiatrist and the lead
consultant for mental health services at Ashworth, Dr Davenport, consultant psychiatrist
and the lead consultant for the women's service at Ashworth, Mr Barwood, the Trust's
executive director of nursing, and Mr Eley, the deputy director of nursing.
In considering the frequency of medical review after Day 7 the Trust were in my
opinion entitled to take account of three matters in particular. First, as pointed out in the
Introduction to the policy, the Code was directed to the generality of mental hospitals
and did not address the special problems of high security hospitals, containing as they
inevitably do the most potentially dangerous patients in the country. Secondly, the Code
did not recognise the special position of patients whom it was necessary to seclude for
longer than a very few days. It has been the experience of the Trust that the condition of
those secluded for more than a week does not change rapidly, and that it is in any event
unsafe to rely on an apparent improvement without allowing enough time to pass to give
grounds for confidence that the improvement will endure. Thirdly, the statutory scheme,
while providing for the Secretary of State to give guidance, deliberately left the power
and responsibility of final decision to those who bear the legal and practical
responsibility for detaining, treating, nursing and caring for the patients.
23.
The witness statements submitted by the Trust are very strongly challenged in
statements and evidence on behalf of Mr Munjaz, Mind and the Mental Health Act
Commission. This is a highly controversial subject, on which professional opinions differ.
The 7-day divide between short-term and long-term secluded patients is criticised. So is
the practice, adopted at Ashworth, of allowing secluded patients to spend periods of
time, sometimes lengthy periods, in closely supervised association with other patients.
There are differences of practice, not all of them fully explained, between Ashworth,
Broadmoor and Rampton. It is not, however, for the courts to resolve debatable issues of
professional practice, but to rule on issues of law. If a practice is supported by cogent
reasoned justification, the court is not entitled to condemn it as unlawful. In the present
case, even with the intense scrutiny called for, I cannot regard the long and detailed
statements submitted by the Trust as failing to show good reasons for adopting the policy
it has adopted, even though there are many eminent professional experts who take a
different view.
24.
Is the Ashworth policy incompatible with the European Convention?
Mr Munjaz does not contend that it was inappropriate to seclude him on any of the four
occasions when he was secluded. He does not contend that he was secluded for longer
periods than his mental condition justified or that his periods in seclusion were longer
than they would have been had his condition been the subject of medical review at the
frequency indicated in the Code rather than that in the Ashworth policy. He does not
contend that the periods for which he was secluded, or the reduced frequency of medical
review as compared with the Code, had a deleterious effect on his mental or physical
condition. The evidence of Dr Sophie Davison, a consultant forensic psychiatrist, which
Mr Munjaz adduced in the Court of Appeal, precludes any of these contentions. Thus it
is necessary to consider the compatibility with the Convention of the policy as a policy.
For this purpose the Code is irrelevant: if the policy is incompatible, consistency with the
Code will not save it; if it is compatible, it requires no support from the Code.
25.
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It is furthermore to be assumed for purposes of this discussion that the Ashworth policy
is followed in the hospital, or at least that it is followed with that degree of regularity to
be expected in a well-ordered and suitably staffed institution. This is a matter of some
importance. For seclusion is universally recognised to be an unwelcome necessity of last
resort, never a preferred option. It is justified only when used to protect others, and then
for the shortest period necessary for that purpose. These restrictions are insisted upon
because the potential injury which seclusion can cause to the psychological and physical
health and well-being of a patient is, again, universally recognised. It is quite plain that,
improperly used or continued, seclusion can violate a patient's Convention rights, found
claims under sections 6 and 7 of the 1998 Act, and give rise to common law claims in
tort. The focus of this appeal, however, is not on acts or omissions said to give rise to
violations of Convention rights but on the compatibility of the policy with the
Convention.
26.
1. Article 3
As a party to the European Convention the United Kingdom is bound in international
law, by article 1 of the Convention, to secure to everyone within its jurisdiction the rights
and freedoms with which this appeal is concerned. As a contracting party it is
answerable for any failure to do so. But the internal distribution of powers within
member states is not regulated by the Convention. It is for them to resolve, through the
democratic process, what power shall be exercised and by whom to secure the
observance of Convention rights. If, therefore, as in this case, Parliament chooses to
establish a framework of binding statutory provisions, and to supplement those
provisions by a Code which will guide but not bind local managers and healthcare
professionals, leaving the final decision to them, there is nothing in the Convention
which invalidates that decision. The evidence makes plain that there are those who
would favour binding central direction on the use of seclusion, but that is not the choice
which Parliament has made and not a course the Secretary of State supports. It is for the
Trust to secure observance of article 3 at Ashworth.
27.
The Trust must not subject patients at Ashworth to treatment prohibited by article 3.
There is no evidence, and it is not suggested, that it has done so.
28.
The Trust must not adopt a policy which exposes patients to a significant risk of
treatment prohibited by article 3. Despite much learned argument addressed to the
House, I do not find it necessary to discuss the extent or probability of the risk or the
extent to which it must be foreseen. For I agree with the judge (paras 57-58 of his
judgment) that the policy must be considered as a whole, that the policy, properly
operated, will be sufficient to prevent any possible breach of the article 3 rights of a
patient secluded for more than 7 days and that there is no evidence to support the
proposition that the frequency of medical review provided in the policy risks any breach
of those rights. The patient must be the subject of recorded observation by a nurse at
least every 15 minutes and of recorded review by two qualified nurses every 2 hours,
one of them (where practicable) not involved in the decision to seclude. In the ordinary
course of things it is the nurses who know the patient best, and the nurse in charge of the
ward can terminate seclusion at any time. There must be a daily review by a ward
manager or site manager of a different ward: these, as the evidence shows, are senior and
experienced people. There must be 3 medical reviews each week, one of them involving
the patient's responsible medical officer. There must in addition be a weekly review by a
multi-disciplinary patient care team, including the patient's RMO. The seclusion of the
patient must be monitored by the hospital's Seclusion Monitoring Group, which includes
the medical director, the hospital director, the head of psychology, the senior nurse, the
head of social care, 2 nurses, the ward manager and a non-executive director of the
Trust, some of whom must have seen the patient. It reports to the hospital's Clinical
29.
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Governance Committee. The Mental Health Act Commission must be informed once a
patient has been secluded for 7 days and must thereafter receive regular progress reports:
as already noted, it has statutory power to visit and investigate any complaint. The
patient may, wherever possible, be visited by a relative. The patient or his representative
may appeal to the medical director or his deputy, who must review the case and take
account of any representations made. The patient may seek judicial review of the
decision to seclude him or continue to seclude him, or to challenge the conditions in
which he is secluded. It cannot in my opinion be said, bearing in mind that the standard
set must obtain in all member states of the Council of Europe, that a policy containing
these safeguards exposes a patient secluded for more than 7 days to any material risk of
treatment prohibited by article 3.
2. Article 5
It does not appear that the potential applicability of article 5 was canvassed before the
judge, but it was raised in the Court of Appeal. That court concluded ([2004] QB 395,
para 69) that while article 5 may avail a person detained in an institution of an
inappropriate type (as in Bouamar v Belgium (1989) 11 EHRR 1 and Aerts v Belgium
(1998) 29 EHRR 50) it cannot found a complaint directed to the category of institution
within an appropriate system (as in Ashingdane v United Kingdom (1985) 7 EHRR 528).
The approach to residual liberty which appears to have prevailed in Canada (see Miller v
The Queen (1985) 24 DLR (4th) 9) does not, as I understand, reflect the jurisprudence of
the European Court. I do not for my part regret this conclusion since, as the Court of
Appeal pointed out (in para 70 of its judgment), improper use of seclusion may found
complaints under article 3 or article 8, and article 5(4) provides that a successful
challenge should result in an order that the detainee be released, not in an order that the
conditions of his detention be varied. I would not, for example, understand article 5(4) as
enabling a prisoner, lawfully detained, to challenge his prison category. In any event, the
Ashworth policy, properly applied as one must assume, does not permit a patient to be
deprived of any residual liberty to which he is properly entitled: seclusion must be for as
short a period and in conditions as benign as will afford reasonable protection to others
who have a right to be protected.
30.
3. Article 8
Mr Munjaz placed no reliance on article 8 before the judge, but Mr Gordon QC
representing Mind as an interested party addressed argument on it to the Court of
Appeal. He repeats that argument to the House, and Mr Pleming QC for Mr Munjaz
adopts it.
31.
It is obvious that seclusion, improperly used, may violate a patient's article 8 right in a
serious and damaging way and may found a claim for relief. This appeal, however, is
directed to the compatibility of the Ashworth policy with the Convention, assuming it to
be followed. I have, for my part, some difficulty in appreciating how seclusion can be
said to show any lack of respect for a patient's private and family life, home or
correspondence, if it is used as the only means of protecting others from violence or
intimidation and for the shortest period necessary to that end. A detained patient, when
in his right mind or during lucid intervals, would not wish to be free to act in such a way
and would recognise that his best interests were served by his being prevented from
doing so.
32.
If, however, it is accepted that seclusion, properly used in accordance with the policy,
involves an interference by a public authority with the exercise of the patient's right
under article 8(1), it is necessary to consider justification under article 8(2). Seclusion
under the policy is plainly necessary for the prevention of disorder or crime, for the
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protection of health or morals, or for the protection of the rights and freedoms of others.
Properly used, the seclusion will not be disproportionate because it will match the
necessity giving rise to it.
Mr Gordon, on behalf of Mind, submits that the interference is not "in accordance with
the law" because not prescribed by a binding general law. I cannot for my part accept
this. The requirement that any interference with the right guaranteed by article 8(1) be in
accordance with the law is important and salutary, but it is directed to substance and not
form. It is intended to ensure that any interference is not random and arbitrary but
governed by clear pre-existing rules, and that the circumstances and procedures adopted
are predictable and foreseeable by those to whom they are applied. This could of course
have been achieved by binding statutory provisions or binding ministerial regulations.
But that was not the model Parliament adopted. It preferred to require the Secretary of
State to give guidance and (in relation to seclusion) to call on hospitals to have clear
written guidelines. Given the broad range of institutions in which patients may be treated
for mental disorder, a matter on which Mr Gordon places special emphasis, it is readily
understandable why a single set of rules, binding on all, was thought to be undesirable
and perhaps impracticable. It is common ground that the power to seclude a patient
within the hospital is implied from the power to detain as a "necessary ingredient flowing
from a power of detention for treatment": see Auld LJ in R v Broadmoor Special
Hospital Authority, Ex p S, H and D (5 February 1998, unreported) [ [1998] EWCA Civ
160 ] and the Court of Appeal judgment in the present case, para 40. The procedure
adopted by the Trust does not permit arbitrary or random decision-making. The rules are
accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are
not in accordance with or prescribed by law.
34.
Since the Trust's policy does not in my view violate any of the Convention articles
under consideration, there is no warrant for resorting to section 3 of the 1998 Act to give
section 118 of the 1983 Act a meaning and effect other than that which Parliament gave
to it.
35.
The Court of Appeal gave the Code a stronger effect than is in my view permissible. It
said in para 76 of its judgment:
36.
"76. Hence we conclude that the Code should be observed by all hospitals unless
they have a good reason for departing from it in relation to an individual patient.
They may identify good reasons for particular departures in relation to groups of
patients who share particular well-defined characteristics, so that if the patient
falls within that category there will be a good reason for departing from the Code
in his case. But they cannot depart from it as a matter of policy and in relation to
an arbitrary dividing line which is not properly related to the Code's definition of
seclusion and its requirements."
The considered judgment of a strong and experienced Court of Appeal naturally
commands great respect. But this conclusion gives the Code a weight which Parliament
did not give it, which the Secretary of State does not support and which the Convention
context does not require. It deprives local managers of the judgmental authority they
were given and intended to exercise, and so has a strong (and in my opinion
impermissible) centralising effect. It elevates the authority of the Code in a way for
which there is no warrant in the statute or the Code.
I would allow the appeal and, for reasons which are in large measure those given by the
judge, dismiss Mr Munjaz's application for judicial review.
37.
LORD STEYN
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My Lords,
The advance in the treatment and care of mentally disordered individuals since
Victorian times has been great. On the other hand, mental health law has not entirely
marched in step with the changing attitudes of society towards treating and caring for
mentally disordered patients justly. The Mental Health Act 1983, the controlling statute,
is out of date in its approach. Unfortunately, its modernisation in a comprehensive new
statute, in conformity with evolving standards, has not yet been accomplished. In respect
of the treatment of persons detained in high security mental hospitals, such as Ashworth
Hospital, it has been left to so-called soft law, in the form of a Code of Practice issued by
the Secretary of State, to fill in part the gap. The current Code was published in March
1999. It addresses, to some extent, the problem of seclusion. It may not be much in terms
of modern health law but at least the Code is an attempt to set some modern standards. It
is the best we have at present. But the present appeal raises the question of the status of
the Code.
38.
The appeal concerns the use of seclusion in hospitals where mentally disordered
patients are detained. The hospital involved is Ashworth Hospital. It decided not to
adhere to the current Code but instead to follow its own different policy statement. From
the perspective of the individual patient it is probably right to say that Ashworth's policy
statement represents a somewhat lesser order of protection of mentally disordered
patients than was contained in the Code. That is the reason for the present case.
39.
In my view the real issues on this appeal are - 40.
(1) what is the status of the Code of Practice (insofar as it covers seclusion) issued
under Section 118 of the Mental Health Act 1983 as a matter of domestic and
European Convention on Human Rights law?
(2) upon what basis, as a matter of domestic and ECHR law, is the seclusion of a
patient, already detained under the 1983 Act, lawful?
The judgment of the Court of Appeal in this case has been reported: Regina (Munjaz) v
Mersey Care NHS Trust and Others [2004] QB 395. It is a judgment which demonstrates
a thorough understanding of this sensitive and difficult branch of mental health law. I
would respectfully pay tribute to it. Having had the advantage of testing the reasoning of
the Court of Appeal in the light of detailed adversarial argument, I find myself in
agreement with the Court of Appeal on essential points and in particular in respect of
articles 3 and 8 of the European Convention on Human Rights, the status of the Code,
and the conclusion reached in para 76 that the hospitals may not depart from the Code as
a matter of policy. The minor error involved in the incorrect reference to section 7 of the
Local Authority Social Services Act 1970 does not affect the central reasoning of the
judgment: para 73.
41.
The only part of the judgment of the Court of Appeal on which I would not adopt the
reasoning and conclusion is in respect of seclusion and the applicability of article 5 of the
ECHR. I will explain the point briefly. Under English law a convicted prisoner, sentenced
to imprisonment, retains all his civil rights which are not taken away expressly or by
necessary implication: Raymond v Honey [1983] AC 1, at 10G, per Lord Wilberforce. To
that extent the prisoner has a residual liberty. The concept of residual liberty is a logical
and useful one as demonstrated by the decision of the Canadian Supreme Court in Miller
v The Queen (1985) 24 DLR (4th) 9. The reasoning in Miller shows that in a case of a
prisoner where solitary confinement is unlawfully and unjustly superimposed upon his
prison sentence the added solitary confinement can amount to "prison within a prison": it
is capable of constituting a material deprivation of residual liberty. It is true that in R v
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Deputy Governor of Parkhurst and Others, ex p Hague [1992] 1 AC 58 the House of
Lords ruled out this concept. Lord Jauncey of Tullichettle summed up the reasoning of
the House [176G-H]:
"[The prisoner] is lawfully committed to a prison and while there is subject to the
Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the
regime. He has no freedom to do what he wants, when he wants. His liberty to do
anything is governed by the prison regime. Placing Weldon in a strip cell and
segregating Hague altered the conditions under which they were detained but did
not deprive them of any liberty which they had not already lost when initially
confined."
Hague predates the Human Rights Act 1998. It is cast in the lexicon of the old law. It
excluded a remedy for intolerable prison conditions on the basis of false imprisonment
and breach of statutory duty. Lord Bridge suggested a possible remedy in negligence: at
165H-166C. But as Feldman, Civil Liberties and Human Rights in England and Wales,
2nd ed., 440, has pointed out, "the remedies depend so heavily on the supply of
resources by government that it is hard to imagine that a duty of care in tort would ever
be adequate to provide a remedy for those who are condemned to live in [inhuman and
degrading] conditions." In Hague Lord Bridge observed: "In practice the problem is
perhaps not very likely to arise": 166C. It is not to be assumed that in 2005 such
conditions do not sometimes occur in our prisons. Under domestic law Hague effectively
denies prisoners any effective remedy for a breach of their residual liberty. Even in
respect of convicted prisoners Hague should no longer be treated as authoritative. A
fortiori Hague should not be applied to the relationship between a detained patient and
the managers of the hospital. After all, unlike prisoners who committed crimes of their
own volition, mentally disordered patients are not guilty of any legal or moral culpability.
It would also be wrong to assume that under the jurisprudence of the ECHR residual
liberty is not protected. There is relevant European authority not placed before the Court
of Appeal. In Bollan v United Kingdom, App No. 42117/98, the European Court of
Human Rights, albeit in an admissibility decision, considered the point. The complaint
was a comparatively weak one: the prisoner had been confined to her cell, unlawfully it
was said, for some two hours. The evidence was that she was a heroin addict who
objected to that restriction on her residual liberty. In European terms the case simply did
not reach the necessary threshold of severity. The European Court of Human Rights
dealt with the legal principles arising under the ECHR as follows:
43.
"It is undisputed in the present case that Angela Bollan was lawfully detained in
Corton Vale prison pursuant to a court order remanding her in custody pending
sentence for a criminal offence. Nor is it disputed that the prison was an
appropriate establishment for that type of detention or that there was anything
inappropriate concerning her place of detention within the prison. The principal
issue is whether the decision of the prison officers to leave Angela Bollan in her
cell until lunchtime - a period of less than two hours - in itself disclosed an
unjustified and unlawful deprivation of her liberty within that prison.
The court does not exclude that measures adopted within a prison may disclose
interferences with the right to liberty in exceptional circumstances. Generally
however, disciplinary steps, imposed formally or informally, which have effects on
conditions of detention within a prison, cannot be considered as constituting
deprivation of liberty. Such measures must be regarded in normal circumstances as
modifications of the conditions of lawful detention and therefore fall outside the
scope of Article 5 1 of the Convention (see Application no. 7754/77, dec. 9.5.77,
D.R. 11, p 216. In appropriate cases, issues may arise however under articles 3 and
16 of 38 24/11/2013 12:39
8 of the Convention."
(My emphasis)
Plainly, the ECtHR has not ruled out as a matter of principle the concept of residual
liberty. On the contrary, it accepts that there is scope for such a doctrine. It will be noted
also that the ECtHR observed that in such cases "in appropriate cases, issues may arise
however under articles 3 and 8 of the Convention". To that it must be added that, if
substantial and unjust seclusion of a mentally disordered patient cannot in our domestic
law be protected effectively under articles 3 and 8, the case for protection under article 5
becomes ever stronger. It follows that a substantial period of unnecessary seclusion of a
mentally disordered patient, involving total deprivation of any residual liberty that the
patient may have within the hospital, is capable of amounting to an unjustified
deprivation of liberty.
In relation to the status of the Code, I am in full agreement with the reasoning of the
Court of Appeal. The Code was plainly issued under section 118(1)(a) and (b) of the
Mental Health Act 1983. It is a very special type of soft law. It derives its status from the
legislative context and the extreme vulnerability of the patients which it serves to
protect. In the context of the Code the Court of Appeal explained, and I accept, that the
concern about seclusion lies "in the combination of the potentially harmful or degrading
effects of seclusion upon the patient and its potential for misuse by those looking after
him": para 11. This is the contextual scene of section 118(1). It is wrong to focus
exclusively or even primarily on the dictionary meaning of "guidance". In a careful
analysis Mr Pleming QC relied in addition to the reasons given by the Court of Appeal
on the fact that section 118(2) provides that "the Code shall, in particular, specify forms
of medical treatment" which "should accordingly not be given by a registered medical
practitioner unless the patient has consented to the treatment." He pointed out that the
preceding White Paper of November 1981 observed that the Code "might include
references to treatments such as electro-convulsive therapy when used in particular
circumstances, long acting drugs, and behaviour therapies": Reform of the Mental Health
Legislation, para 39. These examples reveal that in section 118(1) Parliament had
authorised a Code with some minimum safeguards and a modicum of centralised
protection for vulnerable patients. This is inconsistent with a free-for-all in which
hospitals are at liberty to depart from the published Code as they consider right. Indeed,
it seems unlikely that Parliament would have authorised a regime in which hospitals may
as a matter of policy depart from the Code. After all that would result in mentally
disordered patients being treated about seclusion in a discriminatory manner, depending
on the policy adopted by the managers and clinicians in particular hospitals.
44.
Another internal aid to the interpretation of section 118 mentioned by Mr Pleming is
section 121 which deals with the Mental Health Act Commission. Section 121(4)
provides:
45.
"The Secretary of State may, at the request of or after consultation with the
Commission and after consulting such other bodies as appear to him to be
concerned, direct the Commission to keep under review the care and treatment, or
any aspect of the care and treatment, in hospitals and mental nursing homes of
patients who are not liable to be detained under this Act."
This provision is in line with the idea of centralised minimum safeguards. It throws light
on the dynamic role that a Code issued under section 118 was intended to play.
The Court of Appeal applied the dictum of Sedley J in R v Islington London Borough
Council, ex p Rixon [1997] ELR 66, at 71, that local authorities may only depart from
46.
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the Secretary of State's guidance for good reason. The Court of Appeal observed that
there is a considerable difference between the Wednesbury approach and the Rixon
approach. Counsel for the Secretary of State and the Trust challenged this approach.
They were mistaken. In the present case fundamental rights are at stake and even before
the Human Rights Act 1998 an intense review on principles of proportionality was
appropriate: R v Secretary of State for the Home Department, Ex p Leech [1994] QB
198, which was affirmed in R v Home Secretary, Ex p Simms [2000] 2 AC 115 and in R
(Daly) v Secretary of State for the Home Department [2001] 2 AC 532. The concrete
differences between the Wednesbury and proportionality approaches was concretely
described in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.
In a speech made with the approval of the House I observed [547 E-F]:
"First, the doctrine of proportionality may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is within the
range of rational or reasonable decisions. Secondly, the proportionality test may go
further than the traditional grounds of review inasmuch as it may require attention
to be directed to the relative weight accorded to interests and considerations."
The application of these established principles, wholly appropriate to the context of
fundamental rights, reinforces the conclusion of the Court of Appeal. That conclusion
was stated with precision in para 76 as follows:
"Hence we conclude that the Code should be observed by all hospitals unless they
have a good reason for departing from it in relation to an individual patient. They
may identify good reasons for particular departures in relation to groups of patients
who share particular well-defined characteristics, so that if the patient falls within
that category there will be a good reason for departing from the Code in his case.
But they cannot depart from it as a matter of policy and in relation to an arbitrary
dividing line which is not properly related to the Code's definition of seclusion and
its requirements."
Given the manifest dangers inherent in seclusion, and the extremely vulnerability of the
patients, I regard this conclusion as sound. It is a corner of mental health law in which a
dilution of minimum centrally imposed safeguards, by pragmatic policy decisions from
hospital to hospital, is not appropriate.
In paragraph 40 of the printed case of Mr Munjaz the resultant picture and implications
are graphically illustrated:
47.
". . . Ashworth, and any detaining hospital, can now substitute 3 (or 4) medical
reviews for the 42 required by the Code of Practice during days 8 to 14. [Mr
Munjaz's] complaint is not that he can be secluded for one or two more hours
without a Code of Practice medical review, but that he could be secluded for 72
hours without such a review. If such wholesale departures from the Code can be
made on the basis of the views of the hospital managers, there is no logical reason
why Ashworth should not reduce its medical reviews yet further, depending only
on its rational view of its needs and its resources. Why not a medical review every
week, every month? Certainly, Ashworth cites approvingly [in para 95 of its
printed case] in support of its position, cases where monthly review of segregated
prisoners has been held to be lawful. A national Code of Practice provides the
necessary checks and balances for this otherwise unregulated activity."
This is a disturbing picture.
If Ashworth Hospital is permitted in its discretion to reject the Code, lock, stock, and
barrel, regarding seclusion, it will be open to other hospitals to do so too. The Code
48.
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would then be seriously undermined. For my part the endorsement of the Code by the
Secretary of State makes his virtual disowning of the Code in these proceedings difficult
to understand. Compared to the judgment of the Court of Appeal the judgment of the
majority of the House permits a lowering of the protection offered by the law to mentally
disordered patients. If that is the law, so be it. How society treats mentally disordered
people detained in high security hospitals is, however, a measure of how far we have
come since the dreadful ways in which such persons were treated in earlier times. For my
part, the decision today is a set-back for a modern and just mental health law.
I would dismiss the appeal of the Trust. 49.
LORD HOPE OF CRAIGHEAD
My Lords,
At the heart of this case there lies a dispute about the proper use and regulation of
seclusion as a means of controlling seriously disturbed behaviour on the part of mental
patients detained in psychiatric hospitals. There is general agreement that the sole aim of
this procedure is to control such behaviour where it is likely to cause harm to others.
There is general agreement also as to the nature of the procedure. It consists of the
supervised confinement of the patient in a room which may be locked to protect others
from significant harm. But opinions differ sharply as to the length of time for which it
may be proper to resort to it. This in turn affects the degree to which seclusion in
practice interferes with the patient's personal autonomy, the extent to which it is possible
for the state by means of a uniform code to regulate this and the way in which the
patient's interests are to be safeguarded.
50.
Section 118(1) of the Mental Health Act 1983 ("the 1983 Act"), as amended by section
1(2) of and paragraph 6 of Schedule 1 to the Mental Health (Patients in the Community)
Act 1995 and section 116 of and paragraph 9 of Schedule 4 to the Care Standards Act
2000, directs the Secretary of State to prepare, and from time to time revise, a code of
practice (a) for the guidance of registered medical practitioners, managers and staff of
hospitals and approved social workers in relation to "the admission of patients" to
hospitals and to guardianship and after-care under supervision under the Act, and (b) for
the guidance of registered medical practitioners and members of other professions in
relation to "the medical treatment of patients suffering from mental disorder." Section
118(2) provides that the code shall in particular specify forms of medical treatment
which give rise to special concern and which should accordingly not be given by a
registered medical practitioner unless the patient has consented to the treatment.
Seclusion is not a form of treatment that falls within the scope of that subsection, but its
provisions have a bearing on the status that should be accorded to the code by the legal
system within which it is to operate.
51.
The Code of Practice which is currently in issue ("the Code") was published in March
1999. It contains detailed guidance on various matters of practice, including the
admission of mental patients and their treatment and care in hospital. Chapter 19 deals
with patients presenting particular management problems who behave in a way that
disturbs others or whose behaviour may present a risk to themselves or others around
them or those charged with their care. Among the topics covered in this section are
general preventative measures, restraint, methods of restraining behaviour and the use of
medication, locked wards and secure areas. It has not been suggested that the ways these
topics are dealt with has given rise to difficulty. The dispute which has given rise to this
litigation relates to the way the Code deals with seclusion. This topic is dealt with in
paras 19.16 to 19.23.
52.
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Para 19.16 defines seclusion in these terms: 53.
"Seclusion is the supervised confinement of a patient in a room, which may be
locked to protect others from significant harm. Its sole aim is to contain severely
disturbed behaviour which is likely to cause harm to others."
It also contains guidance as when this procedure should and should not be used. Para
19.17 provides that hospitals should have clear written guidelines on the use of seclusion
which should, among other things, set requirements for recording, monitoring, reviewing
the use of seclusion and any follow-up action. But the Code was not content to leave
these matters entirely to the discretion of each hospital. Detailed guidance is provided in
the paragraphs that follow as to the procedure that should be adopted, including the
frequency of reviews of the need to continue the procedure, as to the conditions of
seclusion and as to record keeping.
The Code applies to the management of all patients admitted to mental hospitals in
England and Wales. They include so-called informal patents who are admitted without
any application, order or direction as well as those who are liable to be detained in a
hospital under section 3 of the 1983 Act. The Secretary of State was obliged by section
118(3) before preparing or altering it to consult with such bodies as appeared to him to
be concerned. It had also to be laid before Parliament, where it was subject to the
negative resolution procedure of either House, and it had to be published: section
118(4)-(6). It has the support of the Royal College of Psychiatrists and of the Mental
Health Act Commission, among whose functions is to make proposals to the Secretary of
State as to what it should contain. The majority of mental patients are informal, and the
majority of the institutions in which they are detained are independent of the National
Health Service. One of the virtues of the Code is that it is able to provide clear standards
and practical norms that are capable of being applied by all hospitals and all healthcare
facilities.
54.
Ashworth is one of three hospitals (the others being Rampton and Broadmoor),
formerly known as "special hospitals", that were established to treat only those mental
patients who require treatment under conditions of high security on account of their
dangerous, violent or criminal propensities. In February 1999 the Ashworth Special
Hospital Authority ("Ashworth") issued its own Seclusion Procedure which made
provision for the frequency of reviews of the need to continue the procedure which
departed in several respects from that set out in the version of the Secretary of State's
Code that was then in issue. This statement of the procedure to be used at Ashworth was
the subject of proceedings for judicial view by the respondent, Mr Colonel Munjaz, in
1999. Following a judgment given by Jackson J on 28 September 2000, who held that the
provisions for review which it contained were not ones which a reasonable authority
could adopt, a review of Ashworth's seclusion policy was conducted and a new policy
was formulated. It was ratified by the Regional Board of the National Health Service on
6 November 2002 and it was put into effect from 6 December 2002 by the appellant,
Mersey Care National Health Service Trust, which had assumed responsibility for
Ashworth. This is the policy ("the Policy") which is said in this case to be unlawful.
55.
In the introduction to the Policy it is noted that Ashworth Hospital admits patients with
mental disorder who are considered to present a grave and immediate risk to the public
and who present a risk to other patients, staff, visitors or the general public which cannot
be managed in conditions of lesser security including medium security. Reference is
made to particular reasons for referral which include the fashioning of weapons from
items in common use such as furniture and cutlery, the taking of hostages, the possession
of skills which could lead to serious injury and the use of techniques to plan and commit
assaults which involve other patients and general subversion of day to day routines and
56.
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practices. It is expected that patients will only be referred to Ashworth when conditions
of lesser security have exhausted all appropriate management interventions. For such
patients it is often the case that all other usual interventions such as psychological
interventions and alterations in drug treatment have been tried, and the increased
relational procedure and the perimeter security at Ashworth is considered necessary to
add to the individual patient's treatment plan.
It is in the light of this background that the introduction to the Policy then explains why
it was decided that it was necessary to devise a policy which was specially designed to
address the use of seclusion at Ashworth:
57.
"Seclusion in this policy is as defined in the Code of Practice [19.6] (sic).
Seclusion is the supervised confinement of a patient in a room, which may be
locked to protect others from significant harm. Its sole aim is to contain severely
disturbed behaviour which is likely to cause harm to others. This is an intervention
which good clinical and professional practices dictate should only be used when
other less restrictive interventions are inadequate. Special considerations need to
be applied to the use of seclusion in a high secure hospital given that patients have
been referred to the hospital because the usual range of interventions available
within Mental Health Services have failed to protect others from harm. The policy
on seclusion in Ashworth Hospital needs to reflect this."
The same point is made in para 2.4 of the Policy, which states:
"The Code of Practice revised in March 1999 was written to encompass a wide
range of mental health services and does not specifically consider the special
situation of a high security hospital."
The Policy deals with a variety of matters, many of which are not the subject of
criticism. Para 3 sets out its aims, which are taken word for word from the list of items in
para 19.17 of the Code about which hospitals are told they should have clear written
guidance. Para 4 contains a policy statement about the use of seclusion. Here too the
guidance in the Code is followed word for word. In para 5, which deals with the
environment for seclusion and the maintenance of dignity and care and support, the
guidance in para 19.22 of the Code is adopted and elaborated upon. Para 6 deals with the
decision to seclude. In substance it repeats the guidance in para 19.18 of the Code, but
here too it is elaborated upon. Para 6.2, for example, states that if a member of staff has
been threatened or attacked by a patient they should so far as possible not be involved in
the decision to seclude - a point not dealt with in the Code, which does not mention
incidents of this character or offer any advice as to how to deal with them. Details are set
out in para 7 of how patients who are in seclusion are to be observed and cared for and
in para 8 of the way records are to be kept. Here again the advice given in paras 19.19
and 19.20 of the Code is followed and elaborated upon. One such elaboration is the
requirement in para 8.4 of the Policy that a detailed management plan for management
of the ending of seclusion should be prepared in all cases to ensure the earliest possible
ending of seclusion. There is an indication here that it was not envisaged that seclusion
would be used at Ashworth for a brief period, such as one of no more than five minutes
as para 19.18 of the Code envisages.
58.
The point of departure from the Code is in para 9 where the Policy deals with regular
reviews of the use of seclusion. The system of review described in para 19.18 of the
Code is modified from the first day up to day 7. Thereafter the frequency of regular
reviews is reduced very considerably. Para 9.2.3 provides that from day 8 onwards there
are to be (i) a daily review by the ward manager or a site manager from a different ward,
(ii) three medical reviews every seven days (one being by the patient's responsible
59.
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medical officer ("RMO"), (iii) a weekly review by a multi-disciplinary patient care team
which is to include the RMO and (iv) a review by a multi-disciplinary group known as
the Seclusion Monitoring Group whose functions are set out in para 10. Para 11.1
provides that the case of any patient for whom the clinical team has to institute seclusion
in excess of seven days will be brought to the attention of the Medical Director or in
their absence the Executive Nurse Director by the chairperson of the patient's clinical
team, with a resume of the reasons for the continuing use of seclusion, the care and
treatment which the patient will be receiving and what it is to be hoped will be achieved.
Monitoring arrangements are to be agreed between the Seclusion Monitoring Group and
the patient's clinical team, the patient's case is to be reviewed weekly by the clinical team
and a report sent monthly to the Seclusion Monitoring Group and after six months the
Medical Director and the Executive Nurse Director are to participate in a clinical team
review: para 11.4-11.8. Para 11.9 provides that the Mental Health Act Commission will
be informed if seclusion continues beyond seven days and that it will receive progress
reports on a regular basis.
It is important to appreciate that much of what is in the Policy complies with and
elaborates upon the guidance which the Code offers. The departure from that guidance is
explained by Ashworth's perception of what is needed for the management of the
patients detained there whose behaviour falls outside the normal pattern of that exhibited
by mental patients generally in terms both of the risk it offers and its duration. There is a
genuine and respectable difference of view among those who are responsible for the
formation of policy in this difficult and highly specialised field as to the parameters
within which seclusion may properly be resorted to, including the length of time for
which it may continue before it is terminated.
60.
In a letter to Ashworth's solicitors dated 27 March 2002 the Mental Health Act
Commission said that it was perhaps true that the Code was written on the assumption
that seclusion as a last resort response to dangerous behaviour should not normally still
be in place after three days, no matter how disturbed the patient might be at the time of
the seclusion. The Commission's view was that in that event other methods of
management should be resorted to:
61.
"It is arguable, for instance, that, by the time a patient has been secluded for three
days, arrangements should have been considered for alternative management of
the patient, such as a trial period of one to one (or more intensive) nursing, etc.
The Commission takes the view that, where seclusion as defined by the Code of
Practice does continue past 72 hours, the need for rigorous monitoring and review
of its continuance is a pressing need."
In para 12.26 of its Tenth Biennial Report 2001-2003 the Commission repeated these
observations, adding that it would wish to see such alternatives implemented. Ashworth
has however made it clear that it wishes to adhere to the system of monitoring and
review set out in its Policy.
This dispute is not something on which judges are competent to adjudicate. But the law
is not blind to the importance of the issue in the wider context, as it is in the interests of
all mental patients that the use of this highly intrusive procedure should be properly
regulated.
62.
The issues
The first question then is whether it is lawful under domestic law for Ashworth, for the
reasons indicated by these passages in the introduction to the Policy, to depart from the
Code and devise and apply its own seclusion policy. The status that is to be accorded to
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the Code lies at the heart of this question. This is an important issue of general public
importance. The second question is whether, assuming that it was otherwise lawful in
domestic law, the relevant parts of the Policy are incompatible with the respondent's
Convention rights.
Domestic law
The question for resolution under domestic law is whether it was unlawful for
Ashworth's Policy to depart from the provisions in the Code of Practice about the
frequency of medical reviews where seclusion is resorted to. Section 118(1) of the 1983
Act provides that the Code is to be prepared "for the guidance" of those to whom it is
addressed. The Code itself states in para 1 of the introduction that, while the Act does
not impose a legal duty to comply with it, as it is a statutory document failure to follow it
could be referred to in evidence in legal proceedings. As Mr Lewis for the Secretary of
State pointed out in his written case, section 118(1) does not impose an express
obligation on anyone to "have regard" to the Code. But he said that it is implicit in the
subsection that those to whom it is addressed are under an obligation to have regard to it
in reaching any decisions on matters which fall within its scope.
64.
This interpretation of its effect, which is subscribed to also by Ashworth, is to be
contrasted with the view of its status that the Court of Appeal expressed in its judgment
[2004] QB 395, para 76:
65.
"Hence we conclude that the Code should be observed by all hospitals unless they
have a good reason for departing from it in relation to an individual patient. They
may identify good reasons for particular departures in relation to groups of patients
who share particular well-defined characteristics, so that if the patient falls within
that category there will be a good reason for departing from the Code in his case.
But they cannot depart from it as a matter of policy and in relation to an arbitrary
dividing line which is not properly related to the Code's definition of seclusion and
its requirements."
The first point that has to be considered is whether there is a statutory base for the
guidance that the Code gives on seclusion. Does it fall within the scope of section 118(1)
of the 1983 Act? Section 118(1)(a) provides for the giving of guidance "in relation to the
admission of patients to hospitals". Section 118(1)(b) provides for the giving of guidance
"in relation to the medical treatment of patients suffering from mental disorder". A
narrow reading of these two phrases might suggest that seclusion falls outside the scope
of the matters which are to be dealt with by means of a code of practice prepared by the
Secretary of State under this subsection. But the purpose of the statute requires a broader
view to be taken. I agree with the Court of Appeal that the words "the admission of
patients to hospitals" cannot in this context be limited to the actual admission process so
as not to include anything that happens thereafter while the patient is detained in
hospital: [2004] QB 395, para 72. The expression "medical treatment" is defined in
section 145(1) of the 1983 Act as including, as well as nursing, care, habilitation and
rehabilitation under medical supervision. In my opinion it includes all manner of
treatment under medical supervision of those suffering from mental disorders from cure
to containment. It includes treatment under medical supervision which is designed to
alleviate or prevent a deterioration of the patient's condition, even if it will have no effect
on the disorder itself. As para 15.4 of the Code puts it, it covers the broad range of
activities aimed at alleviating, or preventing a deterioration of, the patient's mental
disorder.
66.
Seclusion is not part of the patient's treatment. Para 19.16 of the Code states that it is
not to be used as part of a treatment programme. But it aims to contain severely
67.
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disturbed behaviour, the decision to resort to it is made by a nurse or a doctor and it is
supervised by medical staff in the hospital. So it falls well within the scope of the phrase
"the medical treatment of patients suffering from mental disorder" on which the
Secretary of State is directed by section 118(1)(b) to give guidance. The fact that the
guidance on seclusion appears under the general heading "Treatment and Care in
Hospital" and in a section dealing in particular with patients presenting particular
management problems suggests that those who wrote the Code had this paragraph of
section 118(1) in mind when they were framing it rather than the paragraph that refers to
the admission of patients to hospitals. I would hold that the statutory base for its
guidance on seclusion is to be found in section 118(1)(b) of the 1983 Act.
Then there is the question of the Code's status. What does "guidance" mean in this
context? There is no statutory obligation to comply with it. But it cannot be divorced
from its statutory background, from the process of consultation and from the
Parliamentary procedure that must be gone through before it is published under section
118(6) as "the code as for the time being in force." Statutory guidance of this kind is less
than a direction. But it is more than something to which those to whom it is addressed
must "have regard to".
68.
The Court of Appeal said in para 76 of its judgment that the Code is something that
those to whom it is addressed are expected to follow unless they have good reason for
not doing so: see R v Islington London Borough Council, ex p Rixon (1996) 1 CCLR
119, per Sedley J at p 123. Like my noble and learned friend Lord Bingham of Cornhill I
would go further. They must give cogent reasons if in any respect they decide not to
follow it. These reasons must be spelled out clearly, logically and convincingly. I would
emphatically reject any suggestion that they have a discretion to depart from the Code as
they see fit. Parliament by enacting section 118(1) has made it clear that it expects that
the persons to whom the Code is addressed will follow it, unless they can demonstrate
that they have a cogent reasons for not doing so. This expectation extends to the Code as
a whole, from its statement of the guiding principles to all the detail that it gives with
regard to admission and to treatment and care in hospital, except for those parts of it
which specify forms of medical treatment requiring consent falling within section 118(2)
where the treatment may not be given at all unless the conditions which it sets out are
satisfied.
69.
If good reasons are required for departing from the system that the Code sets out for the
monitoring and review of the use of seclusion, there are ample grounds for thinking that
they have been well demonstrated at Ashworth. There is no doubt that the situation there
differs from that in the generality of institutions in which mental patients who are
severely disturbed may find themselves. As the introduction to Ashworth's Policy states,
special considerations need to be applied to the use of seclusion in a high security
hospital, bearing in mind that the very reason why patients are there is because they
cannot be dealt with by mental health services elsewhere in a way that will protect others
from harm. The Code does not address this problem. Nor is it designed to do so, as
section 118(1) does not provide for this. The subsection envisages a single code of
practice, not a series of codes designed for different types of hospital. The care with
which the problem at Ashworth was addressed is evident from the witness statements of
those who were responsible for evolving and applying the Policy. It is evident too from
the Policy itself, which sets out a series of additional safeguards that must be applied if
seclusion extends beyond seven days. A balance is struck between the need for frequent
medical reviews in the early stages and the process of group monitoring in the longer
term at less frequent intervals, bearing in mind that some patients at Ashworth suffer
from mental conditions that make them dangerous not just for short bursts but also for
long periods, and bearing in mind too the need to make the most efficient use of the
medical resources at the hospital.
70.
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The point does not end there however. There are further questions that must be
addressed. How is the court to judge whether good reason to depart from the Code has
been demonstrated? Must the Code be given a greater status in order to make it
compatible with mental patients' Convention rights? Was Ashworth free to depart from
the Code by adopting its own policy for the use of this procedure, or was it free to do so
if at all only in regard to individual patients or groups of patients? These were the points
to which, while endorsing the Rixon approach, the Court of Appeal directed its attention
in para 74 of its judgment:
71.
"Where there is a risk that agents of the state will treat its patients in a way which
contravenes article 3, the state should take steps to avoid this through the
publication of a Code of Practice which its agents are obliged to follow unless they
have good reason to depart from it. Where there is an interference with the rights
protected by article 8, the requirement of legality is met through adherence to a
Code of Practice again unless there is good reason for departing from it. The same
will apply where the Code deals with the deprivation of liberty within the meaning
of article 5."
It was in the light of these observations that the Court of Appeal held in para 76 that
hospitals could depart from the Code only in the case of individual patients or groups of
patients and that they could not do so as a matter of policy.
The respondent does not suggest that the Code itself fails to respect the patients'
Convention rights. The Secretary of State is not said to have failed in her duty under
section 118(1). She is not a party to these proceedings. His argument is that, given the
state's obligation under article 3 of the Convention to avoid ill-treatment of patients
detained by or on its authority, the Code must be given a weight and status which is
consistent with that obligation. The same point is made with reference to the state's
obligations under articles 5 and 8 of the Convention. He submits that it is for the court to
achieve this, in its assessment of the weight and status that is to be given to the Code.
72.
There is no doubt that, as it is a public authority, the court has a responsibility in
domestic law to do what it can to ensure that legislation is applied compatibly with
Convention rights: section 6 of the Human Rights Act 1998. It is subject also to the
interpretative obligation which section 3(1) of that Act sets out. These provisions reflect
the way the obligations of the state in these matters are seen by the court in Strasbourg.
In Storck v Germany (application no. 61603/00) (unreported), 16 June 2005, para 93 the
European Court said:
73.
"The court recalls that it is not its function to deal with errors of fact or law
allegedly committed by the national courts and that it is in the first place for the
national authorities, notably the courts, to interpret the national law. However, the
Court is called to examine whether the effects of such an interpretation are
compatible with the Convention (see, inter alia, Platakou v Greece, no. 38460/97,
para 37, ECHR 2001-1). In securing the rights protected by the Convention, the
Contracting States, notably their courts, are obliged to apply the provisions of
national law in the spirit of those rights. Failure to do so can amount to a violation
of the Convention Article in question, which is imputable to the State."
It is plain that the intensity of review must vary according to the context. The
proposition that it is the responsibility of the court to give the Code the weight and status
that it needs in order to secure the patients' Convention rights is undoubtedly sound in
principle. It follows that in this context the reasons for any departure from the Code
which puts the patients' Convention rights at risk must be subjected to particularly
careful and intense scrutiny. But the complaint which the respondent makes is directed
74.
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not at an isolated act or series of acts of departure from the Code in violation of his
Convention rights but to the fact that Ashworth has developed its own Policy for the
seclusion of patients in its hospital. The argument that the Code must be given an
enhanced status is a sterile one in this context unless it can be demonstrated that the
Policy is in itself incompatible with the patients' Convention rights. Unless this can be
done, the conclusion must be that there are no grounds for declaring that the Policy is
unlawful in order to ensure that there is compatibility.
The Convention rights
The crucial question then, to which I now turn, is whether the relevant parts of the
Policy are incompatible with the respondent's Convention rights. The rights that have
been put in issue are those which are guaranteed by articles 3, 5 and 8 of the
Convention.
75.
It must be stressed at the outset that no complaint is made about the way the Policy has
been implemented by Ashworth. It is not suggested that the staff in the hospital have
been anything other than rigorous in their observance of it. Nor is it suggested that it was
applied to the respondent on any of the occasions when he was secluded in a way that
has caused harm to him. In a summary of her conclusions at the end of a report which
she prepared following an interview with him, having had access to his full medical
records, Dr Sophie Davison, a consultant forensic psychiatrist, said that the Ashworth
policy of fewer reviews than recommended in the Code of Practice increased the risks
associated with seclusion, particularly after seven days. But she also said that the initial
decision was appropriate on each of the four occasions of seclusion in his case that she
had investigated, that there was no evidence that he had suffered as a result of medical
reviews being less frequent than recommended in the Code and that there was no
evidence that more frequent reviews would have reduced the overall time that he had
spent in seclusion. There is no evidence that any other patient has suffered as a result of
the way Ashworth's Policy on seclusion has been implemented.
76.
a. Article 3
Article 3 guarantees that no one shall be subjected to torture or to inhuman and
degrading treatment or punishment. No one suggests that seclusion is a form of torture or
that it is being used as punishment. Para 4.3 of the Policy states in terms that seclusion is
not used as a punishment. So the parts of this guarantee that are relevant to this case are
those that prohibit inhuman or degrading treatment. But, as Dr Davison's report makes
clear, it is not suggested in this case that Ashworth has done anything that is directly
prohibited by this article. The argument has concentrated instead on its positive effects -
what must be done to ensure that patients do not suffer treatment of the kind that is
prohibited.
77.
The European Court has repeatedly said that ill-treatment must attain a minimum level
of severity if it is to fall within the scope of the expression "inhuman or degrading
treatment": A v United Kingdom (1999) 27 EHRR 611, 629, para 20. This standard is to
be judged in the light of the circumstances, as the court has held that in order for an
arrest or detention in connection with court proceedings to be degrading within the
meaning of the article it must be of a special level and it must in any event be different
from the usual degree of humiliation that is inherent in arrest or detention: Ocalan v
Turkey (application no. 46221/99) (unreported), 12 May 2005, para 181. It has also
made clear that, while the absolute prohibition is not capable of modification on grounds
of proportionality, issues of proportionality will arise where a positive obligation is
implied as where positive obligations arise they are not absolute. In Osman v United
Kingdom (2000) 29 EHRR 245, 305, para 116 the court recognised that such obligations
78.
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must be interpreted in a way which does not impose an impossible or disproportionate
burden on the authorities. Nevertheless, as the court said in Z v United Kingdom(2002)
34 EHRR 3 , para 73, states must take measures to provide effective protection of
vulnerable persons, and these must include reasonable steps to prevent ill-treatment of
which the authorities had or ought to have had knowledge.
Further guidance is to be found in Van der Ven v The Netherlands (application no.
50901/99) (unreported), 4 February 2003. The applicant's complaint was that the
detention regime to which he was subjected in a maximum security prison constituted
inhuman and/or degrading treatment and infringed his right to respect for his private and
family life. The court held that routine strip searches to which he was subjected together
with other security measures amounted to inhuman or degrading treatment in violation of
article 3. But it made it clear that detention in a high security prison facility could not be
said in itself to raise an issue under the article: para 50. The removal from association
with other prisoners for security, disciplinary or protective reasons did not in itself
amount to inhuman or degrading treatment or punishment: para 51; see also Koskinen v
Finland (application no. 20560/92) (unreported), 30 August 1994, p 15. In assessing
whether a measure may fall within the ambit of article 3 in a given case, regard must be
had to the particular conditions, the stringency of the measure, its duration, the objective
pursued and its effects on the person concerned: para 51; see also, for a case where the
same test was applied to the conditions of detention in solitary confinement in a mental
institution, the Commission's opinion in Dhoest v Belgium (application no. 10448/83)
(unreported), 14 May 1987, para 118.
79.
I would approach this issue therefore by asking myself whether Ashworth's Policy gives
rise to a significant risk of ill-treatment of the kind that falls within the scope of the
article, and if there is any such risk whether it would impose a disproportionate burden
on Ashworth for it to be forced to abandon its Policy so as to eliminate it.
80.
The risk which must be considered is whether a patient might suffer ill-treatment of the
required level of severity as a result of being kept in seclusion under Ashworth's Policy
for longer than would have been the case under the Code. As Dr Davison makes clear in
her report, seclusion does give rise to risks which are both physical and psychological.
That is why regular medical reviews are necessary to ensure that the patient's mental and
physical health does not deteriorate. Her conclusion is that Ashworth's policy of fewer
reviews after seven days increases the risks. But the evidence falls well short of
demonstrating that the Policy, when read as a whole and if proper weight is given to all
its additional safeguards, gives rise to a serious risk of ill-treatment of the required level
of severity. The absence of any evidence that any patient has suffered as a result of
Ashworth's Policy is highly significant. So too is the absence of any evidence that
seclusion is being used at Ashworth for reasons that are unacceptable. On the contrary,
Dr Davison's opinion is that the initial decision to seclude the respondent was appropriate
on each occasion and that there was no evidence that more frequent reviews would have
made any difference in his case. The Mental Health Act Commission's suggestion that
arrangements should have been considered for the alternative management of such
patients has not, so far as the evidence shows, been followed up by any detailed
explanation of the alternative options that are available.
81.
The conclusion must be that the risk of ill-treatment is very low if full effect is given to
the Policy, and that in view of the safeguards which it contains and the special
circumstances that obtain in its hospital it would be disproportionate for Ashworth to be
compelled to abandon the Policy in favour of the Code to eliminate that risk. In my
opinion the Policy is not incompatible with article 3.
82.
b. Article 5
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Article 5 addresses the right to liberty and security. It provides that no one shall be
deprived of his liberty save in the cases that it describes and in accordance with a
procedure prescribed by law. The cases that it describes include the lawful detention of
persons of unsound mind: article 5(1)(e). Everyone who is deprived of his liberty is
entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if it is unlawful: article 5(4).
83.
The issue in this case however is not directed to the fact that the respondent is being
detained as a mental patient at Ashworth. The criteria for the detention of a patient
which were laid down in Winterwerp v The Netherlands (1979-80) 2 EHRR 387, 403,
para 39, are not in issue in this case. Nor is it suggested that Ashworth is an inappropriate
institution for the respondent's detention while he is of unsound mind. Seclusion is, of
course, a further form of detention. It involves the patient's supervised confinement in a
room, which may be locked to protect others from significant harm. But it is not
suggested that the use of seclusion engages article 5 in every case where the use of this
procedure is appropriate. The respondent's argument is directed instead to Ashworth's
Policy for dealing with it.
84.
A person who is of unsound mind must be detained in a place which is appropriate for
that purpose: Aerts v Belgium (1998) 29 EHRR 50. Beyond that, as Baroness Hale
pointed out in R(B) v Ashworth Hospital Authority [2005] UKHL 20; [2005] 2 WLR
695, 707, para 34, article 5(1)(e) is not concerned with the patient's treatment or the
conditions of his detention: Ashingdane v United Kingdom (1985) 7 EHRR 528, 543,
para 44. The question whether the way these matters are dealt with involves a violation
of the patient's Convention rights must be dealt with under articles 3 and 8. Moreover, it
is to be noted that, following para 19.16 of the Code, para 4.2 of the Policy states that
seclusion should be used as a last resort and for the shortest possible time. Para 8.4 states
that a detailed management plan for management of the ending of seclusion should be
prepared in all cases to ensure the earliest possible ending of seclusion. In Bollan v
United Kingdom (application no. 42117/98) (unreported), 4 May 2000, p 9, the court
said that disciplinary steps imposed formally or informally on prisoners which have an
effect on conditions of detention within a prison cannot be considered a deprivation of
liberty, but must be regarded in normal circumstances as modifications of the conditions
of detention and therefore outside the scope of article 5(1).
85.
In my opinion the seclusion of a patient who is lawfully detained at Ashworth under the
conditions laid down in the Policy does not amount to a separate deprivation of liberty
which engages article 5.
86.
c. Article 8
Article 8(1) provides that everyone has the right to respect for his private and family
life, his home and his correspondence. An interference with these rights may be justified
under article 8(2), but only if it is in accordance with the law and is necessary in a
democratic society for, among other things, the prevention of disorder or crime. The
argument that the Policy is incompatible with this article was introduced in the Court of
Appeal by the mental health charity Mind, which was permitted to intervene in these
proceedings and whose arguments the respondent now adopts.
87.
The European jurisprudence tells us that not all interferences with respect for private
and family life during lawful detention will engage article 8. What it describes as normal
restrictions and limitations consequent on prison life and discipline in these
circumstances will not constitute in principle a violation of this article: Nowicka v Poland
[2003] 1 FLR 417, para 71. So long as it does not amount to ill-treatment in violation of
article 3, seclusion will not as a general rule result in an interference with the patient's
88.
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rights under article 8(1): Herczegfalvy v Austria (1992) 15 EHRR 437, paras 82-84 and
86; Raninen v Finland (1997) 26 EHRR 563, paras 56-59 and 64. Recommendation Rec
(2004)10 of the Committee of Ministers to member states concerning the protection of
the human rights and dignity of persons with mental disorder, adopted by the Committee
of Ministers under the terms of article 15.b of the Statute of the Council of Europe on 22
September 2004, recognises that seclusion may be resorted to in appropriate
circumstances. Article 27 provides the following guidelines:
"1. Seclusion or restraint should only be used in appropriate facilities, and in
compliance with the principle of least restriction, to prevent imminent harm to the
person concerned or others, and in proportion to the risks entailed.
2. Such measures should only be used under medical supervision, and should be
appropriately documented.
3. In addition:
i the person subject to seclusion or restraint should be regularly monitored;
ii the reason for, and the duration of, such measures should be recorded in the
person's medical records and in a register.
4. This article does not apply to momentary restraint."
Clearly, there is a risk of a violation if this form of intervention is resorted to improperly
or for longer periods than the patient's mental condition justifies. But there is no
evidence that this is what has been happening at Ashworth. The whole purpose of the
Policy, which is written down and published within the hospital, is to define the standards
that must be followed and prevent abuse and arbitrariness. It is designed to minimise the
risk of a violation. It is hard to see why, in these circumstances, the Policy should itself
be thought to be incompatible with article 8(1).
89.
Assuming nevertheless that the Policy requires to be justified under article 8(2), I would
conclude that it satisfies these tests. The aim of seclusion is to prevent disorder or crime,
as it is resorted to only as a last resort to protect others from significant harm. The
purpose of the Policy is to address the special considerations that need to be applied to
its use in a high security hospital, whose patients are considered to present a grave and
immediate risk to the public and may do so also to other patients, staff and visitors: see
the Introduction to the Policy. It shares the aims of the Code in this respect, and its aim is
a legitimate one. It also aims to ensure that the procedure is resorted to in a way that is
proportionate, as it is designed to avoid harm to the patient and to ensure that, even in
long term cases, it is brought to an end as early as possible.
90.
The main thrust of Mind's argument that the conditions of article 8(2) are not satisfied is
directed to the requirement that an interference with the article 8(1) rights cannot be
justified unless it is "in accordance with the law." This phrase has the same meaning as
the expression "prescribed by law" in articles 9, 10 and 11: Silver v United Kingdom
(1983) 5 EHRR 347, para 85. The interference in question must have some basis in
domestic law and be in conformity with it: Silver, para 86. "Law" in this context is not
limited to statutory enactment or to measures, such as the Code, that have their base in a
statute. It includes the common law: Sunday Times v United Kingdom (1979-80) 2
E.H.R.R. 245, para 47. But the measure must be formulated with sufficient precision and
be sufficiently accessible to satisfy the criterion of foreseeability: Sunday Times, para 49;
Silver, para 87.
91.
In my opinion the Policy satisfies the requirements of precision and accessibility. The 92.
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procedures which it lays down are spelled out with the same clarity and attention to
detail as those in the Code. They have been reduced to writing, of course, and the Policy
is published within the hospital so that it is available to all who need to see them.
Uniformity of practice is ensured by this process, so the way this form of intervention is
being managed at Ashworth is entirely foreseeable. Patients are protected against
random or arbitrary interferences with their article 8(1) rights by the fact that the Policy
sets out standards in the light of which under domestic law judicial review of such
interferences is available. The protections that are available to patients under the civil
and the criminal law are reinforced by them. I would conclude that the purposes for
which the requirement that the interference must be in accordance with the law is set out
in article 8(2) are satisfied.
Mind accepts that the Convention does not require an express statutory provision for
the use of this procedure. But it argues that the Code of Practice would not have the
force of law if it was open to Ashworth to depart from it in formulating its own policy.
The concern is that, if this is so, the patient will not be able to foresee to a degree that is
reasonable the circumstances in and the conditions on which this form of intervention
may be exercised. If the circumstances in which the Code may be departed from cannot
be predicted it will fail the tests of foreseeability and certainty.
93.
I do not accept this argument. The requirement which the law lays down that those to
whom the Code is addressed are expected to follow it unless they can give a good reason
for not doing so provides a sufficient assurance of certainty and predictability to satisfy
the requirements of article 8(2). But the argument misses the point in any event, because
the issue in this case is not whether the Code is incompatible or is at risk of being held to
be incompatible. It is directed to the lawfulness of Ashworth's Policy. The question for
inquiry is not whether the Code is compatible with this article but whether the
requirement of compatibility is satisfied by the Policy.
94.
Conclusion
In my opinion it has not been shown that Ashworth's Policy is incompatible with the
respondent's Convention rights. It is not necessary therefore to subject it to enhanced
scrutiny in order to ensure its compatibility. This has an important bearing on the
question whether, bearing in mind that it was expected to follow the Code unless it had
good reason for not doing so, it was open to Ashworth to depart from the guidance which
the Code gives on seclusion and to formulate its own Policy.
95.
The Court of Appeal said in para 76 of its judgment that Ashworth could not depart
from the Code as a matter of policy and in relation to an arbitrary dividing line that was
not properly related to the Code's definition of seclusion and its requirements. As I
accept - and indeed would strengthen - the test which they were applying, this is the key
point of difference between us. In my opinion there is nothing that is arbitrary about the
way in which Ashworth has departed from the Code in the framing of its Policy. A
careful reading of it shows that it is based very substantially on the Code's guidance, and
that where it departs from it - with regard to the frequency of reviews in particular - it
does so because of its perception of the way seclusion needs to be used in the special
circumstances that obtain at Ashworth. The system that it lays down has been carefully
designed to deal with its use for much longer periods than the Code's guidance was
designed for. Its purpose is to ensure that its use for these longer periods is not resorted
to at random or arbitrarily. Following the Code's example, that is the whole purpose of
the Policy.
96.
As for the question whether Ashworth was free to depart from the Code as a matter of
policy, and not just in relation to individual patients or groups of patients, I do not see
97.
30 of 38 24/11/2013 12:39
why this should be so, provided of course that it can demonstrate that it had a good
reason for doing so. The distinction which the Court of Appeal made between a
departure in the case of individual patients or groups of patients and a departure which
takes the form of a written policy for dealing with a particular form of intervention is
elusive, and I do not think that it can be regarded as acceptable. There is an obvious
danger that, if the Code could be departed from in the case of individual patients or
groups of patients where no written guidance was available, decisions to do this would be
open to attack as being arbitrary because their consequences were unregulated and
unpredictable. That, precisely, is what Ashworth's Policy seeks to avoid. Good clinical
and medical practice dictates that seclusion should only be used in particular situations to
protect others and subject to particular conditions to ensure that the patient is not
harmed or secluded for any longer than is necessary. The purpose of the Policy is to
ensure that the conditions under which it is to be resorted to are clearly understood and
carefully observed so that decisions that are taken about the management of this
procedure are consistent and not arbitrary.
I am in full agreement with all that my noble and learned friend Lord Brown of Eaton-
under-Heywood has said about this case except with regard to the issues raised by article
8(2) of the Convention, as to which I have the misfortune to disagree with him. The point
that divides us is whether the practice of seclusion carried out at Ashworth in accordance
with the Policy is "in accordance with the law." As his quotation from para 39 of the
Court's judgment in Hewitt and Harman v United Kingdom (1992) 14 EHRR 657
reminds us, it is the quality of the law that matters rather than the form it takes. The
touchstones by which its quality is measured are, as Lord Brown says, its transparency,
its accessibility, its predictability and its consistency. Where these qualities are present
the measure protects against the abuse of power and against conduct which is arbitrary.
There is no doubt that the Code satisfied these tests, notwithstanding the fact that there
is no statutory obligation to comply with it. In my opinion Ashworth's Policy, which is
careful in all these respects to follow the Code's example, does so too. It is, of course,
true that Ashworth could alter its Policy. But if it did so every departure from the Code
would have to be justified in the same way as the Policy itself has had to be justified. I
do not think that the fact that Ashworth has its own Policy opens the door to further
departures from the Code that could be described as arbitrary.
98.
Assuming, of course, that Ashworth has shown - as it has - clearly, logically and
convincingly that it had cogent reasons for departing from the Code in these particular
respects in favour of its own Policy, I would hold that its decision cannot be said to have
been unlawful. Concerns that a departure from the Code in this instance will lead to
widespread variations in practice and undermine its status generally or that your
Lordships' judgment lowers the protection offered by the law to mentally disordered
patients are misplaced, in my opinion. The requirement that cogent reasons must be
shown for any departure from it sets a high standard which is not easily satisfied. The
protection which the law provides to ensure that any departures are compatible with
Convention rights is an additional safeguard. This has been amply demonstrated in
practice since the Code was promulgated. Ashworth is the only place where a hospital
has departed from what the Code says about seclusion in favour of its own policy. While
I would respectfully endorse everything that Lord Brown says in the last paragraph of his
speech, I believe that it would be wrong to see this judgment as opening the door to
substantial departures from the Code on the part of individual hospitals. The decision of
the majority should not be seen as an invitation to other hospitals to do this and resort to
their own policies. The status of the Code remains unchanged, and so does the need to
show cogent reasons if in any respect it is departed from.
99.
For these reasons and those given by my noble and learned friend Lord Bingham of
Cornhill, whose speech I have had the opportunity of reading in draft, I would allow the
100.
31 of 38 24/11/2013 12:39
appeal and dismiss the respondent's application.
LORD SCOTT OF FOSCOTE
My Lords,
I have had the advantage of reading in advance the opinions of my noble and learned
friends and find myself in complete agreement with the reasons for allowing this appeal
given by Lord Bingham of Cornhill and Lord Hope of Craighead. I can add nothing
useful to those reasons. I am in respectful agreement, also, with everything that my noble
and learned friend Lord Brown of Eaton-under-Heywood has written save in relation to
Article 8 of the ECHR. I want to add a few words to explain why I disagree with my
noble and learned friend's conclusion that the Ashworth policy on seclusion cannot be
described as being "in accordance with the law" for Article 8 purposes.
101.
In paragraph 117 of his opinion Lord Brown poses the question whether the placing of a
mental hospital patient in seclusion engages Article 8. He answers the question in
paragraph 118: "it is unthinkable that a mental patient can be subjected to seclusion,
particularly on a long term basis as is often the case at Ashworth, without good reason
and . without such interference with his rights being 'in accordance with the law'". I
respectfully agree. But my noble and learned friend then examines whether the
Ashworth policy on seclusion can be described as being "in accordance with the law"
and concludes that, because of the significant respects in which the provisions of the
Ashworth policy are different from the provisions of the Secretary of State's Code of
Practice, the Ashworth policy cannot be so described. Lord Brown comments that the
practices relating to seclusion adopted by any individual hospital, rational and reasonable
though those practices might be, would not have "the necessary legal quality to render
them compatible with the rule of law" (paragraph 127).
102.
My Lords, this surely cannot be right. "The law", for Article 8 purposes, does not
consist only of statutes, directives, statutory codes and the like. It must include, also, the
variety of duties and rights arising out of the circumstances in which individuals and
institutions find themselves and their relationship with one another that are imposed by
the common law. It cannot be doubted that Ashworth owes a legal duty to each of the
inmates of the hospital to take reasonable steps to protect him or her from physical injury
by other inmates. Ashworth cannot choose its patients. They are sent to Ashworth by
others and Ashworth has to accept them, to detain them and to look after them. All of
them suffer from some degree of mental disturbance - otherwise they would not be there.
Some of them from time to time present a physical danger to other inmates. Where the
danger appears particularly acute Ashworth's legal duty to the other inmates may well
require Ashworth to place the dangerous inmate in seclusion. It is accepted that the only
legitimate purpose of placing an inmate in seclusion is the protection of others. Seclusion
cannot be used as a punishment nor can it constitute medical treatment, at least in the
narrow sense of that expression. And the placing of a patient in seclusion where the
apprehended danger that the patient in question may inflict harm on other inmates is
sufficiently acute would, in my opinion, constitute a step that Ashworth's legal duty to
the other inmates would require it to take. So the proposition that for Ashworth to do so
would not be "in accordance with the law" for Article 8 purposes because of some
perceived defect in the written formulation of Ashworth's policy on seclusion must, in
my opinion, be rejected. A dangerous patient's Article 8 rights could not justifiably be
pitched at a level that required the hospital to leave other inmates in unacceptable danger
of physical harm. Once it is accepted that Ashworth has no statutory obligation to have a
seclusion policy that conforms in every respect to the statutory Code and that
Ashworth's seclusion policy is rational and reasonable in itself despite its divergences
from the Code, there can be no room for any suggestion that the implementation of
103.
32 of 38 24/11/2013 12:39
Ashworth's seclusion policy for the safety of other inmates is otherwise than in
accordance with the law.
I would, for the reasons given by Lord Bingham and Lord Hope, allow this appeal. 104.
LORD BROWN OF EATON-UNDER-HEYWOOD
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friends
Lord Bingham of Cornhill and Lord Hope of Craighead and gratefully adopt their
exposition of the facts, the legislation, the Secretary of State's Code of Practice, (the
Code) and Ashworth's own policy (Ashworth's Policy). In what follows I take all that as
read.
105.
This appeal concerns a very sensitive question: the seclusion of mental health patients.
Such patients, it need hardly be said, whether detained under section 3 of the Mental
Health Act 1983 (the 1983 Act) or admitted to mental hospitals informally (as the great
majority are), form a particularly vulnerable group within society. And, of course,
seclusion, forcible supervised solitary confinement, is one of the most extreme methods
of controlling them.
106.
The central question raised by the appeal is what status must be given to the Code
(properly issued, as I understand all your Lordships to agree, pursuant to section 118 of
the 1983 Act) with regard to the use of seclusion in mental hospitals. I use the word
status because that was the word used during argument and in heading (g) to the Court of
Appeal's conclusions at paras 71-76 of its judgment. It is important, however, to
understand precisely what is at issue. The Court of Appeal ultimately made a declaration
that: "In relation to the use of seclusion, the Code of Practice issued under section 118 of
the Mental Health Act 1983 may only be departed from if there is good reason for such
departure either in the case of an individual or a group of individuals sharing the same
characteristics." I understand a majority of your Lordships to conclude that that
declaration should be set aside: the Code is to be regarded as guidance rather than
instruction, albeit guidance which "should be given great weight" and departed from
"only if [the hospital] has cogent reasons for doing so" (para 21 above).
107.
The difference between these two positions is not immediately obvious. "Cogent
reasons" for departing from guidance might well be thought to amount equally to "good
reason". Yet the Court of Appeal ruled in the light of its declaration that Ashworth's
Policya Policy described at para 80 as "departing from the Code of Practice on a
wholesale basis"is unlawful, whereas the majority of your Lordships would find it
lawful. The critical difference must surely therefore be this: in a case where two (or
more) views as to the appropriate policy to adopt towards seclusion could each be
regarded as reasonable and where the Code embodies one view and an individual
hospital takes another, whereas the Court of Appeal would require the hospital to follow
the Code, the majority of your Lordships would not; rather they would hold it lawful for
the hospital to adopt and apply its own preferred policy.
108.
This is in many ways an odd appeal. It is not now suggested that Mr Munjaz was subject
to seclusion when he should not have been, nor that he was secluded for longer than he
should have been. Nor, I think, is it suggested that Ashworth's policy, assuming always,
as one must, that it was properly applied, itself gives rise to any direct violations of the
European Convention on Human Rights, let alone to any breach of domestic law. Rather
what is suggested is that Ashworth is simply not permitted to have its own different
policy towards seclusion (being entitled to depart from the Code's policy only if in some
individual case or group of cases such departure is justifiednotably in those cases
109.
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where it would make no sense to apply the Code).
I agree with the majority of your Lordships that this argument cannot be advanced on
domestic law grounds: on any conventional approach to the construction and application
of section 118 of the 1983 Act, the Code would clearly permit Ashworth to adopt its own
differing policy on seclusion. But what of the arguments centred on the Strasbourg
jurisprudence? The real case advanced by those who challenge Ashworth's Policy I
understand to proceed in three stages: it is said first, that the United Kingdom would be
in breach of its obligations under the European Convention on Human Rights if
Ashworth were permitted to adopt a policy of its own; second, to ensure compatibility
with Convention rights, section 118 must accordingly be construed pursuant to section 3
of the Human Rights Act 1998 to give greater weight to the Code; third, once the Code is
given this additional weight, Ashworth becomes disentitled to adopt a different policy of
its own.
110.
The articles of the Convention on which the arguments have focused are articles 3, 5
and 8. The Court of Appeal accepted the appellant's case (supported as it was by Mind)
with regard to articles 3 and 8 but not as to article 5. As to article 5 the Court held that
provided only that the person concerned is detained in a type of institution appropriate to
meet the article 5(1) purpose of his detention, that article is not concerned with the
conditions of that detention, only with its justifiability. I agree with the Court of Appeal's
decision on this part of the case as expressed in paragraphs 69 and 70 of its judgment.
111.
As to article 3, the argument which I understand the Court of Appeal to have accepted
was essentially this. Unnecessary or unnecessarily prolonged seclusion can, in extreme
circumstances, constitute inhuman or degrading treatment such as to amount to a
violation of article 3. The state is under an implied positive obligation to take steps to
guard against such breaches. The Code of Practice, if given the enhanced status
contended for by the appellants, satisfies this positive obligation. Otherwise it is
breached.
112.
For my part I find this argument unconvincing. In the extended part of its judgment
refusing permission to appeal, the Court of Appeal said (at para 91):
113.
"We did not lay down a general principle that where there is a risk that a public
authority may act incompatibly with a Convention right there must be a Code of
Practice promulgated by the State."
I confess to some difficulty in reconciling this with a number of earlier passages in the
judgment. Take this (para 60):
"The argument before us is that the Court should afford a status and weight to the
Code of Practice which is consistent with the state's obligation to avoid
ill-treatment of patients detained by or on the authority of the state. We accept
that argument"
and this (at para 74):
"Where there is a risk that agents of the state will treat its patients in a way which
contravenes article 3, the state should take steps to avoid this through the
publication of a Code of Practice which its agents are obliged to follow unless they
have good reason to depart from it."
Reconcilable or not, however, the Court of Appeal's final thoughts on the issue must
surely be right: there can be no principle that the state is obliged to promulgate a code
whenever the risk arises of a public authority acting incompatibly with a Convention
114.
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right. The Strasbourg jurisprudence goes nowhere near supporting such a principle. Even
in an article 2 case the positive obligation arises only in cases where the state knows or
ought to know of a real and immediate risk to life. There is no evidence in the present
case that the approach to seclusion being taken up and down the country (let alone by
Ashworth itself) creates so plain a risk of article 3 violations that the Secretary of State is
bound to take corrective measures.
There is, moreover, to my mind a further ground for rejecting the article 3 argument
here. As I observed in my judgment in the Court of Appeal in R (Adlard) v Secretary of
State for the Environment, Transport and the Regions [2002] 1 WLR 2515 , at para 36:
115.
"The Secretary of State's obligation under section 6 of the Human Rights Act 1998
is not himself to act incompatibly with a Convention right; he is not obliged to
ensure that other public authorities themselves act compatibly."
True it is, as observed by the court below at para 59 of its judgment, that this was said
in the context of an argument that the Secretary of State should have called in a planning
application so as to avoid the risk of the local planning authority acting incompatibly
with article 6. I see no reason, however, why that same principle should not apply
equally in the present context. The Secretary of State is entitled to place the
responsibility for acting compatibly with article 3 upon another public authority, here the
hospital trust.
On these issues, therefore, I am in full agreement with the majority of your Lordships.
The remaining issue, however, that revolving around article 8 I confess to having found
altogether more difficult.
116.
The first question to arise under article 8 is, of course, whether seclusion pursuant to
Ashworth's policy engages article 8 at all -whether, that is, it falls within the scope of
article 8(1): "Everyone has the right to respect for his private and family life, his home
and his correspondence." In placing a patient in seclusion, is Ashworth interfering with
the exercise of the patient's private life so as to require, pursuant to article 8(2), both a
substantial factual justification for seclusion and, additionally, a sound legal basis for it?
117.
There can surely be only one answer to this question. It is unthinkable that a mental
patient can be subjected to seclusion, particularly on a long-term basis as is often the
case at Ashworth, without good reason and, in the language of article 8(2), without such
interference with his rights being "in accordance with the law." It is unnecessary to go so
far as Mr Gordon QC appears to have submitted below on behalf of Mind, that seclusion
is always an interference with the patient's right to private life, to conclude that as a
practice it will inevitably sometimes engage article 8: there are bound to be occasions
when the patient's "personal autonomy" or "moral integrity" (article 8 concepts well
recognised and enshrined in the Strasbourg case law) are undermined, occasions when
his "human dignity" (and, indeed, important elements also of his residual "human
freedom") are compromised. The Court of Appeal's analysis at paragraphs 61 and 62 of
its judgment on this part of the article 8 argument is in my opinion correct.
118.
To my mind therefore, the case turns on article 8(2), and above all on the requirement
that any interference with private life involved in the practice of seclusion be effected
"in accordance with the law". Nobody could dispute that seclusion as a practice is
necessary. It can, indeed, be justified under several of the specified grounds provided for
by article 8(2): "in the interests of . . . public safety," "for the prevention of disorder or
crime," "for the protection of health," and "for the protection of the rights and freedoms
of others."
119.
But that is not a sufficient answer to the complaint of interference with article 8 rights. 120.
35 of 38 24/11/2013 12:39
This is illustrated by in Malone v United Kingdom (1985) 7 EHRR 14, a complaint about
telephone-tapping. Nobody doubted the justification of the practice but it was held to be
contrary to article 8 for not being "in accordance with the law"a deficiency in the
legislation cured by the Interception of Communications Act 1985.
Hewitt and Harman v United Kingdom (1992) 14 EHRR 657 provides another
illustration of the principle in the context of secret surveillance activities carried out by
the Security Service. These activities, an undoubted interference with the applicants'
private lives, were based on a non-binding and unpublished directive from the Home
Secretary to the Director-General of the Security Service. The directive did not have the
force of the law, nor did its contents constitute legally enforceable rules governing the
operation of the Security Service. In those circumstances the European Commission of
Human Rights concluded that the directive did not provide a framework indicating with
the requisite degree of certainty the scope and manner of the exercise of discretion by
the authorities in the carrying out of their activities. This want of legal support for the
practice in turn had to be cured by further legislation, the Security Service Act 1989.
121.
What is clear from these and other Strasbourg authorities is that more is required by
way of legal justification for an interference with private rights merely than that there
exists a sufficient basis for the practice in domestic law. In paragraph 39 of its judgment
in Hewitt and Harman the Commission referred back to the Court's judgment in Malone
as having "elucidated the concept of foreseeability and highlighted its importance as a
safeguard against the arbitrary application of measures of secret surveillance", quoting
from the Court's judgment in Malone:
122.
"The Court would reiterate its opinion that the phrase 'in accordance with the law'
does not merely refer back to domestic law but also relates to the quality of the
law, requiring it to be compatible with the rule of law. . ."
"The quality of the law" there referred to encompasses notions of transparency,
accessibility, predictability and consistency, features of a legal regime designed to guard
against the arbitrary use of power and to afford sufficient legal protection to those at risk
of its abuse.
It was just such considerations which recently led the European Court of Human Rights
in H L v United Kingdom (2004) App No 45508/99 (the complaint to Strasbourg which
followed on from your Lordships' decision in R v Bournewood Community and Mental
Health NHS Trust ex p L [1999] AC 458) to hold that the absence of procedural
safeguards to protect informal mental patients against the arbitrary deprivation of liberty
on grounds of necessity violates article 5(1): the Court was struck by the lack of any
fixed procedural rules governing the admission and detention of compliant incapacitated
persons, contrasting this dearth of regulation with the extensive network of safeguards
applicable to psychiatric committals under the 1983 Act.
123.
What view then should be taken of the seclusion of mental patients? Is this a form of
control where regulation can satisfactorily be left to the individual hospitals who practise
it or must it be subject to more constraining central direction? In short, for the practice to
be compliant with the Convention, must the Secretary of State's Code have something
akin to the force of law? Must it therefore be given the status for which the appellants
contend, a status disentitling individual hospitals to depart from it on policy grounds
(rather than on the ground that it would be unreasonable to apply the Code to particular
patients or groups of patients)?
124.
Not without some considerable hesitation I have reached the conclusion that the Code
must indeed be given this higher status. Without such a Code the legal position would be
125.
36 of 38 24/11/2013 12:39
this. The only authority for seclusion would be, in the case of patients detained under the
1983 Act, the implied power of control over those lawfully detained; in the case of
informal patients, the common law doctrines of necessity and self-defence. The actual
use of seclusion in individual cases would not be regulated save insofar as each hospital
practising it would be required to adopt, publish and practise a rational policy of its own.
That, of course, is precisely what Ashworth does. But by the same token that Ashworth
is permitted to adopt its own policy, so too may other hospitals. Much of the factual
focus of the appeal was upon those of Ashworth's patients who are detained for over
seven days. But Ashworth's policy departs from the Code much earlier than this: only for
the first 12 hours does Ashworth conduct medical reviews at 4 hourly intervals as
specified by the Code; from then until the end of the seventh day such reviews occur
twice (rather than six times) a day. Other hospitals too may think it unnecessary to
conduct reviews as frequently as provided for by the Code. And of course there is
nothing to stop Ashworth altering its policy whenever it thinks it right to do so. The
policy of an individual hospital can be changed with infinitely greater ease than the Code
itself.
Under Ashworth's approach, moreover, seclusion as a concept loses something of its
clarity. Although Ashworth ostensibly adopts the Code's definition of seclusion"the
supervised confinement of a patient in a room, which may be locked to provide others
from significant harm"Dr Finnegan's evidence is that "at most times about 75% of the
long-term secluded patients are being nursed in extended association, despite being
defined as 'secluded'". These patients are said to be "up in the public areas of the ward
interacting with staff and patients." Small wonder that this different attitude to the very
concept of seclusion results in what seem to be widely differing approaches to the
practice. A startling example of this appears from the written intervention helpfully
submitted to the House by the Mental Health Act Commission. In October 2002 one
particular patient was transferred from Ashworth to Rampton having been in seclusion at
Ashworth for the best part of nine years. At Rampton his long-term seclusion ceased and
although from time to time since he has been subject to seclusion this has never been for
as long as eight hours (or a total of twelve hours within any forty-eight hour period) such
as to trigger Rampton's independent review process (the process provided for by para
19.21 of the Code).
126.
The Secretary of State's Foreword to the 1999 issue of the Code stated that: "the Code
should be followed" until necessary new legislation came into force. It ended:
127.
"The Code provides essential reference guidance for those who apply the Act.
Patients and their carers are entitled to expect professionals to use it."
Under the ruling proposed by the majority of your Lordships, patients and their carers
must be reconciled instead to substantial departures from the Code on the part of
individual hospitals who may prefer to follow a different policy of their own. It is my
reluctant conclusion that not only will these patients and carers be disappointed in their
expectations but that the practices in the event adopted by any such hospital (rational
though I acknowledge they must certainly be) will not have the necessary legal quality to
render them compatible with the rule of law. Unless it is to the Code that one can look
for regulation carrying the force of law it is not in my opinion to be found elsewhere.
Hospital policies themselves provide too insubstantial a foundation for a practice so
potentially harmful and open to abuse as the seclusion of vulnerable mental patients.
On this limited basis I for my part would uphold the judgment of the Court of Appeal
and declare Ashworth's policy to be unlawful.
128.
I add only this. The discordance of view revealed in this case between on the one hand 129.
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the hospital trust and the Secretary of State, and on the other hand the Mental Health
Act Commission (the statutory body charged with keeping under review the exercise of
the powers and duties contained in the 1983 Act) and Mind (the leading mental health
charity in this country), seems to me both striking and unfortunate. It is noteworthy too
that, as recently as December 2004, the Joint Parliamentary Select Committee on Human
Rights expressed itself concerned about "the low level of compliance with guidelines on
the use of seclusion" as attested to by the Mental Health Act Commission (para 242 of
its report). The new Mental Health Bill, just as the 1983 Act, makes provision for a Code
of Practice. The present Code, I readily accept, appears on its face to be altogether more
obviously directed to short-term than to comparatively long-term periods of seclusion. I
would express the hope that with a proper degree of cooperation on the part of all those
concerned in this sensitive area of public administration, it may prove possible to lay
down a comprehensive and compulsory scheme for the regulation of seclusion and its
periodic review such as properly reflects not merely best practice generally but also such
special problems as Ashworth (although apparently not the other high security hospitals)
experiences. Sooner or later, consensus must be reached upon the proper place of
seclusion within our mental hospitals. This issue has been a running sore for far too long.
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Neutral Citation Number: [2005] EWCA Civ 1363
Case No: C4/2002/2697 & C4/2003/2729

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date 22
nd
November 2005
Before:

LORD JUSTICE LAWS
LORD JUSTICE THOMAS
and
MR JUSTICE NELSON
- - - - - - - - - - - - - - - - - - - - -
Between:

NADARAJAH
ABDI
1
st
Appellant
2
nd
Appellant

- and -

THE SECRETARY OF STATE FOR THE HOME
DEPARTMENT
Respondent

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr Raza Husain (instructed by Fisher Meredith Solicitors) for the 1
st
Appellant
Mr Manjit Gill QC and Mr Sonali Naik (instructed by Messrs Wilson and Co) for the 2
nd

Appellant
Mr Ashley Underwood QC and Miss Elisabeth Laing (instructed by the Treasury Solicitor)
for the Crown

Hearing dates: 21 and 22 July 2005
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Laws:
INTRODUCTORY
1. These two appeals both involve issues concerning Article 8 of the European
Convention on Human Rights (ECHR), a policy of the Secretary of the State known
as the Third Country Family Links Policy (the Family Links Policy), and the legal
principle of legitimate expectation; though there are some other points in Abdi. In
each case the Secretary of State issued a certificate pursuant to s.72(2)(a) of the
Immigration and Asylum Act 1999 (the 1999 Act) to the effect that the appellants
claim of violation of Article 8 was manifestly ill-founded. Such a certificate prevents
an in-country appeal against a decision of the Secretary of State to remove or deport
the entrant to another Member State of the European Union.
2. The appeal in Abdi is against the decision of Harrison J given in the Administrative
Court on 5 December 2003, and is brought with permission granted by Dyson LJ on 3
March 2004. The appeal in Nadarajah is against the decision of Stanley Burnton J
given in the Administrative Court on 2 December 2002, and is brought with
permission granted by the judge below. Some points arising in Nadarajah have
already been determined in this court, but what has been referred to as the policy issue
remains; and on 29 March 2004 Dyson LJ ordered that the appeal on that issue in
Nadarajah be heard with the appeal in Abdi.
3. It is convenient at once to set out ECHR Article 8 and s.72(2)(a) of the 1999 Act. As
is well known Article 8 provides:
(i) Everyone has the right to respect for his private and
family life, his home and his correspondence.
(ii) There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well being of the
country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of
the rights and freedoms of others.
It is unnecessary to recite the provisions of the Human Rights Act 1998 which require
the courts to protect the rights guaranteed by the Convention and set out in the Schedule
to the Act. S.72(2)(a) of the 1999 Act provides:
72(1)
(2) A person who has been, or is to be, sent to a member State.is
not, while he is in the United Kingdom, entitled to appeal -
(a) under section 65 if the Secretary of State certifies that
his allegation that a person acted in breach of his human
rights is manifestly unfounded.
THE FACTS
NADARAJAH
4. The initial stages in the history of Nadarajahs case were sketched by Stanley Burnton
J:
1 The Claimant is a Tamil from Sri Lanka who claims
asylum in this country. He was married in 1991; his wife is
also a Tamil. In 1995 he went to Germany and claimed asylum
there. His claim for asylum was rejected. What then happened
is disputed. The Claimant says that he voluntarily returned to
Sri Lanka, where he was imprisoned and tortured; that his wife
procured his release, following which he fled to this country.
The Secretary of State believes that the Claimant never left
Germany, but simply went to ground there. He illegally and
clandestinely entered the United Kingdom on 21 August 1998.
After his arrest as an illegal entrant he claimed asylum. At that
time, his asylum claim in Germany was still subject to an
appeal to the German courts. When he arrived in the United
Kingdom, he concealed the fact that he had previously applied
for asylum in Germany or anywhere else; that he had done so
was discovered when fingerprints were taken. The Home
Secretary sought to remove him to Germany as a safe third
country. Judicial review proceedings were begun on his behalf,
but were held in abeyance pending the appeals in Adan and
Aitsegeur [2001] 2 AC 477 and Yogathas [2002] UKHL 41
[2002] 4 All ER 785.
2 In August 2001, the Claimants wife entered this
country and claimed asylum. In November 2001, the Home
Secretary certified the Claimants asylum claim under section
11 of the Immigration and Asylum Act 1999. In January 2002,
the Claimants solicitors withdrew the first judicial review
claim on account of judicial decisions on third country
certification (in the case of Yogathas that of the Court of
Appeal).
5. This account needs a little expansion. The judges statement that the Secretary of
State sought to remove the appellant to Germany as a safe third country is a reference
to a letter of 19 January 1999 by which the Secretary of State decided that the
appellant was returnable to Germany pursuant to the practice set out in the
Immigration Rules (HC 395 paragraph 345). By the same letter he notified the issue
of a certificate under s.2(2) of the Asylum and Immigration Act 1996 to the effect (I
summarise) that the appellant would not be persecuted in Germany, nor sent by the
German authorities to another country otherwise than in accordance with the
[Refugee] Convention. This meant that the appellants rights of appeal were
restricted to an out-of-country appeal against the certificate. However, as the judge
noted, his solicitors launched an application for judicial review of the decision to send
him to Germany. That was unresolved when, on 20 November 2001, the Secretary of
State withdrew the s.2(2) certificate and replaced it with a fresh certificate under s.11
of the 1999 Act, which is broadly to the same effect as s.2(2) of the earlier statute. I
need not set it out. In the decision letter of 20 November 2001 it was stated:
The Secretary of State is entitled by reason of section 11 of the
1999 Act to regard Germany as a place where a persons life
and liberty is not threatened by reason of a Geneva Convention
[sc. the Refugee Convention] matter, and as a place from which
a person will not be sent to another country otherwise than in
accordance with the Geneva Convention. The attached
certificate certifies that Germany has accepted that under
standing arrangements it is the responsible State in relation to
your claim for asylum
6. The appellants judicial review application relating to the decision of January 1999
was withdrawn on 23 January 2002. There has never been a challenge to the s.11
certificate. The judges account continues as follows:
3 On 21 February 2002, his solicitors made written
representations to the Secretary of State, asking him to consider
his asylum claim domestically, and not to deport him to
Germany. They referred to medical evidence supporting his
case that he had been tortured, and to psychiatric evidence of
the damage to his health that would be caused by his return to
Germany. As to that, they stressed that:
it is our primary contention that Mr Nadarajah should
not be returned to Germany because of the experiences
which flowed from that countrys consideration of his
refugee status.
i.e., the torture he alleges he suffered when he returned to Sri
Lanka.
4 In addition, they relied on the presence of the
Claimants wife in this country. By the date of the letter, her
asylum claim had been rejected by the Secretary of State, but
she had appealed. The Claimants solicitors stated that his
removal to Germany would separate him from his wife, and
would raise Article 8 issues. They stated:
There is another important matter. Our clients wife has
joined him in the United Kingdom and made an asylum
claim. We do not act for our clients wife, who is
represented by Messrs M K Sri & Co. We understand that
our clients wife is under refusal. However she has appealed
and as yet no hearing date has been set. We would submit
that this would further affect any decision on whether or not
our client should be removed to Germany. If he is removed
to Germany then it may be, notwithstanding our clients
fears and the trauma of such return, that our client would not
be removed from Germany. Of course it remains our
primary contention that our client should not be removed to
Germany at all. However whether or not our client might
remain for any length of time in that country, this would
necessarily separate him from his wife, which in turn raises
Article 8 issues.
5 The claim under Article 8 based on the presence of the
Claimants wife had not been made before; in particular, it had
not been made on receipt of the Home Secretarys original
section 11 certificate of 20 November 2001. Curiously, the
Claimants solicitors letter did not mention the fact that the
Claimants wife was pregnant.
7. Nor did the solicitors letter refer to the Family Links Policy. It seems they had no
knowledge of it, either then or at the time of the Secretary of States decisions of 19
January 1999 and 20 November 2001. Its potential engagement in the case arises
because of the solicitors reliance on the appellants wifes presence in the United
Kingdom. The policy was set out in a Home Office statement of 21 March 1991,
headed Safe Third Country Cases: Substantive Consideration in UK Because of
Family Links:
We recognise that a substantial area of discretion will need to
be left in order to deal sensibly with individual cases on their
merits. Broadly speaking, however, the approach we propose
to adopt is that potential third country cases would normally be
considered substantively where
(a) the applicants spouse is in the United Kingdom;
(b) the applicant is an unmarried minor and a parent is in the
United Kingdom;
(c) the applicant has an unmarried minor child in the United
Kingdom.
(In all cases in the United Kingdom should be taken as
meaning with leave to enter or remain or on temporary
admission as an asylum seeker.) Discretion would need to be
exercised according to the merits of the case where [Then
three instances are set out, none of which applies here.]
8. The Secretary of State replied to the solicitors letter of 21 February 2002 on 25
February 2002. The Family Links Policy is summarised, and the letter continues:
11 The Secretary of State is satisfied that your clients
case falls outside of his above stated policy. Your clients wife
is not present in this country as an asylum seeker; indeed, her
asylum application has been refused outright and she is
appealing against that decision. Neither your client nor his
wife has been granted refugee status in the UK nor has either of
them been granted leave to enter or remain in the UK within the
meaning of such terms under the Immigration Act 1971.
Furthermore, your client had been aware since his arrest as a
clandestine illegal entrant [o]n 22 August 1998 that his
immigration position in this country was, at best, extremely
precarious, depending as it does on the outcome of his judicial
review application.
12 The Secretary of State is confident that his above
stated policy is compliant with the UKs obligations under
Article 8 of the ECHR. The Secretary of State has considered
all the evidence and representations made on behalf of your
client. The question for the Secretary of State is whether the
undoubted interference with your clients right to respect for
his family life, if he were to be returned to Germany, would be
proportionate and commensurate when balanced against his
legitimate concerns in the public interest to maintain a credible
and effective immigration control to the United Kingdom, and
to deter abuse of the asylum system.
13 The Secretary of State notes that your client arrived in
the United Kingdom travelling alone on 22 August 1998 having
prior to this lived in Germany since 1995. The Secretary of
State does not know when your clients wife arrived here but he
is satisfied that your client and his wife had been separated due
to their own actions for some considerable period of time
before either of them arrived in the United Kingdom. The
Secretary of State is satisfied in this particular case that the
need to maintain the effectiveness of the control of entry to this
country for settlement outweighs the interference with your
clients Article 8 rights.
14 In all the circumstances and having given the most
careful consideration to all the matters raised on behalf of your
client, the Secretary of State concludes that the allegation that
your clients return to Germany would breach his human rights
is manifestly unfounded. He accordingly certifies to that effect
pursuant to Section 72(2)(a) of the Immigration and Asylum
Act 1999.
9. The appellant was at that time subject to a requirement to report to the Immigration
Service at Dover on 27 February 2002. His solicitors wrote to the Secretary of State
stating that they were instructed to seek judicial review of the decision of 25
February. They asked for five working days (before any steps to remove the applicant
would be taken) within which to lodge the papers. They also sought the Secretary of
States confirmation that the applicant would not be taken into custody when he
attended at Dover on 27 February; and they wrote to the Dover office seeking to be
relieved of the requirement to attend. That was turned down. The applicant reported
at Dover on 27 February. The Immigration Officer decided to detain him, stating as
his reason: your removal from the United Kingdom is imminent. The solicitors
lodged judicial review papers the next day, 28 February, and Richards J (as he then
was) granted bail.
10. The Family Links Policy was revised in July 2002. The revision was apparently
prompted by a suggestion of Collins J when he granted an adjournment in a case by
name Al-Mosue on 23 March 2002. Its vehicle was a Parliamentary written answer of
22 July, in which this was stated:
In all cases in the United Kingdom is to be taken as meaning
with leave to enter or remain or on temporary admission to this
country as an asylum seeker prior to an initial decision on their
application.
Thus a person whose asylum claim had been refused by the Secretary of State but
who had launched an appeal against the refusal fell outside the policy. This was in
fact the sense which the Secretary of State had always intended (and believed) should
belong to the term in the United Kingdom in the policy in its original form. He had
consistently applied the policy on that footing. His letter of 25 February 2002 in the
present case is an example (Your clients wife is not present in this country as an
asylum seeker; indeed, her asylum application has been refused outright and she is
appealing against that decision).
11. And so at length the matter came before Stanley Burnton J. The appellant sought
orders to quash three acts or decisions: (1) the decision of the Secretary of State to
refuse to give substantive consideration to the appellants asylum claim within the
United Kingdom; (2) the certificate issued under s.72(2)(a) of the 1999 Act; (3) the
decision of 27 February 2002 to detain the appellant. It is convenient to describe the
disposal of applications (2) and (3) first. After considering a good deal of evidence
relating to the appellants mental health, including material provided to the Secretary
of State after his initial decision, Stanley Burnton J concluded that the Secretary of
State was entitled to maintain his certificate. As regards the appellants detention, the
judge held that the appellants removal from the United Kingdom was not imminent
because he should, in accordance with the Secretary of States own policy, have been
given time within which to launch his prospective judicial review. Accordingly there
was a failure to apply the policy, and the detention was therefore unlawful.
12. The first of the three applications, for an order to quash the refusal to decide the
appellants asylum substantively in the United Kingdom, alone survives for this
courts adjudication. It raises what has been referred to as the policy issue. Stanley
Burnton J held that (a) the Secretary of State had misinterpreted the Family Links
Policy: he should have accepted that the appellants wife was an asylum-seeker within
the policy, because, although her asylum claim had been refused by the Secretary of
State, she had an outstanding appeal against the refusal; (b) the Secretary of States
interpretation, that the term asylum-seeker in the policy meant and only meant a
person whose asylum claim had not yet been determined at the executive level by the
Secretary of State, was an interpretation not reasonably open to him; (c) the appellant
had no right to have his claim reconsidered under the policy as it had been in February
2002, but would (if the Secretary of States decisions were quashed) be liable to have
it reconsidered under the terms of the revision of the policy made in July 2002; and
(d) since the revision made it clear that asylum-seeker meant one who had not yet
received an initial decision that is to say (as I have indicated) it wrote into the policy
what had in fact been the Secretary of States interpretation of the unrevised version
there was no point in quashing the decision, because any fresh decision would be to
the same effect.
13. The appellants appeal from Stanley Burnton J was launched on all the points upon
which he had been unsuccessful. The Secretary of State appealed, also with
permission granted by Stanley Burnton J, on the detention issue. On 13 February
2003 I directed that the issue on the certificate under s.72(2)(a) of the 1999 Act be
listed for hearing with certain related appeals, and the appeal on the other issues be
adjourned to a date to be fixed.
14. On 19 June 2003 this court (Judge and Dyson LJJ, and Pumfrey J) allowed the
appellants appeal relating to the s.72(2)(a) certificate, and quashed the certificate:
[2003] INLR 543, [2003] EWCA Civ 840. The appeals on the issues relating to
detention and the Family Links Policy came on for hearing in this court on 10-11
November 2003. On 8 December 2003 the court (Lord Phillips MR, Dyson and
Arden LJJ) dismissed the Secretary of States appeal on the detention issue but
adjourned the policy appeal until the appellants wifes asylum appeal was determined
by the Immigration Appeal Tribunal (the IAT): [2004] INLR 139, [2003] EWCA
Civ 1768. Thereafter Dyson LJ varied that order for an adjournment so that the
appeal on the policy issue might be heard with Abdi, and on 29 October 2004 I
directed that it or they be further adjourned until after judgment in a case by name
Huang [2005] EWCA Civ 105. Judgment in Huang, to which I will have to refer
further, was handed down at the beginning of March 2005.
15. During the currency of these appeal proceedings the Secretary of State promulgated
another policy, referred to as the ILR concession, which I should briefly describe
because it was the source of some argument at the hearing before us; although it does
not in my view affect the proper result of the case. On 24 October 2003 the Secretary
of State announced his intention to grant indefinite leave to remain in or enter the
United Kingdom exceptionally outside the Immigration Rules. The criteria were that
the applicant had applied for asylum before 2 October 2000, and had a dependant
aged under 18 in the UK on 2 October 2000 or 24 October 2003. The appellant meets
these criteria: he applied for asylum well before 2 October 2000, and a son was born
to him and his wife in the UK on 27 August 2002. However the concession excludes
from its scope families where they are all subject to possible third country removal.
The result is that if we conclude that the appellant is by law entitled to the benefit of
the Family Links Policy and thus to have his asylum claim considered substantively in
the UK, he will not be subject to possible third country removal and will accordingly
be granted indefinite leave to remain under the ILR concession.
16. I should add, finally, that the appellants wifes asylum appeal was dismissed by the
adjudicator on 6 May 2003, as I understand it on the basis that because of the
improved situation in Sri Lanka she would face no risk of ill treatment on return. The
IAT gave leave to appeal on 9 July 2003. Since then there have unfortunately been a
series of adjournments and I understand that the appeal remains undetermined.
ABDI
17. This appellant is a Somali national, whose identity and date of birth have been matters
of dispute. She claims to be Sadia Abdul Kadir Abdi, born on 13 October 1984 to a
woman by name Rama Ahmad Barakow. The Secretary of State has documents in his
possession tending to show that this was a false identity and that in fact the appellant
was called Sadia Mohamed Hassan and was born on 13 February 1980. These
documents include an Italian Residence Permit and an Italian Identity Card.
According to the Secretary of State her passport also showed her date of birth as 13
February 1980, as did a letter written by a sometime employer in support of a visa
application. However, on 7 October 2003, some way into the appellants immigration
history (as I shall show) there was served on the Secretary of State a DNA
Relationship Analysis Report which the Secretary of State accepts is proof that the
appellants mother is indeed the woman Rama Ahmad Barakow. There are also
statements from two witnesses, one of whom is a midwife who says she delivered the
appellant in 1984. The appellants date of birth is of some importance in the case,
because if she had been born on 13 October 1984 as she claimed she would of course
have reached the age of 18 on 13 October 2002; so that before that date, as an
unmarried minor child of a parent (her mother) who was in the UK, she would under
the Family Links Policy have been liable to have her asylum claim substantively
considered by the Secretary of State in the United Kingdom, notwithstanding that she
would otherwise be returnable to a safe third country for consideration of her claim to
take place there.
18. But I anticipate the history of the case. As I have indicated, as after 7 October 2003
the Secretary of State accepted that Rama Ahmad Barakow was the appellants
mother, but did not otherwise accept her claimed identity or date of birth. The
mother, who arrived in the United Kingdom on 29 March 1999, was granted
indefinite leave to remain as a refugee on 28 June 2000. That was on the basis of her
membership of a minority clan in Somalia called the Benadirs. The appellant of
course claimed to be a member of the same clan, and that was to be the basis of the
asylum claim which she would in due course put forward.
19. The appellant arrived in the United Kingdom at Birmingham International Airport on
9 December 2001. It transpired that she had travelled with her uncle, Mohamed
Ahmed Barakow, on a British Airways flight from Rome. She did not present herself
at Immigration Control with her uncle (who, it appears, was a person who had
previously entered the United Kingdom illegally and was held at Immigration Control
for further examination). The appellant was to give her name as Sadia Abdul Kadir
Abdi. When she was first interviewed she said she had flown from Kenya. In a
second interview she claimed to have lived in Kenya for the preceding 14 months, and
to have flown from Nairobi to Birmingham with one stopover when no-one left the
plane. There are no such flights from Nairobi to Birmingham. Enquiries revealed
that she had travelled under the name Sadia Mohamed Hassan with Mohamed Ahmed
Barakow on a ticket routed Rome-Birmingham-Belfast-Birmingham-Rome,
purchased at a Rome travel agency on 7 December 2001. On checking in at Rome the
appellant had been in possession of official documents issued by the Italian
authorities. These were genuine documents, and I shall make further reference to
them below. I may take up the history as it is recounted by Harrison J:
16 When she was interviewed more fully on 6 January
2002 she said that she had been in Somalia in 1998 and had
subsequently spent one and a half years in Nairobi and had then
been in Italy for two weeks before coming to the United
Kingdom. She said that she had never worked and that she had
never held a passport, although she agreed that her photograph
was on the copy passport shown to her. She said she had never
held an identification card and she denied ever having applied
for a visa. When shown a copy of a visa application made by
her, she agreed that it contained a photograph of her and
thought that somebody must have signed it for her. Similarly,
she denied that the Italian residence document in her name was
hers although she agreed that it had a photograph of her on it.
She said that she had used documents provided by a lady called
Halima who pretended that she was her daughter. She denied
that her uncle had brought her to the United Kingdom or that
she had travelled with him. She said she happened to meet
him at the airport and he offered to carry her bag. She had not
come through immigration control with him because she was
not feeling very well and had gone to the toilet without telling
him that she was unwell.
17 After an interval, her solicitors asked for her to be
further questioned. On this occasion she said that the residence
permit was hers. She had lied because she had been attacked
on three occasions by some Italian youths who had tried to rape
her and she had reported it to the police. She then claimed to
have arrived in Italy in the year 2000. When it was pointed out
that her residence permit was granted in 1999, she said she was
still in Somalia at that time. She insisted that her real name was
Sadia Abdulkadir Abdi and that her sister was one year older
than her, although she had said in the previous interview that
she was the oldest daughter.
18 The claimants account changed yet again when she
made a witness statement in these proceedings on 21 November
2002. She said that Halima obtained her Somali passport and
her Italian residence documentation for her, and she had also
taken her on three occasions to the British Embassy to help her
fill in her visa applications. She agreed that the story she gave
to the entry clearance officer was untrue. She did not even
know that her mother was in the United Kingdom at that time
and she did not know why Halima was trying to send her to the
United Kingdom. She said that Halima had made her work for
an Italian lady for about three years, keeping most of her
wages, and had forced her into prostitution. Finally, she said
that she had not told the truth in her interview on 6 November
2002 because she had been told what to say by her family.
19 In fact, a note by the entry clearance officer showed
that, when she applied for her visa in October 2000, she had
come in person. She had also said that she wished to go to the
United Kingdom to her aunts wedding. In her very recent
statement dated 18 November 2003, the claimant said that she
did not know that her mother was in the United Kingdom when
she made the three visa applications. It had been Halimas
decision that she should make the applications although she
didnt know why. She said that Halima controlled her life and
forced her into prostitution.
20 The photographs which were found in her uncles
luggage were included amongst the documents produced by the
defendant in these proceedings. According to the defendant,
they showed her to be a happy carefree young lady with friends
in Italy over a period of time. The claimant said in a
subsequent statement that Halima had made her look happy so
that she could show them to the men using her as a prostitute.
Having seen the photographs, I am inclined to agree with the
defendant. Indeed, the account of her being forced into
prostitution was not mentioned by her at all during her
interview on 6 January 2002.
20. It is useful to gather together the history of immigration applications and decisions
relating to this appellant. She claimed asylum on 12 December 2001 as a member of
the Benadir clan and was interviewed on 6 January 2002. On 10 January 2002 she
made a claim to remain in the United Kingdom in reliance on ECHR Article 8, by
virtue of her mother and younger sister being resident here. An adjudicator admitted
her to bail on 17 January 2002. On 21 January 2002 her solicitors sought
confirmation that she would be allowed to enter as the dependent minor child of a
settled refugee. That was refused on the ground that (as I have indicated) documents
in the possession of the Secretary of State showed that she was no longer a minor,
having been born on 13 February 1980. On 15 April 2002 her solicitors submitted
evidence (the two witnesses statements) to corroborate her claimed date of birth of
13 October 1984. They requested that she be granted leave to remain as a refugee like
her mother. On 23 April 2002 the Secretary of State replied, referring to the Italian
documents and the appellants passport, and stating that he did not accept that the
appellant was a minor. The letter also refers to the witness statements, and makes this
observation (which I cite because Mr Gill QC for the appellant complains of it): The
Secretary of State has considered the statements that you have submitted on your
clients behalf, however he is not satisfied that this gives conclusive proof of your
clients age.
21. On 13 August 2002 the Secretary of State issued a certificate under s.11 of the 1999
Act to the effect that the appellant was properly returnable to Italy which had accepted
responsibility to deal with her asylum claim pursuant to the Dublin Convention. The
Secretary of State proposed to issue removal directions to Italy for 20 September
2002, and did so. By letter of 13 September 2002 the appellants solicitors intimated
an appeal under s.65 of the 1999 Act alleging that her removal to Italy would violate
her rights under ECHR Article 8 (that is say her right to respect for her family life,
given her mothers residence in the United Kingdom). On 17 September 2002 the
Secretary of State issued a certificate pursuant to s.72(2)(a) of the 1999 Act, to the
effect that the appellants claim of violation of Article 8 was manifestly ill-founded.
The Secretary of States letter of that date contains this (paragraph 7):
You allege that your clients removal to Italy would constitute a
breach of her human rights under Article 8 of the ECHR, as her mother
is presently resident in the United Kingdom. The question for the
Secretary of State is whether the undoubted interference with your
clients right to respect for her family life, if she were returned to Italy,
would be proportionate and commensurate when balanced against his
legitimate concerns in the public interest to maintain a credible and
effective immigration control to the United Kingdom, and to deter
abuse of the asylum system. The Secretary of State takes the view
that it will be open to your client to apply at a British Consulate or
Embassy in Italy for the appropriate entry clearance to enable her to
return lawfully to the United Kingdom to resume her family life.
I draw attention to the date of this decision: 17 September 2002. If the appellants
claimed date of birth of 13 October 1984 was true, she was not yet 18 and so on the
face of it the Family Links Policy would apply in her favour.
22. Judicial review proceedings were issued to challenge the removal directions set for 20
September 2002, and the certificate issued under s.72(2)(a). Permission was granted
at an oral hearing on 22 November 2002, and so at length the matter went before
Harrison J in December 2003. Before that, however, on 2 October 2003, the
Secretary of State wrote a further very detailed decision letter, dealing with the whole
case and concluding that the appellants claim under Article 8 was bound to fail. In
light of the nature of the submissions made on the appellants behalf by Mr Gill, and
in particular the suggestion that the Secretary of State failed properly to investigate
the appellants case, I should recite some of the content of this letter.
23. The letter records that the appellant had presented herself at Birmingham International
Airport as an undocumented arrival, and the Secretary of State was induced to
embark upon a number of positive lines of inquiry by materials found in the
possession of the uncle, Mohamed Ahmad Barakow. These included the photographs
referred to by the judge, and a document giving an address for the appellant, in the
name of Sadia Mohamed Hassan, at Pescara in Italy. The letter of 2 October 2003
then describes the steps taken by the Secretary of State after the uncle had been
interviewed on 10 December 2001, and before the appellant was interviewed on 6
January 2002:
14 The Immigration Service at Birmingham made
enquiries of the Italian authorities The Questura di Pescara
(the Divisional Police Headquarters at Pescara) confirmed from
their records that your client, who is known to them as Sadia
Mohamed Hassan, was born in Mogadishu on 13 February
1980. She had been issued with a residence permit, No:
E404957, on 9 May 1998 by the Police Headquarters in
Rome, which gave her date of entry into Italy as 9 February
1998 at Fiumicino airport, and that on 5 May 2001 the validity
of this permit had been extended to 9 May 2005 by the Police
Headquarters at Pescara They also confirmed that your
client had permission to work as a domestic
15 Enquiries were also made with the Entry Clearance
Officer at the British Embassy in Rome. These enquiries
confirmed that in 2000/01 your client had made 3 applications
for visit visas to enable her to travel to the UK but that each
application had been withdrawn before a decision had been
taken The photographs on the Visa Application Forms
confirm that it was your client who made the applications on 9
August 2000, 10 October 2000 ( undated but made in
person on that date), and 22 February 200[1].
16 The ECO in Rome took copies of the various
documents your client brought in to support her visa
applications, including:
(a) her Somali passport, number AO387209, issued
to her in Rome on 4 March 1998 and valid to 3 March
2001 giving her date of birth as 13 February 1980;
(b) your clients Employment Record (Libretto di
Lavoro) which had been issued to her in Pescara on 9
August 1998 and showed that she had been working at
Via Berardinucci 58, 65100 Pescara since 21 October
1998;
(c) a further document, Denuncia di Rapporto di
Lavoro Domestico confirmed that her employer in
Pescara was a retired lady, Mrs Grazia Priore, who
lived at that address and had been signed by both your
client and her employer;
(d) your clients Titre de Voyage number 09662,
issued in Pescara on 2 July 2001 and valid for 12
months, also giving her date of birth as 13 February
1980
Harrison J
24. Mr Gills case for the appellant largely turns on what the Secretary of State made of
the particular facts. For that reason I think it helpful to pay close attention to the
reasoning and conclusions of the learned judge below. As he held (judgment,
paragraph 25) the core issue on the certificate (the challenge to the removal directions
was adjectival) was whether the appellants claim of violation of Article 8 was
manifestly unfounded. In paragraph 26 the judge said:
In other words, the issue is whether [the Secretary of State]
was entitled rationally to conclude that no adjudicator could
find that there was a breach of Article 8.
The judge held (paragraphs 30 and 31) as follows:
30 Whilst an adjudicator would, in my view, be bound to
disbelieve the claimants latest account of being forced into
prostitution in Italy as being incredible, I do not consider that
the Secretary of State could reasonably conclude that an
adjudicator would be bound to disbelieve her account of her
age and identity. There is a factual dispute on that issue such
that it cannot be said at this stage that the claimant was bound
to fail because an adjudicator was bound to disbelieve her on
that issue.
31 I turn then to the second reason given by the defendant
for concluding that the claim was manifestly unfounded,
namely that, even if an adjudicator did believe her account as to
her age and identity, he would still have been bound to
conclude that there was no breach of Article 8 in returning the
claimant to Italy. Put shortly, the defendant accepts that there
would be an interference with the claimants family life under
Article 8(1) if she were returned to Italy, but it is submitted that
it is plainly necessary and proportionate to return her in the
interests of maintaining a firm and effective system of
immigration control, and that any adjudicator would be bound
to conclude that the interference with her family life was
justified under Article 8(2). The defendants position is that
the claimant should have made an honest application for
entrance clearance before leaving Italy.
In dealing with this part of the case Harrison J had this to say about the Family
Links Policy:
38 Ms Naik placed considerable reliance on the alleged
failure of the defendant to consider the safe third country
family links policy, and on the suggestion that the claimant was
bound to be accepted as a refugee. However, as Mr
Underwood QC pointed out on behalf of the defendant, the safe
third country family links policy deals with whether an asylum
claim should be considered substantively in this country, but in
this case the claimants asylum claim has already been certified
by the defendant on a safe third country basis under section 11
of the 1999 Act. It will therefore be dealt with in Italy, not in
this country, there having been no judicial review challenge to
the section 11 certification. The certification which is
challenged in these proceedings is the certification of the
human rights claim under section 72 of the Act. The only other
avenue open to the claimant would have been an application for
leave to enter under paragraph 352D of HC 395 as a child of a
refugee. However, even though the claimant would probably
have been able to satisfy all the other conditions of paragraph
352D, she would not have been able to satisfy condition (vi)
which requires her to have obtained entry clearance.
The judge concluded:
45 In considering this matter, I attach importance to the
undoubted deception that was practised by the claimant to gain
entry to this country when what she should have done was to
apply for entry clearance. The fact that she would not have
had identification documentation for what she says is her
correct identification is of her own making. She has told a
pack of lies to circumvent immigration control and she has
therefore engineered the very basis of her claim, the right to
respect for family life, by so gaining entry to this country. It
would, in my view, be sending out the wrong message if the
court were not to uphold the certificate under section 72 unless
it could be shown that there were exceptional circumstances to
justify a contrary conclusion. I do not consider that there are
such exceptional circumstances in this case, even assuming that
the claimant is who she says she is.
46. This is not an Article 2 or Article 3 case involving the
right to life or torture or inhuman and degrading treatment. It
is an Article 8 case involving the right to respect for family life.
As Dyson LJ stated in Samaroo v Secretary of State for the
Home Department [2001] EWCA Civ 1139 at paragraph 36,
the right to respect for family life is not regarded as a right
which requires a high degree of constitutional protection. The
claimant has only lived with her mother for two years since
coming to this country in December 2001, having previously
not lived with her since 1997, albeit that that was due to family
dispersal arising from civil war in Somalia. She lived in Italy
for 3 years, coming to this country, on her account, when she
was 17. She is now, on her account, 19 and no longer a minor
dependant child. She would not have family living with her in
Italy but she could be visited and supported by her mother and
uncle.
47. When balancing such interference with the claimants
family life against the need for a firm and effective immigration
policy and the need not to send out the wrong message by, in
effect, rewarding the deception practised by the claimant by
allowing her to benefit from it, and bearing in mind the
considerable deference to be afforded to the defendant on that
aspect of the matter, I consider that the defendant was entitled
to conclude, even accepting the claimants account of her age
and identity to be correct, that no adjudicator would hold that
there had been a breach of Article 8. In my view, the
defendants decision was both within the range of reasonable
responses and it was proportionate. Taking into account the
matters I have mentioned, he was entitled to conclude that an
appeal to an adjudicator on the human rights claim was bound
to fail. This is a case which, in my judgment, crosses the high
threshold and which entitled the defendant to certify the
claimants human rights claim as manifestly unfounded
pursuant to section 72(2)(a) of the 1999 Act.
ABDI IRRATIONALITY
25. It is convenient first to dispose of Mr Gills arguments in Abdi which do not relate to
the Family Links Policy. His first submission was that the Secretary of States
conclusion, persisted in throughout the matters history, that the appellants date of
birth was in 1980 and not 1984 was irrational or otherwise unlawful. As I have
foreshadowed the substance of the argument was that the Secretary of State did not
properly investigate the appellants case as to her date of birth, and in any event
should not have been looking for conclusive proof (letter, 23 April 2002) of the date
she claimed.
26. This is a conspicuously bad argument, which in my opinion should not have been
advanced. First, there is in my judgment no principle of law which required the
Secretary of State to make any further factual enquiry than in fact he did. I accept that
where a public-decision maker fails to take steps which are manifestly open to him to
inform himself of matters which must in reason be relevant to his decision, he may
well, other things being equal, be vulnerable to a charge of irrationality, because he
will not have had regard to all relevant material. But this cannot possibly be regarded
as such a case.
27. I have already cited passages from the letter of 2 October 2003 which describe the
enquiries, I would say thorough enquiries, made by the Secretary of State shortly after
the appellants arrival here and the fruits of those enquiries. The Italian documents
(which are before us) are entirely genuine, in the sense that they were issued or
authenticated by the relevant Italian authorities, and there is every reason to believe
that the factual state of affairs which they represent is the truth.
28. There is next the fact that the appellant has comprehensively and persistently lied to
the authorities in order to circumvent immigration control. That is not only a
circumstance which might go to the assessment of any issue of proportionality in the
context of her reliance on ECHR Article 8. It also gravely undermines the credibility
of what she now chooses to say about the facts.
29. Mr Gill says it is the appellants case that the documents are all explained by the fact
that she was given a false identity by the woman Halima, who is referred to in
passages from Harrison Js judgment which I have cited. It is helpful to consider
when this case was first canvassed. It was not advanced at the appellants detailed
interview on 6 January 2002 when she put forward a different and inconsistent
account, stating that the documents did not belong to her. Gleaning what one can
from the papers before us, her present case seems to have been first relied on in
paragraph 10 of a witness statement made by her on 21 November 2002 in support of
her judicial review application. It seems to me that there is no escape from the
conclusion that, at the very least, it falls to be viewed with the greatest possible
circumspection.
30. Mr Gill also relies on the witness statements put forward on the appellants behalf, to
which I have briefly referred. The witnesses have not, of course, been cross-
examined. They both state they know the appellants mother well. It is not I think
without significance that the appellant herself has asserted (in paragraph 16 of her
statement of 21 November 2002) that she was told what to say at interview on 6
January 2002 by her family. At all events, the Secretary of State considered the
witness statements and was plainly entitled to treat them as wholly insufficient to
displace the effect of the Italian documents. That is what he did in the letter of 23
April 2002, which I have quoted. After there stating that he was not satisfied that the
statements gave conclusive proof of the appellants age, the Secretary of State
proceeded to enumerate some of the documents. I may deal here with Mr Gills
complaint, which I have foreshadowed, of the Secretary of States use of the term
conclusive proof. It is in my judgment entirely unreal to suppose that this
amounted to a legally incorrect self-direction as to the standard of proof which the
Secretary of State was to apply to the question before him. In context all that was
being said was that the statements could not override the effect of the documents.
31. Mr Gill is also at pains to point out that the adjudicator who granted the appellant bail
on 17 January 2002 accepted her claimed date of birth. But the only document which
at that stage the Secretary of State was able to produce was the residence permit.
32. I have not forgotten that Harrison J held (judgment paragraph 30, set out above) that
the Secretary of State could not reasonably have concluded that an adjudicator would
be bound to disbelieve the appellants account of her age and identity. I entertain
serious doubt as to whether that is correct; but there is no cross-notice from the
Secretary of State to challenge this finding by the judge and it would be unfair and
inappropriate for us to overturn it. Nor have I forgotten that our jurisdiction is as to
points of law only; we are not to judge the cases factual merits. What I have said on
this part of the appeal is intended only to refute Mr Gills submission of irrationality.
I have put the matter firmly so as to reflect my view that this argument should never
have been advanced.
ABDI ARTICLE 8
33. I understand Mr Gill to contend that quite apart from any impact of the Family Links
Policy the judge was wrong to find (judgment, paragraphs 31, 45 47) that, even if an
adjudicator did believe the appellants account as to her age and identity, he would
still have been bound to conclude that there was no breach of Article 8 in returning
the claimant to Italy. Upon this question I need say little more than that I agree with
the reasoning of the learned judge. The appellant lied her way into this country. She
had no entitlement under the Immigration Rules to enter the United Kingdom without
an entry clearance, for which (so far as she sought to enter as the child of a refugee)
she should have applied in the ordinary way: see Mahmood [2001] 1 WLR 840, cited
by Harrison J at paragraph 40 of his judgment.
34. The only further point that needs to be made on this part of the case is to emphasise
that the judges conclusion is wholly in line with this courts later judgment in Huang
[2005] 3 WLR 488. There the court substantially departed from the approach taken in
earlier cases to the question how far should the adjudicator, in an Article 8 case, arrive
at his own independent judgment in deciding whether removal of an appellant would
be proportionate (given the legitimate aim of fair immigration control) and therefore
lawful by force of Article 8(2). Giving the judgment of the court I said that the
adjudicator was required
to allow an appeal against removal or deportation brought on
Article 8 grounds if, but only if, he concludes that the case is so
exceptional on its particular facts that the imperative of
proportionality demands an outcome in the appellants favour
notwithstanding that he cannot succeed under the Rules.
(paragraph 59)
On the facts in Abdi, as I say leaving aside any question relating to the Family Links
Policy, I regard it as inconceivable that an adjudicator might conclude that the case
was exceptional to the extent contemplated in Huang.

ABDI LEGITIMATE EXPECTATION
35. In both appeals it is said that the appellant enjoys an enforceable legitimate
expectation that the Family Links Policy should be applied, so that their asylum
claims fall to be considered substantively in the United Kingdom rather than in
Germany or Italy. But the arguments greatly differ as between the two cases. It is
convenient to deal first with Abdi.
36. Dyson LJ granted permission to appeal to this court in Abdi principally because he
considered that there was a real prospect of showing that para. 38 of the judgment is
not a sufficient answer to the failure to have regard to the Family Links Policy. I
have set out paragraph 38. The reasoning is, I accept, somewhat opaque. However
the essential point which I think the judge is making is, with respect, sound. It is to
the effect that the only challenge in the judicial review proceedings was to the
s.72(2)(a) certificate (as Mr Underwood QC for the Secretary of State points out
(skeleton argument paragraph 6); in contrast to Nadarajah there is no separate
challenge to the Secretary of States refusal to give substantive consideration to the
appellants asylum claim in the United Kingdom); the certificate only states that the
contention that the appellants removal to Italy would violate her rights under the
ECHR (effectively, Article 8) is manifestly unfounded; any issue as to the
applicability of the Family Links policy could not be more than part of the
background to the certificate, and is incapable of touching its legality.
37. I would however acknowledge that this approach, whatever its strict merits, may be
thought over-technical. The Family Links Policy was relied on in the judicial review
grounds drafted by counsel, and if in truth the Secretary of State was legally at fault in
failing or refusing to apply the policy in the appellants favour, Harrison J would
surely not have lacked the procedural means to give appropriate relief. Accordingly
we should in my view consider the substantive question, whether indeed he was so at
fault.
38. In making submissions about the Family Links Policy Mr Underwood laid some
stress on the loose and general terms in which it was drafted (Broadly speaking
potential third country cases would normally be considered substantively where),
and the extensive element of discretion built into it (Discretion would need to be
exercised according to the merits of the case where). There may well be instances
in which these features of the policy would be important. But they provide no carte
blanche for the Secretary of State simply to choose in any given case whether to apply
the policy or not, and in fairness Mr Underwood did not submit as much. Generally
speaking the discipline of reason and fairness which the law imposes on public
decision-makers obliges them to apply a stated policy to those to whom it is directed.
If it is sought to deprive an individual or class from the benefits of the policy in
question by recourse to formulations such as broadly speaking or normally, there
will have to be a reasoned justification. Here, that stage was never reached. The
Secretary of State never considered whether the policy should be disapplied on
particular grounds, because on his view of the facts the appellants date of birth
the policy in any event had no application. If he was not entitled to adopt that view of
the facts, I would for my part be prepared to hold that the appellant enjoyed an
enforceable legitimate expectation that the policy should be applied to her unless the
Secretary of State offered a properly reasoned justification for disapplying it. Such a
justification might be constituted (I make no finding one way or the other) by the
determined plethora of lies told by the appellant to obtain entry; but as I say this stage
was never reached.
39. Now, I have already held that the Secretary of State was perfectly entitled to conclude
that the appellants date of birth was 1980 and not 1984, and that the argument to the
effect that that was an irrational conclusion should never have been advanced. That
seems to me to be the end of the matter. If a distinct judicial review challenge had
been directed against the Secretary of States refusal to apply the policy, it would
have been bound to fail; it would have been met with the irrefutable contention that
the Secretary of States conclusion as to the appellants date of birth was, at the very
least, a reasonable one.
40. To this moment I do not entirely understand what is Mr Gills response to this
position. It would appear, from a separate note put in by him dated 22 July 2005 and
also from his submissions at the hearing, that his contention is that his client is
entitled by one route or another to have an adjudicator (now, an immigration judge)
decide what is the appellants date of birth for the purpose of ascertaining whether the
Family Links Policy applies in her case or not. But I do not know what the route
might be. There is none in the 1999 Act.
41. In my judgment the appeal in Abdi has no merit whatever, and I would dismiss it.
NADARAJAH
Legitimate Expectation Introductory
42. The appeal in Nadarajah, which is in effect confined to an argument based on the
principle of legitimate expectation, is more substantial. The appellants contention
may be expressed very shortly. It is to the effect that the Secretary of State should
apply the Family Links Policy to the appellant in its original form and by reference to
its correct construction as Stanley Burnton J held it to be.
43. I should say first that the Secretary of State does not challenge the conclusion of
Stanley Burnton J that the term asylum-seeker in the policy included a person with
an extant appeal to the appellate authorities against the Secretary of States initial
adverse conclusion refusing asylum. I should also notice certain circumstances
relating to the s.72 certificate in Nadarajahs case. As I have said, on 19 June 2003
this court allowed the appellants appeal on the certification issue. It was held that
matters relied on by the Secretary of State for the purpose of the certificate were in
truth arguable, so that certification was not justified. These were (a) the Secretary of
States contention that the appellants wife did not come within the Family Links
Policy as originally drawn: Stanley Burnton J held that she did; and (b) the Secretary
of States view that the appellant lacked credibility: the adjudicator on the wifes
appeal took a different view. Mr Husain for the appellant understandably makes
much of this in his skeleton argument. It is enough to give this short citation from this
courts judgment of 19 June 2003:
The Secretary of State concluded that it was incredible that the
appellant returned to Sri Lanka after his claim had been
rejected in Germany, and Mr Taylor gave two compelling
reasons for this conclusion. But Mr Taylor had not subjected
the appellant or his wife to cross-examination. His conclusion
was based on essentially a priori reasoning. The adjudicator
reached a different conclusion on the wifes appeal, having
heard evidence from the appellant and his wife.
44. In those circumstances Mr Underwood rightly accepts (see his skeleton argument,
paragraph 5) that it would not be open to the Secretary of State to re-certify under s.72
(or rather its statutory successor in later legislation) since in light of this courts views
he could not reasonably conclude that the appellants human rights claim is manifestly
unfounded. Although we are not of course directly dealing with any issue relating to
s.72 certification, it is convenient just to set out this courts reference, at paragraph 28
of its judgment of 19 June 2003, to the decision of their Lordships House in Yogathas
[2003] 1 AC 920 [2002] 3 WLR 1276:
As the House of Lords explained in Yogathas, the Secretary of
State is entitled to certify a claim as manifestly unfounded if,
after carefully considering the allegation, the grounds on which
it is made and any material relied on in support of it, he is
reasonably and conscientiously satisfied that the allegation
must clearly fail (Lord Bingham, para 14), or the allegations is
so clearly without substance that the appeal [to the
adjudicator] would be bound to fail (Lord Hope para 34), or it
is plain that there is nothing of substance in the allegation
(Lord Hutton para 72). Lords Millett and Scott agreed with the
reasoning of Lords Bingham, Hope and Hutton. The test to be
applied by the Secretary of State in certifying a claim as
manifestly unfounded is a screening process rather than a
full blown merits review (paras 14 and 34).
45. The separate question remaining for determination in this appeal is whether the
appellant can now rely on the Family Links Policy so as to have his asylum claim
determined here. As I have foreshadowed Mr Husains submission is that the
appellant enjoys an enforceable legitimate expectation that the original policy will
now be applied to him in light of Stanley Burnton Js construction of the term
asylum-seeker; whereas the Secretary of States contention before the judge (and
accepted by him) was that any fresh decision would, at least lawfully could, be arrived
at in light of the revised policy, whose terms would of course exclude the appellant
from its application.
Legitimate Expectation The Cases
46. There are first some uncontroversial points. Generally where a decision of a public
decision-maker is quashed and the decision falls to be re-taken (as it usually will
unless the court has concluded that a particular result is the only legally available
decision), it will or at least may be re-taken in light of the legal and factual context
prevailing at the time the fresh decision is made. This proposition is to some extent
supported by Clarke v Enfield LBC [2002] EWCA Civ 1278, paragraphs 21 and 30;
but see in particular Zeqiri [2002]INLR 291, paragraph 42, where Lord Hoffmann
cites paragraph 50 of the judgment in that case of the Court of Appeal.
47. But this cannot be regarded as a universal rule. If the legal requirement of fairness, or
legitimate expectation, dictates a different result, then a different result will be had.
The appeal in Nadarajah requires the court to revisit the character of the legitimate
expectation principle. I will not attempt a full review of the authorities, which would
extend the length of this judgment beyond tolerable limits. However a selective
conspectus of some of the leading cases is indispensable for the ascertainment of the
underlying principle or principles which will provide the answer to the case.
48. In AG of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 the question was whether an
illegal entrant into Hong Kong was entitled to a hearing before a deportation order
might be made against him, there having been an announcement that persons in the
respondents position would be interviewed. The Privy Council treated legitimate
expectation as amounting to a principle that a public authority is bound by its
undertakings as to the procedure it will follow, provided they do not conflict with its
duty (638G). There shortly followed Ex p. Khan [1984] 1 WLR 1337 in which the
Secretary of State had refused an entry clearance for a child to be allowed into the
United Kingdom for the purpose of adoption by the applicant, but had done so upon
grounds nowhere mentioned in a Home Office circular letter apparently setting out the
policy or criteria to be applied in dealing with such applications. By a majority
(Watkins LJ dissenting) this court allowed the applicants appeal against the adverse
judgment of Stephen Brown J at first instance. After citing Ng Yuen Shiu and other
cases Parker LJ said this at 1347B-E:
I have no doubt that the Home Office letter afforded the
applicant a reasonable expectation that the procedures it set out,
which were just as certain in their terms as the question and
answer in Mr Ngs case, would be followed The Secretary
of State is, of course, at liberty to change the policy but in my
view, vis--vis the recipient of such a letter, a new policy can
only be implemented after such recipient has been given a full
and serious consideration whether there is some overriding
public interest which justifies a departure from the procedures
stated in the letter.
I would make two observations before proceeding further. First, it seems clear that at
this stage in the laws development the courts were concerned, through the medium of
legitimate or reasonable expectations, to insist that public decision-makers act fairly
in a procedural sense. There was no question yet, I think, of the courts holding
government to a strict adherence to stated policy and so conferring a substantive
legitimate expectation if government concluded (no doubt, on rational grounds) that
a change of policy was in the public interest. In such an event, the scope of the
legitimate expectation enjoyed by a potential beneficiary of the old policy was limited
to an entitlement to make representations. Secondly, this principle may be seen as a
requirement of reasonableness as readily as one of fairness, as was expressly made
plain by Dunn LJ in Ex p Khan. Having cited Wednesbury [1948] 1 KB 223 he said
(1352C-D) that by the circular letter the Secretary of State had stated those matters
which he regarded as relevant and would consider in reaching his decision, and held
(1352E-F) that the Secretary of States decision had been unreasonable and unfair:
an unfair action can seldom be a reasonable one.
49. These points are, I think, of some importance because it is all too easy to make
separate compartments of the law where, in truth, different applications represent a
single principle or at least interlocking principles. For reasons I will develop I think
that is the position here. In this field, the lure of over-classification beguiled, perhaps
created, a debate which persisted through the cases for some years: should the law
recognise the notion of a legitimate expectation of a substantive benefit, or was the
principle of legitimate expectation limited to an insistence upon fair procedure so
that the decision-maker could always change his mind as to the substance of the
policy or decision in issue as long as he gave fair warning and (generally) allowed
affected parties to make representations? The problem with substantive legitimate
expectation was thought to be that it looked like a form of estoppel, which would or
might inhibit a public body from exercising its statutory discretionary power in the
public interest as it perceived it. Lord Birkenhead had stated the law in Birkdale
District Electric Supply Co. Ltd [1926] AC 355, 364 (cited by Lord Denning MR in
Ex p. Liverpool Taxi Fleet Operators Association [1972] 2 QB 299: the citation was
repeated in Ng Yuen Shiu at 638B). It was
a well-established principle of law, that if a person or public
body is entrusted by the legislature with certain powers and
duties expressly or impliedly for public purposes, those persons
or bodies cannot divest themselves of these powers and duties.
They cannot enter into any contract or take any action
incompatible with the due exercise of their powers or the
discharge of their duties.
The high water mark of what might be called the procedure only school of thought
was perhaps Ex p. Hargreaves [1997] 1 WLR 906, which concerned prisoners whose
expectations of home leave and early release were said to have been frustrated by
reason of a change in Home Office policy. It was held that their only legitimate
expectation was to have their applications individually considered in light of whatever
policy was in force at the time. Commenting on the earlier first instance decision in
Ex p. Hamble (Offshore) Fisheries Ltd [1995] 2 AER 714, Hirst LJ said this (921E):
Mr Beloff characterised Sedley Js approach as heresy, and in
my judgment he was right to do so. On matters of substance
(as contrasted with procedure) Wednesbury provides the correct
test.
Compare Pill LJ at 924H-925A, where the reasoning is to like effect. Peter Gibson LJ
agreed with the other two judgments.
50. This view was doubted or questioned by a number of distinguished academic lawyers,
and the issue was squarely confronted in Ex p. Coughlan [2001] QB 213, described in
Mr Underwoods skeleton argument as [t]he high water mark for protection of
substantive legitimate expectation. The applicant was a very seriously disabled lady
who lived together with three fellow-patients in Mardon House, which was a purpose-
built NHS facility where she and the others had been promised a home for life by
the health authority. But in October 1998 the health authority decided to close
Mardon House. This decision was challenged in judicial review proceedings. There
were other points in the case but for our purposes the issue was whether the decision
was unlawful because it involved a violation of an enforceable legitimate expectation
enjoyed by the applicant to the effect that the promise of a home for life at Mardon
House would be kept. The judge at first instance, Hidden J, quashed the closure
decision. He held, among other things, that the health authority had shown no
overriding public interest such as might justify its breaking its promise and the
decision was in any event flawed by want of a proper assessment of the applicant and
other matters.
51. Giving the judgment of the court Lord Woolf MR (as he then was), discussing the
courts role when faced with a legitimate expectation challenge, said this:
57 There are at least three possible outcomes. (a) The court
may decide that the public authority is only required to bear in
mind its previous policy or other representation, giving it the
weight it thinks right, but no more, before deciding whether to
change course. Here the court is confined to reviewing the
decision on Wednesbury grounds This has been held to be
the effect of changes in policy in cases involving the early
release of prisoners (b) On the other hand the court may
decide that the promise or practice induces a legitimate
expectation of, for example, being consulted before a particular
decision is taken. Here it is uncontentious that the court itself
will require the opportunity for consultation to be given unless
there is an overriding reason to resile from it (see Ng Yuen
Shiu) in which case the court will itself judge the adequacy of
the reason advanced for the change of policy, taking into
account what fairness requires. (c) Where the court considers
that a lawful promise or practice has induced a legitimate
expectation of a benefit which is substantive, not simply
procedural, authority now establishes that here too the court
will in a proper case decide whether to frustrate the expectation
is so unfair that to take a new and different course will amount
to an abuse of power. Here, once the legitimacy of the
expectation is established, the court will have the task of
weighing the requirements of fairness against any overriding
interest relied upon for the change of policy.
58 The court having decided which of the categories is
appropriate, the courts role in the case of the second and third
categories is different from that in the first. In the case of the
first, the court is restricted to reviewing the decision on
conventional grounds. The test will be rationality and whether
the public body has given proper weight to the implications of
not fulfilling the promise. In the case of the second category
the courts task is the conventional one of determining whether
the decision was procedurally fair. In the case of the third, the
court has when necessary to determine whether there is a
sufficient overriding interest to justify a departure from what
has been previously promised.
Lord Woolf drew attention to the difficulty of classifying cases by reference to these
three categories, and observed (paragraph 59):
[M]ost cases of an enforceable expectation of a substantive
benefit (the third category) are likely in the nature of things to
be cases where the expectation is confined to one person or a
few people, giving the promise or representation the character
of a contract.
In the result, the court assigned the case before it to the third category and dismissed
the appeal.
52. Various passages in Coughlan demonstrate that an abiding principle which underpins
the legitimate expectation cases is the courts insistence that public power should not
be abused: see paragraphs 67 ff, where Ex p. Preston [1985] AC 835, Ex p. National
Federation of Self-Employed and Small Businesses [1982] AC 617, and other
decisions of their Lordships House are cited. I will just set out this paragraph:
71 [T]he doctrine of legitimate expectation has emerged as
a distinct application of the concept of abuse of power in
relation to substantive as well as procedural benefits If this
is the position in the case of the third category, why is it not
also the position in relation to the first category? May it be
that, when a promise is made to a category of individuals who
have the same interest, it is more likely to be considered to
have binding effect than a promise which is made generally or
to a diverse class, when the interests of those to whom the
promise is made may differ or, indeed, may be in conflict?
Legitimate expectation may play different parts in different
aspects of public law. The limits to its role have yet to be
finally determined by the courts. Its application is still being
developed on a case by case basis. Even where it reflects
procedural expectations, for example concerning consultation,
it may be affected by an overriding public interest. It may
operate as an aspect of good administration, qualifying the
intrinsic rationality of policy choices. And without injury to
the Wednesbury doctrine it may furnish a proper basis for the
application of the now established concept of abuse of power.
53. The court proceeded to cite learning to contradict the proposition that judicial review
of a decision which frustrates a substantive legitimate expectation is confined to the
rationality of the decision (paragraph 74). It was thus necessary to confront Ex p.
Hargreaves, in which as I have shown that proposition was expressly upheld. In the
event Hargreaves was distinguished (paragraph 76), on the basis that there the only
legitimate expectation enjoyed by the prisoners had actually been met. There follows
further discussion of substantive legitimate expectation, or the third category of case
described by the court at paragraph 57 (which I have set out), then this:
81 For our part, in relation to this category of legitimate
expectation, we do not consider it necessary to explain the
modern doctrine in Wednesbury terms, helpful though this is in
terms of received jurisprudence (cf Dunn LJ in Mahmood
Khan). We would prefer to regard the Wednesbury
categories themselves as the major instances (not necessarily
the sole ones) of how public power may be misused. Once it
is recognised that conduct which is an abuse of power is
contrary to law its existence must be for the court to determine.
82 The fact that the court will only give effect to a legitimate
expectation within the statutory context in which it has arisen
should avoid jeopardising the important principle that the
executives policy-making powers should not be trammelled by
the courts: see Hughes v Department of Health and Social
Security [1985] AC 766, 788, per Lord Diplock
54. The next case is Ex p. Begbie [2000] 1 WLR 1115, decided on 20 August 1999, just
over a month after judgment was given in Coughlan. The applicant was a child
whose place at a private school was funded publicly through the Assisted Places
Scheme which had been introduced by the previous government. After the general
election on 1 May 1997 the new government introduced legislation (the Education
(Schools) Act 1997) to change the policy, phasing out the benefits of the Assisted
Places Scheme. The consequence for the applicant was that she would retain her
assisted place only until the end of the year in which she completed her primary
education, unless the Secretary of State extended it by the specific exercise of a
statutory discretion in her favour. Her circumstances, unfortunately, were not within
the policy considerations which had been announced as promoting a favourable
exercise of the discretion in particular cases. However it was contended on her
behalf, ultimately in judicial review proceedings, that (I summarise) assurances had
been given by government to the effect that the applicant and other children in like
position would enjoy their assisted places throughout their secondary education, and
that these assurances gave rise to a legitimate expectation that they would be
honoured. In fact, the policy of the government and the effect of the Act of 1997 had
been incompetently misrepresented.
55. The judicial review claim failed at first instance and in this court. The primary
ground was that an extension of the applicants assisted place was foreclosed by the
Act of 1997. However all three members of the court (Peter Gibson and Sedley LJJ
and myself) made observations concerning the legitimate expectation doctrine. Peter
Gibson LJ said (1124B-C):
It is very much the exception, rather than the rule, that
detrimental reliance will not be present when the court finds
unfairness in the defeating of a legitimate expectation.
There was no detrimental reliance in that case. I said (1129F-1131D):
Abuse of power has become, or is fast becoming, the root
concept which governs and conditions our general principles of
public law It informs all three categories of legitimate
expectation cases as they have been expounded by this court
in Coughlan
The difficulty, and at once therefore the challenge, in
translating this root concept or first principle into hard clear law
is to be found in this question, to which the court addressed
itself in the Coughlan case: where a breach of a legitimate
expectation is established, how may the breach be justified to
this court? In the first of the three categories given in
Coughlan, the test is limited to the Wednesbury principle. But
in the third (where there is a legitimate expectation of a
substantive benefit) the court must decide whether to frustrate
the expectation is so unfair that to take a new and different
course will amount to an abuse of power [Coughlan paragraph
57]. However the first category may also involve deprivation
of a substantive benefit. What marks the true difference
between the two?...
As it seems to me the first and third categories explained in the
Coughlan case are not hermetically sealed. The facts of the
case, viewed always in their statutory context, will steer the
court to a more or less intrusive quality of review. In some
cases a change of tack by a public authority, though unfair from
the applicants stance, may involve questions of general policy
affecting the public at large or a significant section of it; here
the judges may well be in no position to adjudicate save at most
on a bare Wednesbury basis In other cases the act or
omission complained of may take place on a much smaller
stage, with far fewer players. Here, with respect, lies the
importance of the fact in Coughlan that few individuals
were affected by the promise in question. The cases facts may
be discrete and limited, having no implications for an
innominate class of persons. There may be no wide-ranging
issues of general policy, or none with multi-layered effects,
upon whose merits the court is asked to embark. The court
may be able to envisage clearly and with sufficient certainty
what the full consequences will be of any order it makes. In
such a case the courts condemnation of what is done as an
abuse of power, justifiable (or rather, failing to be relieved of
its character as abusive) only if an overriding public interest is
shown of which the court is the judge, offers no offence to the
claims of democratic power.
There will of course be a multitude of cases falling within these
extremes, or sharing the characteristics of one or other. The
more the decision challenged lies in what nay inelegantly be
called the macro-political field, the less intrusive will be the
courts supervision. More than this: in that field, true abuse of
power is less likely to be found, since within it changes of
policy, fuelled by broad conceptions of the public interest, may
more readily be accepted as taking precedence over the
interests of groups which enjoyed expectations generated by an
earlier policy.
Sedley LJ returned to the theme of reliance. He said (1133D-F):
I have no difficulty with the proposition that in cases where
government has made known how it intends to exercise powers
which affect the public at large it may be held to its word
irrespective of whether the applicant had been relying
specifically upon it. The legitimate expectation in such a case
is that government will behave towards its citizens as it says it
will. But where the basis of the claim is, as it is here, that a
pupil-specific discretion should be exercised in certain pupils
favour, I find it difficult to see how a person who has not
clearly understood and accepted a representation of the
decision-maker to that effect can be said to have such an
expectation at all. A hope no doubt, but not an expectation.
In addition Sedley LJ agreed (1133H-1134A) that the distinction drawn in
Coughlan between the first and third categories of legitimate expectation [might
deserve] further examination.
56. In Bibi v Newham LBC [2002] 1 WLR 237 the applicants were refugees who had been
accepted by the respondent council as unintentionally homeless for the purposes of its
obligations under the housing legislation and been provided with temporary
accommodation. They sought to rely on a promise which the council had made to
provide secure accommodation within 18 months. The promise had been given under
a misapprehension as to the authoritys statutory function: they believed they owed a
duty, but in fact enjoyed a discretion. In judicial review proceedings the applicants
complained of the councils failure or refusal to abide by its promise. They succeeded
at first instance but the councils appeal was allowed in part. Giving the judgment of
the court, Schiemann LJ as he then was said this:
19 In all legitimate expectation cases, whether substantive or
procedural, three practical questions arise. The first question is
to what has the public authority, whether by practice or by
promise, committed itself; the second is whether the authority
has acted or proposes to act unlawfully in relation to its
commitment; the third is what the court should do.

29 [After citing part of Peter Gibson LJs judgment in Begbie
including the passage on reliance which I have set out] In the
light of this, we respectfully adopt what Professor Craig has
proposed in this regard in Craig, Administrative Law, 4
th
ed, at
p 619 [Mr Husain told us that this passage is replicated in the
5
th
edition, page 652 sub-paragraph 6]:
Detrimental reliance will normally be required in order
for the claimant to show that it would be unlawful to go
back on a representation. This is in accord with policy,
since if the individual has suffered no hardship there is
no reason based on legal certainty to hold the agency to
its representation. It should not, however, be necessary
to show any monetary loss, or anything equivalent
thereto.
30 But he gives the following instance of a case where reliance
is not essential:
Where an agency seeks to depart from an established
policy in relation to a particular person detrimental
reliance should not be required. Consistency of
treatment and equality are at stake in such cases, and
these values should be protected irrespective of whether
there has been any reliance as such.
57. Mr Husain submits that this is such a case. The courts judgment in Bibi has these
further passages:
39 But, on any view, if an authority, without even considering
the fact that it is in breach of a promise which has given rise to
a legitimate expectation that it will be honoured, makes a
decision to adopt a course of action at variance with that
promise then the authority is abusing its powers.

49 Whereas in Ex p. Coughlan it was common ground
that the authority had given consideration to the promises it had
made, in the present cases that is not so. The authority in its
decision making process has simply not acknowledged that the
promises were a relevant consideration in coming to a
conclusion as to whether they should be honoured and if not
what, if anything, should be done to assuage the disappointed
expectations. In our judgment that is an error of law.

55 The present case is one of reliance without concrete
detriment. We use this phrase because there is moral detriment,
which should not be dismissed lightly, in the prolonged
disappointment which has ensued; and potential detriment in
the deflection of the possibility, for a refugee family, of seeking
at the start to settle somewhere in the United Kingdom where
secure housing was less hard to come by. In our view these
things matter in public law, even though they might not found
an estoppel or actionable misrepresentation in private law,
because they go to fairness and through fairness to possible
abuse of power. To disregard the legitimate expectation
because no concrete detriment can be shown would be to place
the weakest in society at a particular disadvantage.
It is noteworthy that in deciding what relief to grant the court expressly acknowledged
that there can be factors which inhibit the fulfilment of the legitimate expectations
(paragraph 66) and varied the declaration granted by the judge below so as to require
the authority to do no more (and of course no less) than to consider the applicants
applications for suitable housing on the basis that they have a legitimate expectation
that they will be provided by the authority with suitable accommodation on a secure
tenancy (paragraph 67).
58. Counsel cited other learning, but the materials I have set out suffice for the
determination of the appeal. It will be helpful to give a brief summary of the
arguments before arriving at my conclusions.
Legitimate Expectation The Arguments
59. The essence of Mr Husains argument consists, if I may articulate it in my own words,
in these propositions. (1) The Family Links Policy in its original form, on its proper
construction as Stanley Burnton J ascertained it, applied to the appellant at the time of
the Secretary of States relevant decisions, culminating in that of 25 February 2002.
(2) But it was not then applied to him. (3) A failure absent good reason to apply a
policy, according to its terms, to an individual entitled to the policys benefit amounts
to an error of law. (4) Accordingly the appellant enjoyed a legitimate expectation that
the mistake (the failure to apply the policy) would be corrected by dealing with him as
if the policy in its unamended form still applied to him; and so the usual rule, that an
executive decision which has to be revisited because of an earlier legal error falls to
be re-taken in light of the legal and factual context prevailing at the time the fresh
decision is made, must give way to the appellants legitimate expectation so arising.
60. There is a suggestion in Mr Husains skeleton argument (paragraph 50) that the
appellant should now have the benefit of the policy because between 5 August 2001
and 2 October 2001 his wifes asylum application was awaiting determination by the
Home Office, so that in that period he was within the terms of the policy on the
Secretary of States own construction. This submission has no merit. The Secretary
of State was plainly entitled to arrive at his decisions, notably by the letter of 25
February 2002, in light of the then circumstances.
61. There are certain features within his principal argument, as I have ventured to
summarise it, which Mr Husain would emphasise. First, the policy had been publicly
stated. The Home Office statement of 21 March 1991 was published or summarised
in Butterworths Immigration Service and had been the subject of frequent judicial
consideration. The policys public dissemination is an important element tending to
promote a legitimate expectation of its application to those whom it benefits.
Secondly, the rationale of the policy is to promote refugee family unity. It is
suggested that on the facts this is a particular reason why the appellant should have
the benefit of the policy; and Mr Husain takes issue with the Secretary of States
reliance (recorded by Stanley Burnton J at paragraphs 28 29 of his judgment) on the
fact that the appellants wife had been refused asylum, and that they had been
separated for some considerable period of time previously by their own actions
(paragraph 29) the Secretary of State believed that the appellant had remained in
Germany from 1995 until he came to the United Kingdom on 21 August 1998. Mr
Husain submits that the adjudicators determination in the wifes case tends to show
that the appellant had indeed returned from Germany to Sri Lanka, as he asserted.
Thirdly, the policy does not apply to an indeterminate class of persons, but to a
determinate class of certain asylum-seekers; and this is a circumstance which
promotes the appellants claim to a substantive benefit (that is, the application of the
policy in his case) flowing from his legitimate expectation. Fourthly, whereas in Ex
p. Begbie the erroneous statement relied on wrongly placed the applicant within the
scope of the relevant policy, and the later correction took her out of it, here the error
(the Secretary of States mistaken interpretation of the Family Links Policy) took the
appellant outside the policy, and the judges correction put him back inside it. Thus
in this case the appellant is in truth a beneficiary of the policy; and he should be given
the benefit of it, without having to show detrimental reliance.
62. On the theme of detrimental reliance Mr Husain was especially at pains to draw
support from the passage in Professor Craigs work cited at paragraph 30 of the Court
of Appeals judgment in Ex p. Bibi. I repeat the first sentence for convenience:
Where an agency seeks to depart from an established policy in
relation to a particular person detrimental reliance should not
be required.
At the very least, says Mr Husain, the Secretary of States decision of 25 February
2002 was taken by reference to an irrelevant consideration, namely the erroneous
proposition that the appellant fell outside the Family Links policy.
63. Mr Underwood roundly contended that there was no evidence of anything amounting
to abuse of power on the part of the Secretary of State. As I have said the appellants
solicitors letter of 21 February 2002 did not refer to the Family Links Policy. They
did not know of it. There is no question of detrimental reliance; there is at most a
tenuous form of moral detriment (Mr Underwoods skeleton, paragraph 24). The
Secretary of States decision letter of 25 February 2002 did refer to the policy
(paragraph 10), so it was plain that he had considered it, and the letter explained why
in the Secretary of States view it did not avail the appellant. The Secretary of State
had consistently applied his understanding of the policy; it had always been his
intention that the policy should apply as he understood it; its revision in July 2002 did
no more nor less than conform the language of the policy with that position.
64. Mr Underwood submitted that in principle the courts will not grant relief on grounds
of failure to make good a legitimate expectation unless something more is shown than
a bare departure from a representation or promise. Detrimental reliance may supply
the extra factor; so may inconsistency of treatment between one potential claimant
and another. Ex p. Rashid [2005] EWCA Civ 744, whose text with respect I need not
cite, provides a striking instance of the latter. Mr Underwood offered a list of six
factors (I apprehend he intended a non-exhaustive list) which would influence or
conclude the issue whether the courts would enforce an expectation generated by
promise or practice. (1) A promise specifically communicated to an individual or a
group, which is then ignored (as in Coughlan). (2) The clarity of the representation
(in this case we have qualifications such as normally and so forth). (3) The
singling out of an individual who is then treated less favourably than others also
affected by the representation. (4) Detrimental reliance. (5) Where the promise is
the result of an honest mistake which is then corrected, that will tend against
enforcement. (6) Maladministration, verging on bad faith, affecting what is
communicated to relevant persons or groups.
65. Against this background Mr Underwood submits that since the Secretary of State
acted honestly and consistently in relation to an individual who before the material
decision had no knowledge whatever of the policy which he now contends should
benefit him, there can be no question of abuse of power and nothing that begins to
justify relief on grounds of legitimate expectation. In the circumstances no principle
of the law, whether legitimate expectation or any other, requires him to accord the
appellant the benefit of the unrevised Family Links Policy as Stanley Burnton J
construed it. The parties differences on the facts relating to the appellants
movements (and the impact, if any, of the adjudicators conclusions on the appellants
wifes appeal) cannot begin to make a difference.
Legitimate Expectation Conclusions
66. Each side exerts some pull on ones sense of fairness. On the one hand the appellant
indeed fell within the policy as Stanley Burnton J authoritatively construed it; and
having in July 2002 sought to correct his own mistake (as it was later shown to be),
the Secretary of State proceeded to apply the correction retrospectively by denying the
appellant the policys benefit. On the other hand the Secretary of State acted upon his
own interpretation of the policy honestly and consistently and now seeks to do no
more than give effect to it as he had always conceived it to be; and for his part the
appellant placed no reliance whatever on the policy until after the relevant decision
had been made.
67. For my part I would accept Mr Underwoods contention that there is no abuse of
power here, and therefore nothing, in terms of legitimate expectation, to entitle the
appellant to a judgment compelling the Secretary of State to apply the unrevised
Family Links Policy in his case. I would so conclude on the simple ground that the
merits of the Secretary of States case press harder than the appellants, given the way
the points on either side were respectively developed by counsel. If my Lords agree,
that disposes of the appeal. But I find it very unsatisfactory to leave the case there.
The conclusion is not merely simple, but simplistic. It is little distance from a purely
subjective adjudication. So far as it appears to rest on principle, with respect to Mr
Underwood I think it superficial to hold that for a legitimate expectation to bite there
must be something more than failure to honour the promise in question, and then to
list a range of possible additional factors which might make the difference. It is
superficial because in truth it reveals no principle. Principle is not in my judgment
supplied by the call to arms of abuse of power. Abuse of power is a name for any act
of a public authority that is not legally justified. It is a useful name, for it catches the
moral impetus of the rule of law. It may be, as I ventured to put it in Begbie, the root
concept which governs and conditions our general principles of public law. But it
goes no distance to tell you, case by case, what is lawful and what is not. I accept, of
course, that there is no formula which tells you that; if there were, the law would be
nothing but a checklist. Legal principle lies between the overarching rubric of abuse
of power and the concrete imperatives of a rule-book. In Coughlan (paragraph 71,
cited above) Lord Woolf said of legitimate expectation, [t]he limits to its role have
yet to be finally determined by the courts. Its application is still being developed on a
case by case basis. I do not begin to suggest that what follows fulfils the task. But
although as I have said I would conclude the case in the Secretary of States favour on
the arguments as they stand, I would venture to offer some suggestions no doubt
obiter to see if we may move the laws development a little further down the road,
not least so as to perceive, if we can, how legitimate expectation fits with other areas
of English public law.
68. The search for principle surely starts with the theme that is current through the
legitimate expectation cases. It may be expressed thus. Where a public authority has
issued a promise or adopted a practice which represents how it proposes to act in a
given area, the law will require the promise or practice to be honoured unless there is
good reason not to do so. What is the principle behind this proposition? It is not far
to seek. It is said to be grounded in fairness, and no doubt in general terms that is so.
I would prefer to express it rather more broadly as a requirement of good
administration, by which public bodies ought to deal straightforwardly and
consistently with the public. In my judgment this is a legal standard which, although
not found in terms in the European Convention on Human Rights, takes its place
alongside such rights as fair trial, and no punishment without law. That being so there
is every reason to articulate the limits of this requirement to describe what may
count as good reason to depart from it as we have come to articulate the limits of
other constitutional principles overtly found in the European Convention.
Accordingly a public bodys promise or practice as to future conduct may only be
denied, and thus the standard I have expressed may only be departed from, in
circumstances where to do so is the public bodys legal duty, or is otherwise, to use a
now familiar vocabulary, a proportionate response (of which the court is the judge, or
the last judge) having regard to a legitimate aim pursued by the public body in the
public interest. The principle that good administration requires public authorities to
be held to their promises would be undermined if the law did not insist that any failure
or refusal to comply is objectively justified as a proportionate measure in the
circumstances.
69. This approach makes no distinction between procedural and substantive expectations.
Nor should it. The dichotomy between procedure and substance has nothing to say
about the reach of the duty of good administration. Of course there will be cases
where the public body in question justifiably concludes that its statutory duty (it will
be statutory in nearly every case) requires it to override an expectation of substantive
benefit which it has itself generated. So also there will be cases where a procedural
benefit may justifiably be overridden. The difference between the two is not a
difference of principle. Statutory duty may perhaps more often dictate the frustration
of a substantive expectation. Otherwise the question in either case will be whether
denial of the expectation is in the circumstances proportionate to a legitimate aim
pursued. Proportionality will be judged, as it is generally to be judged, by the
respective force of the competing interests arising in the case. Thus where the
representation relied on amounts to an unambiguous promise; where there is
detrimental reliance; where the promise is made to an individual or specific group;
these are instances where denial of the expectation is likely to be harder to justify as a
proportionate measure. They are included in Mr Underwoods list of factors, all of
which will be material, where they arise, to the assessment of proportionality. On the
other hand where the government decision-maker is concerned to raise wide-ranging
or macro-political issues of policy, the expectations enforcement in the courts will
encounter a steeper climb. All these considerations, whatever their direction, are
pointers not rules. The balance between an individuals fair treatment in particular
circumstances, and the vindication of other ends having a proper claim on the public
interest (which is the essential dilemma posed by the law of legitimate expectation) is
not precisely calculable, its measurement not exact. It is no surprise that, as I
ventured to suggest in Begbie, the first and third categories explained in the
Coughlan case are not hermetically sealed. These cases have to be judged in the
round.
70. There is nothing original in my description of the operative principle as a requirement
of good administration. The expression was used in this context at least as long ago
as the Ng Yuen Shiu case, in which Lord Fraser of Tullybelton, delivering the
judgment of the Privy Council, said this (638F):
It is in the interest of good administration that [a public
authority] should act fairly and should implement its promise,
so long as implementation does not interfere with its statutory
duty.
My aim in outlining this approach has been to see if we can conform the shape of the
law of legitimate expectations with that of other constitutional principles; and also to
go some small distance in providing a synthesis, or at least a backdrop, within or
against which the authorities in this area may be related to each other. I would make
these observations on the learning I have summarised earlier. First, there are some
cases where, on a proper apprehension of the facts, there is in truth no promise for the
future: Ex p. Hargreaves; see also In re Findlay [1985] AC 318. Then in Ng Yuen
Shiu and Ex p. Khan the breach of legitimate expectations of the standard of good
administration could not be justified as a proportionate response to any dictate of the
public interest; indeed I think it may be said that there was no public interest to
compete with the expectation. In Coughlan the promises denial could not be justified
as a proportionate measure. The three categories of case there described by Lord
Woolf represent, I would respectfully suggest, varying scenarios in which the
question whether denial of the expectation was proportionate to the public interest aim
in view may call for different answers. In Begbie, the legitimate expectation was
frustrated by the operation of statute. Bibi went off essentially on the basis that the
authority had simply not acknowledged that the promises were a relevant
consideration in coming to a conclusion as to whether they should be honoured. Its
primary importance arises from the courts comments on reliance, including its
citation of Professor Craig. That there is no hard and fast rule about reliance to my
mind illustrates the fact, which I have already sought to emphasise, that it is in
principle no more than a factor to be considered in weighing the question whether
denial of the expectation is justified justified, as I would suggest, as a proportionate
act or measure.
71. Applying this approach to the present case, I would arrive at the same result as I have
reached on the arguments as they were presented. I am clear that the Secretary of
State was entitled to decline to apply the original policy, construed as Stanley Burnton
J construed it, in the appellants case. I have already said that the Secretary of State
acted consistently throughout. The appellant knew nothing of the Family Links
Policy at the time of the February 2002 decision. He seeks the benefit, not of a
government policy intended to apply to persons in his position but unfairly denied
him, but the windfall of the Secretary of States misinterpretation. There is nothing
disproportionate, or unfair, in his being refused it. Nothing in Mr Husains points
seems to me to shift that position.
72. I would dismiss the appeal in Nadarajah.
Lord Justice Thomas:
73. I agree
Mr Justice Nelson:
74. I also agree.
Neutral Citation Number: [2008] EWHC 738 (Admin)
Case No: CO/1048/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT


Date: 17/04/2008

Before:

THE HONOURABLE MRS JUSTICE BLACK
- - - - - - - - - - - - - - - - - - - - -
Between:

B Claimant
- and -
LONDON BOROUGH OF LEWISHAM Defendant
MB INTERESTED
PARTY

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Stephen Knafler (instructed by Morrison Spowart) for the Claimant
Bryan McGuire (instructed by Lewisham Legal Services) for the Defendant
Nicholas Bowen (instructed by Lomax Lloyd-Jones) for the Interested Party
Hearing date: 14
th
March 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment

Black J:
1. These proceedings concern the provision of financial support for a special guardian
under sections 14A F of the Children Act 1989 and the Special Guardianship
Regulations 2005.
2. The Claimant (the grandmother) seeks judicial review of the decision of the
Defendant (the local authority) as to the level of financial support that they will pay
to her as the special guardian of her granddaughter, Mary, and of the legality of their
Special Guardianship Allowance Scheme generally. Mary is the Interested Party in
the judicial review proceedings. She appears through her litigation friend who was
her guardian in the care proceedings which were commenced not long after Marys
birth.
3. Burton J considered the papers in October 2007 and ordered that the application for
permission to commence judicial review proceedings should be adjourned into open
court to be heard inter partes with the application for judicial review to follow
immediately if permission was granted. By the time of that consolidated hearing in
front of me, it was clear that there was an arguable case which merited full
investigation and accordingly I granted permission at the outset. This judgment deals
with the substantive judicial review.
The facts
4. Mary was born on 11 May 2005 and is just under 3 years old. She has lived with the
grandmother since she was 6 months old. Also living with the grandmother are the
grandmothers 18 year old son and her 12 year old grandson, P, who is Marys half
brother. Marys mother is unable to look after her children herself because of her
personal problems, including drug and alcohol misuse.
5. P has lived with the grandmother since she was a baby. There is a residence order
securing the arrangement. The local authority made an initial grant of 3,000 which
the grandmother used to improve her home when P came to live with her but have
provided no further financial support in relation to him.
6. Mary was born very prematurely and had to stay in hospital for some months as a
result of her medical condition. The local authority obtained the first of a series of
interim care orders on 28 July 2005. In October 2005, Mary left hospital and was
placed in the care of a specialist foster carer. On 1 December 2005, she moved to live
with the grandmother. The grandmother was given an initial payment of 839.33 so
she could buy essential equipment and furniture and 70 per week which was half the
weekly amount that the local authority would normally pay by way of kinship
allowance. At the beginning of April 2006, the figure was increased to a full kinship
allowance of 141.38 per week.
7. By the time of the final hearing in the care proceedings on 8 November 2006, it was
clear that the grandmother was providing Mary with an extremely high level of care.
The guardian said in her report of September 2006 that Mary had made truly

incredible progress with her grandmother. It was agreed between all parties that
Mary should remain living with her under the auspices of a special guardianship
order.
8. The grandmother cannot work whilst looking after Mary. She relies on income
support and other benefits and plainly needs a special guardianship allowance.
Considerable discussion therefore took place prior to 8 November 2006 about the
financial support package that the local authority would provide to her as a special
guardian to enable her to care for Mary. The grandmother was looking for a weekly
income payment and also requested financial assistance to build a loft extension to
her home so as to accommodate all the children properly.
9. By 8 November 2006, the local authority were offering 114.61 per week in addition
to the state benefits that the grandmother would receive. Their figure was made up of
a basic allowance of 82.27 plus 15% to reflect the high level of physical care that
Mary needed and 20 for taxis. The figures were calculated in line with the local
authoritys newly devised Special Guardianship Allowance Scheme which allied
special guardianship allowances to the authoritys adoption allowances. Assistance
with the loft extension was not to be forthcoming.
10. Both the grandmother and the guardian considered that the local authority were
offering insufficient financial support. They argued, in particular, that it was wrong
for the local authority to peg special guardianship allowances to adoption allowances.
Deadlock was, however, reached.
11. It would have been open to the grandmother to withdraw her application for special
guardianship at that stage in the light of the financial provision proposed by the local
authority with the result that Mary would have remained in the care of the local
authority. Given the quality of the care offered by the grandmother, in all probability
Mary would have continued to be placed with her as a kinship placement and,
assuming the grandmother received at least the full kinship allowance, the family
would have been significantly better off. She did not take this course. She recognised
that it was in Marys best interests for her to become her special guardian and decided
to invite the court to make a special guardianship order and then to commence
judicial review proceedings in relation to the financial issues. Accordingly, on 8
November 2006, District Judge Crichton made a special guardianship order on the
express understanding that the grandmother would commence these proceedings for
judicial review in relation to the issue of financial support.
12. Despite the good progress Mary has made in her grandmothers care, she continues to
have medical, sleep and developmental problems and she needs dedicated care. The
grandmother has given up any hopes she had of a career. By the time Mary has grown
up, she will have reached retirement age. Her income is likely therefore always to be
restricted to income support, child benefit and whatever the local authority pay her by
way of financial support. Following a review last year, the local authority currently
pay 86.38 per week. This brings the grandmothers total income to 247.86 per
week. Her expenditure on basic items exceeds this. It is 265.91 per week.

The law
13. The concept of special guardianship was introduced by the Adoption and Children
Act 2002 which inserted sections 14A-F into the Children Act 1989.
14. By virtue of s 14F itself and the Special Guardianship Regulations 2005 (the
regulations) made under s 14A-F, each local authority must make arrangements for
the provision within their area of special guardianship support services which include
counselling, advice and information, and financial support.
15. S 14F Children Act 1989 provides:
S 14F (1) Each local authority must make arrangements for the provision within their area of
special guardianship support services, which means
(a) counselling, advice and information; and
(b) such other services as are prescribed,
in relation to special guardianship.
(2) The power to make regulations under subsection (1)(b) is to be exercised so as to secure
that local authorities provide financial support.
(3) At the request of any of the following persons
(a) a child with respect to whom a special guardianship order is in force;
(b) a special guardian;
(c) a parent;
(d) any other person who falls within a prescribed description,
a local authority may carry out an assessment of that persons needs for special guardianship
support services (but, if the Secretary of State so provides in regulations, they must do so if he
is a person of a prescribed description, or if his case falls within a prescribed description, or if
both he and his case fall within prescribed descriptions).
(4) A local authority may, at the request of any other person, carry out an assessment of that
persons needs for special guardianship support services.
(5) Where, as a result of an assessment, a local authority decide that a person has needs for
special guardianship support services, they must then decide whether to provide any such
services to that person.
(6) If
(a) a local authority decide to provide any special guardianship support services to a person,
and

(b) the circumstances fall within a prescribed description,
the local authority must prepare a plan in accordance with which special guardianship support
services are to be provided to him, and keep the plan under review.
(7) The Secretary of State may by regulations make provision about assessments, preparing
and reviewing plans, the provision of special guardianship support services in accordance
with plans and reviewing the provision of special guardianship support services.
(8) The regulations may in particular make provision
(a) about the type of assessment which is to be carried out, or the way in which an assessment
is to be carried out;
(b) about the way in which a plan is to be prepared;
(c) about the way in which, and the time at which, a plan or the provision of special
guardianship support services is to be reviewed;
(d) about the considerations to which a local authority are to have regard in carrying out an
assessment or review or preparing a plan;
(e) as to the circumstances in which a local authority may provide special guardianship
support services subject to conditions (including conditions as to payment for the support or
the repayment of financial support);
(f) as to the consequences of conditions imposed by virtue of paragraph (e) not being met
(including the recovery of any financial support provided);
(g) as to the circumstances in which this section may apply to a local authority in respect of
persons who are outside that local authoritys area;
(h) as to the circumstances in which a local authority may recover from another local
authority the expenses of providing special guardianship support services to any person.
(9) A local authority may provide special guardianship support services (or any part of them)
by securing their provision by
(a) another local authority; or
(b) a person within a description prescribed in regulations of persons who may provide special
guardianship support services,
and may also arrange with any such authority or person for that other authority or that person
to carry out the local authoritys functions in relation to assessments under this section.
(10) A local authority may carry out an assessment of the needs of any person for the
purposes of this section at the same time as an assessment of his needs is made under any
other provision of this Act or under any other enactment.

(11) Section 27 (co-operation between authorities) applies in relation to the exercise of
functions of a local authority under this section as it applies in relation to the exercise of
functions of a local authority under Part 3.
16. Part 2 of the regulations deals with special guardianship support services and Chapter
2 of that Part concerns the provision of financial support. Regulation 6 sets out the
circumstances in which financial support is payable:

6. (1) Financial support is payable under this Chapter to a special guardian or prospective
special guardian -
(a) to facilitate arrangements for a person to become the special guardian of a child
where the local authority consider such arrangements to be beneficial to the child's
welfare; or

(b) to support the continuation of such arrangements after a special guardianship
order is made.
(2) Such support is payable only in the following circumstances -
(a) where the local authority consider that it is necessary to ensure that the special
guardian or prospective special guardian can look after the child;

(b) where the local authority consider that the child needs special care which requires
a greater expenditure of resources than would otherwise be the case because of his
illness, disability, emotional or behavioural difficulties or the consequences of his
past abuse or neglect;

(c) where the local authority consider that it is appropriate to contribute to any legal
costs, including court fees, of a special guardian or prospective special guardian, as
the case may be, associated with -
(i) the making of a special guardianship order or any application to vary or
discharge such an order;

(ii) an application for an order under section 8 of the Act;

(iii) an order for financial provision to be made to or for the benefit of the
child; or
(d) where the local authority consider that it is appropriate to contribute to the
expenditure necessary for the purposes of accommodating and maintaining the child,
including the provision of furniture and domestic equipment, alterations to and
adaptations of the home, provision of means of transport and provision of clothing,
toys and other items necessary for the purpose of looking after the child.
17. Regulation 8 deals with the ways in which financial support may be paid and
provides:
8. Financial support under this Chapter may be paid -
(a) periodically, if it is provided to meet a need which is likely to give
rise to recurring expenditure; or

(b) in any other case by a single payment or, if the local authority and
the special guardian or prospective special guardian agree, by
instalments.
18. Chapter 3 of Part 2 of the regulations concerns the carrying out of an assessment of a
persons need for support services and the preparation of a plan for the delivery of
support services. Regulation 12 of that Chapter sets out the procedure for assessment
and the non-financial considerations to which the local authority must have regard. It
reads:
12. - (1) Where the local authority carry out an assessment of a person's needs for special
guardianship support services they must have regard to such of the following considerations
as are relevant to the assessment -
(a) the developmental needs of the child;

(b) the parenting capacity of the special guardian or prospective special guardian, as
the case may be;

(c) the family and environmental factors that have shaped the life of the child;

(d) what the life of the child might be like with the person falling within sub-
paragraph (b);

(e) any previous assessments undertaken in relation to the child or a person falling
within sub-paragraph (b);

(f) the needs of a person falling within sub-paragraph (b) and of that person's family;

(g) where it appears to the local authority that there is a pre-existing relationship
between a person falling within sub-paragraph (b) and the parent of the child, the
likely impact of the special guardianship order on the relationships between that
person, that child and that parent.
(2) The local authority must, where they consider it appropriate to do so -
(a) interview the person whose needs for special guardianship support services are
being assessed;

(b) where the person falling within sub-paragraph (a) is a child, interview -
(i) any special guardian or prospective special guardian, as the case may be,
of the child; or

(ii) any adult the local authority consider it appropriate to interview.
(3) Where it appears to the local authority that the person may have a need for services
from a Local Health Board, Primary Care Trust or local education authority, they must, as
part of the assessment, consult that Local Health Board, Primary Care Trust or local education
authority.

(4) After undertaking an assessment, the local authority must prepare a written report of the
assessment.

19. Regulation 13 sets out the financial considerations that the local authority must take
into account. It reads:
(1) This regulation applies where the local authority carry out an assessment of a person's
need for financial support.

(2) In determining the amount of financial support, the local authority must take account of
any other grant, benefit, allowance or resource which is available to the person in respect of
his needs as a result of becoming a special guardian of the child.

(3) Subject to paragraphs (4) and (5) the local authority must also take account of the
following considerations -
(a) the person's financial resources, including any tax credit or benefit, which would
be available to him if the child lived with him;

(b) the amount required by the person in respect of his reasonable outgoings and
commitments (excluding outgoings in respect of the child);

(c) the financial needs and resources of the child.
(4) The local authority must disregard the considerations in paragraph (3) where they are
considering providing financial support in respect of legal costs, including court fees, in a
case where a special guardianship order is applied for in respect of a child who is looked after
by the local authority and the authority support the making of the order or an application is
made to vary or discharge a special guardianship order in respect of such a child.

(5) The local authority may disregard any of the considerations in paragraph (3) -
(a) where they are considering providing financial support in respect of -
(i) initial costs of accommodating a child who has been looked after by the
local authority;

(ii) recurring costs in respect of travel for the purpose of visits between the
child and a related person; or

(iii) any special care referred to in regulation 6(2)(b) in relation to a child
who has been looked after by the local authority; or
(b) where they are considering including an element of remuneration under
regulation 7.
(6) In paragraph (5)(a)(ii) "related person" means a relative of the child or any other person
with whom the child has a relationship which appears to the local authority to be beneficial to
the welfare of the child having regard to the factors specified in section 1(3) of the Act.
20. Special Guardianship Guidance (the Guidance) has been issued under s 7 of the
Local Authority Social Services Act 1970 by the Department for Education and
Skills. That section provides that local authorities shall, in the exercise of their social
services functions, including the exercise of any discretion conferred by any relevant
enactment, act under the general guidance of the Secretary of State. It is well
established that, as Sedley J said in R v Islington LBC ex p Rixon (1997-8) 1 CCLR

119 at 123, local authorities are required by s 7 to follow the path charted by the
Secretary of States guidance, with liberty to deviate from it where the local authority
judges on admissible grounds that there is good reason to do so, but without freedom
to take a substantially different course. Similar points were made by the House of
Lords in Munjaz v Ashworth Hospital [2005] UKHL 58. Paragraph 2 of the
Guidance therefore explains that, whilst the document does not have the full force of
statute, it should be complied with unless local circumstances indicate exceptional
reasons which justify a variation. It has not been argued that there are any such local
circumstances in this case.
21. Paragraphs 25 and 26 of the Guidance set special guardianship support services in
context. They provide:
25. The local authority should take into account the similar services already being delivered
in their area, such as adoption support services, and plan the provision of special guardianship
support services accordingly.
26. Special guardianship support services should not be seen in isolation from mainstream
services. It is vital to ensure that children and families involved in special guardianship
arrangements are assisted in accessing mainstream services and are aware of their entitlement
to social security benefits and tax credits as appropriate.

22. At paragraph 37, the Guidance says that financial issues should not be the sole reason
for a special guardianship arrangement failing to survive. It says that The central
principle is that financial support should be payable in accordance with the
Regulations to help secure a suitable special guardianship arrangement where such an
arrangement cannot be readily made because of a financial obstacle.
23. Paragraphs 64 66 deal with the assessment of financial support under regulation 13.
Paragraph 64 assists with the local authoritys consideration of the special guardians
means. Paragraphs 65 and 66 are central to the debate in this case. They provide:
65. In determining the amount of any ongoing financial support, the local authority should
have regard to the amount of fostering allowance which would have been payable if the child
were fostered. The local authoritys core allowance plus any enhancement that would be
payable in respect of the particular child, will make up the maximum payment the local
authority could consider paying the family. Any means test carried out as appropriate to the
circumstances would use this maximum payment as a base.
66. There is a suggested means test on the Department for Education and Skills website
(www.dfes.gov.uk/adoption), which local authorities may wish to use.
24. The DfES means test is designed for both adoption and special guardianship financial
support cases. As the notes that go with it say, it is a suggested model only and there
is no statutory requirement that local authorities use it. However, the DfES notes
recommend its use as they believe that the model is fair and that adoptive or special
guardian families would benefit from a consistent approach by local authorities. The
proforma and notes enable the familys projected income and expenditure to be
established. On the final page, the payment that will be made to the adopters or
special guardians is calculated with reference to the Local Authority Maximum
Payment.

25. Where the family is in receipt of income support, the DfES recommend in the notes
(note 8) that the local authority pay the family the applicable maximum payment
without assessing their income/expenditure by the means test. This would be the
situation of the grandmother in this case.
26. Paragraph 44 of the notes to the model means test records the understanding of the
DfES that many local authorities determine payments to adopters or special guardians
based on the allowances they pay foster carers, and then deduct child benefit from the
final amount to reflect the fact that foster carers cannot claim child benefit but
adopters and special guardians can. Although the purpose of the note is to point out
that when using the means test form, the maximum payment used to calculate the
payment to be made to adopters or special guardians should not deduct child benefit
because the spreadsheet provides for that to be deducted later, the information as to
the DfES understanding of the practice of many local authorities is noteworthy.
The local authoritys financial support scheme
27. The local authority in this case devised a financial support scheme for adopters and
special guardians. The final version of this scheme is set out in a report which was
approved by the local authority on 3 October 2007.
28. The basic weekly amount provided under the scheme for an adopted child aged 0-4 is
84.33 less child benefit. The allowance is means tested and reviewed annually.
Enhancements can be paid where a child has special needs. The scheme for special
guardians is linked with the adoption scheme. An explanation as to why this course
was taken and why the option of linking special guardianship payments to fostering
allowances was rejected can be found in the local authoritys report at paragraphs
10.2 to 10.12.
29. The report says that consideration was given to the use of the model means test to
which reference is made in the Guidance but this was not recommended because
when allowances were calculated using this scheme, they were found to be less
generous than those of neighbouring authorities. The local authority therefore
developed its own means test.
30. The local authoritys rates for special guardians are said in the report to be currently
in the mid range of those authorities that have agreed rates. They are, however, very
significantly below the national minimum allowance prescribed by the DfES for
foster carers for 2007-8 and there is an even greater differential compared with the
rather higher rates that the local authority in fact pay to their foster parents.
31. National minimum allowance is the term used to describe the basic core allowance
that foster carers receive to cover the costs involved in looking after any fostered
child. The national minimum allowance was calculated taking account of extra costs
associated with children in foster care. It reflects, for example, the fact that fostered
children are less likely to have money spent on them by grandparents and other
family members and that household bills can be significantly more costly for foster

carers than for other parents. The calculation takes account of regular costs incurred
by all foster carers. Some significant elements which apply to the majority of foster
carers are not covered. These are the additional costs of birthdays, Christmas and
other religious festivals, the cost of holidays, the start up costs of a child arriving in
placement and other larger one off items required during the currency of the
placement. In London, the national minimum allowance is 116 per week for babies
and 119 for pre-school children.
32. This local authoritys fostering rate for a child aged 0-7 who is not fostered with
family or a friend is given in the report as 278.60 per week. This includes 190.06
for the core elements in the cost of bringing up a child which are broken down into
maintenance (172.20), pocket money (4.23) and clothing (13.63) plus 48.07 for
training and 40.47 by way of reward. The local authority rate for family and friends
who foster a child of 0 4 years old is said to be 147.66 per week following
approval by the fostering panel and half of this sum during assessment.
The submissions
33. Mr Knafler on behalf of the grandmother advances two main arguments as to why the
local authoritys special guardianship scheme is unlawful, one based on a close
analysis of the terms of the regulations and Guidance and one a rather broader
argument based on the aims of the overall legislative scheme relating to the
placement of children away from their own parents of which special guardianship is
part.
34. I turn first to the analysis of the regulations and Guidance.
35. Mr Knafler argues that in fixing their special guardianship support rates, the local
authority have misinterpreted the Guidance, in particular paragraph 65, and have
failed to follow it. His submission is that the terms of paragraph 65 (set out above)
make it clear that the amount of the fostering allowance that would have been paid if
the child was fostered is central to the calculation of any ongoing special
guardianship financial support and the local authority have wrongly abandoned it in
favour of their much lower adoption allowance.
36. The local authoritys report (see above) asserts that whilst paragraph 65 requires them
to have regard to the cost of a fostering placement, it imposes no requirement to
follow the fostering allowance scheme in establishing a special guardianship support
scheme. In summary, the justifications in the report for choosing instead to follow the
adoption allowance are:
i) The central principle for special guardianship allowances is that financial
support should be payable to help secure a placement by overcoming a
financial obstacle but payments need not be any greater than necessary to
achieve this (paragraphs 10.3 and 10.4).

ii) The purpose of the payment is not to provide remuneration to the carer
(paragraph 10.4) except that former foster carers can receive an enhanced rate
for 2 years to ease them into their new status (paragraph 10.6).
iii) Paragraph 25 of the Guidance requires the local authority to take into account
similar services being delivered in their area such as adoption support services
and plan provision of special guardianship support services accordingly
(paragraph 10.5 and 10.10).
iv) The regulations relating to the adoption support scheme are very similar to
those applying to special guardianship (paragraph 10.9).
v) Special guardianship is a lifelong commitment much closer to adoption than
fostering. To link the scheme to the fostering allowance scheme would imply
the local authority were only seeking a professional caring service (paragraph
10.7 and 10.11).
37. The argument advanced by the local authority in front of me has followed similar
lines. In so far as the specific terms of paragraph 65 are concerned, their argument is
that as long as regard is had to the fostering allowances that the local authority pay,
that is enough. They submit that fostering allowances are not in any way a starting
point for the consideration of what should be paid to a special guardian. As for the
maximum payment referred to in paragraph 65 of the Guidance, the local authority
argue that that is simply there to ensure that an authority is not paying too much and
in particular, that they do not pay special guardians more than foster carers. Mr
McGuire was unable to help greatly as to what, in this context, the last sentence of
paragraph 65 meant.
38. The local authority invite attention to regulation 6 (see above) which provides that the
purpose of financial support is to facilitate arrangements for a person to become or
continue to be the special guardian of a child and that it is only payable in certain
circumstances, that relevant to the present argument being where the local authority
consider it is necessary to ensure that the special guardian can look after the child.
That is not, they say, a principle that warrants treating special guardianship as a
species of foster caring for support purposes.
39. They are mindful of their duty to take into account similar services being delivered in
the area. They see special guardianship as much more similar to adoption than to
fostering, particularly pointing out that special guardianship is an alternative to
provide permanence to children for whom adoption is not appropriate. This similarity
is, they submit, a reason to align special guardianship allowances with adoption
allowances.
40. They further argue that the minimum fostering allowance is tailored to the cost of
providing for a foster child in relation to whom costs tend to be rather higher than a
child who is not fostered. They submit that a child placed with a special guardian is
more akin to a child living with its own parents (or an adopted child) than a foster

child and not so expensive to bring up so that an allowance based on a fostering
allowance would be more generous than necessary to facilitate the placement.
41. They stress that there must be no element of remuneration in the payment except to
former foster parents in accordance with regulation 7 which provides:
Remuneration for former foster parents
7. - (1) Financial support under this Chapter may include an element of remuneration but
only where the decision to include it is taken before the special guardianship order is made
and the local authority consider it to be necessary in order to facilitate arrangements for a
person to become a special guardian in a case where -
(a) the special guardian or prospective special guardian has been a local authority
foster parent in respect of the child; and

(b) an element of remuneration was included in the payments made by the local
authority to that person in relation to his fostering the child.
(2) But that element of remuneration ceases to be payable after the expiry of the period of
two years from the making of the special guardianship order unless the local authority
consider its continuation to be necessary having regard to the exceptional needs of the child or
any other exceptional circumstances.
42. Building on this, they submit that because there is no provision for remuneration for
special guardians outside this class, it would be inappropriate for them to align special
guardianship support with fostering allowances.
43. I cannot accept that the local authoritys interpretation of paragraph 65 is correct.
Read in the way they suggest, it is just an exceptionally contorted and unclear means
of conveying the simple message that a local authority should never pay a special
guardian more than they would pay a foster carer. If their approach to special
guardianship allowances is correct, it is also a missed opportunity in that it says
absolutely nothing to alert local authorities to the need to have regard to adoption
payments when determining special guardianship payments, let alone to suggest that
special guardianship payments should be aligned to adoption payments which is the
principle that the local authority have chosen to espouse.
44. Paragraph 65 is not happily drafted and it is necessary to view it with a degree of
imagination to make sense of it but, in my view, once one draws on the indicators
elsewhere that help one to understand what it is really about, it is clear that its
meaning is not that for which the local authority contend.
45. As the local authority concedes, the first sentence of paragraph 65 (see above)
imposes an obligation on them to have regard to the fostering allowance that would
have been payable. The second sentence says that the local authoritys core
allowance plus any enhancement that would be payable in respect of the particular
child will make up the maximum payment the local authority could consider
paying the family. The core allowance is obviously the core allowance paid by the
local authority to their foster parents. Maximum payment is not defined anywhere

in the Act, the regulations or the Guidance although, as I set out below, some pointers
as to its meaning can be discovered. The third and final sentence of the paragraph
says that any means test carried out as appropriate would use this maximum
payment as a base.
46. Just looking for a moment at the obligation to have regard to the fostering allowances,
it would, in my view, be unlikely that those responsible for the Guidance intended
that local authorities would go through the motions of reminding themselves of their
fostering rates only to abandon them completely in all their subsequent considerations
and to fasten instead on a quite different and much more stringent financial regime.
The scheme this local authority have devised is so divorced from their fostering
allowances as to suggest that whatever regard was given to the fostering allowances,
it was allowed to have absolutely no impact on the calculations that followed except
(as the local authority say) that it was a ceiling to whatever special guardianship
payments the local authority might decide to pay.
47. It seems to me that it is much more likely that those giving the Guidance intended that
the local authoritys fostering allowances would serve as a ranging shot for the local
authoritys consideration of what their special guardianship provision should be or at
least be held firmly in mind when fixing that provision. That is the natural import of
the first sentence of paragraph 65 and it is an interpretation which allows the
paragraph as a whole to have an integrity which is completely missing on the local
authoritys interpretation. One must be careful not to construe the Guidance as if it
were a statute but it should, in my judgment, be viewed as if the first sentence of
paragraph 65 were the introduction, making it clear that fostering allowances were
relevant, which the second sentence refines by reference to the fostering core
allowance.
48. One is then taken in the third sentence to the means test and paragraph 66 offers the
suggested pro forma on the DfES website. I found it helpful to refer to the DfES
means test and the notes supplied with it in interpreting paragraph 65. The term
maximum payment must, in my view, have the same meaning in the notes to the
means test and in paragraph 65 of the Guidance. Paragraphs 65 and 66 of the
Guidance are so intimately connected with the question of means testing and the
suggested DfES means test that it would not make sense for it to be otherwise. It
seems to me that the recommendation in note 8 that the local authority pay the family
the applicable maximum payment where they are on income support must therefore
be a reference to the local authoritys core fostering allowance plus any enhancement
that would be payable in respect of the particular child as set out in the second
sentence of paragraph 65. Neither paragraph 65 nor, even less, note 8 create an
obligation on the local authority to pay precisely that sum but they do give an
indication that those responsible for the Guidance were thinking in terms of a close
association between fostering allowances and special guardianship allowances.
49. Also of assistance and pointing in the same direction is note 42. This speaks for itself
and reads, with italics supplied by me:

42. We understand that most local authorities will have a payment structure for fostering
allowances consisting of a core allowance paid for all children, plus enhancements linked
to, for example, special needs. This payment structure will be linked to local variations in
the cost of living and individual local authority budgets. We recommend that adoption and
special guardianship maximum payments are tied to these allowances. This would result
in a different maximum payment in individual cases, determined by the needs of the child,
against which amount the test is run.
50. A further pointer in the same direction can, in my view, be found at paragraph 43 of
the Guidance. This is part of the Guidance on regulation 7 payments for former foster
parents who become special guardians. Paragraph 43 provides:
The purpose of the two year transitional provision is to enable local authorities to maintain
payments to foster carers who become special guardians, at the same rate as they received
when they were fostering the child. This should give the family time to adjust to their new
circumstances.
The important feature of this paragraph is the reference to payments continuing at
the same rate as they received when they were fostering the child. All that is payable
under regulation 7 for the transitional period is the remuneration element of the
fostering allowance. Regulation 7 does not contain any provision designed to boost a
former foster parents ordinary special guardianship allowance above that which any
other special guardian would receive. Remuneration apart therefore, the rate of
special guardianship allowance for an ex-foster parent would be just the same as that
paid to someone in the Claimants position. It follows that under this local authoritys
scheme, albeit that they would receive remuneration for a transitional period, foster
parents who became special guardians would still be significantly worse off than they
had been as foster parents. They would not be receiving payments at the same rate as
paragraph 43 anticipates. They would not have time to adjust to their new
circumstances. If, however, they were to receive a special guardianship allowance at a
rate allied to the core fostering allowance plus relevant enhancements for the
particular child plus their remuneration, precisely that which paragraph 43
contemplates would be achieved.
51. A final pointer, of lesser weight probably because local authorities have discretion as
to what precise arrangements they make in their areas but nonetheless relevant, is the
indication in paragraph 44 of the notes that the DfES understand that many local
authorities determine payments to special guardians based on foster allowances less
child benefit.
52. I have considered the local authoritys argument that it would be inappropriate to
align special guardianship support with fostering allowances because special
guardians are not normally entitled to remuneration and local authority foster parents
are. This concentration on the issue of remuneration is, in my judgment, mistaken.
Having introduced fostering allowances as a relevant consideration, paragraph 65
does not go on to require the local authority to take into account, in fixing special
guardianship rates, the remuneration that some foster parents receive. The core
allowance plus enhancements that forms the maximum special guardianship payment
does not contain any element of remuneration. It relates to the core cost of bringing

up a fostered child. Following it would not in any way introduce remuneration for
special guardians. It would simply reflect the inescapable costs of bringing up a child
which, if a special guardian had neither the private means nor the local authority
funding to meet them, would stand in the way of a family caring for a child, however
much they wished to do so.
53. As to the local authoritys argument that fostering rates are an inappropriate reference
tool because fostered children are more expensive to bring up than those who are not
in local authority care, firstly I do not consider that the terms of paragraph 65 entitle
them simply to disregard fostering rates on this basis although they could, of course,
take into account differential expenses as a justification for making appropriate
adjustments when fixing the precise rate payable to special guardians. Secondly, I am
not sure whether it is wholly accurate to say as a generality that fostered children are
more expensive although I have not got sufficient information to form a concluded
view about this. I do accept that, as the local authority argue, there are specific
aspects of caring for a fostered child which complicate the arrangement and which are
not present with an adopted child or one who is with a special guardian, notably the
requirement to participate with the local authority in its supervisory role over the
placement. That apart, however, some children who are placed with special guardians
are in situations which have derived from former fostering arrangements or other
situations which have child protection aspects and the cost of bringing up these
children may not be significantly less than the cost of bringing up fostered children.
54. Whilst I accept that the Guidance does not have statutory force, the local authority
had a duty substantially to follow it unless there was good reason to do differently.
Nothing that they have argued in these proceedings comes close to justifying a radical
departure. It would appear that in reality they have failed to understand the central
importance that paragraph 65 gives to the amount paid by way of fostering
allowances and they cannot therefore have had regard to those allowances in the way
in which they were required by that paragraph to do. They made, instead, a rigid link
with adoption allowances which was not in accordance with the Guidance. It follows
that their resulting scheme is unlawful.
55. I should say a word about the way in which the argument was presented to me
concerning the validity of the local authoritys scheme. There seemed to be a
common acceptance at the start of the hearing that the local authoritys adoption
allowances were unimpeachable, albeit significantly lower than their fostering
allowances. The thrust of the debate was whether it was lawful for the local authority
to align special guardianship allowances with those adoption allowances. As the
argument went on, it seemed to me that this was in some ways the wrong way to look
at matters. When one considers the terms of the Adoption Guidance, which
supplements the Adoption and Children Act 2002 and contains guidance on financial
support in adoption cases, questions arise as to whether the adoption allowances fixed
by this local authority are themselves lawful. Paragraph 52 of the Adoption Guidance
is in very similar terms to paragraph 65 of the Special Guardianship Guidance save
that the last sentence of paragraph 52 reads, Any means test carried out as
appropriate to the circumstances will calculate the proportion of this maximum

payment to which the family are entitled. Counsel were in no position to argue the
legality of this local authoritys adoption support scheme in the light of this paragraph
of the Adoption Guidance. In the event, I considered that the issue before me could be
determined by reference to the detail of the provisions relating to special guardianship
as a discrete entity rather than focussing upon the propriety or otherwise of links with
adoption payments. In the circumstances, I have formed no concluded view about the
local authoritys adoption support scheme although I record that my impression is that
it may have precisely the same flaws as I have found the special guardianship scheme
to have. Accordingly, it is not beyond the bounds of possibility that it will ultimately
turn out that adoption and special guardianship payments are in fact appropriate twins
but that both need to be raised so that they bear a proper relationship to fostering
allowances.
56. I turn to Mr Knaflers broader argument based on the aim of the legislative scheme.
He submits that the purpose of the whole legislative scheme relating to the placement
of children away from their own parents is to give a freedom to choose the type of
placement that is in the best interests of the child without being constrained because
some of the available orders produce a more favourable financial result than others
and some might even place the carer in an unworkable financial position. He argues
that this local authoritys special guardianship support scheme sets financial support
at a level which will inevitably render it impossible for a special guardianship order to
be made in relation to some children whose best interests would be served by such an
order. The consequence for these children may be, as it could have been for Mary,
that they have to remain in local authority care. A scheme that confounds the purpose
of the legislation in this way is, he argues, unlawful.
57. There can be little doubt that it was intended that there should be a range of
placement options for children who are not living with their own parents. All major
decisions in relation to the placement of children are made with the welfare of the
child as the courts paramount consideration. Financial stringency can on occasions
threaten to prevent decisions being made which would otherwise be in the best
interests of a child. I accept that, as regulation 6 shows, the intention of the legislation
and regulations about special guardians is that financial support should be made
available to special guardians to ensure that financial obstacles do not prevent people
from taking on this role. I do not go so far as to say that there must be uniform
financial support to every type of carer. Different types of placement have different
attributes, cost different amounts and require different schemes. To state the obvious,
for example, by adopting a child, the adopters make the child their own which does
not happen with any other form of alternative care. To give another example, children
who are living with foster parents, or special guardians or with a non-parent who has
a residence order are none of them living with their own parents but there is a
manifest difference between special guardianship and a residence order to a non-
parent on the one hand and local authority foster care on the other. However, putting
it at its lowest, a local authority is not free, in my view, to devise a scheme which
fails to do what is required by regulation 6 or which dictates that some types of
placement for a child carry a significant financial disadvantage in comparison with
others or, worse, would impose such a financial strain on a carer that they would be

forced to choose another type of placement. This local authoritys scheme does this in
relation to the grandmother and for that reason and in the light of the local authoritys
failure to have proper regard to the regulations and Guidance is unlawful and must be
quashed.
58. On behalf of Mary, Mr Bowen added arguments based on duties under Articles 8 and
14 of the ECHR to the arguments advanced by Mr Knafler for the grandmother. He
argued that the local authoritys scheme discriminated against those carers who
wished to commit themselves to a child as special guardians rather than those who
remained long term foster carers and discriminated against children who were being
cared for by family members and might become the subject of a special guardianship
order as opposed to those who were with professional foster parents. He argued that
both groups have similar needs and the children cost the same to rear but family
members and other special guardians and the children for whom they care are
condemned to a more stringent financial regime than foster carers and children. There
was no debate about the engagement of Article 8 on the facts of this case but it was
not common ground that there was discrimination within Article 14. Given my clear
decision on other grounds that the local authoritys scheme is unlawful, it is not
necessary for me to deal with this supplementary issue and I do not propose to do so.
Wordwave International, a Merrill Corporation Company

Case No: CO/10951/2010
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street
Cardiff
Wales
CF10 1ET

Date: Tuesday, 21 December 2010
BEFORE:
THE HONOURABLE MR JUSTICE HICKINBOTTOM
- - - - - -- - - - - -
BETWEEN:
THE QUEEN

on the application of

(1) FOREST CARE HOME LIMITED
(2) MAVALON LIMITED
(3) WOODHILL CARE LIMITED
Claimants
- and -
PEMBROKESHIRE COUNTY COUNCIL Respondent

(1) THE WELSH MINISTERS
(2) OLDER PEOPLES COMMISSIONER FOR
WALES
Interested
Parties
- - - - - -- - - - - -
Digital Transcript of Wordwave International, a Merrill Communications Company
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7422 6131 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com
(Official Shorthand Writers to the Court)
- - - - - -- - - - - -

MR CHARLES BAR QC and MRS MADELEINE HEAL (instructed by Alison
Castrey Limited, Solicitors) appeared on behalf of the Claimants.

MR DAVID PHILLIPS QC and MR ANDREW GREEN (instructed by the Council
Solicitor) appeared on behalf of the Respondent.

The Interested Parties did not appear.

Hearing dates: 13-16 December 2010
- - - - - -- - - - - -
Judgment

MR JUSTICE HICKINBOTTOM:
Introduction
1. The defendant council (the Council) is the social services authority for
Pembrokeshire, and, as such it has an obligation under section 21 of the
National Assistance Act 1948 to provide residential accommodation to those
in its area who, by reason of age, are in need of care and attention not
otherwise available to them. It does so in a variety of ways, including
providing support in the community and through its own homes. However, to
comply with its section 21 obligation, it mainly engages private residential
care homes to which it pays a weekly fee for the provision of accommodation
and care to those in relevant need. The fee is usually expressed on a per
resident per week rate basis, and, in this judgment, given rates will be on that
basis unless otherwise indicated. There are approximately 500 elderly people
who are so accommodated in Pembrokeshire on the payment by the Council of
such a fee.
2. The claimant companies (Forest Care Homes Limited, Mavalon Limited and
Woodhill Care Limited) have common shareholders and directors, including
the effective chief executive and manager of the companies, Mr Michael
Davies, who is also the Chairman of the Pembrokeshire Care Home Owners
(the PCHO), a trade association, the name of which is self-describing.
3. The claimants own and manage four residential care homes in Pembrokeshire,
accommodating 87 people, 43 of whom are paid for by the Council. The
average age of the residents in each home is over 86 years, and some are in
their late 90s. All of the homes provide the accommodation and care to which
I have referred. However, one is also a nursing home, i.e. in addition, it
provides care by a registered nurse which, under different provisions (i.e.
section 3 of the National Health Service Act 1977, and the NHS (Nursing Care
in Residential Accommodation) (Wales) Directions 2004), is paid for, not by
the Council, but by the relevant local health board. The residents in the
nursing home have particular nursing care needs, and they include those who
suffer from dementia and other mental conditions.
4. As I have indicated, about half of the residents in the claimants homes are
paid for by the Council, the fee rate being fixed by the Council under the
relevant statutory provisions. In this action, the claimants challenge various
decisions of the Council in relation to the fee rate fixed for the year 2010-11.
During the course of the proceedings the claimants case has evolved, but the
challenges made fall under three broad heads.
5. First, the claimants seek to challenge the failure of the Council to make any
decision setting a fee rate for the year 2010-11. The Council asserts that,
following the collection of relevant data from care homes in Pembrokeshire, it
made a decision to fix the fee at 390 per resident per week, prior to 7 May
2010, on the basis of a well-known economic model or toolkit, designed to
ensure that an appropriate, fair and justifiable rate was set; and that that
decision was communicated to the claimants, through Mr Davies, at a meeting


on 24 June 2010.
6. Second, the claimants contend that, if a decision was made to fix the rate at
390, then that decision was unlawful; because it was irrational or, in the
phrase used by Sedley J (as he then was) in R v Parliamentary Commission for
Administration ex p Balchin (unreported, 25 October 1996) at page 19, There
is an error of reasoning which robs the decision of logic. Indeed, Mr Charles
Bar QC for the claimants identified six such alleged legal errors.
7. Five of these sub-grounds are in relation to the methodology used in the
assessment of the costs of care home providers as follows.
8. First, the methodology failed to deal properly with capital costs (the capital
costs issue). I will come on to deal with this sub-ground in detail in due
course; but, during the course of the hearing before me, the Council accepted
that the manner in which it had dealt with providers capital costs to arrive at
the 2010-11 rate was wrong and unlawful, with the result that it conceded that
the decision to set the fee rate at 390 should be set aside and a new decision
taken. It also conceded that, as a result of that error, the claimants were
entitled to be paid at a rate of 405.50, backdated to 1 April 2010: and, as I
understand it, the relevant back-payment has subsequently been made.
However, the claimants do not accept that that is the full extent of the legal
errors in the methodology used by the Council to arrive at a rate, either in
respect of capital costs discretely, or in respect of the other sub-grounds upon
which they rely. Other than its concession, the Council denies any irrationality
or illogic in its decision-making process that arrived at the figure of 390, now
revised to 405.50. That is why this claim has proceeded to judgment, so that
I can rule on the grounds remaining in issue and, if I find that any other legal
errors were made, hopefully prevent the Council making similar errors in the
new decision it is now bound to make.
9. The second sub-ground relied upon by the claimants in relation to the costs
methodology, is that it failed to use appropriate local data on the average
number of care hours spent on each resident per week (the first staffing
issue).
10. Third, it failed to recognise that residents who require nursing care, for which
the local health board is responsible, also require more non-nursing care for
which the Council is responsible (the second staffing issue).
11. Fourth, it failed to take into account data from all care homes in
Pembrokeshire, it being based upon data from only the larger homes, i.e. those
with 20 or more registered places (the smaller homes issue).
12. Fifth, it was based upon costs data collected from the year 2008-9, and failed
to take into account inflation in the two years to 2010-11 and the introduction
of new Working Hours Regulations in April 2010 which increased the
minimum holiday entitlement from 24 to 28 days (the inflation etc issue).

13. In response to each of those five sub-grounds, the Council submits that its
methodology was appropriate and lawful.
14. The sixth sub-ground does not relate to the methodology used to assess
providers costs; but rather that, in determining the rate on the basis of those
assessed costs, it took into account the Councils own limited resources which,
the claimants contend, is an irrelevant consideration for these purposes. The
Council contend that, in setting the rate, it is lawful to take account that factor,
as it did.
15. Those are the six sub-grounds upon which the claimants seek to challenge the
Councils decision to set the 2010-11 fee rate at 390. They lie at the heart of
this claim.
16. The third and final broad ground of challenge, also still in issue, is that the
claimants contend that the Council acted unlawfully in taking steps to prevent
them from seeking a contribution towards its costs from next of kin and others
responsible for residents, over and above the fee set and paid by the Council.
In response, the Council says that there is no relevant public law decision here
that might attract relief in this court; and, in any event, that, by seeking such a
contribution, the claimants acted in breach of their contracts with the Council
and that therefore the Council was entitled to take the action it did to stop
them.
17. The claimants application for permission and interim relief came before His
Honour Judge Jarman QC on 9 November 2010. He granted permission in the
following terms:
Permission is granted to review the [Councils] failure from 25
August 2010 to agree and act up[on] a properly constructed toolkit that
(i) takes appropriate account of data from all providers of
residential personal care in Pembrokeshire; and
(ii) takes account of legitimate current and future costs faced
by all providers of residential care in Pembrokeshire as
well as the factors that affect those costs.

The relevance of the date 25 August 2010 will become apparent during the
course of this judgment, although that relevance has waned as a result of the
Councils concession to which I have referred.
18. At the start of the hearing before me, there was debate about the scope of that
permission, and the extent to which I should allow the claimants permission to
proceed with a judicial review on grounds not pursued before Judge Jarman
and/or on grounds which he had considered but upon which he had refused
permission. There was certainly evidence before me that was not before Judge
Jarman, as well as further submissions. Whilst not granting any permission
wider than that granted by the judge on 9 November, I allowed the claimants
to pursue all of the above grounds on the basis that I would deal with the

grounds that fell outside that permission on a rolled-up basis, and I have heard
submissions accordingly. I took that course to reserve the Councils position
on delay. For reasons to which I shall come in due course, delay is no longer
maintained as a defence to the claim and, all grounds having been argued fully
before me, I am satisfied that all are at least arguable; and I formally now grant
permission on all remaining grounds.
19. However, before I come to the substance of those grounds, I shall deal with the
relevant legal provisions and guidance upon which the grounds are based.
The Law
Statutory Provisions
20. Section 21 of the National Assistance Act 1948 (as amended) provides:
(1) Subject to and in accordance with the provisions of this Part of
this Act, a local authority may with the approval of the Secretary of
State, and to such extent as he may direct shall, make arrangements for
providing

(a) residential accommodation for persons aged eighteen or
over who by reason of age, illness, disability or any
other circumstances are in need of care and attention
which is not otherwise available to them

(2) In making any such arrangements a local authority shall have
regard to the welfare of all persons for whom accommodation is
provided, and in particular to the need for providing accommodation of
different descriptions suited to different descriptions of such persons as
are mentioned in the last foregoing subsection

(3)

(4) Subject to the provisions of section 26 of this Act accommodation
provided by a local authority in the exercise of their functions under
this section shall be provided in premises managed by the authority
.

21. Insofar as applicable to Wales, section 26(1) and (1A) provide that
accommodation under section 21 may be provided by a private organisation
that manages premises for reward, if the premises are a care home and the
manager of that home is registered under Part II of the Care Standards Act
2000, which also empowers the relevant central authority in Wales, the
Welsh Assembly Government to set standards for care homes generally, and
to set conditions on individual registrations.
22. Section 26(2) of the 1948 Act provides:

Any arrangements made by virtue of this section shall provide for the
making by the local authority to the other party thereto of payments in
respect of the accommodation provided at such rates as may be
determined by or under the arrangements .

The Contractual Arrangements
23. As between the Council and the claimants, the arrangements referred to in
section 26(2) were set out in the Councils Residential Care Services Standard
Contract entered into by the Council and each of the claimants, effective from
1 April 1999 for three years, but thereafter extended from time to time. This is
an umbrella service contract, under clause 1(c) of which the Council and the
provider are required to enter into an individual contract in respect of each
placement (i.e. resident) made.
24. Each of the current service contracts, which are in similar terms, expires on 31
March 2011. Under that contract, the care services to be provided are set out
in schedule 1, for which, by virtue of clause 1(b) of the contract, the Council is
obliged to pay in accordance with schedule 2. By paragraph 1(a) of that
schedule, the Council agrees to pay the rates set out in appendix 1 (at the date
of the contract, 247.50 per week, for the category very dependent elderly
into which all of the claimants residents now fall): and, by clause 8(c) of and
paragraph 1(c) of schedule 2 to the contract, the Council may set the annual
rate and alter schedule 2 accordingly on an annual basis. Paragraph 1(b) of
schedule 2 provides that no additional payments for the service, over and
above those set out in the schedule from time-to-time, shall be made by the
Council or the placement. Paragraphs 3(c) and (d) provide:
(c) In instances where the Placement exercises their choice and
wishes to make use of a Service that is more expensive than that which
the Council would normally purchase, or wishes to purchase services
additional to those specified in the Service Specification, and the
Council is in agreement, then an interested party (not the Placement)
shall be responsible for the difference between the amount the Council
would normally pay and the actual cost of the Service.

(d) In these instances, where there is an interested third party willing to
pay an amount additional to that detailed above, the provider shall be
responsible for ensuring that they receive these additional payments.
The Council shall not be responsible for these additional payments
under any circumstances. (emphasis in the original).

25. These contractual provisions chime with guidance issued under section 7 of
the Local Authority Social Services Act 1970 (to which I shall return in a
moment), entitled Guidance on the National Assistance Act 1948 (Choice of
Accommodation) Directions 1993. Paragraph 4 of that guidance applies
where a resident explicitly chooses to enter accommodation other than that
which the local authority offers, which is more expensive than the authority
would usually expect to pay. It allows such placements, if a third party is

willing to pay the shortfall or top up, on the basis that the authority will pay
its usual costs. The guidance warns, in paragraph 4.3, that an authority
must be able to demonstrate that this cost is sufficient to provide most
residents with the level of care services that they could reasonably expect to
receive if the option for third party contributions did not exist: i.e. third
party contributions cannot result in an authority avoiding the financial
consequences of its section 21 obligations or any part of them. Authorities are
expressly told that they must not encourage or imply that care home providers
can or should seek further contributions from individuals in order to meet
assessed needs (paragraph 4.4). When such a third party arrangement is
entered into, the authority is responsible for the full care and accommodation
costs of the provider, and it must contract with the provider to pay the fees in
full but it (the authority) can recover the contribution from the third party as
income (paragraphs 4.6-4.7).
26. As I have said, the service contract is, in effect, an umbrella contract: and, for
each placement, the Council and provider sign a Contract to Provide
Residential/Nursing Accommodation and Care, which is specific to the
particular resident. That individual contract is made expressly subject to the
terms of the service contract. Reflecting the terms of that contract, it also says:
Pembrokeshire County Council scales of reimbursement for services are
reviewed annually, and revised charges, if applicable, shall apply from a date
in early April of each year.
Government Guidance
27. I now turn to government guidance, more generally.
28. By section 7 of the Local Authority Social Services Act 1970, in performing
its functions, the Council must act under the general guidance of the relevant
Minister or, in respect of a devolved function, the Welsh Ministers. Following
guidance is not mandatory: but an authority can only depart from it for good
reason. If it deviates from guidance without a considered and cogently-
reasoned decision, it acts unlawfully and in a manner which is amenable to
judicial review (R v London Borough of Islington ex parte Rixon [1997] ELR
66, especially at page 71; and R (Munjaz) v Mersey Care National Health
Service Trust [2005] UKHL 58, especially per Lord Bingham at paragraph 21
and per Lord Hope at paragraphs 68 to 69). Sedley J (as he then was)
encapsulated the proper approach to guidance in Rixon as follows:
[W]hile guidance does not compel any particular decision,
especially when prefaced by the word general, in my view Parliament
by section 7(1) has required authorities to follow the path charted by
the Secretary of States guidance, with liberty to deviate from it where
the local authority judges on admissible grounds that there is good
reason to do so....

With that I respectfully agree.

29. The learned judge went on to insert a restriction on the authoritys ability to
deviate from the guidance, namely: but without the freedom to take a
substantially different course. I hesitate to do anything but agree with that
too, because of the eminence of (now) Sedley LJ as an administrative lawyer
and the fact that the point is not going to be determinative in this claim: but it
seems to me, as a matter of principle, Parliament has given the relevant
decision-making power to the local authority and, despite the terms of section
7 of the 1970 Act, it would be open to an authority to depart even substantially
from guidance if it had sufficiently compelling grounds for so doing.
However, certainly, the more the proposed deviation from guidance, the more
compelling must be the grounds for departure from it.
30. The provision of social services is, of course, a devolved function. The Welsh
Assembly Government gave guidance in respect of commissioning care
services in August 2010, Fulfilled Lives, Supportive Communities:
Commissioning Framework Guidance and Good Practice (the 2010
Guidance), which replaced guidance issued in March 2003, Promoting
Partnership in Care: Commissioning across Health and Social Services (the
2003 Guidance).
31. The 2003 Guidance was operative until 11 August 2010. It is therefore
relevant to any decision made by the Council in this claim in, say, May 2010.
It is expressly an enabling framework, leaving detailed decisions to be made
locally (paragraph 8.2). In other words, it sets out an approach to
commissioning with which local authorities are required to comply in the
manner I have outlined. The guidance marked (it said, in its foreword) the
beginning of a more positive partnership between the commissioners and
providers of health and social care.
32. The expressed objective of the Guidance was to achieve real improvement
and significant benefits for people using services and their carers (foreword);
and it stressed the paramountcy of the well-being of people using services
and their carers (paragraph 3.1). However, it also noted the need for
authorities charged with commissioning, to take account of the providers
costs and the factors that may affect them, on the basis of good local evidence
(paragraph 6.7); and it confirmed the need for those authorities commissioning
care services to comply with the Wales Improvement Programme policy of
Best Value, that requires local authorities to balance cost and quality
(paragraphs 4.3 and 5.14). It also noted the importance of strategic planning
of care services. Under the heading Building capacity confidence and
reducing instability, it said:
6.1 It is in everyones interest to build and maintain appropriate
capacity and achieve stability in the social care economy through high
quality commissioning. Longer term visions for service planning are
essential to identifying the areas which need development and
innovation. This needs to encompass realistic budgeting and costing
for quality services. Both providers and commissioners have much to
gain from a stable system in which everyone has confidence.

6.2 Providers have become increasingly concerned that some
commissioners have used their dominate position to drive down or
hold down fees to a level that recognises neither the costs to providers
nor the inevitable reduction in the quality of service provision that
follows. This is short-sighted and may put individuals at risk. It is in
conflict with the Welsh Assembly Governments Best Value policy
and the Wales Programme for Improvement. It can also destabilise the
system, causing unplanned exits from the market. Fee setting must
take into account the legitimate current and future costs faced by
providers as well as factors that affect these costs, and the potential for
improved performance and more cost-effective ways of working.
Contract prices should not be set mechanistically but should have
regard to providers costs and efficiencies, and planned outcomes for
people using services, including patients.

33. The 2010 Guidance has been operative since 12 August 2010, and will
consequently be relevant to any decision since then, including any future
decision the Council is now bound to make in respect of the 2010-11 rate. It
too is expressed in terms of being framework guidance, and confirms that the
commissioning of care services remains citizen centred; but it is a much
more substantial document, written at a time of greater awareness of the
limited nature of public funds. The introduction indicates that
local authorities and their partners all face a very difficult financial
climate over the next few years coupled with increasing demand. This
poses a considerable challenge.

The importance and difficulty of commissioning social care services are
stressed throughout.
34. The Guidance also emphasises the importance of process which, it suggests, is
causatively critical to good decision-making. Part 1 paragraph 1 says:
Commissioning for social care is one of the most important activities
undertaken by a local authority. It can have a very significant impact
on peoples lives. This framework is intended to help local
authorities to improve the quality of commissioning practice and hence
the quality and coherence of services for the people of Wales.

It is clear from that, and other parts of the Guidance (e.g. standard 10, to
which I shall refer shortly), that it is the policy of the Welsh Assembly
Government that the quality of care services are improved over time.
35. The 2010 Guidance is set out in the form of standards local authorities are
expected to meet. Commissioning, as that term is used in the Guidance,
includes both strategic planning, over a 3-5 year period, based upon an
evidential foundation, with clearly specified outcomes, developed with
stakeholders such as users, carers and providers, in the form of publicly

available documents; and the conversion of those plans into effective services
(standards 1-4, 8 and 12). Of the approach of local authorities to decision-
making in the commissioning of social services, in what the Guidance
describes as difficult times, the introduction says that, on the basis of good
evidence:
We must therefore be clear about:

the needs we are able to meet;
those we cannot meet together with the possible consequences;
the outcomes achieved; and
the effective use of resources.
36. Under section 21 of the 1948 Act, where an authority has determined that a
person has section 21 needs, it is bound to satisfy the minimum requirements
of section 21 without regard to its own resources (see paragraph 46(2)) below).
However, wherever an authority is required to exercise a discretion, this
Guidance stresses the importance of that authority taking into account the
consequences of its proposed decisions in relation to the services it is
proposing to provide or withhold; particularly, the consequences for service
users (in this case, the residents) but also for providers.
37. Standard 7 provides:
The local authority has ensured that its Financial and Contract
Standing Orders allow social are commissioners to be efficient and
effective in developing the local social care market.

Local authorities should keep their Financial and Contract Standing
Orders under review to ensure that they are fit for purpose to secure
social care services of the quality required.

In developing services that are responsive to citizens needs, it is
important for local authorities to have financial regulations which
allow them to support the development of a sustainable economy of
care across the public, private and third sectors.

Sustainable means that short term considerations should not threaten
medium to long term service delivery. Unrealistic fees, for example,
may ease the pressure on the budget of the commissioner this year but
if the service ceases to operate due to financial difficulties the savings
will prove self defeating. Equally, the continued investment in
services which may undermine independence or fail to promote
independence may prove to be unsustainable both in financial and
workforce terms.


38. Standard 10 reads as follows:
Commissioners have understood the costs of directly provided
and contracted social care services and have acted in a way to
promote service sustainability.

Commissioners will have to take into account the full range of
demands on them and their strategic priorities, as well as the resources
they have at their disposal in developing their commissioning
strategies. As stated earlier the financial outlook is going to be very
challenging for some time to come. This makes the commissioning
framework more important.

In seeking long term value for money and determining the budget
available for specific social care services it is necessary for
commissioners to take into consideration a whole range of factors, for
example:

The national or local economic environment may be making it
difficult for some provider organisations to remain financially
viable.
A requirement to improve the quality of services may put a short-
term strain on resources.
The move to an outcomes-based approach may pose serious cultural
as well as financial challenges.
Recognition of the need for service providers to be able to recruit
employees with the skills and aptitudes necessary to deliver good
quality care, to provide them with the training they require to obtain
qualifications relevant to their duties and to facilitate continuing
professional development to extend their abilities.
The need to re-train the workforce to respond to more up-to-date
practices may have transition cost and service implications.

Thus, it will be important for commissioners, in contract, fee and
service level negotiations, to recognise the financial and service
challenges that are having an effect on providers, and consider both
short and longer term scenarios.

Local authorities need to have mechanism in place to discuss costs and
performance with providers. Fee setting must take into account the
legitimate current and future costs faced by providers as well as the
factors that affect those costs, and the potential for improved
performance and more cost-effective ways of working. The fees need
to be adequate to enable providers to meet the specifications set by the
commissioners together with regulatory requirements.

Registered providers also have an obligation to ensure that the income
which they receive for providing the service is sufficient to meet the
cost of delivering a service which complies with all statutory
requirements, contractual conditions and specified service standards.

Commissioners should have a rationale to explain their approach to fee
setting. The primary concern is that services operate safely and
effectively to promote the welfare of service users and carer and meet
regulatory requirements.

39. There is more than one reference there to the costs set for services being
sufficient to enable providers to meet all statutory requirements. Those
requirements are considerable. For example, I have already referred to the
need for an independent provider of residential home accommodation and care
to be registered under the Care Standards Act 2000 (paragraph 21 above).
Under that Act and regulations thereunder (such as the Registration of Social
Care and Independent Health Care (Wales) Regulations 2002, and the Care
Homes (Wales) Regulations 2002), the Care and Social Services Inspectorate
Wales (the CSSIW) has powers to inspect care homes and impose
conditions upon the registration, e.g. as to specific levels of care staff who are
to be on duty at any particular time. That is over and above the possibility of
the imposition of criminal sanctions: for example, under regulations 18 and 37
of the Care Homes (Wales) Regulations, a registered person commits an
offence if he fails to ensure suitable staff in appropriate numbers are working
at a care home.
40. The CSSIW works on a local basis; and, for a variety of reasons to which I
shall return in due course, it imposes some standards (e.g. for specific levels of
care) on a local basis. In commissioning care services, understandably one
might think, the Guidance requires a local authority to have regard to these
requirements. I shall return to that when I deal with the ground of challenge to
which it is particularly relevant (Ground 2(2) and (3): see paragraphs 120-131
below).
41. Value for money, as referred to in standard 10, is dealt with in standard 9,
which requires that: Directly provided and contracted social care services
offer value for money and are fit for purpose. The definition of value for
money used is derived from HM Treasury Value for Money Guidance, as
the optimum combination of whole-of-life costs and quality (or fitness for
purpose) of the goods or service to meet the users requirement. Value for
money is not the choice of goods and services based on the lowest cost bid.
Value for money, standard 9 says, balances quality, cost and effectiveness;
and available resources is one of the identified key components of
commissioning.
Article 8

42. Care service contracts are made between the Council and providers such as the
claimants. Although, as described above (paragraphs 22-23), third parties may
contribute to the costs of care, the resident (or placement, in the terms of the
agreement) is forbidden from doing so. However, those who need care and
accommodation by virtue of age are, by definition, vulnerable individuals.
The guidance to which I have referred acknowledges that in terms of the well-
being of residents being paramount, or the commissioning being citizen
[i.e. resident] centred.
43. It is clear from the evidence and submissions I have heard that both the
Council and the claimants are very sensitive to the needs of the elderly housed
and cared for under these provisions. I appreciate that the claimants are
commercial organisations, and that the Council has many other areas of
responsibility, but nothing in the evidence suggests that either has anything but
the well-being of the elderly and needy, who fall within the provisions of
section 21 of the 1948 Act, at heart.
44. They are clearly right to do so. So far as the Council is concerned, it is a
public body and, as such, where it makes a decision which may result in the
removal of a vulnerable person from their home, with the potential associated
stress, distress and adverse impact on his or her health, then that engages
Article 8 of the European Convention on Human Rights; and removal may
constitute an interference with those rights such that it will be allowed only if
the removal is proportionate and justified in pursuit of a legitimate public aim
(Watts v United Kingdom (2010) 51 EHRR SE5 (Application No 53586/09) at
paragraph 97; and Manchester City Council v Pinner [2010] UKSC 45; [2010]
3 WLR 1441 at paragraphs 45 and 51-52). In making its decisions in relation
to section 21, the Council is required to bear that in mind and make the
appropriate proportionality balancing exercise where necessary. The
claimants, as the owners of care homes in which the residents reside, have an
interest in seeking to protect those Article 8 rights (Green Corns Limited v
Claverly Group Limited [2005] EWHC 958 (QB)).
Discussion
45. Those are the main legal provisions relevant to this claim, which highlights the
tension between an authoritys obligation to provide the statutory services
required of it on the one hand, and its fiduciary duty to those who provide
public funds on the other a tension identified by Auld J in R v Newcastle-
upon-Tyne City Council ex parte Dixon, 20 October 1993, unreported but
cited by Stanley Burnton J (as he then was) in R (Birmingham Care
Consortium) v Birmingham City Council [2002] EWHC 2188 (Admin) at
paragraph 32.
46. The following propositions, relevant to the determination of the issues before
me, can be derived from the provisions to which I have referred, together with
the case law to which I was referred.

(1) Section 21 of the National Assistance Act 1948 charges local social
service authorities with the responsibility for making decisions as to who
requires care and accommodation by reason of age, illness or disability which
is not otherwise available to them; and, if such a person is identified, how
those needs should be met.
(2) In deciding whether a person is in need of care and accommodation, an
authority is entitled to have regard to its own limited financial resources.
However, having set that threshold and found that a particular person
surpasses it, an authority is under an obligation to provide care and
accommodation in fulfilment of its section 21 obligations, which is a specific
duty on the authority owed to an individual, not a target duty: lack of resources
is no excuse for non-fulfilment of that obligation (R v London Borough of
Islington ex parte McMillan [1995] 30 BMLR 20 at page 30; and R v Sefton
Metropolitan Borough Council ex parte Help the Aged [1997] 4 All ER 532).
(3) However, in fulfilling its section 21 obligations to provide
accommodation and are, so long as it provides the minimum statutory
requirement in some form, an authority has a wide discretion, both with regard
to the nature of the accommodation and care, and its precise standard.
(4) That discretion is tempered by relevant government guidance, particularly
in this claim now, the 2010 Guidance from the Welsh Assembly Government
to which I have referred (paragraphs 31 and following). The 2010 Guidance
associates better decision-making process with better outcomes, emphasising
the crucial nature of the former. It requires good decision-making process, and
identifies how that is to be achieved. In times of public financial constraint,
the importance of proper process is compounded. Unless an authority has
compelling reasons for departing from that Guidance, it is bound to follow it.
The greater the departure from the Guidance, the more compelling the reasons
for the departure must be.
(5) The Guidance requires the authority to plan commissioning, strategically
and transparently, over at least the medium term: and to make individual
decisions (i.e. all decisions other than those I have described as strategic) in
the light of both the Guidance and that plan. It must not make short-term
individual decisions which might adversely impact upon its longer term
strategic plan, without proper consideration and compelling explanation.
(6) In making strategic or individual decisions, an authority must have proper
regard to the consequences such decisions will or may have on both providers
and, especially, the residents of care homes. As with any such assessment, the
authority must have regard to both the nature of potential adverse
consequences, and the chance of such consequences coming about. A
potential, or even actual, adverse consequence for providers or residents or
both will not necessarily be determinative of a decision an authority does not
have to guarantee that its decision will not have adverse consequences for
some interested party however, an authority cannot make a decision that may
have such consequences without proper consideration and compelling reasons.

That requires an authority to identify any relevant risks, and then assess those
risks in terms of the chances of the adverse event occurring and the
seriousness of the potential consequences if it does.
That is particular so in respect of potentially adverse consequences for
residents, who are necessarily elderly and vulnerable and whose interests are at
the heart of the commissioning of care services. An authority cannot make a
decision which potentially has adverse consequences for a resident, such as a
move to another home or a reduction in the level of care, without proper
consideration and compelling reasons.
(7) The 2010 Guidance requires strategic plans to be publicly available.
Without placing a disproportionate burden on authorities, the essential
reasoning of individual decisions should also be recorded in writing, and given
to interested parties including, where appropriate, providers. The 2010
Guidance has transparency as a hallmark. It requires a commissioning
authority to work in partnership with providers (as did the 2003 Guidance),
and that can only be achieved if providers are aware of the reasoning behind
commissioning decisions important for them. Providers also need to know to
reasons for a decision affecting them to enable them to consider the legality of
the decision, and to challenge it if they consider it to be unlawful and they
wish to pursue that course.
(8) Where a commissioning decision is challenged by way of judicial review,
as identified by Munby J (as he then was) in R (P) v Essex County Council
[2004] EWHC 2027 (Admin) at paragraph 30 together with the cases there
cited, the courts function is merely to review an authoritys decision, not one
of primary decision making which Parliament has entrusted exclusively to the
relevant local authority. Where a challenge is made, it is not the courts
function to reconsider the merits of the decision in this case the rate at which
accommodation and care provided will be paid for but to review the decision
by reference to public law criteria. These focus upon process rather than
outcome: although, of course, an outcome might be so outside the range of
reasonable decisions that is betrays irrationality on the decision-makers part
and, as a result, it might be challengeable on the ground that no reasonable
authority could have reached it.
47. The last point concerning the role of this court is important. The claimants
have lodged a considerable amount of evidence to the effect that 390 per
resident per week is simply insufficient to maintain their businesses as
commercially viable concerns. In his 18 October 2010 statement, Mr Davies
sets out in some detail the various actual costs the claimant has to bear,
including for one of the companies (Woodhill Care Limited), the costs of
servicing a 1.3 million bank loan with which the business was set up. Mr
Davies indicates in that statement (at paragraph 127) that the bank is unwilling
further to support the company, unless it becomes more profitable
specifically, unless it can demonstrate that it can service the loan and break
even financially on the basis of an 85 % occupancy level and that the bank

would reconsider its position if the Council were immediately to increase its
weekly fee per resident to 480.
48. Throughout the correspondence I have seen, the claimants suggest that,
without a fee rate of 450 or 480, they are not financially viable and would
be forced to close one, or all of the care homes they run. They suggest that
that is likely to be an unfortunate or even devastating step for their residents,
particularly as there are no other obvious available places in residential care
homes in Pembrokeshire. They therefore express concern for both their own
financial future and the future welfare of their residents. That was the basis of
their application to Judge Jarman on 9 November, in the event unsuccessful,
for interim relief in the form of an immediate increase in the fee rate to 480.
49. However, as I have indicated, Parliament has entrusted responsibility for
providing care and accommodation to those who, through age, need it, to local
authorities such as the Council including the responsibility for setting a fee
for the provision of such services. The relevant guidance makes clear that, in
performing such functions, an authority must actively consult with and
consider the consequences of its decisions for, amongst others, providers -
particularly because the setting of a rate is in the context of contractual
negotiations with them but the rate is set by an authority in accordance with
its statutory public functions, not by way of agreement between it and actual or
potential providers. The rate having been properly and lawfully set, providers
are entitled to contract for the provision of care services on the basis of that
rate, or not to contract on that basis. That is a commercial decision for them.
50. It is my job only to review the legality of the Councils decision in effect, the
legality of the Councils decision making process. If the decision is unlawful
and the error is material and the Council now concedes it is on at least one
ground then I can refer the decision back to the Council to make the decision
again, this time according to law. Unless I can be satisfied that there is only
one rate that the Council could properly set (which, on the evidence before me,
I clearly cannot), that is the only substantive relief I can give. It is the only
substantive relief that the claimants seek. I cannot, even if I find the Council
has acted unlawfully, give an opinion as to what an appropriate rate might be,
yet alone require the Council to pay such a rate. I stress that, not because the
sub-grounds to which I have referred seek to do more, but because I fear, from
the evidence that has been lodged, that the claimants and others may not have
fully appreciated the limited role of this court in such challenges as these.
Factual Background
51. So, as I have indicated, it is for the Council to set the fees payable to
independent providers of care and accommodation. That has been so since
1993 and the implementation of the National Health Service and Community
Care Act 1990, by which, save for various preserved categories, the funding of
residential care homes passed from the Department of Social Services in
central government to local authorities. The National Assistance Act (Choice
of Accommodation) (Wales) Directions 1993 imposed the duty of determining

the amount they would expect to pay for assessed needs on local authorities.
From 2002, the preserved categories were abolished, so that local authorities
became responsible for funding the placement of all in relevant need in
residential care homes that fell within section 21.
52. Until 2008, the Council used a historical rate, increased annually to reflect
inflation and similar factors. For the year 2008-9 that rate was 368.
53. For several years, providers (including the claimants) had complained about
the rates for accommodation and care being paid by the Council. In November
2008, under pressure from the Welsh Assembly Government to set a rate on a
principled and transparent basis, and from the owners of care homes and the
PCHO who considered the current rate significantly too low, the Council
agreed with the PCHO that an economic model should be used in the
assessment of the fee rate: and, following internal discussions and external
advice, on 8 December 2008, the Council decided to use the Laing model
(Jonathan Skone 4 November 2010 statement, paragraphs 16-18.)
54. In April 2002, William Laing, an economist with the firm Laing & Buisson,
prepared a report, Calculating a Fair Price for Care: A Toolkit for Residential
and Nursing Home Costs, which, as its title suggests, incorporated a financial
model or toolkit for calculating the reasonable costs of care in residential
homes. In 2004, having been commissioned by the Welsh Local Government
Association to prepare a report to update that toolkit and apply it to Wales, he
prepared a further report, A Fair Price for Care 2004: Wales, with a revised
model (the Laing 2004 Wales report and model). In the same year, he
prepared a report with a model on broadly the same basis for England which
was revised in 2008 (the Laing 2008 England report and model). Each
model is accompanied by guidance notes as part of the report. The Council
determined to use the Laing 2004 Wales model in the assessment of a rate for
Pembrokeshire.
55. The models are in the form of a spreadsheet into which data on variable
assumptions and parameters such as the number of hours, wages and costs of
supplies are fed, under four cost heads, namely (i) staff, including employers
own costs, (ii) repairs and maintenance, (iii) other non-staff current costs, and
(iv) capital costs (return on capital).
56. The populating of the model requires the collection, and then insertion, of
relevant data which, once done, produces an appropriate rate for care and
accommodation services provided by an independent provider per resident per
week. However, the model presupposes that the full exercise of data
collection and insertion into the model will not necessarily be done every year
for example, section 5 of the Laing 2004 Wales model proposes a method of
adjusting fees in line with inflation but the report suggests recalibration by
reference to up-to-date data regularly, e.g. every three years (paragraph 5.1).

57. The Laing 2004 Wales model is designed to provide a robust and transparent
means of calculating the reasonable operating costs of efficient care homes
in any given locality in Wales (paragraph 1.2, emphasis added); i.e. the model
itself expressly recognises the importance of the workings of the model being
available to those interested in it, particularly providers.
58. The Council considered that it did not have the appropriate in-house expertise
to gather and deploy the relevant data into the model, and so employed Mr
Christopher Hine of RSM Bentley Jennison, now RSM Tenon (RSM), a
forensic accountant with a background in economics, to do so. Indeed, RSM
had also advised the Council on the use of the Laing 2004 Wales model in the
first place. Mr Hine sent out a survey form to each of the 35 residential care
homes in Pembrokeshire, of which 24 were completed and returned. In the
meantime, on 24 March 2009, the Council notified providers of an interim rate
increase of 2.5%, from 368 to 377, payable from 6 April 2009.
59. Mr Hine produced a draft report dated 22 May 2009 that confirmed the basis
of calculation of a rate for the provision of accommodation and services to the
Council was on the basis of the Laing 2004 Wales model (paragraph 2.3). The
report concluded that, on the basis of that model, populated with data RSM
had collected, the fee level per resident per week for 2008-9 should be 390 as
a standard fee but for future years an incentive to improve standards would be
set at a maximum of 25 over the standard fee (executive summary). I shall
return to that 25 in due course.
60. The report was discussed with, and explained to, the Councils Chief Financial
Officer and Director of Finance & Leisure (Mr Mark Lewis), and its Director
of Social Services (Mr Jonathan Skone) at a meeting on 10 June 2009. Mr
Lewis said that some concerns were raised in relation to capital cost
adjustment, the new homes policy and the adoption of the efficient homes
threshold criteria (29 November 2010 statement, paragraph 14): but Mr Skone
said in his evidence that no significant issues apparently arose in that meeting.
He had expected a slightly higher fee rate, but careful questioning of
RSMs forensic accountant about the conclusions produced by the revised
toolkit satisfied the Council that this was the right result (26 November 2010
statement, paragraph 16). The evidence does not otherwise disclose the nature
or subject matter of that meeting in respect of which there are no minutes or
notes.
61. The final RSM report was produced on 24 June 2009 in similar form and with
a similar conclusion to the draft. The Council accepted that recommendation,
in the sense that it set the fee for 2009-10 at the level of 390, backdated to 1
April 2009.
62. The RSM report was not disclosed to the claimants at that time, nor indeed
until after the permission hearing in this claim in November 2010. However,
Mr Lewis and Mr Skone met Mr Davies on 24 June 2009, and Mr Davies
expressed some concerns in relation to the capital cost adjustment and the
exclusion of data from homes with less than 20 registered placements; but,

although discussions between the Council and Mr Davies/the PCHO
continued, the decision to set the rate thus was not formally challenged.
63. Because of the extent of the exercise involved, the Council expected that the
full exercise would only be done every three years, as suggested in the Laing
2004 Wales report would be appropriate; but, again as suggested in that report,
in the meantime, there would be an annual review to take into account any
material variations in circumstances.
64. The first annual review was, of course, for the year 2010-11. The Council
(particularly through Mr Skone) and the claimants (through Mr Davies) had in
the meantime continued their dialogue. They had four meetings in 2009 after
the fixing of the 2009-10 rate, which mainly concerned the rate and the
additional pressures under which the claimants were working; and the
claimants continued to press for further information about how RSM had
populated the Laing model with data (see, e.g., the letter from the claimants
solicitors to Mr Lewis of 24 December 2009). There was an abundance of
consultation, although not all of the information requested by Mr Davies was
provided. However, Mr Skone was unimpressed by the evidence produced by
Mr Davies and this combined with increasing financial constraints on the
[Council], led the [Council] to conclude that there would be no increase to the
level of fee for the financial year 2010/11 (4 November 2010 statement,
paragraph 26). Mr Skone was the relevant decision-maker on behalf of the
authority.
65. Unfortunately, there is no contemporaneous documentation with regard to
when the decision was made or the reasons for it. Mr Skone accepted in his
oral evidence that it would have been better had there been more
documentation, which is clearly right. However, he said that the decision was
taken before 7 May 2010, following discussions with Mr Lewis and, in
reaching the decision, he took into account the following factors (29
November 2010 statement, paragraph 18):
(a) The County Council had adopted a cash standstill to its base
revenue budgets for 2010/11, but recognised the additional costs
pressure arising from the increased demand for services as a result of
demographic growth.

(b) Within that framework, increased resource was made available for
adult social services to meet additional demand for community support
services such as home care for older people. This additional resource
was specifically to increase service capacity.

(c) A cash standstill was applied to budgets within social services with
a number of budgets, including those for the Councils own residential
care provision, decreasing.

(d) All services were expected to absorb inflationary pressures through
efficiency savings.

(e) If any particular service area was to be treated differently then that
would result in a decrease within other service areas such as childrens
services, including child protection, looked after children and disabled
children.

Mr Skones statement continues:
The conclusion reached as a result of considering these factors was
that private section residential care homes had not presented additional
material evidence that would justify the sector being treated as a
special case for increased funding when compared with other service
areas and client groups.

66. Although this has now been overtaken by the Councils concession to which I
have referred (see paragraph 8 above), the date of 7 May 2010 derives from a
letter, recently found on the Councils computer system, from a Ms Angela
Watwood (the Councils Head of Community Care Commissioning, who
works under Mr Skone) to care service providers. Under the heading, Fee
Reviews 2010-11 - Rates for Residential Care, the letter reads:
Please find attached details of the standard rates for residential care
which [the Council] is continuing to apply for 2010-11.

Discussions with [the PCHO] are continuing.

In the attached schedule, the rate for very dependent elderly, into which
category all of the claimants residents fall, was 390.

67. However, the Council now accept that that letter was never sent to the
claimants, or indeed to any other provider. In his oral evidence, Mr Skone
explained that the letter was found on the Councils system after 9 November
2010 (the date of the permission hearing before Judge Jarman) but before 28
November 2010 (when it was appended to Mr Skones statement as a letter
purportedly sent to the claimants): but, upon further research, it appeared that
the letter had been prepared on or about 7 May 2010 as a draft, but it was not
sent out pending a meeting with Mr Davies and other members of the PCHO
which, in the event, occurred on 24 June 2010. Mr Skone said that the
Councils practice was to meet with members of the PCHO to discuss the rate
that had been set, before confirming the rate in writing to each provider. The
letter was, he said, the written record of decision. Unfortunately, apparently
due to an oversight, the letter for 2010-11 has never been sent out, either on 7
May or indeed subsequently. I accept all of that evidence.
68. The meeting on 24 June was attended by Mr Skone for the Council and Mr
Davies and one other member of the PCHO. The gist of that meeting appears
to be relatively uncontentious, except in relation to the certainty with which
the rate of 390 had been finally fixed (see, in particular, Michael Davies 18
October 2010 statement, paragraph 116; and Jonathan Skone statement, 4

November 2010, paragraph 28). Mr Davies accepts that Mr Skone told him
that [the Council] had finished its cost-cutting review, and he was not going
to reduce the fee rate for 2010-11: Mr Skone explained that most of the
Councils services, including their own care homes, were having their budgets
cut, but it was not the intention to cut the fees for independently run care
homes. It was intended to keep the fees the same for 2010-11, as for the
previous year. In his statement (at paragraph 28), Mr Skone said that:
I told Mr Davies that I did not consider it practical or sustainable to
reflect the decrease in [the Councils own] care homes and as a result
the fee level remained at 390 per week.

At the meeting, Mr Davies referred to the financial plight of the claimants:
which resulted in Mr Skone sending him an email the following day asking
him what rate would be required for the claimants to break even. Mr David
Phillips QC for the Council submitted that this did not suggest that the rate for
2010-11 was still in issue, but rather Mr Skone was thinking about the
Councils wide powers under Part 1 of the Local Government Act 2000 for the
promotion of the economic social and environmental wellbeing of its area,
with a view to considering specific support for the claimants to overcome any
adverse trading position which of course would have been in a different
form from an uplift in rates a point also referred to by Mr Lewis in his
evidence (4 November 2010 statement, paragraph 10).

69. However, the claimants still considered that issues remained between them
and the Council in respect of the rate, and that the key to resolving those issues
was for the Council to disclose documents that would enable the claimants to
take an informed view as to the reliability of the RSM run of the Laing 2004
Wales model, prepared by Mr Hine in the Spring of 2009. The claimants
solicitor (Miss Alison Castrey) wrote again on 7 July 2010, indicating that, if
the information was not received, it would form the basis of an application to
the court for disclosure. On 26 August, the Councils solicitor responded
saying that, It is the Councils view that commencement of proceedings at
this stage is premature; although, in fact, the letter refused to disclose any
further documents. Some disclosure was made, following another trade of
letters, on 17 September 2010. That prompted a letter before action from Miss
Castrey, dated 8 October, more or less on the basis of the first and second
grounds of challenge now before me.
70. In the meantime, there had been a further meeting, on 25 August, between Mr
Davies and two other members of the PCHO, and Ms Watwood of the
Council. Ms Watwood appears to have been surprised that a meeting without
Mr Skone or Mr Lewis had been arranged, but she attended and kept full
minutes. Those show that much of the meeting was concerned with the
financial plight of the providers, including the claimants, as they saw it. They
pressed for a rate of 480, alternatively 450. Ms Watwood says, and I accept,
that she was not a decision-maker in respect of rates that was Mr Skone but
she agreed to pass on the information given to her by Mr Davies and his
colleagues. The minutes (at page 5) reflect that. The minutes also say:

AW [Ms Watwood] advised the 390 was always seen by the Council
as an interim measure pending further negotiations. No work has been
done on quality measures linked to fee as the baseline rate has not been
agreed yet.
71. At that same meeting, Mr Davies indicated that he proposed to set a fee of
480 per resident per week; and he proposed to write to third parties (next of
kin and others responsible for residents) seeking a top-up of the fee being paid
by the Council to that level. Mr Davies proposed produced drafts of letters at
that meeting. The proposed letter to residents in respect of whom there were
no existing third party contributions was as follows:
As you are aware, your mothers care and accommodation are paid
for by the local authority. The true cost of our providing this care and
accommodation to the required legal and contractual standards, and on
a sustainable basis, is currently around 480 per resident per week.
The amount that we actually receive from the authorities is only 390.
This is a shortfall of 90 per week, or 18.75%.

This situation has been ongoing for some time, and we have been
attempting to persuade the authorities to meet their legal obligations to
fund placements properly. We are continuing with our efforts, but the
shortfall has now become so great that standards of care and
accommodation could be at risk if the homes income does not
increase. We have effectively been subsidising the local authority in
meeting its obligations but cannot continue to do so to the same extent.

For that reason, we propose to charge a state funding shortfall
contribution of 90 per week from 1st October 2010. This is not a
top-up and we shall refund the appropriate amount to you in the event
that we succeed in resolving the dispute with the local authority and
receive back payments for the shortfall.

I anticipate that you may not be happy to receive this letter; we are not
pleased to have had to send it, but the current funding situation leaves
us with little choice as a responsible provider. I have attached contact
details for the relevant people and organisations who have
responsibility and influence in this situation, in case you wish to write
to them. I am copying this letter to the people indicated.

The letter in respect of residents where there were existing contributions was
in similar terms, but tailored accordingly. On 14 September, Mr Davies wrote
to the Council confirming the intention to send the letters in a couple of
weeks time.
72. The proposed letters therefore indicated that the Council were failing to pay
for services to the required legal and contractual standards, and sought from
the third party an amount which the claimants had calculated met the
difference between a rate paid by the Council and the sum needed to enable

the required legal and contractual standards to be met. The payment of this
top-up sum was to be a requirement of continued residence of the relevant
resident at the claimants home, and was to be repayable to the third party only
if and when the claimants were paid a higher rate by the Council. It is not
suggested in the letter that the Councils agreement had been sought for this
course, nor does Mr Davies, either in his letter to the Council of 14 September
or in his evidence prepared for this claim, suggest that it was.
73. The Council formally responded to that proposal by a letter from Ms Ruth
Ewing (a Contracts Manager with the Council) dated 15 October 2010,
indicating that the Council considered that any letter to a resident or a third
party in the terms which had been suggested could constitute a breach of
contract, and also expressing concern about the anxiety that such letters might
cause to residents and those responsible for them. The letter requested that
any contributions from third parties that had been received by the claimants
should be repaid to the third parties who had made them. In fact, although
unknown to the Council, the claimants had not sent out any letters seeking
contributions by them. However, in ignorance of that, at about the same time
in October, the Council wrote to the next of kin and others responsible for
residents in the following terms:
Pembrokeshire County Council has an individual placement
agreement with [X] Home for the care of Mrs [Y].

I am writing to advise you that, should you receive any information or
requests for additional financial contributions to the care of Mrs [Y]
then please bring them to my attention straight away.

I have reminded [X] Home that they should not be contacting residents
or their next of kin and that I have now initiated the escalating
concerns process.

I will be pleased to answer any queries or concerns that you may
have.

74. Under such pressure form the Council, the claimants in the event did not send
out any letters to any third parties seeking a contribution towards their costs, as
a result of which no such contributions have in fact been made.
75. During the course of these events, the claimants attached the following note to
every, or almost every, individual placement contract:
This home is in active dispute with the authority over the correct level
of fees due under the contract and in law. Pending resolution of this
dispute, all fee levels in contract and placement agreements are
provisional only and all payments invoiced and accepted by the home
from the authority are on account only.

76. Those matters concerning the steps taken by the Council to prevent the
claimants soliciting contributions from third parties are relevant to the third
ground of appeal and I shall return to them when I deal with that ground
(Ground 3: see paragraphs 146-152 below).
Grounds of Challenge
Introduction
77. I now turn to the claimants grounds of challenge. Before I consider them in
turn, two general points.
78. The first concerns the use of the Laing 2004 Wales model in setting the fee
rate. Although the model was not re-populated with fresh data for the year
2010-11, the working of the model by Mr Hine in the Spring of 2009 formed
the basis of the Councils decision to set the 2009-10 rate at 390, and its
decision to use the same rate for 2010-11.
79. As I have indicated, the Council determined and also agreed with the PCHO
to set the fee rate for accommodation and care services provided by an
independent care home by using the Laing 2004 Wales model. That model
was designed by Mr Laing to produce a fair rate for the provision of care
services, based upon an assessment of the reasonable costs of providers, if
appropriate data were inserted into it. However, the model is the servant of the
decision-maker in setting a rate, not his master. Within the parameters of the
model, there must be a margin of appreciation available to the decision-maker
in properly populating it with data. But, even though those parameters are
designed to arrive at a fair fee rate, it is open to a decision-maker to deviate
from the parameters of the model or the rate figure produced: although, given
the nature of the model and the Councils policy decision to use it, any
departure would have to be for compelling reasons. Whether particular criteria
on which to include data fall within or outside the parameters of the model is
not a question which, in my view, necessarily warrants any fine judgment;
because any criteria used must be capable of rational justification by the
decision-maker. Most criteria will easily be justified on the basis of the model
itself, and the Laing 2004 Wales report which supports them. They will not
need any further justification. However, where the criteria the model demands
are not inherently obvious, the data used may be justifiable and justified by
reference to external criteria. In those circumstances, it is important that the
authority makes a rational and reasoned decision to use a particular criterion in
the context of the model it has adopted, and it is able and willing to share that
reasoning with interested persons, including of course providers.
80. The second general point is this. In respect of each sub-ground relied upon by
Mr Bar, he submitted that the criteria chosen in working the model were bad
as a matter of public law as being irrational or so illogical as to rob the
reasoning for the choice of those criteria of all force. In considering those
submissions, I have been hampered by the lack of contemporaneous

documents from the Council. There is no evidence that the Council had, or yet
have, any strategic plan for the provision of care services in Pembrokeshire as
advocated by the 2010 guidance. In respect of individual decisions, including
the decision to fix the 2010-11 rate at 390, again neither are there
contemporaneous documents nor is there any evidence that any such
documents ever existed. There are no minutes or other record of the internal
Council meeting between Mr Skone and Mr Lewis at which the rate was
discussed. There is no record of Mr Skone making the decision after that
meeting, let alone his reasons for doing so. There is no internal record of Miss
Watwood being told of the decision, with a request, for example, that she
prepares draft letters to providers informing them of that decision. There is no
letter sent to claimants or any provider indicating what the set rate was, or,
again, informing them of the reasons for that rate. There are no minutes of the
24 June 2010 meeting at which, the Council says, Mr Davies was informed of
the Councils final decision to set the rate at 390.
81. Mr Phillips submitted that, in relation to this claim, those matters are largely
evidential. However, good administrative decision making and practice
demands appropriate recording and communication of decisions made, and the
essential reasons for them. Further, the evidential position for the Council
does not get much better when one looks at the written evidence it has
prepared and lodged for the purposes of this claim. In respect of the factual
assertions it seeks to make good, that evidence is very thin. For example, in
relation to Mr Skones reasons for fixing the rate at 390 for 2010-11, I have
already referred to and quoted from paragraph 18 of his 29 November 2010
statement (paragraph 65 above). From that, in making the decision, it is clear
that he had in mind the budgetary constraints on the Council: indeed, they
appear to be listed as the only considerations that he had in mind when making
the fee rate decision.
82. With regard to other factors that he clearly ought also to have had in mind, Mr
Phillips relied heavily upon paragraph 28 of Mr Skones earlier statement
dated 4 November 2010, in which he says that he told Mr Davies at the 24
June meeting that he did not intend to apply the cut which had applied to the
Councils own homes to the fee rates for independent care homes because: I
did not consider it to be practical or sustainable to reduce the fee level to the
private care homes sector to reflect the decrease in the [Councils] care homes
and as a result the fee level remained at 390 per week. But that is the only
evidence the Council has which suggests that Mr Skone, in setting the rate,
had anything else in mind other than the budgetary constraints on the Council.
That is but one example of the lack of substantial evidence in relation to the
Councils decision-making process, to which I shall return as I deal with the
specific ground of challenge.
83. There may be an assumption, in some circumstances, that an authority has
acted lawfully: but, where it has apparently acted in deviation from
governmental guidance to which it is subject and the parameters of an
economic model for the assessment of a fair rate which it has adopted, any
such assumption must give way. These matters to which I have referred may

be, as Mr Phillips submitted, essentially evidential; but the absence of
documentary records makes it more difficult for an authority to show that it
has taken decisions in a rational and reasoned way, having taken into account
all relevant factors. That is why, as I have said, good administrative practice
demands that decisions, including essential reasons for decisions, are recorded.
84. I now turn to the specific grounds of challenge upon which the claimants rely.
The First Ground
85. First, the claimants seek to challenge the failure of the Council to make any
decision setting a fee rate for the year 2010-11.
86. There is a factual dispute between the parties as to whether (and, if so, when)
such a decision was made. The Council asserts that it made a decision to fix
the fee of 390 per resident per week prior to 7 May 2010, and that decision
was communicated to the claimants through Mr Davies at the meeting on 24
June. The claimants second broad ground, to which I shall come in a
moment, challenges the legality of that decision, if made. Because the Council
now concedes that that decision, if made, was erroneous in law, requiring the
matter to be reconsidered by the Council and a new decision made, the first
ground of challenge has become substantively empty. Further, the Council
also relied upon the facts and matters that founded its defence to the first
ground notably, that a decision to set the rate was made and communicated
to the claimants by 24 June 2010 to contend that the claimants had failed to
challenge the decision to fix the rate at 390 within three months of the
relevant decision or promptly, and they should not be granted the necessary
extension to bring it now. Given its concession, as I have already noted, the
Council properly no longer relies upon any alleged delay by the claimants in
bringing this claim.
87. For those reasons, it has become unnecessary for the claimants to rely upon
this first ground of challenge. However, as it may be relevant to subsidiary
issues such as costs, I should say that I see compelling force in the ground.
88. Mr Skone says that, at some time before 7 May 2010, he made a decision
fixing the 2010-11 rate at 390. However, the date he used was based upon
the premise that, that day (7 May 2010), the Council sent a letter to all
providers, including the claimants, informing them of the setting of that rate.
However, as I have explained (see paragraphs 66-7 above), Mr Skone has
subsequently accepted that that letter was never sent; and the Councils usual
procedure, he said, was to have a meeting with a few members of the PCHO to
discuss the rate that was being set before a letter was sent to each provider
informing them of the set rate for the year. He frankly accepted that it was the
letter that stated the fee that would be paid: it was, he said, the written record
of the Councils decision. There is, as I have already pointed out, no other
such record, either internal or sent to providers. It is also noteworthy that,

under the contractual provisions between the Council and the claimants, any
fee rate remains in place unless and until a new rate is set by the Council.
89. Further, the evidence as to what was said at the 24 June meeting does not
persuade me that Mr Skone made it clear to Mr Davies that a final decision
had been made in relation to the 2010-11 rate, in the sense of a decision that
could or would not be reviewed on the basis of additional information from the
claimants. Further information and representations were indeed thereafter
made by Mr Davies, and Ms Watwood indicated on 25 August that the rate
would be reconsidered in the light of the further information that had been
provided to her. Mr Davies said that he did not consider the final fee set
without receiving a letter to that effect, as he had done in previous years (7
December 2010 statement, paragraph 3.2). There is, of course, no suggestion
that the decision has been notified to any of the many providers not attending
the 24 June meeting. Mr Skone frankly said that the reason no letter notifying
providers of the set rate was that this had simply been overlooked.
90. The importance of proper notification of a decision is not a technicality: it is a
fundamental constitutional principle, important to trigger an individuals right
to challenge that decision in the courts (R (Anufrijeva) v Secretary of State for
the Home Department [2003] UKHL 36; [2004] 1 AC 604 at paragraph 26, per
Lord Steyn). The correspondence following 24 June meeting (referred to in
paragraph 67 above in the review the factual background to the claim), does
not indicate that that right had arisen. It suggests that, even if and insofar as
Mr Skone had decided that the rate ought not to be increased, the Council was
prepared to consider the rate further in the light of new information and
representations made by the claimants. For example, there is what Ms
Watwood said at 25 August meeting (see paragraph 68 above). The Councils
solicitor wrote to a Miss Castrey on 26 August saying that the Council
considered the commencement of proceedings would be premature, and Mr
Skone wrote to Mr Davies on 8 September saying that no decision on the
basis of the new material can be made without the populated toolkits (i.e. the
Laing 2004 Wales model, populated by data which the claimants considered
were appropriate).
91. Given the Councils longstanding practice of communicating the rate set by
letter to each of provider, the nature of the rate discussions between the
Council and the claimants (which Mr Skone understatedly described as
informal), and the evidence of the content of the 24 June and 25 August
meetings I have described (see paragraph 68 and following above), had it been
necessary for me to consider the issue, I would not have been satisfied that a
final rate decision by the Council had been properly notified to the claimants;
and that, in failing to make a properly notified rate decision, the Council had
erred in law. That is my view of the merits of the first ground. However,
given the Councils concession in relation to the second ground, I formally
refuse the application on ground one.
The Second Ground

92. The second ground is more substantive. I will deal in turn with each of the six
sub-grounds that Mr Bar identified (and set out in paragraphs 6-15 above).
(1) The Capital Costs Issue
93. I deal with the capital costs issue first because Mr Laing described the manner
in which RSM approached capital costs to be the most important source of
discrepancy between its view and [Mr Laings own] view of reasonable care
home costs (3 December 2010 report, paragraph 29); and, as I have indicated
(paragraph 8 above), the Council now accepts that the manner in which it dealt
with capital costs was wrong and unlawful, and that requires it to reconsider
and re-determine the fee rate for 2010-11 - although it does not concede that it
was wrong to the extent alleged by the claimants.
94. As I have already described (paragraph 55 above), in calculating the costs of a
provider, the Laing models include provision for a rate of return on capital.
The way that is done is that, for the purposes of calculating the true costs of
providers, a reasonable rate of return on capital for those investing in care
homes over time is calculated by reference to a percentage of the capital
required to acquire or set up the business; and that is then added to the other
revenue costs. The reasonable percentage return fell from 16% in 2002 to
14% in 2004 (see the Laing 2004 Wales report at paragraph 1.3). It was
common ground before me that the appropriate percentage rate at all relevant
times for the purposes of this claim was 12%. For this court, Mr Laing (who
was retained as an expert by the claimants) explained that capital costs were
calculated to include
all costs other than revenue costs, including rents, mortgage or
loan interest (but not capital repayments), the imputed costs of the
equity capital contributed by the owner (i.e. foregone income from not
using that capital elsewhere), any head office overheads and a
reasonable level of profit as a reward for setting up and maintaining the
business. All of this is accommodated within a 12% return on the
capital required to acquire or set up the business. (3 December 2010
report, paragraph 28).

95. In terms of valuation of that capital requirement, leaving aside the land (the
valuation of which is low and uncontentious for the purposes of this claim),
the model values the capital invested in terms of buildings and equipment
meeting current national minimum standards, adjusted downwards by a
capital cost adjustment factor to reflect the extent to which a home does not
meet such standards.
96. By way of explanation, under the provisions of section 23 of the Care
Standards Act 2000 and the Care Homes (Wales) Regulations 2002, in 2002
the Welsh Assembly Government issued the national minimum standards for
care homes for older people, which were revised in 2004. Those set general
standards for care homes in Wales. Section 8 sets various minimum standards
for the physical environment (PE standards) in care homes and extensions

built in Wales and registered after that date. The standards relate to such
matters as shared facilities, en suite facilities and space requirements. Homes
that were built and registered before 22 April 2002 do not have to comply with
those standards (although, in some respects, they may have to comply with
earlier and generally less onerous standards). As I understand it, over time, the
standards for those older homes have increased, with the intent that,
eventually, all homes will have to comply with the same higher PE standards.
That is in line with Government policy to improve standards for those who are
in residential care homes to which I have already referred (paragraph 34
above).
97. Therefore, all homes must meet the lower, pre-2002 PE standards; but full
payment under this head of costs is determined by the extent to which a home,
whenever built, meets the new, post-2002 PE standards. As the guidance
notes to the Laing 2008 England model state (at page 33):
The same building and equipment cost should in principle be allowed
for any care home, whether new build or not, which meets the same
standards. The rationale for this is that councils must not only
attract new capacity but also incentivise operators of existing stock to
remain in operation and to upgrade facilities if necessary to meet the
highest physical standards with commissioners are willing to pay.

That is not expressed in precisely those terms in the Laing 2004 Wales model;
but the same principle is reflected in the Laing 2004 Wales report (see, for
example, paragraph (a) on page 42) and must apply to the application of that
model also.
98. In respect of assessment of the appropriate provision for return on capital, this
is dealt with on a single sheet in the RSMs Spring 2009 working of the Laing
2004 Wales model, with one page of back-up calculations. Although Mr
Lewis indicated that capital costs were discussed at 10 June meeting he had
with Mr Hine and Mr Skone, there is no evidence that, prior to making its
decision as to fee rate based on the cost assessment, Mr Skone had any further
explanation other than that which is on those pages; and any rationale must
consequently derive primarily from them.
99. The main calculation shows an aggregate figure of 121 taken for the capital
costs of land (11) and buildings and equipment meeting the minimum
standards for post 2002 homes (110). Those figures are uncontroversial.
Shown then is a deduction of 73, under the heading, Maximum capital cost
adjustment factor for homes not meeting physical standards for new homes.
As appears from both that description and the back-up calculation, this figure
is calculated on the basis of the per placement floor or base value of care
home premises that comply with the PE standards for pre-2002 care homes,
which comply with none of the post-2002 standards, i.e. they are compliant
with the lowest possible PE standards. In other words, RSM took the
maximum possible downward adjustment for homes not meeting the post-

2002 PE standards, by taking, as the comparator, homes which met none of
those standards.
100. Deducting that figure of 73 from 121, the calculation arrived at the figure of
48 for what the model describes as, Total capital costs. That is then added
to the figures for the other categories of cost to give a total figure of 415,
described in the RSM worked model as Target fair market price for homes
meeting all standards for new homes. From that, RSM deducted 25
representing (their working model indicates), Incentive for homes meeting
standards within the County (shown at 100%); which gives 390 for Floor
fair market price for homes which do not exceed the interim physical standards
for existing homes in National Minimum Standards. It is that figure of
390 which RSM recommended and the Council accepted be used as an across
the board rate per resident per week in any Pembrokeshire care home,
irrespective of the extent to which a particular care home betters the PE
standards for pre-2002 homes.
101. However, during the course of the hearing, Mr Phillips indicated that, on
reflection, Mr Hine accepted a number of errors in that calculation which the
Council no longer sought to justify. The errors were as follows.
102. First, he accepted that the figure of 73 for the capital cost adjustment factor,
representing the discount for homes meeting the minimum pre-2002 PE
standards but none of the post-2002 standards, was wrong. He accepted that
the approach used in the Laing 2008 England model should be used, namely
that the floor for those homes that met none of the post-2002 standards
should be 50% of the ceiling set by the homes that met all such standards.
In this case, that would be 50 % of 110, or 55.
103. Second, Mr Hine said that the terminology that he had used in the latter part of
the calculation was also wrong. It did not reflect the substance of the
methodology he had used.
104. He said that he had added the capital costs for those homes that met only the
minimum pre-2002 PE standards to the other revenue costs in the model, to
obtain a figure for Target fair market price for homes which do not exceed
the interim physical standards for existing homes in the National Minimum
Standards for Care Homes for Older People (Revised March 2004) but which
meet [the Councils] quality of care standards, i.e. homes that met the
minimum PE standards, but the highest non-PE care standards. That,
exchanging the figure of 55 in the calculation for 73 for the reasons I have
already given, gives a figure of 433.
105. However, Mr Hine took the view that the capital cost adjustment factor
reflects both the physical state of the care home and the quality of care (the
non-physical standards) (16 December 2010 report, paragraph 5.2), i.e. that
the capital costs include an element that reflects the extent to which a home
complies with the standards expected other than PE standards, and particularly

the standards of care. He estimated that proportion to be 25%. He
consequently reduced the 433 figure by a further 25 % of the full 110 (i.e.
by a further 27.50), to arrive at the figure of 405.50: but, on the basis that
the Council would instigate a means of assessing the extent to which homes
complied with the highest non-PE care standards and reimburse providers with
that 27.50 to the extent that there was compliance. Therefore, dependent
upon a providers compliance with those care standards, the fee rate for 2010-
11 would be in the range of 405.50 to 433.
106. The Council conceded that it had erred in law in setting the rate at 390 rather
than 405.50; and further in failing to implement a scheme of assessment of
standards of care in homes, meaning that homes with the highest standards
were being deprived of 27.50 per resident per week and all other homes
were being deprived of pro rata payment in respect of care standards, and the
incentive to better standards of care in their homes.
107. However, otherwise, Mr Philips submitted that the approach of Mr Hine was
justified, if the Council had a policy of incentivising better standards of care in
homes, but of not incentivising better PE standards. There was no evidence
that that was the Councils policy as I have indicated, I had before me no
evidence of any particular strategic policy of the Council in relation to the
provision of care services, nor indeed that the Council had any such strategic
policy at all however, Mr Phillips submitted that I could and should assume
that the Council has had, at all material times, such a policy of differential
incentivisation: and, on that basis, the approach of Mr Hine and the Council
which has adopted it, is therefore lawful.
108. Those submissions were, as ever, very ably put by Mr Phillips they could not
have been better put and boldly and bravely put too. Unfortunately, in my
judgment, they do not withstand any sensible scrutiny, and certainly not the
overwhelmingly compelling submissions of Mr Bar. He submitted that the
submissions fell at not one but every hurdle. That seems to me to be about
right.
109. First, Mr Hines calculation is based on the premise that the Council has a
policy of encouraging higher standards of care, but of not encouraging higher
PE standards in care homes. However, there is no evidence at all before me
that that is Council policy: and the evidence that I do have, thin as it is,
suggests that that is not its policy. It was the Council that determined to use
the Laing 2004 Wales model which seeks, in line with Welsh Assembly
Government policy and guidance, to incentivise homes that are not at post-
2002 PE standards, to obtain those higher standards. In his calculation, Mr
Hine himself refers to the older pre-2002 PE standards as interim, reflecting
the intention of the Government to raise such standards to the post-2002
standards over time. I would be reluctant to find that it was the Councils
policy to have the same floor or base rate for all care homes, irrespective of the
actual extent to which they comply with the post-2002 PE standards, because,
as well as not offering any incentive to enhance their facilities, as Mr Bar
pointed out, there would be every commercial encouragement for homes with

higher PE standards to leave the market because the capital return for them
would be relatively less than that for a home with lower standards. It would
take compelling evidence to persuade me that that was indeed the intended
policy of the Council.
110. Given that the evidence that I do have suggests that it is Council policy to
encourage such betterment and there is certainly no evidence before me that it
is the Councils policy not to do so, and that a policy to discourage or not to
encourage providers from raising the physical environmental standards of their
homes would deviate from Welsh Assembly Government policy and guidance
the Council is bound to follow, unless it has compelling grounds to deviate,
there is no basis upon which I could make the bold assumption Mr Phillips
pressed me to make, namely that the Council has a policy not to encourage
providers to enhance the PE standards of care homes. There are no such
compelling grounds.
111. In any event, second, Mr Hine does not appear to have acted on any such
assumption. He appears to have worked on the basis that the Council wished
to discourage the building of new homes, rather than not to encourage existing
homes to raise their PE standards towards the post-2002 level. That is the
indication in his contemporaneous report. In the report upon which the rate
decisions were made by the Council I have 22 May 2009 draft, but I
understand the final report was in the same form he said:
4.58 Since it is not the Councils objective to encourage the building
of new homes but to maintain and improve the existing homes, the
methodology for calculating the ceiling is not appropriate. This is
because it is based on costs of land and construction associated with
new homes.

112. I pause there to note that that is, of course, wrong. Although the valuation of
capital costs is based on business set up or acquisition, as I have explained, the
inclusion of capital costs in the assessment of a providers costs is to ensure
that a return on capital is properly reflected. The better the PE standards
(whether as a result of new build, or older homes that in fact comply with the
new standards), the higher the assumed capital costs should be. Such costs are
real, if only because, if money was not invested in care homes, it could be
invested elsewhere. The methodology for the calculation of capital costs does
not become inappropriate simply because an authority wishes to discourage
new build, or even if it wishes to discourage enhancement of PE standards in
older homes. For example, there will be homes that now comply with the
highest PE standards that should be entitled to the highest level of capital costs
on the basis of this model. Continuing with the quotation:
4.59 The Councils objective is to incentivise homes to reach high
quality standards but without encouraging new build.

113. That is what the Council had before it. There is no evidence of any further
explanation. Those passages on their face suggest that the calculation has

been based upon the premise that the Council wished to encourage raising
standards (at least including PE standards), but does not wish to encourage
new build. That it did not seek to discourage enhancing PE standards in
existing homes appears to be consistent with both the evidence of the
Councils own intention, and the Welsh Assembly Government Guidance
which seeks to promote such improvements.

114. Third, whereas there is, of course, nothing wrong with an authority including a
separate monetary incentive to providers to increase their non-PE standards of
care, the manner in which Mr Hine approached this was, in my judgment,
based upon a misunderstanding of capital costs and consequently it lacked
rationality.

115. Mr Phillips said that capital costs included an element that reflected the extent
of a providers compliance with non-PE care standards: and, as an incentive to
comply with those standards, it was rational to withhold that element if, and
insofar as those standards were not met as Mr Hine had done. He referred
me to the following passage at paragraph 4.4.2.4 on page 41 of the Laing 2004
Welsh report, particularly relying on the last sentence:
It would not be appropriate for councils to pay physically
substandard homes at the fair rate established for physically good
homes. If they were to do so, they would find themselves paying fees
for sub-standard care homes at a level which would generate super-
profits for them. This is the reason for proposing a range (ceiling
and floor) of fair fees. Our recommendation is that councils should
apply a capital costs adjustment factor such that fees payable to each
individual home would reflect the degree to which that home meets or
falls short of the upper end of the range of physical standards for which
the council is willing to pay. In addition, in order to avoid paying high
fees to homes which provide poor care, it is recommended that homes
of a physically high standard should also surmount a quality hurdle
relating to non-physical standards in order to qualify for payment at the
upper end of the fee range.

116. I do not consider that Mr Phillips submission has any force. Capital costs,
as I have explained, concern ensuring that a providers costs include an
appropriate return on capital, and are calculated by reference to the capital
costs of setting up or acquiring the business. Within that calculation, there is
no element referable to compliance with non-PE standards of care, nor could
there be. Compliance with non-PE standards may require revenue costs, but
no significant capital costs. That is why the calculation of such costs focuses
exclusively on the extent to which buildings etc comply with various standards
for the physical environment or premises themselves. Mr Bar submitted that
the 25% figure chosen by Mr Hine for this deduction was arbitrary. In my
view, any figure would inevitably be arbitrary, because no part of capital costs
is rationally referable to non-PE standards of care.

117. There is nothing in the Laing 2004 Wales report or model to suggest the
contrary. The passage I have quoted, upon which Mr Phillips relied, is clearly
focused on how compliance/non-compliance with PE standards can most
appropriately be dealt with in the model: although, understandably, it is
proposed that high non-PE standards should be a precondition of obtaining the
higher levels of capital costs. That is suggested in paragraph (d) on page 43 of
the Laing 2004 Wales model:
All homes should be expected to score highly on soft quality
criteria, most of which do not impose a cost burden on the home, and
this should be viewed as a precondition for unlocking their capital
costs entitlement as calculated through the capital cost adjustment
factor.

There was some debate before me as to whether economically soft quality
criteria covered the general level of care of residents but, whatever the
precise scope of that term, there is nothing to suggest anywhere in the model
that capital costs include an element representing the achievement of anything
other than PE standards.
118. I fully accept that it would be open to an authority to incentivise the raising of
non-PE standards of care in some way. The Laing 2008 England model
suggests one way, namely that the floor for capital costs based upon PE
standards should be half the ceiling and then making any allocation within
that range conditional upon particular non-PE care standards being maintained.
However, that is, of course, a very different logical approach from that
adopted in this case. In working on the basis that there is an element of capital
costs representing the difference between minimum and maximum non-PE
care standards which can be allocated on the basis of extent of compliance
with such maximum standards Mr Hine did not, in my judgment, adopt a
logically defensible or legally rational approach.
119. For those reasons, as well as the matters conceded by the Council, I consider
the approach adopted by the Council in relation to the assessment of providers
costs for the purposes of setting the fee rate to have been unlawful.
(2) and (3) The Staffing Issues
120. I can deal with two issues, both related to staffing, together. They are
financially important, because wages are the largest component of running
costs for any care home.
121. In populating the Laing 2004 Wales model, in terms of levels of care, RSM (i)
used benchmark figures, as opposed to figures derived from the local data they
collected; and (ii) did not differentiate between the levels of non-nursing care
required by those residents who required nursing care and those who did not.
Mr Bar submitted that (i) using local data would have led to a figure of 24.22
hours of care staff per resident per week, as opposed to the 22 hours used in

the model; and (ii) it is well recognised that those residents who require
nursing care also require a higher level of non-nursing care, a differential that
ought to have been reflected by a higher level of non-nursing care hours being
allowed in relation to residents who needed nursing care.
122. Mr Phillips provided a single response to both. He submitted that levels of
care were not subject to significant geographical variation, and hence national
benchmarks were appropriate; and, whilst accepting that those who needed
nursing care also required higher levels of non-nursing care, the full non-
nursing care needs of residents who required nursing care were catered for in
the RSM workings by their use of the non-nursing care benchmark figure for
elderly mentally infirm residents (or EMI) in the Laing 2008 England
model, for all residents across the board in Pembrokeshire. EMI have the
highest care needs.
123. I accept that actual levels of care in terms of non-nursing hours cannot be
determinative of the reasonable hours that an authority should pay for on a
cost basis. That would only be an encouragement for providers to use staffing
ratios that are higher than are necessary to give residents appropriate levels of
care under section 21. I also accept that levels of care in terms of non-nursing
hours for a similar profile of residents is less likely to vary geographically
than, say, rates of pay. However, I do not accept that care staffing levels are
completely immune from local variations.
124. First, the level of hours of non-nursing care may vary from place to place as a
result of historical factors. Local authorities were responsible for setting such
levels of care until 2002, when the regulator under the Care Standards Act
2000 (now the CSSIW) took over. As a result, there were historical
geographical variations, which have not been entirely moderated. Before
2002, the Council had amongst the highest levels of staffing ratios in Wales
(see, e.g., the Councils Social Service Department Policy and Procedures for
the Registration of Homes for Elderly People 1993, especially at chapter 4),
which have since been maintained. The current staffing ratios used by the
claimants are those that were applied by the Council pre-2002 (Michael
Davies 29 November 2010 statement, paragraph 4).
125. Second, the evidence before me was that, after 2002, the CSSIW have been
reluctant to sanction any reductions in staff resident ratio. Mr Davies said:
My experience is that neither CSSIW nor the [Council] (nor the
local health board in relation to nursing care) will contemplate any
decrease in staffing levels, unless the resident numbers drop very low.

That evidence was not contested. As I have indicated, the CSSIW can enforce
what they consider to be appropriate staff levels in a number of ways,
including by taking criminal proceedings in extreme cases, if they consider
that appropriate (see paragraph 39 above).

126. In the Laing 2004 Wales report (at page 22), it is said that the staffing
standards currently being applied by CSSIW vary across Wales as a
consequence of the decentralisation of regulation prior to April 2002 and the
discretion allowed to inspectors. Mr Laing said in his 3 December 2010
report for this claim (at paragraph 2):
[A]cceptable levels [for staff] are in practice determined by the
interplay of care home providers views on what is safe and reasonable
and the professional views of the local inspectors employed by the
regulator, [the CSSIW]. They will both have regard to local practice,
which may in turn be determined by historical standards established
under the former regulatory scheme prior to 2002, when local and
health authorities were responsible for setting standards and typically
did so in a more prescriptive way, stating for example a number of
staff of various types who should be on duty during the day and night
in a given home. It is for this reason that fair price calculation should
consider local data on staffing levels and other significant determinants
of costs.

The importance of taking local factors into account when considering
appropriate staffing levels is also recognised in paragraphs 1 and 7 of that
report.
127. There was no compelling evidence to the contrary before me, Mr Hine relying
upon other passages from Mr Laings works which set out the reasons for the
general practice of using benchmarks for staffing levels. I do not find those
passages inconsistent with the evidence I have quoted, which I accept.
128. Third, the importance of taking account of local staffing levels is recognised
elsewhere by Mr Hine himself, who used figures for domestic staff derived
from the data collected from Pembrokeshire, rather than the Laing 2008
England benchmark, which would have been higher (Mr Laing 3 December
2010 report, paragraph 22).
129. Therefore, whilst national benchmark staffing levels may be an appropriate
starting point, an authority must at least consider whether any local factors
militate against the use of a particular benchmark in particular circumstances.
In this case, the Council had evidence that they may. In any event, the Council
had evidence (collected by RSM) that the actual levels of care were higher
than those for which the Council proposed to include in the costs assessment
model, and a reduction in staffing levels could have an adverse impact on
residents. The Council was therefore bound to take into account the potential
adverse consequences for residents before setting a rate on that basis. There is
no evidence that it did.
130. It is no answer to that complaint (as suggested in Mr Hines 15 December
2010 report, at paragraph 4.18) that the benchmark used for all residents was
the EMI benchmark in Laing 2008 England model, which was of course
higher than the benchmarks in that model for either ordinary residents or those

with lesser nursing needs. That simply makes it more likely that the
benchmark used by RSM was reasonable but does not overcome the failure
of the Council to take into account local factors of which it was or ought to
have been aware.
131. I conclude that the methodology relied upon by the Council failed properly to
deal with staffing costs. In failing to consider local factors, the Council erred
in law.
(4) The Smaller Homes Issue
132. It is uncontroversial that a significant proportion of the care homes in
Pembrokeshire are relatively small (under 20 registered places); and that
smaller residential care homes, even if run competently, are inherently more
likely to cost more per resident per week to run, because they lack the
economies of scale. In that sense, they are economically inefficient. Mr
Laing accepts that, as a matter of principle, it is wrong to reward such
inefficiency, and therefore it is in principle open to an authority to restrict its
selection of relevant data to larger homes (the Laing 2004 Wales report,
paragraph 3.4; and his 3 December 2010 report for this claim, paragraph 9).
RSM restricted collection of data to those homes with 20 or more registered
beds. Mr Laing accepts that such homes would benefit from economies of
scale and that a home with at least 20 registered places is an acceptable
definition of an economically efficient care home (3 February 2010 report,
paragraph 2).
133. However, Mr Laing again indicates that local circumstances may override this
principle or benchmark. In the Laing 2004 Wales report (at page 10), he
accepted that higher prices for small scale homes may be justified by an
overriding factor such as preservation of otherwise uneconomic smaller
homes in isolated rural communities. In his 3 December 2010 report for this
claim (at paragraph 6), he confirms that:
In exceptional circumstances the [Laing model] also recognises that
there may be overriding public policy reasons for councils to subsidise
inefficient [i.e. economically inefficient, namely smaller] care homes,
for example in order to sustain small scale care homes in sparsely
populated areas. [Laing] recommends that in the interests of
transparency, any such subsidies should be the subject of a separate
item in the toolkit spreadsheet and provided on a case by case basis.

134. Where, as in Pembrokeshire, a significant proportion of residential homes are
small and population is sparse, setting a fee rate on the basis of homes that
may benefit from economies of scale, may have the effect of putting smaller
homes out of commercial business, which may result in residents being
moved. That move may be to a less convenient home in the area (e.g. less
local for the resident), or even, where places in homes in the area are generally
occupied, movement out of the area altogether.

135. In the case of Pembrokeshire, the Council was aware that a significant
proportion of homes are small, the occupancy level is very high and providers
have been expressing concerns about the fee rates in the context of their
business. In the circumstances, the Council, if determined to set one rate for
all homes large and small (as it was: see Mark Lewis 4 November 2010
statement, paragraph 6) ought to have taken into consideration the local
circumstances, and the possible consequences to providers and residents of
setting a fee rate based upon only those homes which benefited from the
economies of scale. There is no evidence that it did so.
136. In the circumstances, I consider that, in this respect too the Councils
methodology was unlawful (although whether the claimants, who only own
and run larger homes, would have been entitled to relief on this sub-ground
alone, might be a matter for debate).
(5) The Inflation etc Issue
137. The decision that the 2010-11 fee rate should be 390 was of course based
upon the RSM working of the Laing 2004 model, which was itself based upon
data collected from care homes in Pembrokeshire in February 2009. Mr Bar
submitted that the Council erred in failing to take into account inflation, or the
recent changes in the Working Time Regulations which increased the
minimum holiday entitlement from 24 to 28 days and which is effective from
April 2010. Mr Hine accepts that these two matters should be taken into
account when calculating future year fees (15 December 2010 report,
paragraph 6.8).
138. In my judgment, the same failure in approach by the Council as I have
identified with other sub-grounds has occurred in relation to this. Subject to
the manner in which it took into account its own finances, with which I shall
deal shortly, it would, in my judgment, have been open to the Council to have
taken the view that no increase in rate ought to be made, although the effects
of inflation and any change in the Working Hours Regulations would have
meant that this was, in real terms, a cut in the fee rate. However, such a
decision could only be made on the basis of proper consideration of its effects
on the provider and/or residents. Before making such a decision, the Council
should have considered possibly adverse consequences for both. Would
inflation, in whole or in part, have been borne by the provider out of its
profits? If so, given that the Council worked on a profit margin of 5%, then
inflation over a year of over 2% would clearly be significant. On the other
hand, if the real cut would have been reflected in a loss of service to the
residents, were those consequences acceptable in terms of proportionality?
Those are just two of the potential consequences the Council ought to have
had in mind.
139. On the evidence, it had no such consequences in mind at all. There is no
evidence that it had any consideration of any potential consequences for
residents. The evidence that it had providers in mind is restricted to the

sentence in paragraph 28 of Mr Skones statement of 4 November 2010, which
I have already quoted (paragraph 68 above):
I told Mr Davies that I did not consider it practical or sustainable to
reflect the decrease in the Councils own care homes and as a result the
fee level remained at 390 per week.
However, that appears to have been in relation to the extent that the decrease
in money terms would have made the claimants commercial business
unsustainable: it does not appear from that that Mr Skone had in mind the
potential consequences for providers and residents of inflation and the change
in the Working Hours Regulations which represented a cut in fee in real,
although not money, terms. There is no evidence that the Council considered
at all the effect of the cut in real terms that it was imposing.
140. Given that the RSM calculation calculated the appropriate costs of care that
ought to be reimbursed, before making the important and difficult decision as
to the 2010-11 rate, the Council was bound to consider the potential adverse
effects for providers and residents of setting fees below that fair and
appropriate rate in real terms. There is no evidence that it did so. Again, that
failure was an error of law.
(6) The Issue of the Councils Own Resources
141. I can deal with this ground shortly.
142. Mr Bar submitted that, in fixing the fee rate, the Council could not lawfully
take into account at all its own resources, and in particular the financial
constraints under which it was working; and that it erred in doing so. For the
reasons I have already given (paragraph 46 above), I cannot accept that
submission in its extreme form. As well as in the decision as to which the
persons it should extend section 21(a), the Council is entitled to take into
account its own financial position when exercising its discretion as to the
manner in which and the standard to which such assistance is given, provided
that the minimum requirements of section 21 are met. That is clear as a matter
of principle. It is that to which Stanley Burnton J referred in the Birmingham
Care Consortium case (cited in paragraph 46 above), when he said (at
paragraph 31):
[A]ffordability is in general a highly relevant consideration to be
taken into account by any local authority in making its decisions on
rates to be offered to service providers, subject to the local authority
being able to meet its duties at the rates it offers.

With that, I respectfully agree.


143. However, when exercising its discretion in a manner which is adverse to an
interested party e.g. in this context, a provider or resident the Councils
own financial position is of course not necessarily determinative. It is bound
to take into account and balance all relevant factors; and in particular it is
bound to balance such matters as the quality of the service it provides and the
need to maintain stability in the care services sector on the one hand, against
the resources with which it has to provide that service on the other. The
interests and rights of residents are of particular weight in that balance. The
2003 and now 2010 guidance makes them so, as does Article 8.
144. In my judgment, the Council was fully entitled to take into account its own
financial position when determining the level of accommodation and care
services upon the minimum required by section 21, and in setting the fee rate
for those who provide those services. However, it erred in law in failing
properly to take into account other factors which I have identified in this
judgment, such as the potential adverse consequences of the decision for
providers and residents, which it was required to balance against the
constraints on its own resources. The manner in which the Council dealt with
capital costs for the purposes of setting the rate was simply methodologically
wrong; but the other sub-grounds succeed, because the Council failed to take
into account matters other than its own financial resources in a proper and
lawful way.
The Second Ground: Conclusion
145. For all of those reasons, as well as for the reasons as conceded by the Council
to which I have referred, this second ground of challenge succeeds.
The Third Ground
146. I therefore come to the third and final ground of challenge.
147. I have already recited the relevant facts (see paragraphs 70 and following
above). Briefly, at 25 August 2010 meeting, Mr Davies told Ms Watwood that
he proposed to set a fee of 480 per resident per week, and he proposed to
write to third parties (mainly next of kin of residents) seeking a top up of the
fee being paid by the Council to that level. He produced proposed drafts of
letters, in the terms I have quoted (in paragraph 71 above). He wrote to the
Council confirming this proposed course. The Council responded saying it
considered such a letter could constitute a breach of contract, and by sending
its own letters to the next of kind and others responsible for residents asking
them to contact the Council if such a request was made. Mr Bar submitted
that the Council acted unlawfully, as a matter of public law, in taking those
steps, designed to frustrate the claimants wish to obtain fees from third parties
over and above the fees set by the Council itself.
148. The ground is based on the premise that:

Where fees have not been agreed between the local authority and the
provider, as is the case here, there is no breach of contract committed
by seeking co-funding. Further, where a provider is in genuine
difficulties and the local authority making placement does not dispute
those difficulties, the provider is not acting unreasonably in seeking co-
funding. (Amended Statement of Grounds, paragraph 10).
149. I do not consider that that premise, or the ground, has been made good.
150. Leaving aside the issue of whether there is here any decision of the Council
amenable to judicial review as a matter of public law which I consider to be
a real issue in this context the premise fails to take into account the true
contractual position between the parties, with which I have already dealt at
some length. Briefly, the relevant points are as follows.
(1) The contract provides that the fee rate is set out in schedule 2, as reviewed
from time to time by the Council. It is not a matter for agreement. Further,
the rate that is current applies until another rate is set by the Council.
(2) The contract does allow for third party funding, where the services are
more expensive than those which the Council would normally purchase.
However, paragraph 3(c) and (d) of schedule 2 to the contract require (i) the
resident to exercise choice and wishes to make use of the particular service;
and, more importantly to this claim, (ii) the Councils agreement to any such
funding arrangement. As a matter of contract between the Council and the
claimant, it was not open to the claimants to seek third party contribution to
funding without the resident exercising that choice, and the Council giving
that agreement: the reference to the Councils agreement is prefaced by an
emphasised and in the text of the contract (see paragraph 24 above). The
agreement of the Council is vital because, by virtue of the relevant section 7
guidance to which I refer above (paragraph 25), namely Guidance on the
National Assistance Act 1948 (Choice of Accommodation) Directions 1993,
under any third party contribution arrangement, the Council becomes liable for
the entire fee (including that contribution), and must therefore be assured that
the contribution will be forthcoming from the third party before agreeing to it.
Further, in this case, it is open to question as to whether the services for which
the claimant sought third party contribution were over and above those which
the Council would normally purchase. The Council suggested in
correspondence that the claimants were simply seeking more money for the
very services they had contracted to provide for the contractual fee in their
contract with the Council, and Mr Davies proposed letter to third parties
appears consistent with that.
(3) The note attached to placement letters (quoted in paragraph 75 above)
does not assist the claimants. In those letters, the claimants expressly agreed
to provide services on the basis of the Councils terms and conditions,
including those of the service contract. By indicating that payments were
being accepted on account only because of the dispute over fees with the
Council, that could not and did not override the service contract provisions for

the setting of fees. Those were that fees were not to be agreed between the
parties, but were to be set by the Council after appropriate consultation.
(4) Nor are these provisions a possible breach of Article 8, as Mr Bar
submitted. There is no blanket prohibition of co-funding here. The
contractual provisions, supported by the guidance, do provide a mechanism a
contractual mechanism for contributions from third parties. It was a
mechanism that the claimants failed to follow.
151. As a contractual matter, the claimants would have breached their contracts
with the Council had they obtained any third party contributions as a result of
the letters they proposed to send to next of kin and others responsible for
residents. The terms of that letter were certainly misleading in respect of the
powers the claimants indicated they had in relation to seeking contributions.
They were not entitled to any contribution from any third party unless they had
obtained the Councils agreement, which they do not suggest they sought or
intended to seek. The claimants appeared intent on breaching their contracts
with the Council by soliciting contributions from third parties without the
Councils consent. In the circumstances, the Council were entitled to prevent
such a breach of contract in the manner of the modest steps that they took.
152. I refuse the application on this third ground.
Conclusion
153. However, for the reasons I have given, I grant the application for judicial
review on the second ground, namely that the decision of the Council to set a
rate at 390 was unlawful. I shall set aside that decision, and direct that
Council shall remake the decision lawfully by 31 January 2011, a time by
when it agrees it can reconsider the rate in the light of this judgment and make
a fresh decision.

Case No: CO/6027/2012
ADMINISTRATIVE COURT at LEEDS

The Court House
1 Oxford Row, Leeds, LS1 3BG

Date: 15 February 2013

Before :

THE HON. MR JUSTICE SUPPERSTONE
- - - - - - - - - - - - - - - - - - - - -
Between :

THE QUEEN
on the application of
MEMBERS OF THE COMMITTEE OF CARE
NORTH EAST NORTHUMBERLAND

Claimants
- and -
NORTHUMBERLAND COUNTY COUNCIL Defendant
- and -
NORTHUMBERLAND CARE TRUST Interested Party

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Aileen McColgan (instructed by Messrs David Collins, Solicitors) for the Claimants
Nigel Giffin QC and Tom Cross
(instructed by Chief Legal Officer, Northumberland County council) for the Defendant

Hearing dates: 22-23 January 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Supperstone :

Introduction
1. The Claimants are the members of the committee of Care North East Northumberland
(CNEN), which is an unincorporated association whose members own and/or
operate nursing homes and/or care homes in the North East of England and in
particular in the area of Northumberland.
2. The Defendant, Northumberland County Council (the Council) is the local authority
which has statutory duties to provide accommodation and social care services under
various statutes including the National Assistance Act 1948.
3. The Interested Party, Northumberland Care Trust (the Trust), is an NHS Primary
Care Trust created or continued under section 18 of the National Health Service Act
2006. The Trust enters into arrangements and places contracts on behalf of itself and
Judgment Approved by the court for handing down. CO/6027/2012 - Care NE Northumberland v Northumberland CC

on behalf of the Council with health and/or social care providers for health and/or
social care services that the National Health Service and/or the Council are either
required to provide or have power to provide under various statutes for adults in
Northumberland.
4. In this claim for judicial review the Claimants challenge two decisions made by the
Defendant on 12 or 13, alternatively 27, March 2012 to fix care home rates in the
Northumberland area for the period of three years from 1 April 2012 to 31 March
2015.
The legislative framework
5. The Defendant has an obligation under section 21(1)(a) of the National Assistance
Act 1948 (the 1948 Act) to provide residential accommodation to those adults in its
area who, by reason of age, illness, disability or any other circumstances, are in need
of care and attention which is not otherwise available to them. By section 26(1) of the
1948 Act a local authority may discharge its duty under section 21 by contracting with
a private care home provider who operates for profit. The care home will provide the
accommodation in exchange for fees paid to it by the authority, agreed between the
parties.
6. In discharging its duty to provide accommodation, a local authority is required to act
in accordance with such directions as may be given by the Secretary of State under
section 7A(1) of the Local Authority Social Services Act 1970 (the 1970 Act). The
National Assistance Act 1948 (Choice of Accommodation) Directions 1992 (the
Directions) provide that where a local authority have assessed a person under
section 47 of the National Health Service and Community Care Act 1990 and have
decided that accommodation should be provided pursuant to section 21 of the 1948
Act, the local authority shall, subject to paragraph 3 of the Directions, make
arrangements for accommodation for that person at a place of his choice within the
UK (called preferred accommodation) if he has indicated that he wishes to be
accommodated in preferred accommodation. Paragraph 3 of the Directions states, in
so far as is material, that the local authority shall only be required to make or continue
to make arrangements for a person to be accommodated in his preferred
accommodation if:
(b) the cost of making arrangements for him at his preferred
accommodation would not require the authority to pay more
than they would usually expect to pay having regard to his
assessed needs.
7. Section 7 of the 1970 Act provides that:
(1) Local authorities shall, in the exercise of their social
services functions, including the exercise of any discretion
conferred by any relevant enactment, act under the general
guidance of the Secretary of State.
8. Under section 7(1) the Secretary of State has issued formal statutory guidance in
Local Authority Circular LAC (2004) 20 (the Circular). Paragraph 2.5.4 of the
Circular states as follows:

One of the conditions associated with the provision of
preferred accommodation is that such accommodation should
not require the council to pay more than they would usually
expect to pay, having regard to assessed needs (the usual
cost). This cost should be set by councils at the start of a
financial or other planning period, or in response to significant
changes in the cost of providing care, to be sufficient to meet
the assessed care needs of supported residents in residential
accommodation. A council should set more than one usual cost
where the cost of providing residential accommodation to
specific groups is different. In setting and reviewing their usual
costs, councils should have due regard to the actual costs of
providing care and other local factors. Councils should also
have due regard to Best Value requirements under the Local
Government Act 1999.
9. Paragraph 3.3 provides:
When setting its usual cost(s) a council should be able to
demonstrate that this cost is sufficient to allow it to meet
assessed care needs and to provide residents with the level of
care services that they could reasonably expect to receive if the
possibility of resident and third party contributions did not
exist.
10. Separately from the formal statutory guidance, in October 2001 the Department of
Health had issued what was described as an Agreement between the statutory and the
independent social care, health care and housing sectors, entitled Building Capacity
and Partnership in Care (Building Capacity). Paragraph 6.2 of Building Capacity
states:
Providers have become increasingly concerned that some
commissioners have used their dominant position to drive down
or hold down fees to a level that recognises neither the costs to
providers nor the inevitable reduction in the quality of service
provision that follows. This is short-sighted and may put
individuals at risk. It is in conflict with the Governments Best
Value policy. And it can destabilise the system, causing
unplanned exits from the market. Fee setting must take into
account the legitimate current and future costs faced by
providers as well as the factors that affect those costs, and the
potential for improved performance and more cost-effective
ways of working. Contract prices should not be set
mechanistically but should have regard to providers costs and
efficiencies, and planned outcomes for people using services,
including patients.
The factual background
11. Mr Hunter, who is Chair of CNEN and also Managing Director of Sovereign Care
(North East) Limited which owns four care homes in the north east of England, sets

out in his first witness statement made in these proceedings the consultation process
that was conducted by the Defendant in relation to the new contract that would be
effective from 1 April 2012. At paragraph 8 he states:
The providers were very keen to explain to the Council that
we were committed to delivering a quality service to the
residents in our care homes. The Council set high quality
standards and we wanted to ensure that the service provided to
vulnerable people was as good as it could be. However, these
high quality services are expensive to deliver and we are facing
substantial, rising costs. We therefore saw the consultation
period as the opportunity to explain to the Council that, if they
shared our agenda for the delivery of high quality services, they
needed to set fee levels which met the costs of providing those
services.
12. The first meeting that Mr Hunter had with the Defendant was on 11 October 2011.
There was a further meeting between the Claimants and the Council on 9 November
2011. No formal proposals were put forward at these meetings. At a meeting on 1
December 2011 the Defendant presented CNEN with two proposals for consideration.
The first involved a three year contract in which the then current inflator (2.16%)
would be applied in each of the years but this would be offset by efficiencies of 3%,
1.5% and 0% in the first to third years of the contract in Grades 1-3 homes. The
second involved placing all homes on the current Grade 4 rates, applying the 2.16%
inflator in each of the three years and allowing for a 1% quality bonus.
13. Mr Hunter comments that the costs of running a Grade 1 home are significantly more
than the costs associated with a Grade 4 home. The Option 2 proposal would have
meant that the rate for a Grade 1 home would have reduced from 466 to 419, a
reduction of 10%. Grade 2 and Grade 3 rates would have reduced by 9% and 7%
respectively.
14. Ms Bowie, the Defendants Associate Director of Strategic Commissioning and
Safeguarding in the Adult Services and Housing/Community Services Business Unit,
stated at the meeting on 1 December 2011 that the two proposals were put on the table
to open up discussion (see Minutes of meeting, C65-67).
15. On 15 December 2011 there was a further meeting attended by Ms Bowie, together
with Mr Bradley, the Defendants Head of Finance in the Community Services
Business Unit, and the Claimants (Minutes at C68-72). The next meeting was on 3
January 2012 (Minutes at C77-78). Ms Bowie states in her witness statement at
paragraph 68 that at that meeting she:
queried whether the Claimants had any proposals they wished
to put forward. Unfortunately, the Claimants were not
forthcoming with any information that might help develop the
consultation process and stated that it was not for them to come
up with proposals. Reference was made by one of the
Claimants, Mr Hunter, to re-running the PWC Model [that was
a costing model produced by the accountants, Price Waterhouse
Coopers, that had been used for the 2005 Contract]. I was

trying to encourage the Claimants to engage in the process of
contract negotiation, which they were refusing to do. I
therefore asked Mr Hunter if any providers represented by the
Claimants could provide any evidence as to why care home
fees in Northumberland should be higher than other areas
regionally and nationally. I stated that care was being provided
in these other areas for significantly lower fees and accordingly
it was not clear why Northumberland were paying more for
care. Mr Hunter stated that he would consider the issue. Apart
from discussions with Mr McArdle referred to at paragraph 108
below, neither Mr Hunter nor any of the Claimants, ever came
back to us in relation to the costs that they allege are higher in
Northumberland.
16. Mr McArdle is Managing Director of Helen McArdle Care Limited and a committee
member of CNEN. His company operates fourteen care homes throughout the north
east of England. The discussions that Ms Bowie refers to at paragraph 108 of her
statement were between Mr Bradley and Mr McArdle on 18 April 2012, following
which Mr Bradley informed her that the only specific local difference in running costs
which Mr McArdle had identified in Northumberland related to high staffing costs in
one of his three care homes in the county. It appeared to Mr Bradley that those high
staffing costs were as a result of the use of agency staff, which Mr McArdle had
confirmed were used. (See also para 43 below).
17. On 17 January 2012 the Council met with the Claimants again (Minutes at C109-111).
Following that meeting, on 26 January 2012, Mr Hunter sent Ms Bowie an e-mail
(C112-114) in which he proposed the following:
1. that we re-run the TOC [sic] [that is the PWC] model
(which I believe has not been run since 2004)
or
2. that we continue with the inflator as it is but over the next
two yearswe then use the next two years to re-run the model
which gives us the opportunity to use the data from that in
order to identify both efficient and inefficient costs which can
then be reviewed jointly.
18. At a meeting which took place on 21 February 2012 between the Defendant and the
Claimants, Ms Bowie explained that the Council had considered the proposal to run
the PWC model but that it was not willing to do so. The minutes of the meeting
(C210-213) note:
3. Response to CNEN Position
JB [Ms Bowie] confirmed that Neil Bradley (NB) had re-
looked at the model NB stated it had flaws:

CNEN as providers feed into the model without challenge
and against no significant regional or national benchmark
information;
As the model inherently builds in a profit, it creates a
potentially risk-free environment for potential investors.
This creates additional capacity within the market whether
or not it is required forcing down occupancy levels. This
effect will further inflate costs on each review of the model.
The minutes continued:
MCA [Mr McArdle] asked if CNEN could have a response
to option 2 on their e-mail and if there were some elements in
that could be agreed upon. JB read option 2 as accepting re-
running the model but deferring that for two years so wouldnt
be agreeable.

4. Next Steps
It was agreed that JB would look at CNENs option 2 but
without the re-run of the PWC model and come back with
response at the meeting on 28 February.
19. Ms Bowie and Mr Bradley did consider option 2 further. However they considered
that in essence, this was just another way of attempting to commit the Council to re-
run the PWC Model, albeit not right away, but for the purpose of setting future
contract fees. The Council were not willing to do this, (Ms Bowies witness
statement at para 72).
20. In her witness statement Ms Bowie details the separate discussions that the Defendant
had with providers other than the Claimants in relation to the new contract. The
largest of these providers is Four Seasons Health Care (FSHC). There are two other
providers, namely Bondcare and HC1. FSHC, Bondcare and HC1 represent 33% of
beds in Northumberland. The four members of the CNEN committee who are the
Claimants represent homes accounting for around 10.5% of the beds in
Northumberland (see paras 47, 79-94).
21. On 12 March 2012 Ms Bowie wrote to all the care home providers setting out the
current position:
The underlying situation which I am sure you will
understand, is that all public sector organisations are required to
make substantial reductions in their expenditure because of the
economic situation and the Governments policy on reducing
the national deficit.
We know from comparisons with other areas that care home
fees paid by the Council in Northumberland remain higher than

those paid in most neighbouring areas. Indeed we have some
reason to think that fees paid in Northumberland may in some
cases be cross-subsidising care homes in other areas operated
by the same provider.
It is therefore our view that, while we need to take account of
increases in the costs of running a care home, we can also
reasonably expect care home providers to make some
reductions in their costs. We have been asked by CNEN to
provide specific justifications of percentage figures which we
have suggested but in a situation which involves many
variables, we do not believe that it is feasible to base figures on
a precise calculation; we have therefore been seeking to
negotiate with CNEN, and separately with providers which
have chosen not to be represented by CNEN, about what level
and pace of cost reduction is reasonable. We have also invited
CNEN and providers who operate homes in other areas to
provide us with any evidence they may have about higher costs
of operating care homes in Northumberland compared to
neighbouring areas. We have not yet received evidence on this
point.
At the time of sending out this letter we have reached
agreement with care home providers representing over 20% of
the total care home places for older people in the County. We
think that this provides evidence that it will be possible to meet
the needs of those people who require care home
accommodation whilst restraining overall costs to public
funding.

The true cost of care and 2001 Government advice

In the years following the issue of Building Capacity, a number
of local authorities, including Northumberland, interpreted this
advice as meaning that the fees they paid to care homes should
ordinarily be based on a modelling exercise of the kind which
PriceWaterhouseCoopers carried out in Northumberland in
2004, aiming to set fees at a level which, on the basis of
information from care home owners, would cover all costs and
normal profit margins.
In Northumberland and elsewhere, these modelling exercises
generally led to substantial increases in fees, with no clear
evidence of improved quality.
Other local authorities adopted a narrower interpretation of the
requirements of Building Capacity, or took a more sceptical

view about the validity of the available modelling tools, and
continued to offer lower levels of fees, in line with common
practice before 2001. We are not aware of any evidence that
these authorities faced serious difficulties with care home
viability or quality as a result.

The current status of Building Capacity

The Council believes that this document reflects the position
at a particular time, when circumstances and national policy
were different.

The Councils view is therefore that Building Capacity is
advice issued at a time when both policy and public sector
finances were different, and that, while it still has some value
as a source of advice, it is now reasonable to depart from its
advice, or at least from the way in which the County Council
and others interpreted that advice in the last decade.
The issues which the Council will consider
In preparing the options which it offers to care home owners,
and in assessing proposals from care home owners, the Council
is taking into account a number of considerations:
The Council needs to make substantial savings in its budget
over the next three years.

Both the specific true cost of care model used in
Northumberland in 2004, and what we know of models used
elsewhere, produces results which do not appear to be in line
with the actual functioning of the market fees below the
levels generated by these models appear to be adequate to
maintain capacity, and the current level of fees in
Northumberland appears to have supported the development
of excess capacity. We believe that the models in use are
flawed we have raised this issue with
PriceWaterhouseCoopers, on the basis of our experience of
their model and that there are practical difficulties in
arriving at an objective picture of costs in a situation where
strong commercial interests are at stake. We also think that
some care home providers have managed to negotiate both
that local authorities should pay the true cost and that they

should continue to have the right to charge fees above this
figure to private payers.
Some provider costs are increasing, but this is a context of a
relatively high level of fees in Northumberland, and there is
scope for cost reductions to offset these increases.
There is evidence that has been brought to our attention that
there is excess capacity in Northumberland, and since it is
our objective to become better at supporting older people to
remain independent in their own homes, there is no reason to
think that additional capacity will be needed in the next
three years, and we need to be prepared to accept that some
homes may have to diversify what they offer, or close.
...
Overall, the Councils aim is to achieve the required savings
while minimising the impact on disabled people and where
possible making changes in ways which further promote
disabled peoples independence. We will continue to listen to
and consider all representations made by providers, but our
current view is that good quality services can be provided to
care home residents at lower cost than current fee levels in
Northumberland.
I have enclosed a copy of the new contract and details of new
fee rate on which we have been able to reach agreement with a
group of providers in Northumberland. I would very much
welcome other care homes signing up now as well as this
would help avoid any uncertainty for residents and their
families.
I hope this full explanation of our position is helpful. If you
have queries or comments about any points, please contact me,
either directly or through CNEN or any other organisation that
you wish to be represented by.
22. By e-mail on 12 March 2012 Ms Bowie contacted the Claimants and proposed a
meeting with them for the following week. Her evidence is that she was keen to
discuss the proposals that had been agreed with FSHC and to see whether further
progress could be made (witness statement, para 99). On 14 March 2012 she received
an e-mail from Mr Hunter asking for clarification of two points in relation to the
proposals, to which she responded. On 16 March 2012 she received an e-mail from
Mr Hunter enclosing a letter (C327) which stated:
Further to the CNEN meeting held on 15.3.12 where the new
contract (2012-2015) was reviewed.
There was a unanimous agreement that the fee proposal
contained within the summary and contract was unacceptable

and the providers have agreed to instruct legal advisers to
review both.
They did not accept the argument or premise put forward in
your letter, and I believe that further direct discussions with the
local authority will prove unfruitful until this review is
undertaken.
23. On 27 March 2012 Ms Bowie wrote a further letter to all care home providers in
Northumberland providing a further update in relation to contract negotiations:
As you know, I wrote to you last week enclosing a copy of the
new contract which we propose to introduce with effect from 1
April 2012, and explaining the reasoning behind its terms. I am
able to say that we have now received signed contracts back
from a further 9 care homes and are expecting signed contracts
from an additional 11 care homes who have verbally confirmed
acceptance of the offer, which would account in total for just
over 40% of registered places for older people in the county.

As things stand, however, I need to be clear that, with effect
from 1 April, the new contract which we have circulated to you
represents our usual terms and conditions for making
placements, and we do not expect to make new placements in
Northumberland outside the terms of this contract. If you have
not already done so, but intend to sign up to the new contract, I
would be grateful if you could confirm that as soon as you are
able as we will be taking steps to inform care managers about
which homes we are commissioning with shortly.
24. Thereafter on 16 April 2012 the Council met further with the Claimants (minutes at
C428-430) (by which time more than 70% of placements in Northumberland had
signed up to the contract terms proposed) and during the remainder of April and May
2012 discussions continued between the Council and Mr McArdle. At the meeting on
18 April 2012 Mr McArdle produced a set of management accounts. On 20 April
2012 Ms Bowie wrote to Mr Hunter (C433-434):
Following our meeting on Monday, we did take Mark
[McArdle] up on his offer to show us information about
differences in costs between Northumberland care homes and
homes in other areas and to consider the new proposal made by
the CNEN Committee, based on extending the inflation
provisions of the existing contract over the period from 2012 to
2015, with no commitment to re-run the
PriceWaterhouseCoopers true cost of care model.
Neil Bradley met with Mark on Wednesday morning. Neils
conclusion from the information which Mark showed him was
that the only specific local difference in running costs that was

apparent was that one of Helen McArdles three homes in the
county had unusually high staffing costs. These costs appeared
to be associated with high use of agency staff. Surprisingly, the
home concerned was not in one of the areas where, on the basis
of our knowledge of the local labour market, we would expect
recruitment to be more difficult and indeed was not in one of
the areas which we would expect to raise issues specific to
Northumberland. Other cost and profitability differences
between homes appeared to be associated with specific factors
not related to the local authority area in which homes are
located.
Our position, then, remains that we have not been presented
with any convincing evidence that operating a care home in
Northumberland is more expensive than doing so in other local
authority areas in the North East. Taking this together with the
other considerations mentioned in our letter to all care homes of
13 March, it remains our view that the contractual terms which
have now been accepted by more than 70% of care homes in
the County are reasonable. (Further homes have signed up
since we met updated statistics are attached).
Mr McArdle replied to this e-mail on 24 April 2012 (C437-441), which led to a
detailed letter in reply from Ms Bowie dated 30 April 2012 (C448-457). There was
further correspondence between Ms Bowie and Mr McArdle during May 2012.
The issues
25. There are four grounds of challenge. Ms Aileen McColgan, for the Claimants,
submits
i) That the Defendant failed to comply with its duties of consultation (Ground
1).
ii) That the Defendant had failed to inform itself of the costs to care home
operators of providing services before setting its rates (the usual cost), and
so acted contrary to the relevant guidance by:
a) failing to have regard to the actual costs of providing care, contrary to
the Circular;
b) placing itself in a position such that it is unable to demonstrate that its
usual cost for the purposes of paragraph 3(b) of the Directions is
sufficient to allow it to meet assessed care needs and to provide
residents with the level of care services that they could reasonably
expect to receive if the possibility of resident and third party
contributions did not exist, contrary to the Circular, para 3.3; and
c) failing to take into account, in setting fees, of the legitimate current
and future costs faced by providers as well as the factors that affect
those costs, contrary to Building Capacity, para 6.2. (Ground 2).

iii) That the Defendant acted irrationally and/or failed to take into account relevant
considerations in that it:
a) imposed efficiency savings on care home providers in respect of
Care Homes in Bands 1-3 without making any assessment of how those
efficiency savings might be generated;
b) assumed (if and to the extent that it purported to take account of the
actual costs of care in setting care home fees) that any inflationary rises
in the cost of care would be off-set by these efficiencies, which were
set at 0.5% in the first and second years of the contract, during which
the inflationary uplift for Band 1 homes was also set at 0.5% (thus
cancelling each other out); and
c) provided no inflationary uplift in the case of Band 2-4 homes
notwithstanding the inevitability of inflationary increases in costs over
the three years of the contract. (Ground 3).
iv) That, by refusing to make new placements with care home providers who have
not signed the contract terms issued in March 2012, the Defendant has abused
its dominant position in the market and acted contrary to paragraph 3 of the
Directions and the Circular. (Ground 4).
26. It became clear during the course of oral submissions made by Ms McColgan and Mr
Nigel Giffin QC, for the Defendant, that the principal issue in this case is whether the
Defendant failed to have due regard to the actual costs of providing care, contrary
to the Circular. I shall accordingly consider Ground 2 first.
Ground 2: allegation that the Council acted contrary to the relevant guidance
27. Ms McColgan submits that the Circular, statutory guidance, required the Defendant to
pay due regard to the actual cost of care provision in setting their usual cost. In
the absence of any understanding of that actual cost, she submits, the Defendant
cannot claim to have had due (or indeed any) regard to it as required by the Circular.
28. It is not the Claimants case that the Council was bound to follow the PWC model or
indeed any model. However it is said that the Defendant was bound to adopt some
means of determining the actual costs of care in order to put itself in a position to pay
due regard to those costs. In her oral submissions in reply Ms McColgan suggested
that the Council could have informed itself of the costs of care by conducting a survey
of a sample of providers as to the level of occupancy of beds, staffing costs, food
costs, maintenance costs and other relevant matters. Such a survey, she suggested,
would have enabled the Defendant to reach some figure as to the costs of care, which
it was required to do.
29. In support of this submission Ms McColgan relies upon the recent decision in R (on
the application of Redcar and Cleveland Independent Providers Association and
others) v Redcar and Cleveland Borough Council [2013] EWHC 4 (Admin). HH
Judge Gosnell said at para 56:

In my view, in order to have due regard to the actual costs of
providing care it is necessary first to determine what that cost
currently is, even if only a broad estimate or bracket is
calculable.
30. Ms McColgan submits that the Defendant erred in setting the fees from 2012 on the
basis of a benchmarking exercise by which it decided that the fees were relatively
high in Northumberland by comparison with those of other local authorities and
imposed a three-year contract designed to reduce in real terms the fees paid in respect
of care home provision in Northumberland without reference to considerations of
actual costs. Benchmarking, she submits, is an inadequate starting point for the
determination of actual costs. Some or all of the Councils against whose usual
costs the Defendant was comparing its own may have been under-paying care home
providers. The Defendant assumed from the fact that care homes in other regions did
not appear to be going out of business, that the fees paid elsewhere were sufficient.
Further the Defendants approach to benchmarking was selective, no regard being had
to the fact that Northumberland rates for EMI care were far from the highest in the
North East. Moreover the Defendant overlooked the fact that the relative proportion
of Band 3 and 4 Homes had increased at the expense of Band 2 Homes over the
period October 2009 to December 2011 (rising from 10.2% of the total to 28.2% of
the total), while fees had fallen in relative terms.
31. Ms McColgan notes there is no reference to the Guidance in the Defendants
contemporaneous documentation. The Defendants evidence, she suggests, indicates
that the Defendant failed to appreciate the obligations imposed by the statutory
guidance on decision-makers in the present context.
32. Mr Giffin submits that the way in which the Defendant reached its decision does
amount to having due regard to the actual cost of care; alternatively, to the extent that
what the Council has done does involve departure from the guidance, it acted
lawfully.
33. The Councils legal obligations in relation to the Circular are, in my view, clear. The
Circular is statutory guidance issued under s.7 of the 1970 Act. By s.7(1) local
authorities exercising their social services functions are required to:
act under the general guidance of the Secretary of State.
(See para 7 above).
In R v Islington LBC ex p Rixon (1998) 1 CCLR 119 at 123 Sedley J said:
Clearly guidance is less than direction, and the word general
emphasises the non-prescriptive nature of what is envisaged
In my judgment Parliament did not intend local authorities to
whom ministerial guidance was given to be free, having
considered it, to take it or leave it. Such a construction would
put this kind of statutory guidance on a par with the many
forms of non-statutory guidance issued by departments of state.
in my view Parliament by section 7(1) has required local
authorities to follow the path charted by the Secretary of States
guidance, with liberty to deviate from it where the local

authority judges on admissible grounds that there is good
reason to do so, but without freedom to take a substantially
different course.
34. In R (Forest Care Home Ltd) v Pembrokeshire CC (2011) 14 CCLR 103 at [29]
Hickinbottom J suggested that, since the local authority is the ultimate decision
maker, it must as a matter of principle be able to depart from guidance even
substantially if it had sufficiently compelling grounds for so doing. However, the
more the proposed deviation from guidance, the more compelling must be the grounds
for departure from it.
35. The purpose of the guidance in the Circular is summarised in the accompanying letter:
This guidance sets out what individuals should be able to
expect from the council that is responsible for funding their
care, subject to the individuals means, when arranging a care
home place for them. This guidance is intended to describe the
minimum of choice that councils should offer individuals.
Mr Giffin observes that the Circular is accordingly directed towards what local
authorities have to do for individuals in need of residential care; it is not about the
relationship between authorities and care home providers such as the Claimants. Mr
Giffin suggests that the characterisation of the guidance in the covering letter is borne
out by its contents. Paragraph 2.5 states that a council must arrange for care in an
individuals preferred accommodation subject to four considerations. One of these
considerations is cost which is dealt with in paragraphs 2.5.4-2.5.8. Paragraph 2.5.4
(see para 8 above) states that preferred accommodation should not require the council
to pay more than they would usually expect to pay, having regard to assessed needs
(the usual cost). That usual cost should be set at appropriate times, and there may
be a need for different usual costs for different groups. The single sentence in
paragraph 2.5.4 upon which the Claimants rely reads as follows:
In setting and reviewing their usual costs, councils should
have due regard to the actual costs of providing care and other
local factors.
36. That sentence must be read in its context. Mr Giffin submits, and I agree, that as such
it means no more than that, when determining what they are usually prepared to pay
for residential care, authorities should bear in mind, amongst other matters, the
providers need to recover their costs. Usual fee rates should not be set by authorities
without any consideration being had to the question of whether it is viable to provide
care at those rates. However, even if having due regard to the actual costs of
providing care should be understood as requiring a more specific consideration of
actual costs, the Circular does not require authorities to calculate or ascertain the
actual cost of care.
37. Mr Giffin referred to the decision in R (South West Care Homes Ltd) v Devon County
Council [2012] EWHC 1867 (Admin) in support of this submission. Two preliminary
points made by Singh J in that case at paragraphs 24 and 25 are noted by Mr Giffin.
First, provided that which it is legally relevant for the decision maker to know is
brought to its attention, it is generally for the decision maker to decide upon the

manner and intensity of the inquiry to be undertaken into any relevant factor (see R
(on the application of Bevan and Clark LLP and Ors) v Neath Port Talbot BC [2012]
EWHC 236 (Admin), at paragraph 56 (Beatson J)). Second, the weight to be given to
a relevant factor is for the decision maker and not for the court in the absence of
irrationality. Turning to the facts of the case, Singh J expressed himself satisfied on
the evidence before the court that the defendant did have due regard to the actual costs
of providing care. Mr Giffin submits that what that case (see paras 27-33 of the
judgment) and the present case have in common is that the authority took account of
actual care costs, not by an exercise in precise quantification, but by exercising its
judgment and experience in the light of how the market was functioning in practice,
and what it knew about fees being paid and costs incurred elsewhere. Although South
West Care Homes was cited in Redcar (see para 61), it is not referred to in the
discussion of what it means to have regard to the actual costs of care. I agree with the
approach of Singh J in South West Care Homes on this issue.
38. Ms Bowie was authorised by the Council to make decisions in relation to the 2012
contract (witness statement, para 30). She has extensive experience in the adult care
sector. She has previously and whilst working in Northumberland had responsibilities
for running care services including care homes for older people and has an
understanding of the costs involved (witness statement, para 2).
39. At paragraphs 30-44 of her witness statement she sets out the background to the
consultation in relation to the 2012 contract. She states (para 32):
It was a prime objective for me to be satisfied that the fees
paid by the Council to the care home providers would be
sufficient to cover the costs of providing care in homes
operating at reasonable levels of occupancy, although it was not
the intention to subsidise over-capacity or incentivise the
development of further excess capacity.
40. Ms Bowie identifies four particular matters which she states it is important to
emphasise in understanding the Councils approach to the negotiations and its
eventual decision. First, throughout the operation of the 2009 Contract, the Council
had been aware that the base fee it paid to care home operators since 2004 was
significantly higher than fees paid by other local authorities to care home operators.
This disparity had been generated by the use of the PWC Model in negotiating the
terms of the 2005 Contract. She had no reason to believe that the lower fees payable
in other areas were insufficient to meet the cost of a sustainable care home sector.
Second, the Council faced highly unusual and extreme budgetary conditions, and had
to have the need to make savings in mind when negotiating contracts in a variety of
different sectors, including adult care. Third, it was apparent that the Councils
existing fee rates were leading to over capacity in the market. At paragraph 38 of her
witness statement she states:
There had been and continued to be substantial investment by
providers in new care homes in Northumberland, despite the
fact that the number of local authority placements in care
homes was no longer growing, because of the increasing
emphasis on supporting people to live independently. We
monitor occupancy rates regularly by contacting all care

homes. I understand from documents prepared at the time
when the PWC model was run in 2004 that the overall vacancy
rate in care homes in Northumberland was then 6%. In the
autumn of 2011 it was averaging around 12% and has since
increased further, and has been around 13% in the months since
April 2012. Well managed care homes should aim for vacancy
rates of no more than 5%, that being a level which allows
sufficient flexibility in relation to new placements. In October
2011, there were 20 care homes (out of 81) operating with
vacancy levels of more than 20%. It seemed clear to me and
the Council that these care homes must have been able to
continue to operate at low capacity levels due to the significant
profits generated by the existing fee levels.
41. Fourth, for the reasons already mentioned, and following further discussions which
she had with Mr Bradley the Council remained reluctant to run the PWC Model (or its
like) in the course of negotiating the 2012 Contract.
42. At paragraph 44 of her witness statement Ms Bowie makes clear that, when at various
points in the negotiations the word efficiencies was used to describe reductions in
the real level of fees to be paid by the Council to care homes,
this term was not intended only to refer narrowly to technical
efficiencies such as increased productivity, but also covered
more broadly all of the ways in which providers could
accommodate to reduced fees, including increasing their
occupancy rates, removing cross-subsidies to other areas of
their businesses and accepting reductions in their profit
margins.
43. At paragraph 57 of her witness statement Ms Bowie says that she anticipated that, if
costs had significantly risen since negotiating the 2009 Contract beyond what had
been provided for in the inflator applied to fees under that contract, and proposals
were insufficient to adequately cover the cost of care, care home providers would tell
the Council about that and produce evidence in support. They were aware of the
actual costs associated with running a care home and providing care, and if the
Councils proposed fees were unrealistic, she was of the view that the care home
providers were best placed to inform the Council of this. The Council did consider
management accounts of care homes to the limited extent that the Claimants were
willing to allow this. Mr Bradley in his witness statement at paragraphs 36-44 refers
to a meeting between the Council and the Claimants on 16 April 2012 when Mr
McArdle offered to allow the Council access to evidence as to why placements cost
more in Northumberland than elsewhere. Mr Bradley met with Mr McArdle at his
offices on 18 April 2012. At the meeting Mr McArdle produced a set of management
accounts for all of his care homes including the three care homes he operates in
Northumberland. The accounts confirmed that two of the homes were generating a
significant level of profit per bed per month, however the profit for the third home
was generating a lower profit. It was clear to Mr Bradley, from a consideration of the
contents of the management accounts, that the third home had significantly higher
staffing costs than the other two homes. Mr Bradley does not accept that the nature of

the Councils area is such that care homes operating within it are intrinsically likely to
have materially higher costs.
44. Further evidence which shows that account was taken by the Defendant of care costs
is that the Council was informed by the position of those providers with whom it was
able to reach agreement. Four Seasons Health Care, a major provider which
accounted by itself for 19% of placements in the county, indicated before it reached
agreement with the Council that it was having the proposals considered by its finance
team to ensure that they would adequately cover the costs of providing care and
achieve an acceptable profit margin. (See witness statement of Ms Bowie at paras 85,
87 and 92; and Mr Bradleys witness statement at para 45). Another provider with
whom the Council reached agreement was HC1. During the course of negotiations
HC1 shared with the Council a spreadsheet setting out their costs of providing care.
Mr Bradley at paragraph 46 of his witness statement states that he considered this
document in detail together with the Councils proposed fees under the 2012 Contract:
The figures contained within the spreadsheet provided strong
evidence that the fees proposed under the 2012 Contract were
sufficient to cover the costs of care and indeed could still be
argued to be generous in terms of a fee level if providers could
maintain high levels of occupancy within their homes. It
was clear that with the current fee structure occupancy would
have to fall to quite low levels in most cases before homes
could be at risk. This again reinforced our belief that the
market could cope with static or even reduced fees from those
currently in place.
45. At paragraph 43 of her witness statement Ms Bowie states:
I knew that as we entered into a process of negotiation, if
any efficiencies proposed would mean that fees were
inadequate to meet the costs of care, care home providers
would be unlikely willingly to sign up to contract on those
terms. Ifa large number of providers were to sign up
rapidly and without accompanying representations, this would
constitute good evidence that the fees proposed were adequate
to meet care provision costs.
Ms McColgan makes the point by reference to the evidence of Mr Hunter (B5) and
Mr Gibson, the Business Development Director for Executive Care Group Ltd, that
some providers would not have the economic option of refusing to sign the Councils
new contract (B126). However the fact is the Council reached agreement with
providers representing 20% of beds in the county before it made its offer of 12 March
2012; that total rose to over 40% before the Council decided to set the offered rate as
its usual rate without protest from providers about the terms; and by 5 April 2012
providers representing 70% of placements had signed up to the proposed contract,
which Ms Bowie states at paragraph 105 of her witness statement
did not suggest that the fees proposed were insufficient to
cover the cost of care. They had not done so under protest or

after prolonged delays suggesting that they felt they had no
choice, but quickly and readily.
46. In conclusion, I am entirely satisfied that the Council did have due regard to the actual
costs of care as required by the Circular.
47. As for Building Capacity, the key statement on which the Claimants rely, is that:
Fee setting must take into account the legitimate current and
future costs faced by providers as well as the factors that affect
those costs, and the potential for improved performance and
more cost effective ways of working. (See para 10 above).
Mr Giffin accepts that this statement is somewhat more explicit than anything in the
Circular, and clearly issues such as the present are the true subject matter of Building
Capacity. However the guidance is not prescriptive as to how fee setting ought to
take costs and the factors affecting them into account.
48. In R (Khatun and others) v Newham LBC [2005] QB 37 the court was considering the
Housing Act 1996, part VII, section 182 which provides:
(1) In the exercise of their functions relating to homelessness
and the prevention of homelessness, a local housing authority
or social services authority shall have regard to such guidance
as may from time to time be given by the Secretary of State.
In respect of the guidance that was given by the Secretary of State, Laws LJ stated at
paragraph 47:
Although the guidance is provided for by statute and housing
authorities are obliged by section 182 of the 1996 Act to have
regard to it, it is not a source of law. Respondents to such
[guidance] must (a) take it into account and (b) if they decide to
depart from it, given clear reasons for doing so.
49. Building Capacity is non-statutory guidance. Plainly therefore the Council was
obliged to do no more than that.
50. The Council did have regard to Building Capacity. That is not in issue. Building
Capacity was issued in October 2001. In its letter of 12 March 2012 (see para 12
above) the Council recognised that it might be said to be departing from the guidance.
Ms Bowie wrote:
The Council has considered carefully the relevance of
Building Capacity to its decisions. It believes that this
document reflects the position at a particular time, when
circumstances and national policy were different. For instance
it gives advice in favour of block contracts and long term
commitments by councils on the level of services they will be
buying, which is clearly inconsistent with current national
policy on personalisation and self-directed support. In addition,

the introduction to Building Capacity includes the following
statement:
The Government also recognises that the successful
operation of this agreement will, amongst other things,
depend on an adequate level of resourcing to achieve the
right level of service. The Government is providing
significant additional resources for social services. Funding
has increased by over 16% in real terms since 1996/7 and
will increase by an average of 3.4% per annum in real terms
over the next two years.
The Councils view is therefore that Building Capacity is
advice issued at a time when both policy and public sector
finances were different, and that, while it still has some value
as a source of advice, it is now reasonable to depart from its
advice, or at least from the way in which the County Council
and other interpreted that advice in the last decade.
51. Mr Bradley makes the point at paragraph 21 of his witness statement that, in line with
current national policy, the Councils general view is that the majority of older people
wish to stay at home for as long as possible, and the Councils aim is to find ways in
which to support them to do so. This will in turn reduce the need for capacity in care
homes. That being so the Council was, Mr Giffin submits, under no obligation to
base its decision upon specific data about existing costs, when what was really
required was a judgment about how far prices could be held down consistently with
returning the market to a more appropriate level of capacity.
52. Mr Bradley in his witness statement at paragraphs 14-23 explains the deficiencies in
the PWC Model and other models such as those developed by Ernst & Young, and
Laing & Buisson. He concluded (at para 23) that:
the underlying issue is that, even with tweaks in
methodology we believe that any model which is based on
surveying current costs at a specific point in time and setting
fees which attempt to capture the variations between types of
homes at that time is flawed. This is because it fails to
recognise the dynamic interaction between local authority fee
rates, the construction of new homes, and changes in cost. In
my view, it was important for us to break out of what was
becoming a cycle of increasing costs and increasing
expenditure for a type of service which is not what the majority
of older people want.
53. In my view the Council was entitled to depart from Building Capacity for the reasons
given. The guidance was taken into account, and clear reasons were given by the
Council for departing, in so far as it did, from it. The reasons given for the departure
are plainly rational.
54. As noted (see para 31 above) there is no express reference to the Circular in the
contemporaneous documentation. The first reference in the Defendants

documentation to the Circular is in a memo of 3 July 2012, written after Mr McArdle
had drawn Ms Bowies attention to it by a letter dated 24 April 2012. This was after
the decision under challenge had been taken. However Ms Bowie states at paragraph
58 of her witness statement, with regard to the Circular:
I was conscious of its contents at the time at which the
2012 Contract negotiations were taking place. I have worked
in the adult care sector for a number of years, and the 2004
Circular is part of the statutory framework from which I
work.
It is not suggested that the contents of the Circular, and in particular the critical words
in paragraph 2.5.4 (due regard to the actual costs of providing care) add anything to
Building Capacity. In my view the reasons which justified departure from Building
Capacity would have amounted to a good reason (see paras 50-53 above) for
deviating from the Circular. In fact, as I have found, the Council did have due regard
to the actual costs of providing care and other local factors, as the Circular required.
Ground 3: that the Defendant acted irrationally and/or failed to take into account
relevant considerations
55. Ms McColgan submits that the Defendant arbitrarily concluded that savings of
particular magnitudes were possible in 2012-13 and subsequent years and imposed
these savings on care home providers, with the result of freezing fees for a period of
years after the initial reduction (this after a freeze in fees since 2009-10) in the case of
Band 1 homes, and reducing them in the case of Band 2 and 3 homes (on which
efficiency savings were imposed without any inflationary uplifts at all).
56. It is said that the true reason (see Claimants skeleton argument, para 89) for the
Defendants categorisation of reductions in fees as efficiency savings appears from
para 1.12 of the Councils briefing note dated 24 November 2011:
It is very doubtful whether a simple freezing of fee rates
would be upheld by the courts as reasonable if challenged,
though it is possible that agreement could be reached on a more
sophisticated approach which restrains cost pressures,
particularly given the relatively high fees paid by the Council.
Since care home fees are a substantial element in the adult care
budget, payment of inflation in full, without any offsetting
changes to other terms, would involved a seven-figure cost to
the Council.
57. The briefing note, as Mr Giffin observes, simply suggested (rightly or wrongly) that
merely to freeze rates was unlikely to be upheld as reasonable, and that agreement
might be reached on a more sophisticated approach. That is what the Council sought
to do; it proposed different treatment of homes in different bands at different stages of
the contract, and negotiated with providers about that.
58. In considering this ground of complaint I bear in mind the preliminary observations of
Beatson J in R (on the application of Bevan & Clark LLP and others) v Neath Port
Talbot County Borough Council [2012] EWHC 236 (Admin) at para [58]:

a judicial review court will be particularly circumspect in
engaging with the conclusions of the primary decision-maker in
relation to complex economic and technical questions.
The setting of normal fee rates for the provision of residential care is a matter
involving economic and financial assessment, a degree of expertise in how the sector
operates, and judgment about the proper allocation of scarce resources.
59. In my view there can be no proper criticism of the Defendants approach to
efficiency savings, as that term is used and explained by Ms Bowie (see para 42
above). Further at paragraph 27 of her witness statement she states:
the overall level of fees was in fact still substantially higher
than needed to cover reasonable costs, and the development of
the market in the period since 2009 has confirmed that.
At paragraph 62 of her witness statement Ms Bowie states that she considered that
significant efficiencies could be realised, much higher than those actually proposed.
She continues:
The level of the efficiencies we proposed was low, and was
front-loaded in order to reflect increased costs that care home
providers may suffer, year on year over the course of the
contract period, for example as a result of inflation or national
minimum wage rises.
60. In my view the whole issue of efficiency savings is one that involves the exercise of
judgment, in this case, by individuals with substantial experience of the residential
care sector. Ms Bowie and Mr Bradley were plainly entitled on the evidence to take
the view that they did on deficiencies in the PWC model, occupancy levels and
efficiency savings (see para 40 above).
61. At paragraphs 33-35 of his witness statement Mr Bradley comments on the
consultation process with the Claimants. During the course of the consultation
process the Claimant stated that the fees proposed by the Council did not take account
of the fact that various costs would rise throughout the course of the 2012 contract.
Mr Bradley refers to the e-mail from Mr Hunter dated 26 January 2012 which
contained information as to anticipated cost increases between 2012 and 2015 and
contained figures, inter alia, as to expected inflation and interest rates. Having
considered the information Mr Bradley did not disagree that it was reasonable to
suppose that the real costs of delivering care would rise throughout the course of the
2012 contract. However in his view that simply begged the question whether the
current prices were already sufficient to cover both the current and the increased
costs. He considered that
based on the evidence of the way in which the market had
been operating in Northumberland, comparable rates elsewhere
and the continued operation of Band 4 care homes, there were
strong reasons to believe that the base fees proposed by the
Council were more than adequate to cover the cost of care, and
were high enough to account for the anticipated cost increases

that care home providers would face over the course of the
2012 Contract.
62. In my view the Council did have regard to relevant considerations, and reached a
conclusion that was well within the ambit of its legitimate judgment.
Ground 1: that the Defendant failed to comply with its duties of consultation
63. This is not a case where there was no consultation. In fact, as is clear from the
contemporaneous documentation and the witness statements, there was a considerable
amount of consultation between October 2011 and March 2012 (see paras 12 to 23
above). During the course of the hearing it became clear that the Claimants real
complaint in relation to consultation is that it should have been directed to assessing
the actual costs of care. The obligation to consult requires consultation when the
proposals are still at a formative stage. There was no such consultation, it is said,
with regard to assessing actual costs.
64. Ms McColgan observed, Ground 3 does not add a huge amount to Ground 2.
Basically it is a complaint that flows from the alleged failure by the Defendant to
quantify actual costs.
65. However, for the reasons I have stated, the Defendant was not required to quantify
costs in the way contended for by the Claimants. That being so, the absence of a
quantification of costs could not invalidate the consultation process. The Claimants
could have requested a quantification of actual costs, but they did not do so.
66. There was consultation, in my view, when the proposals were at a formative stage.
There is some confusion in the evidence as to when the final decision was taken. By a
letter dated 11 May 2012 Hempsons, the Defendants then solicitors, wrote to the
Claimants solicitors:
We can confirm that the consultation regarding the setting of
care home fees has concluded. The conclusion of this was
communicated to all providers by way of letter dated [12]
March 2012, enclosing the new contract, together with an
explanation of the process followed in setting the new rates.
You may treat this as the date that a final decision was
reached by the Commissioners.
This is in fact not correct. The letter of 12 March 2012 contains an offer in the terms
set out in the enclosed contract and indicates a predisposition to those terms. After 12
March 2012 there was further consultation (see para 22 above). The letter of 27
March 2012 sets the fees in the contract already circulated as the Councils usual
rates, and the letter confirmed that the Council did not expect to make placements
from 1 April 2012 with homes which had not accepted these terms. That letter
evidences a final decision.
67. However whether the date of the final decision be 12 or 27 March 2012 matters not.
What is important is that on the evidence proper consultation occurred when the
proposals were at a formative stage.

68. Any suggestion, if it be made, that the consultation on the part of the Defendant was
not genuine or that the Defendants corporate ears were shut to the Claimants
attempts to engage with it on the cost of care provision in Northumberland
(Claimants skeleton argument, para 40) is not tenable. It is clear from the evidence
that the Defendant engaged genuinely and properly in the consultation process.
Ground 4: challenge to Defendants refusal to contract with providers unless they agree
the contract terms issued in March 2012
69. The Claimants contend that the Defendant has abused its dominant position in the
market and acted contrary to paragraph 3 of the Directions. Paragraph 3(d) of the
Directions state:
(d) the persons in charge of the preferred accommodation
provide it subject to the authoritys usual terms and conditions,
having regard to the nature of the accommodation, for
providing accommodation for such a person under Part III of
the National Assistance Act 1948.
70. Ms McColgan submits that the Defendant is not entitled effectively to exclude care
home operators from a list of preferred providers, with placements to be made only in
exceptional circumstances personally approved by Ms Bowie, on the sole basis that
such operators have declined to sign a contract in respect of which they are in dispute.
The Claimant disavows any suggestion that the Defendant cannot impose its own
usual terms and conditions on private contractors pursuant to paragraph 3(d), or that
care providers could insist on being paid any particular fee by the Defendant. What, it
is said, is being challenged is the maintenance of a closed list of providers in whose
homes the Defendant is willing to place funded residents, that list being drawn up on
the terms of providers willingness to sign up to (rather than to accept in particular
cases) the Defendants rates (see Claimants skeleton argument, para 101; and
Circular, paras 2.5.4, 2.5.16-17 and 6.1).
71. However, Mr Giffin has confirmed that the Defendant does not maintain a closed list
of providers in whose homes it is willing to place funded residents. The Defendant is
required under the Directions to comply with any individuals preference as to a care
home which will provide care for no more than its usual costs and on its usual terms
and conditions. The point about signing the contract is that it contains the
Defendants usual rates and terms and conditions. The Directions do not oblige the
Defendant to place an individual with a particular operator.
72. The Defendant has set its usual rates for care and its normal terms and conditions, and
its policy is that it would not normally place individuals at homes that do not accept
those rates and those terms and conditions. There is nothing irrational about that
approach. Indeed that is the approach that the Directions contemplate, when they say,
in effect, that those are the circumstances in which the individual cannot insist on a
placement in such a home.
73. However the Council could not and has not excluded the possibility of making a
placement on different terms in a case that is not usual.
74. At paragraph 7 of her witness statement Ms Bowie states:

The practical effect of paragraph 3(b) of the Directions is
that, if a local authority decides to discharge its duty to provide
accommodation in premises provided by a third party, it has to
identify the rates that it will usually expect to pay for such
accommodation. The Directions do not mean, however, that a
local authority is entitled to impose a blanket prohibition on
placing prospective residents in accommodation which costs
more than the usual cost. The fee arrangements which an
authority may have with providers is not finally determinative
of where a person may be placed.
75. Mr Giffin observes that there may be cases where a local authority has to make a
placement because otherwise it could not cater for the individuals needs or there may
be a case where strong compassionate grounds require it to use a particular care home.
76. The Claimants do not allege that in any individual case the Defendant has acted
unlawfully.
77. In my judgment the allegation of abuse of dominant position and that the Defendant
has acted in breach of the Directions and the Circular is not made out.
Conclusion
78. For the reasons I have given this claim fails.

Case No: CO/13267/2010
ADMINISTRATIVE COURT


Date: 08/03/2013

Before :

THE HON. MR JUSTICE MALES
- - - - - - - - - - - - - - - - - - - - -
Between :

The Queen on the application of X Claimant
- and -
London Borough of Tower Hamlets Defendant

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Miss Fiona Scolding (instructed by Ridley and Hall Solicitors) for the Claimant
Mr Kelvin Rutledge (instructed by London Borough of Tower Hamlets) for the Defendant

Hearing dates: 19
th
& 20
th
February 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Males :

Introduction
1. The claimant in this case is one of the unsung heroines of our society. Since August
2009 she has been the carer for, and since February 2011 the registered foster mother
of, three damaged and difficult children. The childrens parents both have learning
difficulties. Their mother has problems with drugs and alcohol. Their father has
schizophrenia and is currently in a mental hospital. The children (who have three
other siblings with whom this case is not concerned) experienced severe neglect from
a young age. The eldest child, now aged 15, has learning difficulties, speech and
language difficulties, and poorly developed social skills. She is emotionally very
immature and has had thoughts of suicide. She has nocturnal eneuresis. She is
currently under psychiatric care because she says that she hears voices. The middle
child, aged 14, has autism and Tourettes syndrome, with severe emotional
difficulties, compulsive behaviour and a history of self harm. He has learning
difficulties, speech and language problems, and features of ADHD. When he first
arrived in the claimants care he was doubly incontinent, self harming, dribbled and
spat constantly, and was very destructive of furniture and other objects. He still has
problems controlling his continence. The youngest child, aged 7, has ADHD and
autism and severe development delay, as well as asthma and a squint. Upon
placement with the claimant he required constant supervision (including at night when
he would wake up frequently, as he still does). He had tantrums and could behave
Judgment Approved by the court for handing down. X v. London Borough of Tower Hamlets

violently. His behaviour at school still includes attacks on other children and members
of staff. He too suffers from nocturnal eneuresis.
2. In 2007, after a lengthy period when social services had been involved with the
family, the children were removed from the parental home in the London borough
where they lived and were placed with foster carers. However, three separate
placements each broke down as the carers could not cope. For a while the children
lived separately from each other as no foster carer could be found to manage all three
of them together. Eventually the local authority approached the claimant, the
children's aunt, and asked if she would consider caring for them. She agreed to do so,
although this involved giving up her job as an art restorer, which gave her financial
independence and which she enjoyed, moving (at the local authority's request) to a
bigger house in a semi rural area out of London (which posed its own problems, as the
claimant is blind in one eye and cannot drive) and becoming dependent on state
benefits.
3. In February 2011 the claimant was formally approved as a foster carer for the
children. This required her to satisfy a number of stringent requirements, which many
relatives caring for children would not be able to do. There are in fact only a dozen or
so registered family foster carers
1
currently caring for children looked after by this
particular local authority. The panel which approved the claimant as a foster carer
observed that it was highly unusual for three such complex children to be placed with
a single foster carer, and that it was only permissible in this case because the
alternative was to split up the family and because of the dedication of the claimant.
4. The children's most recent LAC (looked after child) reviews make clear that the
claimant has provided an excellent standard of care and commitment to the children
which it would be difficult (and, I add, which it did in fact prove to be impossible) to
replicate elsewhere. These are extremely demanding and exhausting children and the
emotional, physical and financial cost of caring for them is high, but the claimant has
provided them with a safe and secure environment in which to grow up and has
brought a measure of calm and stability to their lives. Despite their continuing and
very significant problems, the children are now happy and settled in a way which
would otherwise have been impossible. Indeed, the difficulty of providing any
alternative and the extent of the burden undertaken by the claimant can be
demonstrated further from the fact that although the local authority was willing to pay
for respite care, for some two years it was impossible to find anybody willing to care
for the children while the claimant had a break from them. This only became possible
in about October 2012.
5. As the foster carer for the children, the claimant receives an allowance from the local
authority, which is the local authority responsible for them. However, because it is the
policy of this particular local authority to pay less (save in exceptional circumstances)
to family foster carers than it pays to unrelated foster carers, the claimant receives less
money from the local authority than she would if she were not the children's aunt.
2

6. In these proceedings the claimant contends that the differential treatment of family
foster carers on the one hand and unrelated foster carers on the other is unlawful, both
as a matter of domestic law applying ordinary principles of public law and because it
constitutes unlawful discrimination contrary to Article 14 (read with Article 8) of the
European Convention on Human Rights. She contends also that the local authoritys

failure to pay her an enhancement to the weekly allowance, in circumstances where
she appears to qualify for such an enhancement in accordance with the council's
policy on "exceptional circumstances", demonstrates that the council has unduly
fettered its discretion in the application of that policy.
7. Accordingly, there are three main issues for decision.
a. Are the local authoritys policies on the payment of fees and/or allowances to
foster carers unlawful/irrational in so far as they provide for different payments to
be made to family foster carers on the one hand and unrelated foster carers on the
other?
b. Do such policies constitute unlawful discrimination contrary to Article 14 of the
Convention?
c. Has the local authority unlawfully fettered its discretion in the application of its
policy on the payment of enhanced allowances to family foster carers in
exceptional circumstances"?
8. The first two of these issues are issues of principle which do not depend on the
particular circumstances of the claimant. I do not doubt that the allowance which the
claimant receives, together with the other benefits to which she is entitled, both on her
own account and on account of the children, leave her struggling to make ends meet
and that she makes this claim with the interests of the children at heart. I accept also
that, in view of their problems and resulting behaviour, the cost of caring for these
children is particularly high, not least in practical terms such as expenditure on
bedding and furniture. However, the first two issues are about whether the differential
treatment of family and unrelated foster carers is lawful in principle.
9. From this two consequences follow. The first is that although it may be that the
claimant (whose circumstances I have very briefly outlined above) is as deserving a
claimant as one could imagine, the issues of principle to which this claim gives rise
would apply equally to a family foster carer who was comfortably off and had no
need of any additional allowance. The second is that the challenge to the local
authoritys policies does not involve any contention that it is in breach of its statutory
duty to meet the needs of the children in its care or any consideration of what those
needs are. That is a consideration in the context of the third issue, which is specific to
the claimants financial circumstances, but the first two issues are concerned only
with whether it is unlawful for the local authority to pay less to family foster carers
than it pays to others, even on the assumption that what it pays to family foster carers
is sufficient to meet the needs of the children concerned. Thus, as Ms Fiona Scolding
for the claimant accepts, these two grounds of challenge to the policies would fall
away if the local authority simply reduced the payments made to unrelated foster
carers to the same level as it pays to family foster carers, although that would not
benefit the claimant and (because of its impact on the local authoritys ability to
recruit and retain unrelated foster carers) could prejudice the interests of children
generally. To put it crudely, perhaps, the claimant's challenge to the policies is not
that she is not paid enough to enable the children's needs to be met, but that unrelated
foster carers must not be paid more than family foster carers are paid.

The legislation
10. The starting point when any question arises as to the upbringing of a child is the
welfare principle contained in section 1 of the Children Act 1989, amplified in the
case of children in need by the duty imposed on local authorities by section 17 to
safeguard and promote the welfare of children by providing accommodation and other
services. More specifically, the duties of local authorities in relation to children
looked after by them (which includes children in care such as the children in this
case) are set out in section 22 and following. Section 22C (inserted with effect from 1
September 2009 by the Children and Young Persons Act 2008) requires a local
authority which is unable to arrange for such a child to live with one or both of its
parents to arrange "the most appropriate placement available and prescribes that in
determining what is most appropriate, preference is to be given (other things being
equal) is to a placement with an individual who is a relative, friend or other person
connected with the child and who is also a local authority foster parent over any other
arrangement, including a placement with some other local authority foster parent or a
registered children's home.
11. Section 22C(10) and (11) provide:
(10) The local authority may determine

(b) the terms on which they place [a looked after child] with a
local authority foster parent (including terms as to payment but
subject to any order made under section 49 of the Children Act
2004).
(11) The appropriate national authority may make regulations
for, and in connection with, the purposes of this section.
12. Section 49 of the Children Act 2004 came into force on 15 January 2005. It provides:
The appropriate person may by order make provision as to the
payments to be made
(a) by a local authority in England to a local authority foster
parent with whom any child is placed by that authority
13. In England the appropriate national authority" and "the appropriate person" is the
relevant Secretary of State. So far no order has been made under section 49 of the
2004 Act. There was some debate before me whether section 49 of the 2004 Act
would enable the Secretary of State to prescribe that the payments made to family
foster carers by local authorities should be the same as those made to unrelated foster
carers. I am inclined to think that the section is in sufficiently broad terms to enable
this to be done. However, whether or not that is right, section 22C(11) of the 1989 Act
clearly includes a power to make such a regulation if the Secretary of State sees fit to
do so. The Fostering Services (England) Regulations 2011 have been issued under
section 22C(11) of the 1989 Act, but these Regulations do not address that question.
They do provide, by paragraph 27 and Schedule 5, for a written foster care agreement

to be entered into between fostering service providers and approved foster parents
(which would include both family and unrelated foster carers), but such agreements
need not say anything about payment, a subject which is not mentioned in the
Regulations.
14. It follows that the Secretary of State has power to order by means of secondary
legislation, which would be binding on local authorities, that family and unrelated
foster carers should receive the same money payments, but no such order has been
made.
The statutory guidance
15. Instead statutory guidance has been issued under section 7 of the Local Authorities
Social Services Act 1970 (LASSA 1970). This provides that:
Local authorities shall, in the exercise of their social services
functions, including the exercise of any discretion conferred by
any relevant enactment, act under the general guidance of the
Secretary of State.
16. The relevant guidance issued pursuant to this section by the Department for Education
is entitled Family and Friends Care: Statutory Guidance for Local Authorities
(which, because of its rather cumbersome title, I shall call "the Family Care
Guidance). It is dated January 2011 and is addressed to those employed by local
authorities and involved in childrens services. It is described as setting out a
framework for the provision of support to family and friends carers which, in
particular, provides guidance on the implementation of the duties in the Children Act
1989 in respect of children and young people who, because they are unable to live
with their parents, are being brought up by members of their extended families,
friends or other people who are connected with them. The guidance estimates that
although up to 300,000 children in England are cared for full-time by a relative,
friend, or other person previously connected with the child, as at 31 March 2010 there
were 7,200 children placed with family members and friends who had been approved
as their foster carers.
17. The status of this guidance is described in paragraph 1.5:
Status of the guidance
This guidance applies in relation to England only. It is issued
under section 7 of the Local Authority Social Services Act
1970 which requires local authorities in exercising their social
services functions to act under the general guidance of the
Secretary of State. Such guidance should be complied with by
local authorities when exercising these functions, unless local
circumstances indicate exceptional reasons that justify a
variation. It is also issued under section 10 of the Children Act
2004. Local authorities and health partners/agencies in England
must have regard to it when exercising their functions under
that section.

18. I consider at [27] to [35] below the status of this guidance as a matter of law and the
extent to which local authorities are obliged to comply with it, including whether it
must be complied with "unless local circumstances indicate exceptional reasons that
justify a variation. For the moment I would observe that this is a question of law and
that the guidance cannot confer upon itself a greater legal force than it would
otherwise have merely by saying so.
19. Chapter 4 of the guidance, headed The Local Policy Requirement, requires each
local authority to publish a policy setting out its approach towards promoting and
supporting the needs of children living with family and friends carers (see paragraph
4.2). Paragraph 4 .3 provides that:
Whilst the detail of the policy is a matter for local
determination within the length and extent of legislation and
statutory guidance, it must address the matters outlined in the
rest of this chapter.
20. Those matters include a section beginning at paragraph 4.43, headed Family and
friends foster carers, which state the following principles:
4.44 Fostering services must deliver services in a way
which ensures that family and friends foster carers are fully
supported to care for children placed with them and are not
disadvantaged as a result of their prior relationship with the
child. This includes access to training to support them in their
role. Family and friends foster carers may benefit from some
services being delivered in a different way, but there should be
equity of provision and entitlement. It is not acceptable to
discriminate against foster carers on the basis that they have a
pre-existing connection with the child they are fostering.
4.45 Fostering services should ensure that all foster carers are
equipped with the knowledge and skills to meet the care needs
of children placed with them, and to achieve at least the
minimum level of knowledge and skills outlined in the
Childrens Workforce Development Councils (CWDCs)
Training, Support and Development (TSD) Standards. Given
that the TSD Standards are designed to equip foster carers with
the knowledge and skills to provide an acceptable level of care
to the children they look after, it is in the interests of the
children that they should be achieved by all foster carers. In
recognition of the fact that the context of family and friends
foster care differs from other types of foster care, family and
friends foster carers will work towards an amended set of
standards and are given additional time to demonstrate
achievement of standards.
4.47 Once approved as foster carers, the extent to which family
and friends carers wish to be involved in training and formal
support varies greatly. An authority should consider how
training and support can be delivered to family and friends

foster carers in a way which recognises their particular
circumstances, needs and perspectives, helps them to
understand the relevance and importance of participating in
learning and development and makes it as easy as possible for
them to engage. There may be benefits to incorporating training
into support groups or providing specific training for family
and friends carers. Evidence of learning and development may
be available through the family and parenting support offered
to family and friends carers.
4.48 The National Minimum Standards for Fostering Services
cover fostering services responsibilities with respect to all their
foster carers, including those who are family and friends.
Fostering services must deliver services in a way which ensures
that family and friends foster carers are fully supported to care
for children placed with them and are not disadvantaged as a
result of their prior relationship with the child.
4.49 Fostering allowances to foster carers must be sufficient to
meet the cost to the carer of caring for the child and should be
at least the minimum set annually by the Department for
Education. The allowances paid by fostering services must be
calculated for family and friends foster carers on the same basis
as for all other foster carers, and any variation should relate to
the childs needs, the skills of the carer or some other relevant
factor that is used as a criterion for all of the services foster
carers.
4.50 A judicial review of Manchester City Councils policy on
payments of allowances to family and friends foster carers in
2001 (the Manchester City Council judgment) came about
because foster carers who were relatives of the children they
were caring for were paid significantly less allowance than
non-relative carers. The court held that it was unlawful to
discriminate against family and friends carers by paying them a
lower allowance than non-relative foster carers. There is no
requirement to pay a fee to reward the carers time, skills,
commitment etc in addition to the allowance. Where a fee is
paid, it must be payable to those foster carers who meet the
criteria set out for the scheme, including foster carers who are
family or friends.
21. The case referred to in paragraph 4.50 of the guidance is R (L) v. Manchester City
Council [2001] EWHC 707 (Admin), [2002] 1 FLR 42, a decision of Munby J which
I consider further at [61] to [66] below.
22. The guidance includes, at Annex B, a summary of research evidence from 2008 and
2009 which referred to some of the difficulties faced by family foster carers, and
which concluded that in some respects such carers were significantly more
disadvantaged than unrelated foster carers, with 27% of them being lone carers, 31%

having a disability or chronic illness, 35% living in overcrowded conditions, and 75%
experiencing financial hardship.
23. Further guidance issued under section 7 of LASSA 1970 is The Children Act 1989
Guidance and Regulations Volume 4: Fostering Services, which is described as
being designed to provide a framework for practice in providing a fostering service,
which emphasises the importance of safeguarding and promoting the welfare of
individual children. (I shall refer to this as "the Children Act Guidance). This
includes, beginning at paragraph 5.64, a section headed Supporting foster carers.
Paragraphs 5.71 to 5.73 provide as follows:
5.71 It is essential that all foster carers are given clear
information about the criteria for making financial payments to
them, including allowances, fees and other expenses.
Allowances must be sufficient to cover the full cost of caring
for each child placed with them, and must be reviewed
annually. The Government has put in place a National
Minimum Fostering Allowance (adjusted annually) which is
the very minimum that should be provided to a foster carer for
each child placed. Criteria for calculating allowances must
apply equally to all foster carers, whether or not they are related
to the child or the placement is long or short term (standard 28).
5.72 The Government has published a good practice guide to
foster carer payments systems which gives helpful guidance
about financial support to foster carers.
5.73 Fees are in addition to allowances and may be paid by
fostering services to reflect the expertise and the nature of tasks
undertaken by a range of foster carers. Where fees are paid by a
fostering service these must be payable to those on their
register of foster carers who meet the criteria set out for the
scheme, including short and long-term carers and family and
friends carers.
24. The National Minimum Standards for Fostering Services referred to in the guidance
include Standard 28 Payments to carers, which provides as follows:
28.1 Each foster carer receives at least the national minimum
allowance for the child, plus any necessary agreed expenses for
the care, education and reasonable leisure interests of the child,
including insurance, holidays, birthdays, school trips, religious
festivals etc, which cover the full cost of caring for each child
placed with her/him.
28.5 There is a clear and transparent written policy on
payments to foster carers that sets out the criteria for
calculating payments and distinguishes between the allowance
is paid and any fee paid.

28.7 Criteria for calculating fees and allowances are applied
equally to all foster carers, whether the foster carer is related to
the child or unrelated, or the placement is short or long term.
25. Thus, the guidance draws a distinction between allowances which are used to provide
for the needs of the child and to meet expenses incurred by the foster carer on the one
hand, and fees which are paid to reward foster carers for their services and which may
reflect the expertise and the nature of the tasks undertaken by the foster carers on the
other hand.
26. Standard 30 is also relevant. Entitled "Family and friends as foster carers, it includes
the following provisions:
30.1 The needs and circumstances of family and friends foster
carers are taken into account when determining the fostering
service's policies and practices.
30.10 Financial and other support is provided to all foster
carers according to objective criteria that do not discriminate
against foster carers that have a pre-existing relationship with
the child. Family and friends foster carers may require some
services to be delivered in a different way, but there should be
equity of provision and entitlement.
Status of the guidance
27. The legal status of statutory guidance issued under section 7 of LASSA 1970 has been
considered in a number of cases. In R v. Islington Borough Council, ex parte Rixon
(1998) 1 CCLR 119 at [23] Sedley J described it in these terms:
Clearly guidance is less than direction, and the word 'general'
emphasises the non-prescriptive nature of what is envisaged
In my judgment Parliament did not intend local authorities to
whom ministerial guidance was given to be free, having
considered it, to take it or leave it. Such a construction would
put this kind of statutory guidance on a par with the many
forms of non-statutory guidance issued by departments of state.
in my view Parliament by section 7(1) has required local
authorities to follow the path charted by the Secretary of State's
guidance, with liberty to deviate from it where the local
authority judges on admissible grounds that there is good
reason to do so, but without freedom to take a substantially
different course.
28. The guidance considered in R (Munjaz) v. Mersey Care NHS Trust [2005] UKHL 58,
[2006] 2 AC 148 was concerned with the seclusion of patients in mental hospitals and
was issued under section 118 of the Mental Health Act 1983 rather than under
LASSA 1970. Nevertheless, what was said by Lord Bingham and Lord Hope of
Craighead applies equally to guidance issued under LASSA 1970. Lord Bingham said
at [21]:

It is in my view plain that the Code does not have the binding
effect which a statutory provision or a statutory instrument
would have. It is what it purports to be, guidance and not
instruction. But the matters relied on by Mr Munjaz show that
the guidance should be given great weight. It is not instruction,
but it is much more than mere advice which an addressee is free
to follow or not as it chooses. It is guidance which any hospital
should consider with great care, and from which it should
depart only if it has cogent reasons for doing so. Where, which
is not this case, the guidance addresses a matter covered by
section 118(2), any departure would call for even stronger
reasons. In reviewing any challenge to a departure from the
Code, the court should scrutinise the reasons given by the
hospital for departure with the intensity which the importance
and sensitivity of the subject matter requires.
29. At [69] Lord Hope of Craighead added:
The Court of Appeal said in para 76 of its judgment that the
Code is something that those to whom it is addressed are
expected to follow unless they have good reason for not doing
so: see R v Islington London Borough Council, ex p Rixon
(1996) 1 CCLR 119, per Sedley J at p 123. Like my noble and
learned friend Lord Bingham of Cornhill I would go further.
They must give cogent reasons if in any respect they decide not
to follow it. These reasons must be spelled out clearly, logically
and convincingly. I would emphatically reject any suggestion
that they have a discretion to depart from the Code as they see
fit. Parliament by enacting section 118(1) has made it clear that
it expects that the persons to whom the Code is addressed will
follow it, unless they can demonstrate that they have a cogent
reason for not doing so. This expectation extends to the Code as
a whole, from its statement of the guiding principles to all the
detail that it gives with regard to admission and to treatment
and care in hospital, except for those parts of it which specify
forms of medical treatment requiring consent falling within
section 118(2) where the treatment may not be given at all
unless the conditions which it sets out are satisfied.
30. In that case the majority of the House of Lords held that sufficient reason had been
demonstrated for departing from the Code.
31. More recently, in R (Forest Care Home Ltd) v. Pembroke County Council [2010]
EWHC 3514 (Admin), (2011) 14 CCLR 103, after referring to these authorities
Hickinbottom J doubted at [29] whether a local authoritys power to depart from
statutory guidance was limited to cases where the departure was not substantial,
although the point was not decisive in that case:
The learned judge went on to insert a restriction on the
authority's ability to deviate from the guidance, namely: " but
without the freedom to take a substantially different course". I

hesitate to do anything but agree with that too, because of the
eminence of (now) Sedley LJ as an administrative lawyer and
the fact that the point is not going to be determinative in this
claim: but it seems to me, as a matter of principle, Parliament
has given the relevant decision-making power to the local
authority and, despite the terms of section 7 of the 1970 Act, it
would be open to an authority to depart even substantially from
guidance if it had sufficiently compelling grounds for so doing.
However, certainly, the more the proposed deviation from
guidance, the more compelling must be the grounds for
departure from it.
32. That approach was followed by Supperstone J in R (Members of the Committee of
Care North East Northumberland) v. Northumberland County Council [2013] EWHC
234 (Admin) at [34]. I respectfully agree. To impose a rule that a departure from the
guidance must not be "substantial" however cogent the reason for that departure is
unnecessary and potentially question begging as to how substantial a departure needs
to be in order to be prohibited.
33. Black Js formulation of the applicable principle in B v. Lewisham Borough Council
[2008] EWHC 738 (Admin), [2008] 2 FLR 523 was in slightly different terms,
referring to a duty "substantially to follow the guidance unless there was good reason
not to do so. She said at [54]:
Whilst I accept that the guidance does not have statutory
force, the local authority had a duty substantially to follow it
unless there was good reason to do differently.
34. For practical purposes this formulation comes to much the same thing as the other
cases referred to, although with the added emphasis that guidance is only guidance
and need not be followed inflexibly to the letter in every respect.
35. In summary, therefore, the guidance does not have the binding effect of secondary
legislation and a local authority is free to depart from it, even "substantially". But a
departure from the guidance will be unlawful unless there is a cogent reason for it,
and the greater the departure, the more compelling must that reason be. Conversely a
minor departure from the letter of the guidance while remaining true to its spirit may
well be easy to justify or may not even be regarded as a departure at all. The court
will scrutinise carefully the reason given by the authority for departing from the
guidance. Freedom to depart is not necessarily limited to reasons resulting from local
circumstances (see [18] above), although if there are particular local circumstances
which suggest that some aspect of the guidance ought not to apply, that may
constitute a cogent reason for departure. However, except perhaps in the case of a
minor departure, it is difficult to envisage circumstances in which mere disagreement
with the guidance could amount to a cogent reason for departing from it.
The local authoritys policies
36. The local authoritys policies challenged in these proceedings are to be found in three
documents.

The March 2011 policy
37. The first, issued in March 2011, is entitled Finance and payments to foster carers
and applied from April 2011 onwards. A marginal summary provides as follows:
Each foster carer receives an allowance and agreed expenses,
which cover the full cost of caring for each child or young
person placed with her or him.
38. The policy itself provides as follows:
1. The authority pays the foster carer allowance for each child
placed in her or his care, based on the childs age and
requirements, and in accordance with the full cost of bringing
up a foster child within the family.
2. Allowances are reviewed annually.
3. The authority has a written policy on fostering allowances;
this and the current allowance levels are well publicised and
provided annually to each carer.
4. The foster carer is reimbursed on provision of appropriate
receipts for additional expenses associated with her or his task
against a list of agreed expenses published and provided by the
authority.
5. Where expenditure of a significant sum is involved, the
facility exists for the carer to claim such expenses in advance.

11. The foster carer uses all payments of allowances and
expenses related to her or his role as a carer for the purpose
intended and to ensure that the needs of the child in her or his
care are met.
39. It would appear, therefore, that the payments described in these paragraphs constitute
allowances and expenses to be used for the benefit of the child, as distinct from fees
paid to reward foster carers for their services. The policy goes on to say that:
It also provides additional remuneration for those who achieve
the NVQ Level 3 qualification, and so creates a payment
structure, which reflects evidenced skills. This was introduced
following detailed consultation with foster carers.
40. The next section of the policy sets out the weekly rates paid to foster carers. It draws a
distinction between short and long term carers on the one hand and family and
friends carers on the other. The former group are also referred to by the local
authority as in-house carers because they are employed by it, although they are only
paid during periods when a child is placed with them and not during periods when
they are merely available for a placement. The payments to family foster carers are
notably lower than those paid to short and long term carers. The comparison is as

follows, using the weekly rates applicable at April 2010, which applied also during
the 2011/12 financial year, the difference in each case being 171:
Age of child 0-4 5-10 11-15 16-17
Short and long-term carers 300 315 334 362
Family and friends carers 129 144 163 191

41. In both cases these allowances include the cost of clothing (although with an
additional payment of 100 when a new school uniform has to be purchased) and
transport of children to school, activities and contact with parents, at any rate when
the distances concerned are no greater than seven miles.
42. The explanation given in the policy for the lower rates paid to family foster carers is
as follows (it will be noted that the payments are referred to as allowances, not
fees):
These are carers who are asked to do a different task to that of
other foster carers. These carers are all relatives of children
looked after with more than half of them being grandparents.
The task and expectations of Family and Friends carers is
significantly different to that of other foster carers. The
differences include:
Lower standards expected of attendance at training and
support groups.
There is no expectation of availability to take
placements when vacant.
A less broad set of caring skills is required for these
carers.
The allowance rates for these carers reflect these differences
and are based on the Department of Education National
Minimum Fostering Allowances.
An enhancement to the weekly allowance can be considered if
a child has special needs, provided it does not exceed the
amount which would have been payable if the child were
fostered in a [local authority] foster placement.
Festive/birthday and holiday payments will not be payable to
Family and Friends carers.
43. The festival and birthday allowances (not paid to family carers) are 170 for a childs
birthday and a further 170 annually (usually paid in the first week of December) for
religious festivals. An annual holiday allowance of 450 per child is also payable.
44. The policy goes on to outline the career structure available to foster carers who obtain
NVQ qualifications. Obtaining a full NVQ award entitles a foster carer to a one-off

payment of 250, plus an additional 30 per week while they have at least one child
in placement. In order to earn this additional payment they may be required to support
other carers through participation in a mentoring scheme. A recruitment bonus of
400 is payable to a carer who helps the local authority recruit another carer.
The November 2011 policy
45. The authoritys second policy document is dated November 2011 and sets out a
number of key principles. These include:
4. Approved Family and Friend Foster Carers and Foster
Carers who are fostering a child for the borough will not be
financially assessed in respect of their allowances.
5. An enhancement of the weekly allowance can be considered
in exceptional cases where the Council considers this is
required by the individuals circumstances. The total amount of
an allowance with enhancement will generally not exceed the
amount which would have been payable if the child were
fostered.
46. This key principle is further developed in the section headed Family and Friends
Foster Carer Allowances, which includes the following:
3.4 Family and Friends Foster Carers are not eligible for
birthday, festival or holiday grants.
3.5 An enhancement to the weekly allowance can be considered
in exceptional circumstances if it is considered that the
individuals circumstances require a higher payment. Whether
an enhancement should be paid and, if so, in what amount,
would depend upon the overall financial assessment, any
essential carers costs associated with the special needs and or
circumstances, whether there is some other means of meeting
those costs and the resources available to the Council.
3.6 Examples of situations in which an enhancement may be
considered are as follows: (a) where a child has an
exceptionally high level of need involving significant expense
which is not otherwise provided for in this guidance or
reflected in any other payment or award (including by the
Council); (b) where for geographical or other reasons the cost
of living is significantly higher than the national average; or (c)
where the carer has significant additional responsibilities
involving further expense, for example caring for an elderly
relative.
3.7 The amount of an enhancement will generally not be such
that the financial support exceeds the amount which would
have been payable if the child were fostered.

47. In fact a child placed with a relative who is an approved foster parent (such as the
claimant) is fostered, but I understand the reference in these policies to the amount
which would have been payable if the child were fostered to mean the amount which
would have been payable by way of fees and allowances to an unrelated foster carer.
48. The November policy document illustrates that the rates payable by the local authority
to family foster carers for 2011/12 exceeded the National Minimum Fostering
Allowances set by the Department for Education. Further, and in contrast with the
description of the payments in the March 2011 policy document, it refers to the
differential between family and unrelated foster carers as a fostering fee of 171 per
week paid to unrelated foster carers. Although the terminology used in the two
documents is conflicting and confusing, in view of the explanation given for the
differential it is probably better regarded as a fee, in accordance with the November
2011 document.
The April 2012 policy
49. Finally, in April 2012, the local authority introduced an additional policy to deal with
children with disabilities. This provided:
1. As from 1
st
April 2012, in recognition of the higher support
needs of Children with Disabilities, an increased weekly
payment, up to the maximum the foster carer receives in
Disabled Living Allowance for a child, may be payable to the
foster carer.
50. The criteria for receipt of this additional payment were that the foster carer should be
an approved foster carer, the child should be looked after by the local authority, and
the child should be in receipt of disabled living allowance. The claimant and all three
children placed with her satisfy these criteria.
51. The policy goes on, however, to divide this extra weekly allowance into two parts:
Allowance amounts
3.1 The maximum extra weekly allowance cannot be above the
weekly Disabled Living Allowance for the particular child.
3.2 Fifty per cent of the extra weekly allowance is to be used
towards the support needs of the child and this may include a
contribution towards respite care payments.
3.3 Fifty per cent over the extra weekly allowance is in the
form of a reward/fee element.
52. However, family foster carers are not eligible to receive the fifty per cent of the
payment which represents a reward or fee:
Family and Friends Foster Carers
9.1 Family and Friends Foster Carers are eligible for the needs
enhancement but not the reward/fee allowance.

The local authoritys thinking
53. The thinking behind the differential treatment of family carers on the one hand and
unrelated carers on the other is explained, to the extent that it is not already apparent
from the March 2011 policy, by the local authoritys Group Manager (Resources) for
its Childrens Services Department. His evidence is that:
a. The allowances (including where applicable, the "needs enhancement" element of
the extra weekly allowance paid in respect of children with disabilities) paid to
family foster carers exceed the National Minimum Foster Allowances and are
sufficient to ensure that the needs of the children concerned are met. Where in
individual cases such allowances are not sufficient for that purpose, the policy
contains provision for additional payments to be made, applications for which will
be considered on their individual merits. In fact, however, although the policy
provides for the possibility of an enhanced allowance to a family foster carer, in
practice no such payment has ever been made. This is said to be because such
enhanced allowances are intended to deal with exceptional circumstances not
otherwise provided for in the otherwise comprehensive allowance scheme.

b. This local authority is not alone in making additional reward payments to
unrelated foster carers, who do a different job with different expectations and
demands from family foster carers. I understand this reference to additional
reward payments to encompass (i) the fostering fee of 171 per week referred to
at [48] above and (ii) the reward/fee element of the extra weekly allowance paid in
respect of children with disabilities which is explicitly described as such.

c. While a family foster carer is only approved for, and only looks after, a specific
child or children, unrelated foster carers have to be in a position to care for a child
or several children at any time, frequently at very short notice, and irrespective of
any employment or other commitments they may have. They are expected to
accept and deal with children with a wide range of presenting behavioural
problems, despite the serious management issues which may arise and family
disruption that this may cause.

d. Further, unrelated foster carers are only paid when children are actually placed
with them, but have to be available to take in children when the need arises. That
availability is of critical importance in view of the local authoritys statutory
duties to look after children in need. For example, if the authority is suddenly
faced at night or over a weekend with a child in a distressed state, perhaps
reporting allegations of abuse, which needs to be removed from the parental home,
it does not have the option of saying that it has nowhere for the child to go.

e. Reference is also made to the difficulties of recruiting and retaining unrelated
foster carers, and to the competition between local authorities for their readily
transferable services.

f. Holiday, festive and birthday allowances are not routinely paid to family foster
carers because it is the local authoritys experience (which is consistent with the
practice of other local authorities in London) that carers of a child remaining
within its network of family or friends generally take a more active role,

financially and practically, in relation to such occasions than can reasonably be
expected from unrelated foster carers.
54. The differences in the roles undertaken by family and unrelated foster carers are
described in the following table produced by the local authority. In some respects the
table describes the requirements which the two groups have to meet and in other
respects it refers to the typical differences between them. Obviously some children
placed with family foster carers may be more demanding than in the typical cases
described:
Item
No
Description In-House foster carers F&F foster carers
1 Training Expected to complete 5
training courses a year.
Expected to attend 3
courses.
2 Training, support
and development
standards
To be completed within a
year of approval.
To be completed
within 18 months of
approval.
3 Support groups Expected to attend at least 3
sessions a year.
Encouraged to attend.
4 Changes in
placements
Varied changes in
placements as children
regularly come into care
and leave. Therefore
frequent calls from social
workers and duty workers.
Carers having to adjust and
adapt to different children
and meeting their
individual needs and
preparing their homes and
family for the changes.
No changes as carer is
specifically approved
for a particular
child/children.
5 Emergency
placements
Frequently expected to take
children at any part of day
or night with very little
known about them.
Unlikely to occur.
6 Moving children on Expected to move children
on to adoption/long term
fostering/family and friends
carers/residential
units/secure units which is
emotionally challenging for
the carers and their family.
Unlikely to occur.
7 Placement stability
meetings
Arranged when placements
are fragile and plans are
made to salvage or change
the placement.
Seldom applicable.
8 Children going
missing
Much higher incidence of
children going missing due
to nature of problems they
come into care with and
uncertainty about their care
plan. Carers often have
constant liaison with EDT,
police and social workers.
Very low incidence.

9 Court attendance Carers are sometimes
expected to give evidence
in court on a particular
issue.
Very rare.
10 School runs Usually more difficult as
childrens schools are not
changed so carers have to
travel a further distance to
transport children to school.
They often have to do more
than one school run if
children are at different
schools.
Usually children move
to a school which is
nearer the carer.
11 Contact Is generally more regular
and often on a daily basis
with babies.
Tends to be more
structured and less
frequent.
12 Risks Working with difficult
families, facilitating contact
in foster carers home,
managing some very
challenging behaviour of
children and young people.
Families are known so
the risks can be better
managed.
13 Meetings More meetings to attend,
for example introduction
planning meetings,
professional meetings,
contact planning meetings,
family finding meetings,
family group conferences,
life story meetings,
goodbye meetings, and
placement planning
meetings with every
placement made.
Not applicable.
14 Allegations and
complaints
Tend to be more vulnerable
to allegations and
complaints due to the
higher number of children
taken and less information
available with regard to
them.
Not as vulnerable.
15 Supervision visits Usually carried out monthly
but more frequently if
additional support is
required.
Six weekly if
placement is stable.

The allowances paid to the claimant
55. The claimant currently receives from the local authority, not including a range of
other benefits and payments, the following weekly fostering allowances:
Eldest child 215.80
Middle child 215.80

Youngest child 199.21
Total 630.81

56. These figures exceed the amounts payable in accordance with the National Minimum
Fostering Standards and include the needs enhancement element of the additional
payment for children with disabilities referred to in the April 2012 policy.
57. In addition, during the 2011/2012 financial year the local authority made payments
for respite care on four occasions at a total cost of 2,134.68 and made various other
payments for transport costs, a new tumble dryer, a settling in grant, and various items
of equipment, amounting to over 7,500 in all. These payments include the rental of a
holiday caravan, from which I infer that even though the local authority's policy is not
to make holiday payments to family foster carers as a matter of routine, such
payments are sometimes made and at least on this occasion were made in the present
case. So far during the 2012/2013 financial year the local authority has made
payments for transport to medical and other appointments and for respite totalling
1,652. The claimant also receives a range of state benefits including disability living
allowance for each child, housing benefit and income support. The local authority
estimates that the total allowances and benefits paid to the claimant for herself and the
children exceed 50,000 a year. The claimant has not disputed this estimate.
58. Nevertheless, the amounts paid to the claimant are substantially less than the amounts
which would be paid to her if she were unrelated to the children; she does not as a
matter of course receive any allowance for festivals or birthdays; she does not receive
any fostering fee, although unrelated foster carers do receive such fees; and she does
not receive the reward/fee element of the additional payment made to unrelated
foster carers of children with disabilities in accordance with the April 2012 policy. All
that said, however, the local authoritys policy is to ensure that it does pay sufficient
to the claimant (as it does to other family foster carers) to meet the needs of children
placed with her. It insists, moreover, that this is not merely its policy, but that it does
in fact do so, and that if the claimant does not accept this she has recourse to the local
authoritys complaints procedure. For the purpose of the claimants challenge in
principle to the local authoritys policies, this must be accepted.
The parties submissions
59. The claimant's case is that the local authority's policies are unlawful to the extent that
they provide for different payments to be made to the two categories of foster carers.
In summary, Ms. Scolding for the claimant contends that:
a. Payments made to foster carers must be consistent with the fundamental aim of
the legislation, which is to keep looked after children within the family unit
whenever possible. The local authoritys policies undermine that aim by creating a
financial disincentive for family foster carers when compared with unrelated foster
carers. For the same reason, the policies undermine the local authoritys duty to
promote the childs welfare.

b. The policies are also contrary to the statutory guidance, which requires family and
unrelated foster carers to be treated equally so far as allowances and fees are
concerned.

c. There are no cogent reasons for departing from the statutory guidance. In
particular, whatever the position of short term unrelated foster carers may be, there
is no relevant distinction between the task undertaken by a family foster carer such
as the claimant and a long term unrelated foster carer, or between the financial
needs of children placed with such carers, and certainly none which justifies
paying substantially more money to unrelated foster carers.

d. Even if such a departure could be justified in some cases, that is not so in the
claimants case. She wishes to attend the same or equivalent training and develop
the same skills as an unrelated foster carer; the children placed with her are as
demanding as any; and she will be looking after them until they reach the age of
18 and probably beyond that.

e. The policies are therefore irrational or unlawful applying principles of public law.
See R (L) v. Manchester City Council [2001] EWHC 707 (Admin), [2002] 1 FLR
42.

f. They also constitute discrimination in the enjoyment of the right to family life on
the basis of status as a family member, for which there is no objective
justification, and which is therefore contrary to Article 14 of the European
Convention on Human Rights. Here too R (L) v. Manchester City Council is relied
on.

g. On either or both of these two grounds, domestic public law and the Convention,
the policies should be declared unlawful to the extent that they provide for
differential payments.

h. Alternatively the local authoritys refusal to pay the claimant an enhancement to
her weekly allowances on the ground of "exceptional circumstances" pursuant to
paragraphs 3.5 and 3.6 of the November 2011 policy demonstrates, particularly in
the light of the fact that no such enhancement has ever been paid to anyone, that
the local authority has unreasonably fettered its discretion to make such a payment
or has set the bar for qualifying for an enhancement unreasonably high.
60. In response Mr Kelvin Rutledge for the local authority contends that:
a. The statutory scheme leaves it to local authorities to determine the terms,
including payment terms, on which they will provide fostering services for looked
after children, as is underlined by the fact that the Secretary of State could have
made this the subject of secondary legislation, but has chosen not to do so.

b. The statutory guidance permits local authorities to pay different rates to different
types of foster carer.

c. What matters is that the allowances paid by the local authority exceed
significantly, the National Minimum Fostering Allowances fixed by the
Department for Education, are sufficient to meet the needs of the children placed
with the claimant, and are sufficiently flexible to enable it to meet additional need
where that is identified.

d. Alternatively, if the local authoritys policies providing for higher payments to be
made to unrelated foster carers are contrary to the statutory guidance, there are
cogent reasons for departing from the guidance.

e. The policies do not infringe the claimant's rights under Article 14 of the European
Convention.

f. There are good reasons why no enhanced weekly allowance was paid to the
claimant on the ground of "exceptional circumstances" pursuant to paragraphs 3.5
and 3.6 of the November 2011 policy, but in any event any complaint on that
ground is better dealt with through the statutory complaints procedure than by an
application for judicial review.
The Manchester case
61. It is convenient to begin by examining the decision of Munby J in R (L) v. Manchester
City Council. That was a successful challenge to the policy of Manchester City
Council, whose policy was to pay all short-term foster carers allowances which were
significantly below those recommended by the National Foster Carers Association,
with short-term family foster carers being paid even less (less than one fifth of the rate
paid to unrelated foster carers, which itself was below the recommended rate: see [24]
of the judgment).
62. The policy was held to be unlawful on several grounds, not all of which are relevant
here. One of these was that it had been made by council officers without proper
delegated authority and would therefore have been quashed on that procedural ground
alone (see [67]). Nevertheless, Munby J went on to consider the policy on its merits.
Having done so, he held that it was unlawful on four grounds, identified at [78]. The
first two of these, namely that the policy imposed an arbitrary and inflexible cash
limit on the amounts that could be paid to family foster carers, and that the level of
payments to such carers was fixed so low as to make a conflict with the welfare
principle inevitable, do not arise in this case. On the contrary, in the present case,
there is flexibility and the policy does ensure that the needs of the children are met.
The third ground of illegality included the different treatment of family and unrelated
carers, but also depended on a combination of several other features, including the
very low rates, the failure in the case of family foster carers to provide uplifts in the
rates paid for older children and the fact that the policy was designed to encourage (or
at least not to discourage) relatives from applying for a residence order. Those
additional features are not present here. The fourth ground of illegality was this:
Finally, it is apparent that the policy, in effect if not in
intention, is fundamentally discriminatory, discriminating
against both those short-term foster carers who are relatives and
those children in care who are fostered short term by relatives
rather than by non-relatives.
63. Munby J stated his conclusion so far as domestic law was concerned at [80]:
I conclude therefore that, even without reference to the
Convention, Mr McCarthy [counsel for L] has made good his

case: Manchesters policy is unlawful, not merely because of
the essentially procedural defect, which is conceded by Mr
Ryder [counsel for Manchester], but also and in any event on
the wider substantive grounds relied on by the claimants.
64. It appears, therefore, that Munby J regarded the discriminatory treatment of family
foster carers as an independent ground for holding the Manchester policy unlawful as
a matter of public law. In doing so he rejected Manchester's attempts to justify this
different treatment by reference to (among other things) the difficulty of recruiting
and retaining unrelated foster carers and the need to pay them competitive rates, a
difficulty which was said not to be relevant in the case of family foster carers (see
[52]), and also its limited financial resources (see [54] and [81] to [82]), although he
accepted that limited financial resources was at least to some extent a relevant
consideration (see [84]). However, the fact that Munby J was not impressed by these
arguments must be seen in the context of the very low allowances being paid in that
case and does not necessarily mean that they will never be of any force.
65. Since 2001 when R (L) v. Manchester City Council was decided, the applicable
legislative and policy framework has changed. In particular, the statutory preference
for placing children with family foster carers where possible which is contained in
section 22C of the Children Act 1989 and the statutory guidance referred to at [15] to
[26] above are both new. Indeed paragraph 4.50 of the guidance contained in the
Family Care Guidance itself refers to the Manchester case as prohibiting
discrimination against family foster carers by paying them a lower allowance than that
paid to unrelated foster carers (see [20] above). Ms Scolding submits that these new
provisions reinforce Munby Js conclusion that discrimination against family foster
carers is unlawful. I agree with that submission so far as it goes, although it remains
necessary to test the lawfulness of the local authority's policies against the current
legal framework. It is also necessary to keep in mind that the Manchester case was
concerned with differential allowances, not fees, and that the question whether it was
unlawful to pay fees to unrelated foster carers but not to family foster carers did not
arise.
66. Having dealt with the issues arising as a matter domestic law, Munby J went on to
consider the European Convention on Human Rights, holding at [97] and [98] that the
councils policy infringed both Article 8 (right to respect for family life) and Article
14 (unlawful discrimination). So far as Article 8 is concerned, however, in relation to
cases involving priorities in the allocation of limited state resources the law has
moved on since 2001 as a result of decisions in Strasbourg and here (R (McDonald) v.
Royal Borough of Kensington & Chelsea [2011] UKSC 33, [2011] 4 All ER 881 at
[15] to [19] and the Strasbourg cases there cited). This is so to such an extent that Ms
Scolding accepts that in the present case the local authoritys policies do not infringe
Article 8. The claimant's case under the Convention is limited to Article 14.
Irrationality/ failure to comply with the statutory guidance
The issues
67. In the light of the matters set out above, the following issues arise in relation to the
claim under domestic public law:

a. What are the constraints on the local authority in determining its policies on
payment of allowances and fees?
b. Do the local authority's policies comply with the statutory guidance? In particular:
i) do they discriminate against family foster carers?
ii) if so, is the different treatment for a reason permitted by the
guidance?
c. If the policies do not comply, are there cogent reasons for departing from the
guidance?
d. Even if a departure from the guidance may be justified in some cases, how does
that affect the claimant?
The constraints on the local authority
68. I accept that the statutory scheme leaves it to local authorities to determine the terms,
including the terms relating to payment of allowances and fees, on which they will
provide fostering services. I accept also that the Secretary of State could have made
this the subject of binding secondary legislation, and that the fact that he has chosen
not to do so supports the suggestion that local authorities are intended to have a wide
discretion in the matter. Nevertheless, their freedom to determine their own policies is
not unconstrained. For present purposes there are two relevant constraints.
69. First, the legislation shows a clear intention by Parliament that children who cannot
continue to live with their parents should if possible be placed with family members
who are able and willing to qualify as local authority foster carers in preference to
unrelated carers. It follows from this that a local authority policy which would
frustrate this intention is likely to be unlawful.
70. However, I do not accept that the local authoritys policy of paying lower payments to
family foster carers does have this effect. No doubt it would or might in a case such as
the Manchester case, where the allowances paid were so low that they infringed the
fundamental welfare principle. But in a case like the present, where the allowances
paid exceed the national minimum allowances and can be (and are) supplemented
where necessary by payment of additional expenses, so that they are sufficient to meet
the needs of the child or children, the position is very different. I accept that the
claimant feels herself to be unfairly treated, but it is not suggested that she will be
unable or unwilling to continue to care for the children. Nor is there any evidence
before me to suggest that the mere fact of the payment of higher payments to
unrelated foster carers in circumstances where the lower payments made to family
foster carers are nevertheless sufficient to meet the needs of the child has deterred, or
is likely to deter, potential family foster carers from coming forward. As already
noted at [9] above, Ms Scolding accepts that the policies would be lawful if the local
authority simply reduced the payments made to unrelated foster carers. That might
perhaps end any feeling of unfairness, but would not leave the claimant or other
family foster carers any better off.
71. The second constraint is the requirement already considered at [27] to [35] above to
comply with the statutory guidance unless there are cogent reasons for not doing so.

Do the local authority's policies comply with the statutory guidance?
72. There is no doubt that in the respects summarised at [58] above the claimant, because
she is the children's aunt, receives less than she would receive if she were an unrelated
foster carer for these same children. In my judgment, and leaving aside for the
moment the express permission for variations in allowances (but not fees) contained
in paragraph 4.49 of the Family Care Guidance (set out at [20] above), this is clearly
contrary to the guidance as a whole.
73. While the guidance might reasonably have chosen to concentrate only on the welfare
principle and to limit a local authority's responsibility to the making of sufficient
payments to ensure that the needs of children will be met, I accept Ms Scoldings
submission that for present purposes the guidance reflects two principles. One such
principle is the welfare principle, but the second is that there should be equality of
treatment as between family and unrelated foster carers. The guidance directs local
authorities to comply with both of these principles. Moreover, the second principle of
equal treatment applies notwithstanding recognition of the existence of differences
between the two kinds of carers. That is not the only approach which could
reasonably have been taken, but it is the approach which the guidance takes.
74. Thus paragraph 4.44 requires that family foster carers are fully supported to care for
children placed with them and are not disadvantaged as a result of their prior
relationship, that there should be equity of provision and entitlement, and that it is
not acceptable to discriminate against foster carers on the basis that they have a pre-
existing connection with the child. Paragraph 4.48 contains the same principles.
75. Similarly paragraph 4.49 dealing with allowances includes the same two principles.
First, allowances must be sufficient to meet the cost to the carer of caring for the
child and should be at least the minimum set annually by the Department for
Education. Second, and subject to the express provision for variation in certain cases,
they must be calculated for family foster carers on the same basis as for all other
foster carers. This is underlined in paragraph 4.50 by reference to the Manchester
case which was clearly understood by the authors of the guidance as standing for a
general principle that it is unlawful to discriminate against family foster carers by
paying them a lower allowance than that paid to unrelated foster carers.
76. The same principles are also contained in the Children Act Guidance set out at [23]
above and in National Minimum Standards 28.7 and 30.10 set out at [24] and [26]
above.
77. The principle of equal treatment applies also to fees as well as to allowances. Fees
need not be paid to foster carers, but if they are paid, they must be payable to foster
carers who meet the applicable criteria regardless of whether they are related to the
children (see the final two sentences of paragraph 4.50 of the Family Care Guidance,
paragraph 5.73 of the Children Act Guidance, and National Minimum Standards 28.7
and 30.10).
78. The guidance recognises the existence of differences between family and unrelated
foster carers, which may mean that care is delivered in a different way. This appears
from paragraph 4.44 ("Family and friends foster carers may benefit from some
services being delivered in a different way, but there should be equity of provision

and entitlement") and is developed in paragraph 4.45 which provides that "in
recognition of the fact that the context of family and friends foster care differs from
other types of foster care adjustments may be made to training and development
requirements. Nevertheless, the guidance insists on the principle of equal treatment so
far as fees and allowances are concerned.
79. In relation to fees, the local authoritys test for whether a fee is paid (by which I refer
to both the fostering fee of 171 per week referred to in the November 2011 policy
and the reward/fee element of the extra weekly allowance paid for children with
disabilities referred to in the April 2012 policy) depends explicitly on whether the
carer is a family foster carer. This is directly contrary to the guidance.
80. If the differential in the weekly payments made by the local authority is rightly
regarded as a fee rather than an allowance, as I consider that it is, the question of
differential allowances does not arise. If it is better regarded as an allowance (as the
parties submissions tended to assume), that too is contrary to the guidance unless the
differential is permitted by the final sentence of paragraph 4.49:
The allowances paid by fostering services must be calculated
for family and friends foster carers on the same basis as for all
other foster carers, and any variation should relate to the childs
needs, the skills of the carer or some other relevant factor that
is used as a criterion for all of the services foster carers.
81. It is convenient to consider here the explanation for the differential payments given in
the March 2011 policy itself (see [42] above). That will be relevant to paragraph 4.49
if this differential is to be regarded as an allowance, but will also need to be
considered in the context of the next issue, whether there is a sufficient reason for any
departure from the guidance.
82. The explanation is that the task of family foster carers and the expectations on them
are different from those applicable to unrelated foster carers. I accept that in some
respects the job typically done by family foster carers is different from that typically
done by unrelated foster carers and that the requirements which are or may be
imposed on the two groups can be different. At a general level, of course, the task is
the same, namely to provide the best possible home for the foster child or children in
order to promote their welfare. But the way in which that task is accomplished will
often be different. The principal differences are set out in the table reproduced at [54]
above. Most notably, while family foster carers will be specifically approved for a
particular child or children, unrelated foster carers may care for a series of children
with all the physical and emotional adjustments which that may cause, and they may
need to be available between placements to take in an unknown child with little or no
notice. This is not to say that the role of family foster carers is less challenging, but
simply that the two roles are generally different, although the differences are likely to
be less pronounced if the comparison is made with unrelated long term rather than
short term carers. Moreover the requirements which unrelated foster carers must
satisfy so far as training and compliance with standards are concerned are to some
extent more demanding than those applicable to family foster carers, even if some
family foster carers (among whom the claimant may be one) seek by choice to comply
with the higher standards.

83. Nevertheless, there is nothing in this table which is not inherent in the nature of the
tasks undertaken by the two groups of foster carers or which would not have been
apparent to the authors of the guidance. To justify payment of differential allowances
on the basis that the task of family foster carers and the expectations on them are
different from those applicable to unrelated foster carers is therefore contrary to the
principle of equal treatment on which the guidance insists in full knowledge of the
differences inherent in the respective roles of the two groups concerned.
84. Moreover, that justification has little or nothing to do with either the childs needs
or the skills of the carer. I would add that I have difficulty in understanding why
"the skills of the carer" should in itself justify an increase in an allowance, the purpose
of which is to meet the needs of the child, except in cases where particular skills
enable a carer to undertake particularly demanding or expensive tasks. Nor can the
differential be justified as relating to some other relevant factor. Any attempt to do
so would be contradictory. It would amount to saying that although the basic principle
is that equal allowances should be paid to family and to unrelated foster carers, that
principle can be departed from because family and unrelated foster carers perform
different tasks. The exception, in short, would leave nothing of the basic rule. In any
event, the variation must be justified, not merely as being based on some other
relevant factor, but on some other relevant factor that is used as a criterion for all of
the services foster carers. By definition, this does not include a criterion which
applies only to unrelated foster carers.
85. I conclude, therefore, that the local authoritys policies on fees (and if necessary
allowances) are not in accordance with the statutory guidance to the extent that they
provide for different treatment of family and unrelated foster carers. Moreover, I do
not consider that the departure from the guidance can be characterised as so minor
that there is substantial compliance.
86. Payments for birthdays and festivals are in a different category. These are not dealt
with expressly in the Family Care Guidance or the Children Act Guidance, but are
referred to in National Minimum Standard 28.1 (set out at [24] above), which
provides that in addition to the national minimum allowance foster carers should
receive any necessary agreed expenses for (among other things) birthdays and
religious festivals. There is nothing here to say in terms that the same payments must
be made for family foster carers as for unrelated foster carers. Rather, there is a more
flexible standard in that it depends upon the reasonable judgment of the local
authority concerned as to whether such payments are necessary. That does not mean
that it is open to a local authority to determine that such payments will never be made,
but it would be in accordance with the standard to adopt a policy that such payments
will not automatically be made to family foster carers, but that an assessment will be
made case by case whether such payments are necessary, having regard to the
individual family circumstances.
87. That is, as I understand it, the policy in fact adopted by the local authority. Although
the March 2011 policy states in apparently stark terms that such payments will not be
payable" to family foster carers, the local authoritys evidence is that such payments
are not "routinely" made as they are not generally necessary (see [53(f)] above), but
that applications can be made and will be considered on a case by case basis. In my
judgment that policy is not contrary to the guidance and is within the reasonable
discretion conferred upon the local authority.

Are there cogent reasons for departing from the guidance in relation to fees and allowances?
88. The local authority submits that if (contrary to its case, but as I have held) its policies
on payment of fees and allowances are contrary to the statutory guidance, there are
nevertheless cogent reasons for those policies. In summary, it says that (1) a local
authority has a wide discretion in these matters, and the court should not interfere; (2)
family and unrelated foster carers do a different job; (3) what matters is that the
payments which it makes to family foster carers are sufficient to provide for the needs
of the children in their care, with additional flexibility in exceptional cases where this
is not so; (4) that it needs to be able to provide rewards and incentives to unrelated
foster carers in order to ensure that it is able to recruit and retain them, and thereby to
fulfil its statutory obligations, but that this does not apply in the case of family foster
carers; and (5) that the consequences of declaring its policies to be unlawful would
have a significant and potentially catastrophic impact on [the local authoritys] ability
to deliver services.
89. If it were not for the guidance, there would be much force in all of these points. I
doubt whether it could be said that it is irrational to have a policy of providing
rewards and incentives to unrelated foster carers for whom fostering is essentially
their livelihood and who provide a valuable and necessary service. Further, an
authority could reasonably take the view, if its experience justified it in doing so, that
it was unnecessary to provide such incentives in the case of family foster carers in the
light of their pre-existing relationship with the child or children concerned, always
provided that the allowances paid are sufficient to provide for the child's needs. If that
is so, to require such incentives to be provided (ex hypothesi unnecessarily) to family
foster carers, particularly in times of severe financial pressure on local authorities,
would itself seem unreasonable.
90. But the difficulty for the local authority is that its arguments cannot be considered in
isolation from the statutory guidance, which sets the framework against which any
departures from it must be assessed. Thus, as I have held, the local authority is
constrained by the guidance in determining its fostering policies, and a departure
which is essentially no more than the result of a disagreement with the approach of
the guidance is unlikely to provide a cogent reason for departing from it. In essence,
that is what the local authoritys arguments amount to. As already discussed in the
context of the issue whether the policies do comply with the guidance, the guidance
insists on the principle of equal treatment so far as fees and allowances are concerned
in addition to the welfare principle, and does so despite recognising the existence of
the difference between family and unrelated foster carers. The local authority takes a
different view. Thus the first three of the local authoritys arguments fight essentially
the same battle as has already been fought and lost in the previous section of this
judgment.
91. As for the need to recruit and retain foster carers and the serious consequences of its
policies being held to be unlawful, the evidence of the local authority (which is one of
the most deprived London boroughs) is that in that event it would have three courses
open to it, namely (1) to increase the payments made to family foster carers to the
same level as paid to unrelated foster carers, which it cannot afford to do without
cutting other services, (2) to reduce the payments made to unrelated foster carers, or
(3) some combination of these two. Either of these latter two courses, it says, would
have a significant impact on its ability to recruit and retain in-house carers,

especially those living in or close to the borough who could transfer their services to
other care providers.
92. This is evidence which has to be given weight. Nevertheless, it is not ultimately
persuasive, because it takes too narrow a view of what the local authority may have to
do. For example, there is no reason why the local authority should not design a fee
structure based on qualifications, whether formal qualifications by developing its
existing incentive payment scheme based on NVQ qualifications or less formal such
as by rewarding attendance at suitable training events. A family foster carer who met
the relevant criteria would be entitled to receive whatever fees were payable for doing
so, but it would seem probable that unrelated foster carers who treat fostering as their
livelihood would in general be much more likely to have or obtain such qualifications
than family foster carers. What matters, in essence, is that the criteria for payment of
fees must not simply be (as at present) that the recipient is unrelated to the child in her
or his care. But so long as the criteria are genuine and reasonably related to the task of
fostering children looked after by the local authority, and so long as family foster
carers are not excluded from seeking to meet them, there is no reason why they should
not be criteria which unrelated foster carers are much more likely to satisfy.
93. Further, the position at present is that unrelated foster carers are not paid for the time
when they do not have a child placed with them, but are nevertheless available to take
a child at short notice. The evidence includes examples of what are described as
three typical in-house carers in [the borough] in the latter part of 2012. In all three
cases these carers took in a number of abused or neglected (and sometimes abusive,
self-harming or suicidal) children for short periods, but actually had the children with
them (and therefore received fees) for on average less than half of the time. There
would be no objection in principle to a scheme which rewarded their availability
during periods when no child was placed, even though in the nature of things family
foster carers would be unlikely to qualify for such payments or to wish to do so.
94. I am far from saying that the local authority must introduce a scheme along the lines
described in the previous two paragraphs (and, if it did, that might not be of much use
to the claimant). That is a matter for it to consider. But I do conclude that in
circumstances where there is no evidence that such possibilities (and perhaps others)
have been considered, the local authority has not discharged the burden upon it of
showing sufficiently cogent reasons for departing from the principle of equal
treatment of family and unrelated foster carers in the payment of fees (and to the
extent relevant, allowances) required by the statutory guidance. If I were satisfied that
all reasonable possibilities had been considered and rejected for good reason, so that
the local authoritys ability to perform its statutory duties would indeed be seriously
affected by a declaration of illegality, I would necessarily conclude that there were
sufficiently cogent reasons for departing from the guidance. Indeed that conclusion
would suggest that the guidance itself was fundamentally flawed. But that is not the
position on the evidence before me. It follows that the local authoritys policies are
unlawful. I reach this conclusion with some regret, as I do not doubt the good faith of
the local authority or the real and serious efforts which it makes to ensure, in very
difficult circumstances and with limited resources, the best possible outcome for all
the children who are or may in future be in its care.
95. I should mention one other possibility because Ms Scolding accepts that, so long as
any allowances are sufficient to meet the needs of the children concerned, it would be

lawful for the local authority to draw a distinction in the payment of fees and
allowances between short term and long term foster carers. She suggests that many of
the problems identified by the local authority would not arise if higher payments were
made to short term carers, even though (she says) the majority of family foster carers
(and certainly the claimant) would fall into the long term category. That may be so,
but I leave that for consideration in another case if it arises. On its face, to draw a
distinction explicitly on that basis would appear to contradict paragraphs 5.71 and
5.73 of the Children Act Guidance and National Minimum Standard 28.7, set out at
[23] and [24] above, and would therefore raise similar issues about whether there are
sufficiently cogent reasons to depart from that guidance.
The claimants individual circumstances
96. The conclusion reached at [94] above means that it is unnecessary to consider Ms
Scoldings further submission (see [59(d)] above) that any departure from the
guidance cannot be justified in the particular circumstances of the claimants case.
However, I would not have accepted that submission. If sufficiently cogent reasons
existed for the payment of fees to unrelated foster carers but not to family foster
carers generally, as a result of taking into account the typical differences in the
respective positions of the two groups, that would be a lawful policy despite the
existence of some family foster carers who did not conform to type.
Article 14 of the Convention
97. In view of the conclusion which I have reached as a matter of domestic public law, I
can deal with the arguments under Article 14 relatively briefly. Article 14 provides:
The enjoyment of the rights and freedoms set forth in the
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a
national minority, property, birth or other status.
98. Adopting the analysis illustrated in Burnip v. Birmingham City Council [2012]
EWCA Civ 629, four question arise: (1) Is family relationship within the concluding
words or other status? (2) Is the right to receive a fostering fee within the ambit of
the rights protected by Article 8? (3) Is there discrimination on the grounds of family
relationship? (4) Is such discrimination justified?
99. As to the first question, Munby J held in the Manchester case at [91] that the
reference in article 14 to other status includes family status. I respectfully agree.
The reasoning in Francis v. Secretary of State for Work and Pensions [2005] EWCA
Civ 1303 at [20] to [28] gives some support to this view.
100. Passing over the second question for the moment, I consider that there was such
discrimination: fees are payable to unrelated foster carers, but not to family foster
carers however well qualified they may be and regardless of their financial
circumstances.
101. There was some debate before me as to the applicable test for justification. Mr
Rutledge submits that in the circumstances of this case it is the test applied at [27] of

Burnip, that in a case involving a positive obligation to allocate public resources the
public authority concerned should have a wide measure of discretion and its decisions
should be accepted unless they are manifestly without reasonable foundation:
As the Grand Chamber explained in Stec at paragraph 51, a
difference of treatment lacks objective and reasonable
justification if it does not pursue a legitimate aim or if there is
not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised. With
regard to the margin of appreciation enjoyed by a Contracting
State, the Court went on to say at paragraph 52:
The scope of this margin will vary according to the
circumstances, the subject-matter and the background. As a
general rule, very weighty reasons would have to be put
forward before the Court could regard a difference in treatment
based exclusively on the ground of sex as compatible with the
Convention. On the other hand, a wide margin is usually
allowed to the State under the Convention when it comes to
general measures of economic or social strategy. Because of
their direct knowledge of their society and its needs, the
national authorities are in principle better placed than the
international judge to appreciate what is in the public interest
on social or economic grounds, and the Court will generally
respect the legislatures policy choice unless it is manifestly
without reasonable foundation.
102. Building on this test, which is also discussed in Humphreys v. Revenue & Customs
Commissioners [2012] UKSC 18, [2012] 1 WLR 1545 at [15] to [22], where it was
described as less stringent than the weighty reasons normally required to justify sex
discrimination, Mr Rutledge relies on essentially the same matters as relied on in the
domestic law context (see [88] above), and submits that the local authoritys policy is
not manifestly without reasonable foundation.
103. Ms Scolding, however, contends for a test of rational justification, as in [29] of
Francis:
Miss Lieven accepted that the ground of Article 14 relied on
in this case by Ms Francis did not call for severe scrutiny but
only rational justification. Has the Secretary of State
established that the discrimination against those with parental
responsibility for a child by reason of a residence order is
objectively justified?
104. Francis, however, was decided before Stec and I accept, in the light of Burnip and
Humphreys, that the applicable test in a case such as this is as contended for by Mr
Rutledge. Even adopting the Burnip test, I would hold that there is no sufficient
justification in this case. That is because any margin of appreciation given to national
public authorities (including the local authority in this case) in determining general
measures of economic or social strategy in the allocation of public resources must
take account of any relevant statutory guidance. That guidance represents (to adopt

the expression used in Stec) a statement of what is in the public interest on social or
economic grounds. Thus the question is not whether the local authoritys policy is
manifestly without reasonable foundation in the abstract. Rather, the question of
justification under Article 14 is essentially the same question as arises under domestic
law of whether there are sufficiently cogent reasons for a departure from the guidance
to be justified. If sufficiently cogent reasons cannot be shown for a departure from a
prohibition on discrimination in the statutory guidance, the same discrimination is
unlikely to be justified under the Convention. In this regard, I note that in the
Manchester case Munby J at [98] considered that it would be harder to justify
discrimination under Article 14 of the Convention than it would be as a matter of
domestic law. The existence of the guidance (which is new since 2001) certainly
cannot make that justification any easier.
105. The second question, however, which I have so far passed over, is whether the right to
receive a fostering fee falls within the ambit of Article 8 of the Convention. In order
for Article 14 to apply, a separate Convention right need not be infringed, but the
discrimination complained of must interfere with a right or interest which falls within
the ambit of a right protected by the Convention, in this case the right to respect for
family life under Article 8. In this case, as shown above, what is actually in issue is a
fee (that is to say, a reward for services), as distinct from an allowance which is paid
in order to meet the needs of the child being fostered. The question arises, moreover,
on the premise that the allowances and other payments actually made are sufficient to
meet those needs. The question is therefore materially different from the questions
relating to allowances, maternity grant or housing benefit, all of which were directly
concerned with need, which arose in the Manchester, Francis and Burnip cases
respectively. Those were cases where, without the payment in question, family life
would clearly have been jeopardised. That is not obviously or necessarily so where
what is in issue is the payment of a fee by way of reward for services in addition to
allowances which are sufficient to meet the cost of caring for the child. I am inclined
to consider that the right to a fee as distinct from an allowance does not fall within the
ambit of Article 8, but as the parties submissions on this issue did not focus on the
precise nature of the payment in question and as it is unnecessary to do so in view of
my decision as a matter of domestic law, I prefer to express no concluded view.
Fettering of discretion/alternative remedy
106. The third and final ground of challenge to the local authoritys policies is that it has
unlawfully fettered its discretion in the application of its policy on payment of
enhanced allowances to family foster carers in exceptional circumstances. The
relevant policy is contained in the fifth key principle and in paragraphs 3.5 and 3.6
of the November 2011 policy set out at [45] and [46] above. The claimants argument
is, in summary, that she appears to qualify for such an enhancement but that the
refusal to pay one in her case, combined with the fact that on the local authoritys own
evidence no such enhancement has ever been paid to any family foster carer,
demonstrates that the local authority has unreasonably fettered its discretion to make
such a payment or has set the bar for qualifying for an enhancement unreasonably
high.
107. Paragraph 3.6 gives three examples of situations in which an enhancement may be
considered. The claimant appears to have at least an argument that she qualifies (or
did until her mother died recently) in all three cases. Thus the children looked after by

her have an exceptionally high level of need involving significant expense; her own
inability to drive combined with the fact that the children cannot use public transport
increases significantly her cost of living; and until her mothers death she incurred
significant expense in daily travelling to care for her as there was nobody else from
whom her mother would take food.
108. However, although at first sight the claimant appears to have a strong case for
payment of an enhanced allowance under this policy, and can make the forceful point
that if no enhanced payments have ever been paid to anyone that may suggest that the
policy is something of an illusion, ultimately the strength of her case must depend
upon a detailed assessment of her overall financial position, to which judicial review
is not well suited. For example, the indication in the policy that an enhancement may
be considered in a case where a child has an exceptionally high level of need goes on
to make clear that the needs referred to are those which involve significant expense
which is not otherwise provided for in this guidance or reflected in any other payment
or award (including by the Council). The detailed evidence required for such an
assessment is not currently before the court.
109. It is the local authoritys case that the totality of payments made to the claimant (as to
which see [55] to [58] above) including state benefits and the services of the National
Health Service are sufficient to meet her needs and the needs of the children placed
with her, that if the claimant does not accept this her appropriate recourse is to the
local authoritys complaints procedure rather than judicial review, and that paragraphs
3.5 and 3.6 of the November 2011 policy are intended as a safety net for the truly
exceptional case where the combined package of local authority payments and state
benefits leaves a family foster carer unable to cope.
110. It is not disputed that a complaints procedure is available to the claimant. The Local
Authority Social Services and National Health Service Complaints (England)
Regulations 2009 govern a persons right to complain about the services they receive
from a local authority. Regulation 5 provides:
a complaint may be made by (a) a person who receives or
has received services from a responsible body; or (b) a person
who is affected, or likely to be affected, by the action, omission
or decision of the responsible body which is the subject of the
complaint.
111. Responsible body includes a local authority. Regulation 6 is concerned with the
duty to handle complaints. It provides materially as follows:
(1) This regulation applies to a complaint made on or after 1st
April 2009 in accordance with these Regulations to (a) a local
authority about the exercise by the local authority of the
following functions (i) its social services functions
(4) Where this regulation applies to a complaint, the
responsible body to which the complaint is made must handle
the complaint in accordance with these Regulations.

112. Speaking of the 2009 Regulations, McCombe J in R (F) v Wirral Borough Council
[2009] EWHC 1626 (Admin) said this:
If there was real complaint about any individual assessment or
care plan or any true deficiency in the provision of community
care the complaints procedure was the forum to which it should
have been brought. If it was so brought but was inadequately
dealt with at stage 1, then the other stages should have been
invoked ...
113. I accept Mr Rutledges submission that the claimants appropriate remedy in this case
is by reference to the complaints procedure rather than judicial review. In the first
place she should (to the extent that she has not already done so) raise any concerns at
the LAC and/or annual foster carers reviews. If the local authoritys own procedures
do not satisfy her, she should invoke the statutory complaints procedure.
Delay
114. It is the local authoritys case that there has been delay in the commencement of these
proceedings and that applications to amend the claim as the proceedings have
progressed were not made promptly. The grant of permission was made on terms that
this point would remain open to the local authority, but ultimately and realistically Mr
Rutledge accepted that it would only be relevant to the question of remedy, and that if
I were to determine that the local authoritys policies are unlawful, such delay as there
may have been should not deter me from saying so. Since a declaration is the only
remedy which I consider to be necessary or appropriate, I need not consider further
the question of delay.
Conclusion
115. For the reasons which I have given there will be a declaration that the local
authoritys fostering policies are unlawful to the extent that they discriminate on the
grounds of pre-existing relationship with the child between family and unrelated
foster carers in the payment of (a) the fostering fee (currently 171 per week)
provided for in the March and November 2011 policies and (b) the reward/fee
element of the payments made to carers of children with disabilities provided for in
the April 2012 policy. I reach this conclusion as a matter of domestic public law and
need not determine whether the same result would be reached under Article 14 of the
European Convention on Human Rights.
116. The local authority will therefore need to reconsider its policies in these respects. It
was agreed that it would need a reasonable time in which to do so and that (if the
existing policies were held to be unlawful) there should be liberty to apply in the
event that a new policy has not been issued within three months.
117. The claimants challenge to the local authoritys failure to pay her an enhanced
allowance pursuant to paragraphs 3.5 and 3.6 of its November 2011 policy is
dismissed as she has an alternative and more suitable remedy available to her.

Anonymity
118. Bean J made an order on 4 February 2011 that the children concerned in this case
should not be referred to by name in any report. Because it would be easy to identify
them if there were to be publication of the claimants name, I extended Bean Js order
to prohibit publication of these details or other information calculated to lead to their
identification. Pending delivery of this judgment, and at the request of both parties, I
prohibited also identification of the London borough from which the children came.
However, there is a legitimate public interest in knowing the name of the borough
concerned and, as it will now have to reconsider its policies as a result of my
judgment and may need to provide some explanation of why it is doing so, there can
be no objection to its identification. But the prohibition on identifying the children or
the claimant stands.

1
I shall use the expression family foster carer because that is what the claimant is, although the applicable
legislation, guidance and policies apply equally to foster carers who are friends rather than relatives of the child
concerned. I shall use the expression unrelated foster carers to refer to those who have no pre-existing
relationship with the child, whether as a relative or a friend.

2
There is evidence that other local authorities have a similar policy, although the details of such policies are not
in evidence.
Case Reference: 2130379131
Appellant: Mr Paul Brian Hughgonson
Authority: Camden
VRM: K506SLW
PCN: CU36725073
Contravention Date: 12 Jun 2013
Contravention Time: 10:48
Contravention Location: Constantine Road NW3
Penalty Amount: 130.00
Contravention:Stopped on a restricted bus stop
Decision Date: 30 Sep 2013
Adjudicator: Edward Houghton
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The CCTV evidence shows the Appellant's vehicle stationary very briefly
(indeed) on a bus stop clearway where stopping, even briefly, is prohibited. The
photographs show the bus stop to be correctly and clearly marked for what it is; in
particular the thick yellow line in place gives, or should give, an instant indication to the
motorist that the bus stop is one where stopping is prohibited even for the purposes of
setting down passengers. The vehicle was undoubtedly in contravention , albeit for only a
very short time.

The Appellant' has placed great emphasis on the absence of camera warning signs and
submits that the Council has provided no good reason why enforcement should not be
carried out by CEOs on the grounds. As far as the latter point goes it seems to me all but
self evident that it would be nigh on impossible for CEO's to enforce against vehicles
stopping briefly but unlawfully to set down passengers. There would be insufficient time
to record the necessary details. Be that as it may the Council has clearly applied its mind
to the matter and provided some explanation, which is all that is required to comply with
the statutory requirement to "have regard to" the Secretary of State's Guidance.

So far as the absence of camera signage is concerned I have very little sympathy with the
Appellant. Motorists are required to comply with traffic regulations at all times, not
merely at those times when they are made aware that a contravention may be detected.
Submissions on the basis of the absence of warning signage effectively amount to a
submission that "I wouldn't have stopped there if I'd known I'd be caught" - which is not a
very attractive position to take. There is no statutory requirement for warning signs to be
in place as a precondition of camera enforcement. Had Parliament intended this to be the
law it would no doubt simply have said so, in terms, in the multitude of regulations
applicable to parking cases.

Nevertheless the Appellant is absolutely correct that the Council is required to "have
regard to" the Secretary of State's Guidance in this respect as well. The guidance is clear
that the "system needs to be well publicised and indicated with lawful traffic signs". It
seems to me that "the system" in this context means the system in operation at the
location in question. Having regard to something is not the same as complying with it;
but in my judgement it does require a Council to provide some explanation which is not
wholly irrational for not following it. I am unable to be satisfied that the Council has
done so. In its case summary its position is that simply that signs are not required.
However for better or worse they are clearly what the Guidance recommends and no
explanation is given why signs could or should not be in place. It follows that the Council
has failed to comply with its duty under s89 Traffic Management Act and this amounts to
a procedural impropriety. The Appeal must therefore be allowed.
Case Reference: 211001669A
Appellant: Sainsburys Supermarkets
Authority: Camden
VRM: KX55OGU
PCN: CU28412516
Contravention Date: 03 Dec 2010
Contravention Location: Tottenham Court Road
Contravention:Stopped on a restricted bus stop
Decision Date: 15 Feb 2011
Adjudicator: Hugh Cooper
Direction: cancel the Penalty Charge Notice.
Reasons: Mr Janssen appeared before me today to represent the Appellants.

He does not dispute that that the Appellants' vehicle was stopped on a bus stop. He stated
that this was for only a short time, and that he had been informed that this was a new
driver who had stopped briefly to look at his directions.

However he reiterated the argument put forward in his representations and Notice of
Appeal, to the effect that in using CCTV enforcement at this location the Enforcement
Authority had failed to have regard to the Secretary of State's guidance, which was in
breach of the mandatory requirement to do so contained in Section 87 of the Traffic
Management Act 2004 (TMA). In his Notice of Appeal he cited the terms of Section 87
of the TMA and of the part of the Guidance to the effect that the Secretary of State
recommends that approved devices are used "only where enforcement is difficult or
sensitive and CEO enforcement is not practical".

He argued that were this a dual carriageway with no pavements or safe place for a Civil
Enforcement Officer (CEO) camera enforcement would be appropriate, but that it is clear
that CEO enforcement is entirely possible in Tottenham Court Road. He submitted at the
hearing that the Authority had produced no evidence to show that they had in fact had
regard to the Secretary of State's guidance.

In response to Mr Janssen's argument the Authority wrote in their Notice of Rejection,
"You explain that use of CCTV enforcement at this location is contrary to guidance
issued by the Secretary of State For Transport. I should however explain that we take a
different view here and that if you wish to take this matter further you will need to make
use of the appeal form provided to take the case to the independent adjudicator".

In their Case Summary the Authority cited the terms of Regulation 10 of the Civil
Enforcement of Parking Contraventions (England) General Regulations 2007, which
allows a Enforcement Authority to serve a PCN by post on the basis of a record produced
by an approved device.

Section 87 of the TMA clearly does not impose a mandatory duty on Local Authorities to
follow any guidance published by the appropriate national authority, but it does impose a
duty to have regard to such guidance. The phrase 'must have regard to' imposes a
positive obligation on Local Authorities to think about the guidance. This obligation is
balanced by a discretion to determine what weight they should give to the guidance in
any particular location or set of circumstances. When making a decision, in this case as to
whether to employ camera enforcement at this location, they must be able to demonstrate
clearly that they applied their mind to the guidance, even though ultimately they chose
not to follow it.

The Authority in this case do not claim that enforcement is difficult or sensitive or that
CEO enforcement is not practical at this location, so there is no obvious reason why the
guidelines should not have been followed, and enforcement carried out by CEOs rather
than by camera. However the Authority have not given any reasons as to why they
nevertheless consider it appropriate to use camera enforcement.

The Authority have been on notice from the outset that this was Mr Janssen's argument,
and so cannot be said to have been taken by surprise. They may in their own minds have
good reasons why they chose not to follow the Secretary of State's guidelines at this
location. However they have not even summarised those reasons, and so I cannot be
satisfied that in exercising their functions in connection with the civil enforcement of an
alleged traffic contravention on this occasion the Enforcement Authority have had regard
to the Secretary of State's guidance.

The Appellants contend that there has been a procedural impropriety on the part of the
Authority. "Procedural impropriety" is defined in Regulation 4(5) of the Civil
Enforcement of Parking Contraventions (England) Representations and Appeals
Regulations as, " a failure by the enforcement authority to observe any requirement
imposed on it by the 2004 Act, by the General Regulations or by these Regulations in
relation to the imposition or recovery of a penalty charge or other sum..."

It is a requirement of the TMA (i.e. the 2004 Act) that the Enforcement Authority must
have regard to the Secretary of State's guidance . As I cannot be satisfied that this
requirement has been met, I find that there has been a procedural impropriety on the part
of the Enforcement Authority.

It follows that I must allow this appeal.

[ Mr Janssen will of course appreciate that I have not found as a fact that the Authority
have not had regard to the Secretary of State's guidance. I have allowed the appeal simply
because the Authority have not shown that they have. Should the Authority produce
evidence that they have indeed had regard to the guidance, then a future appeal on this
basis would not necessarily succeed.]
Appellant: Mr Mustafa Saad
Authority: Harrow
VRM: MT04NNF
PCN: HR84597828
Contravention Date: 27 May 2013
Contravention Location: Station Road
Contravention:Parked in a loading place without loading
Decision Date: 01 Aug 2013
Adjudicator: Anthony Chan
Reasons: This appeal was scheduled for a personal hearing today at 4:30 pm. The
Appellant has not arrived by 5:00 pm so I am proceeding with the hearing in his absence.
The Authority did not attend and it was not represented.

The Appellant submitted that the Authority had failed to comply with the Secretary of
State's guidance on the use of CCTV enforcement. He cited the appeal of Sainsbury
Supermarket v the London Borough of Camden. The Appellant has misunderstood the
law.

The Authority is not bound by the Secretary of State's guidance. The Adjudicator in the
Sainsbury case had made it abundantly clear that his decision is not about that. What the
case does say is that the Authority must have regard to the guidance. The authority for
this proposition is section 87 of the Traffic Management Act 2004. Section 87 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 Adjudicator found in the Sainsbury case that there was no evidence that the
Authority had considered the Secretary of State's guidance and there had accordingly
been a procedural impropriety.

I have come to the same conclusion in the instant appeal. The Appellant had taken the
point and the Authority failed to provide any evidence that it has considered the
guidance. There had been a procedural impropriety. I am allowing the appeal.
Appellant: Mr Mark Janssen
Authority: Newham
VRM: PE12LNM
PCN: PN07809303
Contravention Date: 21 Dec 2012
Contravention Location: St Johns Road E6
Contravention:Vehicle parked more than 50 cm from the edge of the carriageway and not
within a designated parking place
Decision Date: 29 Apr 2013
Adjudicator: Edward Houghton
Reasons: Having heard Mr Janssen for the Appellants in person I see no reason at
all to doubt that the vehicle was waiting for the gates to be opened; however as there is no
exemption in the legislation ( s85 Traffic Management Act 2004) for that purpose the
vehicle was in contravention.

It seems to me , however , that the Appellants' submission that the PCN is defective is
correct The PCN is required to state the effect of Para 3(6) The Civil Enforcement of
Parking Contraventions (England) Representations and Appeals Regulations 2007 ( see
Para 3(4)(e)). The PCN in this case is completely silent on this point, and is therefore
non-compliant. . As the Appeal falls to be allowed on this ground alone it is unnecessary
to decide whether the Council has "had regard to " the Secretary of State's guidance -
though it has to be said that the Council's evidence on this looks a little thin.
Appellant: Mr Avigdor Grossberger
Authority: Transport for London
VRM: P363KHN
PCN: GF72918681
Contravention Date: 24 May 2013
Contravention Location: Stamford Hill N16
Contravention:stopped where prohibited
Decision Date: 30 Sep 2013
Adjudicator:
Reasons: The Appellant had requested a fair amount of information from the
Authority. While I would not share the Authority's view that the request is vexatious, all
but one of the issues involved had any merit. For example, a motorist had no legal right
either under Article 6 or otherwise to have full disclosure of the evidence that the
Authority took into account before the decision to issue the PCN is taken. The ;point
about the absence of a fax number is also manifestly ill-conceived. As the Appellant
acknowledged, the Authority may determine the form with which representations can be
made. Even when the Authority has stated that postal and email representations are not
the only means, the non-inclusion of a fax number must surely mean that representations
by fax is not accepted.

The Appellant did however take issue with whether the Authority had had regard to the
Secretary of State's Guidance on the use of CCTV enforcement. The Authority made a
bare assertion that it has. It does not provide any evidence that it has, nor has it explained
in even the briefest of why it thought that it acted within the guidance and if not why not.

I am not satisfied that the Authority had had regard to the statutory guidance. There had
been a procedural impropriety. I am allowing the appeal.
- 1 -
PARKING APPEALS SERVICE
PAUL RICHARD DAVIS - and - THE ROYAL BOROUGH OF KENSINGTON &
CHELSEA
PAS CASE No. 1970198981
SAEED REZVANI -and- THE ROYAL BOROUGH OF KENSINGTON & CHELSEA
PAS CASE No. 1970182813
BEAUDECOR LTD -and - THE ROYAL BOROUGH OF KENSINGTON &
CHELSEA
PAS CASE No. 1970161595
PATRAS MAHGARAM -and - THE ROYAL BOROUGH OF KENSINGTON &
CHELSEA
PAS CASE No. 1970213021
DECISION
- 2 -
Introduction
The Road Traffic Act 1991 (the 1991 Act) provides a scheme which decriminalises the vast
majority of contraventions of the regulation of parking. The scheme has been adopted
throughout London, including The Royal Borough of Kensington and Chelsea, and it has recently
been extended to some non-London boroughs.
The scheme takes the enforcement of parking regulation entirely outside the criminal justice
system. Under the scheme, parking contraventions - such as parking on a single yellow line
during restricted hours, or parking without payment of the initial charge in a pay and display bay -
are no longer criminal offences. On the streets, enforcement has been taken out of the hands of
the police, and put into the hands of the relevant local authority who employ parking attendants to
assist them in enforcement. However, although the scheme is not criminal, it is penal. A
contravention can result in a penalty being incurred: but such penalties are payable to the local
authority responsible for enforcement. If liability for a penalty is contested, then the scheme
takes that dispute outside the Court system. It is dealt with initially by the relevant local authority
itself and then, if the dispute continues, by a tribunal (the Parking Adjudicator) set up specifically
for the task. Once liability is determined, in the event of non-payment, a local authority can
enforce payment, not as a criminal fine, but as a civil debt through the County Court.
Proceedings for the recovery of penalty charges must be taken in the Northampton County
Court Parking Enforcement Centre.
Therefore, in a number of respects, the scheme is novel. It is penal, but not criminal. It
empowers local authorities not only to enforce the regulations, and also to keep the penalties
recovered (although these are ring-fenced, so that they can only be used for transport purposes).
A number of issues concerning this scheme have arisen since its inception which, whilst being
well-settled in the criminal law system (which previously had exclusive jurisdiction over parking
regulation enforcement), have had to be considered by Parking Adjudicators and the Courts
afresh in the context of this new scheme: for example, the burden and standard of proof in
proceedings before an Adjudicator (Ronald Kenrick Douglas v The London Borough of Brent
(PAS Case No 1960031276, 4 July 1997)), and the ability of an Adjudicator to make rulings on
collateral challenges to underlying regulations (R v The Parking Adjudicator ex parte The
London Borough of Bexley (CO/1616/96, Unreported, 29 July 1997)).
- 3 -
Before me now are four cases concerning the effects of delay in proceedings under the scheme,
which again require the consideration of familiar concepts in an entirely novel context. This has
not been an easy task, and at the outset I would like to thank Julia Mann, Christopher Yates and
Linda Wheeler of The London Borough of Kensington & Chelsea (the Council), and
particularly Peter Harrison of Counsel (instructed by the Council), for their assistance at the
hearing.
The four cases concern delay at various times during the statutory process. Therefore, before I
come to the individual case themselves, I will deal with the relevant statutory provisions that
cover this process.
The Statutory Background
Under Section 66(2) of the 1991 Act, a parking penalty charge becomes payable with respect to
a vehicle, by the owner of the vehicle, in specified circumstances which contravene the statutory
provisions relating to parking.
By Section 66(1), where a parking attendant employed by or on behalf of the enforcing local
authority has reason to believe that a contravention of parking regulations has occurred such that
a penalty charge is payable, he may issue a penalty charge notice (commonly referred to as a
parking ticket: I will refer to it as a PCN), which he must affix to the vehicle or give to the
person appearing to him to be in charge of the vehicle. Section 66(3) sets out a number of
matters which the PCN must specify: sub-section (d) provides that the PCN must state that, if
the penalty is paid within 14 days of the issue of the PCN, then the amount will be reduced by a
specified proportion. In Kensington & Chelsea, the penalty is 60, which is reduced by 50% (to
30) if paid within 14 days.
However, although a PCN is aimed at the driver (or person in charge of the vehicle), if the
penalty referred to in the PCN is not paid, then he (as the driver or person in charge) cannot be
pursued for it at all. The authority can only pursue the owner of the vehicle, generally defined
(by Section 82(2) of the 1991 Act) in terms of the person by whom the vehicle is kept. There is
a statutory rebuttable presumption that, for the purposes of enforcement, the owner of a
vehicle is the person in whose name the vehicle is registered at the Driver and Vehicle Licensing
- 4 -
Authority (DVLA) (Section 82(3)). Therefore, in the event of non-payment of a penalty for
28 days after the issue of a PCN, the authority may serve a notice on the person who appears to
them to have been the owner of the vehicle when the alleged contravention occurred, i.e. a
notice to owner (NTO) (Paragraph 1(1) of Schedule 6 to the Act): and it can take the benefit
of the statutory presumption and serve such notice on the person in whose name the vehicle is
registered at the DVLA. I stress the word may. There is a discretion in the authority as to
whether to pursue an individual penalty by serving the owner with an NTO: and that is reflected
in the instructions that accompany the PCN, which indicate that, in the event of non-payment, an
NTO may be issued to the owner. Paragraph 1(2) of Schedule 6 sets out matters which the
NTO must include. Sub-paragraph (a) requires the amount due to be specified: of course, this
will be the full penalty, because the 14 day period when 50% would be acceptable has
necessarily elapsed.
Paragraph 2 of Schedule 6 gives the recipient of an NTO the right to make representations to
the relevant authority, who have the duty to consider them (Paragraph 2(7)). If they accept the
representations, they cancel the penalty: if they reject them, then the recipient of the NTO can
appeal to an independent Parking Adjudicator.
If the full penalty is not paid within 28 days of the final determination of liability, then the
authority may serve the recipient of the NTO with a charge certificate, to the effect that the
penalty charge is increased by 50% (i.e. to 90, in the case of Kensington & Chelsea)
(Paragraph 6(1)): and if that increased charge is not paid within 14 days, then the authority may
apply to the Parking Enforcement Centre at Northampton County Court for the recovery of the
increased charge as if it were payable under a County Court order (Paragraph 7 of Schedule 6
to the 1991 Act: and Paragraph 8A of The High Court and County Courts Jurisdiction Order
1991 and Order 48B of The County Court Rules 1981 (CCR)). Again, I stress the word
may. The authority has a discretion whether to serve a charge certificate: and a further
discretion, having served such a certificate, whether to enforce it through the Court. It can, at
either of these stages, decide not to proceed with enforcement.
CCR Order 48B applies the usual rules relating to enforcement of County Court money orders
and judgments to County Court orders for the recovery of the increased parking penalties, by the
various means available in the County Court (e.g. attachment of earnings, garnishee proceedings
and charging orders). By Order 48B Rule 5(1) (which applies the provisions of Order 26 Rule 5
- 5 -
to the recovery of parking penalties under County Court order), a warrant of execution cannot
be issued without the leave of the Court where six years or more have elapsed since the date of
the relevant order upon which the warrant is to be based. Section 24 of the Limitation Act 1980
equally applies from that date: so that no action on the order can be taken more than six years
after the date of the order (although rarely would an action based on the order - as opposed to
mere steps being taken for the execution of that order - be necessary).
After a County Court order has been made, Paragraph 8 of Schedule 6 provides for the revoking
of a charge certificate and the setting aside of the order in certain circumstances (e.g. where a
person gives a statutory declaration that he never received the original NTO), but otherwise
liability for the increased charge cannot be challenged in the County Court. When a charge
certificate is revoked, the authority have express power to issue a fresh NTO (Paragraph 8(6)).
That is the basic statutory scheme for enforcement of parking penalties by local authorities and,
so far as recipients of NTOs are concerned, for contesting such penalties. Of course, although
delays may be more prone to occur at particular points in the process, they can occur at any
stage.
The Purpose and Aims of the Statutory Scheme
Although the 1991 Act decriminalises contraventions of parking restrictions, the primary statute -
the Act under which the relevant traffic regulation or management orders are usually made - is
The Road Traffic Regulation Act 1984 (the 1984 Act). The purpose and aims of the 1984 Act
were considered by Mr Justice McCullough in R -v- The London Borough of Camden ex parte
Cran [1995] RTR 346. He said (at page 365D):
[It] is not a revenue raising Act.
and (at page 360J-L):
...[T]he 1984 Act is not a fiscal measure.... All its provisions...are concerned in one
way or another with the expeditious, convenient and safe movement of traffic and the
provision of suitable and adequate parking facilities on and off the highway. This is
reflected in the wording of Section 122(1). There is its policy; there are its objects.
- 6 -
In R -v- The Parking Adjudicator ex parte The London Borough of Bexley (CO/1616/96,
Unreported, 29 July 1997), this was approved by Mr Justice Scott Baker (Transcript, page 9G-
H).
Section 122(1) of the 1984 Act (as amended) reads:
It shall be the duty of every local authority upon whom functions are conferred by this
or under this Act so to exercise the functions...to secure the expeditious, convenient
and safe movement of vehicular and other traffic (including pedestrians) and the
provision of suitable and adequate parking facilities on and off the highway...
The duty imposed by this sub-section is expressly subject to the provisions of Part II of the 1991
Act (Section 122(3) of the 1984 Act as amended). This part of the 1991 Act deals with traffic
in London, and includes Sections 51 and 63 under which the Secretary of State for Transport is
bound to issue to the London authorities guidance with respect to the management of traffic in
London (Section 51) and with a view to the authorities co-ordinating their action with respect to
parking in London (Section 63). The Secretary of State did so on 26 August 1992 (Local
Authority Circular 5/92). In that guidance, the main objectives of the 1991 Act are given as
follows:
10.5 Local authorities should ensure that the new system of parking control is
effective in their areas so that it makes a significant contribution to helping
the movement of traffic, reducing accidents and improving the environment
and managing the overall level of traffic in accordance with the strategy
outlined...above...
10.6 The local authority should ensure that the new system is run efficiently and
economically and that as soon as practicable it becomes overall at least self-
financing where necessary taking account of receipts from off street parking
places...
10.7 The local authority should operate the new system fairly...
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This comprises the relevant guidance of the Secretary of State, the passage
is missing that representing merely additional information upon that guidance.
That guidance was supplemented in February 1998, by a further document issued by The
Government Office for London (on behalf of the Secretary of State for the Environment,
Transport and the Regions), Traffic Management and Parking Guidance for London. This
document reflected (almost verbatim) the wording of a Consultation Paper issued by The
Government Office for London in August 1997, Traffic Management and Parking Guidance: A
New Approach. The February 1998 guidance says:
8. The Local Authority Parking Enforcement System
Introduction
8.1 Sections 8-11 of this Annex brings up to date the general guidance on the
local authority enforcement system ... The Secretary of State expects the
local authorities, the Parking Committee for London and, where
appropriate, the Traffic Director, to take account of this Annex in
operating the decriminalised parking enforcement system...(emphasis in
the original).
Main Objectives from the Road Traffic Act 1991
8.4 Local authorities should ensure that the system is run efficiently and
economically and overall is at least self-financing, where necessary taking
account of receipts from off-street parking places. However, self-financing
should not be at the expense of safety or traffic management considerations.
8.5 Local authorities should operate the system fairly. Safeguards for drivers
and owners are contained throughout the procedures for operating the system
under [the 1991 Act]...
8.6 Local authorities have a statutory duty to consider representations against the
issue [PCNs] and wheelclamping or removal action. The local authorities
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should exercise this duty in a fair and consistent way. They should also
consider using their discretion to waive additional parking charges where
there are extenuating circumstances. Experience has shown that producing
full and prompt replies to representations results in fewer appeals to the
adjudicators and more PCNs paid...
8.10 Parking adjudicators are a major safeguard for the protection of drivers and
owners under the decriminalised system. They have a comparable role to
Magistrates Courts under the existing system of criminal parking controls.
They consider appeals from motorists who are not satisfied with the grounds
on which a local authority has rejected their representations against the
authoritys enforcement action. They follow quick and simple procedures
prescribed in regulations made by the Secretary of State [currently The Road
Traffic (Parking Adjudicators) (London) Regulations 1993]. As the
adjudicators sit alone, [the 1991 Act] requires them to have a 5 year general
qualification within the meaning of Section 71 of The Courts and Legal
Services Act 1990, i.e. they must have a right of audience in relation to any
class of proceedings in any part of the Supreme Court, or all proceedings in
County Courts or Magistrates Courts. Thus adjudicators are qualified to
decide on matters of fact and of law ...
Therefore, summarising the relevant statutory provisions, and guidance from the Secretary of
State:
1. The purpose of the scheme of the 1991 Act is traffic management, and not
fiscal. Indeed, the traffic management purpose is paramount even to the aim of
making the scheme self-financing.
2. There is a duty on local authorities to ensure that the scheme is administered
fairly, as well as efficiently and economically. In administering the scheme,
authorities are to have regard to the safeguards for drivers and owners [that]
are contained throughout the procedures for operating the system.
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3. Parking Adjudicators are a major safeguard for the protection of drivers and
owners. In carrying out their functions, Parking Adjudicators are to follow
quick and simple procedures prescribed in regulations made by the Secretary of
State.
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Individual Cases: The Facts
I now turn to the facts of the individual cases.
A. Paul Richard Davis (PAS Case No 1970198981) (PCN No KC97014601)
The Appellant is the registered keeper of a black Ford Fiesta XR2, registration mark F952
WVP. The Council say that, on 7 November 1995 between 10.19am and 10.27am, the car was
parked in Lexham Gardens (a restricted street) during a time restrictions were in force. A
Parking Attendant - having reasonable grounds to believe that a contravention of the relevant
traffic management order had occurred - issued a PCN, which he attached to the vehicle. No
payment or other response to the PCN was received by the Council, and so, on 12 December
1995, an NTO was sent to the Appellant at the address given for him on the DVLA computer.
No response was received to the NTO and, consequently, on 24 January 1996, a charge
certificate was sent to the Appellant at the same address: but this charge certificate was not
registered at the Parking Enforcement Centre at Northampton until February 1997. In this case,
this delay of over 12 months was the material delay. The Council (in evidence of Mr Yates,
their Parking Enforcement Manager) said that the cause of the delay was that their computer
database was not linked to the County Court until November 1996.
No doubt very shortly after an attempt at enforcement of the County Court Order, the Appellant
promptly applied to the County Court by way of statutory declaration to have the NTO and
charge certificate set aside, on the basis that he had never received the original NTO. The
application was granted by the Court on 11 April 1997.
However, the Council issued a second NTO which they sent to the Appellant on 22 April 1997.
The Appellant - again promptly - sent representations to the Council on 30 April 1997: but these
were based on the misapprehension that the County Court Order had cancelled the PCN (rather
than merely the charge certificate), thereby dis-enabling the Council from pursuing any penalty
at all. As indicated above, on the cancellation of a charge certificate, an authoritys right to issue
a fresh NTO is expressly preserved (Paragraph 8(b) of Schedule 6 to the 1991 Act) The
representations were turned down by the Council nearly 3 months later, on 15 July. An M
Davis lodged an appeal on the Appellants behalf on 13 August 1997, giving the following
details of appeal:
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I received a penalty notice 18 months after the aledge (sic) incident, with nothing prior
to this at all. The vehicle has been in a garage for some time as I have been living in
Germany, the rest of my family have had the keys, but they all own theyre (sic) own
vehicles. I or they would have no need to be in Lexham Gardens at that time as I or
the rest of my family dont work or have friends who live there. We are all very
puzzled why I have received this notice 18 months later. I feel there has been a
mistake made on the Councils behalf. I do feel there has been a total misjustice here
and I am not very amused.
That postal appeal came before Parking Adjudicator Henry Michael Greenslade on 15 October
1997. He allowed the appeal, giving the following reasons:
This PCN was issued in November 1995. Mr Davis says he knew nothing about it
until he received an NTO in April 1997. The Council say that, with no response to the
original NTO, a charge certificate was issued in January 1996. However, it then took
them 13 months to register the case at PEC. This was a considerable delay. It is
unreasonable to expect Mr Davis now to recall events. The contravention is disputed.
I find there must be considerable doubt that it did occur.
On 22 October 1997, the Council wrote to the Parking Appeals Service seeking a review of the
decision, in these terms:
... [F]or the Adjudicator to find that there must be considerable doubt that the
contravention occurred is in the Councils viewpoint not a logical conclusion to the
argument. The Council accept that there was a delay between the issue of the first
charge certificate on 24.01.96, and the registration of the case at PEC on 03.02.97, but
this is no reason to find that there must be considerable doubt that the offence
occurred. Indeed, the facts of the case were clearly set out in the Councils Summary
of Evidence and supported by documentary evidence that the contravention did in fact
occur. The fact that the Appellant may not recall the events simply because they
happened a long time ago cannot mean that the offence did not occur. It is for this
reason why the Council wish to challenge the decision.
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That letter was followed by a further letter to the Parking Appeals Service of 28 October, which
said:
Recent adjudications have been alarming, making illogical jumps in reasoning that
because an event was a long time ago there is doubt that it happened (see letter of
22.10.97 re Case 1970198981) ...
On 11 November, the Chief Parking Adjudicator agreed that the decision be reviewed, and that
review is now before me.
What is clear in this case, is that the Appellant appears to have acted promptly at all times.
Under Paragraph 8 of Schedule 6 to the 1991 Act, the County Court have accepted - and I must
accept - that the Appellant knew nothing about the alleged contravention (which took place in
November 1995) until about April 1997, when presumably there was some attempted
enforcement of a County Court Order. In the intervening period, the matter was entirely in the
hands of the Council. Until the attempted service of the charge certificate in January 1996,
matters had progressed with reasonable expedition: by my calculation, it took only just over 2
months between the alleged contravention and service of the charge certificate. There was then
a delay of over 12 months before the certificate was registered. Responsibility for that delay
was entirely the Councils. As soon as the Council attempted to enforce the County Court order
(after the registration of the certificate) - and the Appellant knew, for the first time, of the
alleged contravention for which he was being held responsible - matters moved quite swiftly. It
is notable that, but for the delay between the attempted service and registration of the charge
certificate, the second NTO could have been served in this case in under 6 months after the
alleged contravention.
B. Saeed Rezvani (PAS Case No 1970182813) (PCN No KC82031753)
The Appellant is the registered keeper of a green Volkswagen Polo CL Coupe, registration mark
L397 GUY. He is disabled, and holds a Kensington & Chelsea blue disabled badge (under the
Kensington & Chelsea Free Parking Places) (Disabled Persons) Order 1991). However, that
badge does not entitle him to park on yellow lines during restricted hours, except for up to 20
minutes for the purposes of allowing a disabled person to be dropped off or picked up.
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The Council say that, on 31 July 1995, the vehicle was seen in Pitt Street by Parking Attendant
No KC127, parked on a yellow line during prescribed hours, between 11.42am and 12.08pm (i.e.
for a period of 26 minutes). A PCN was issued and fixed to the vehicles windscreen. It seems
that the Appellant wrote to the Council immediately upon receipt of this PCN, to point out that he
is a disabled badge holder: but that letter is undated, and it is not entirely clear that it was sent at
that stage. If it was sent then, it is certainly unclear why the Council did not use the address
shown on that letter, rather than seek the address given for the keeper on the DVLA computer.
In any event, the Appellants letter did not enclose any payment.
In the absence of a payment in response to the PCN, the Council made a request to the DVLA
for details of the owner, which they received on 25 September 1995. The owner was given as
Saeed Rezvani c/o Motability Finance Ltd, 20 Cadogan House, Beaufort Street, London SW3
5BL. As I understand it, Motability is a private company which operates schemes for the
benefit of disabled drivers, including a hire scheme and a hire purchase scheme in which the hire
premium is linked to the amount of allowance to which a disabled person is entitled. An NTO
was sent to the Appellant at that address, on 2 October 1995. There was no response to the
NTO and, on 17 November 1995, a charge certificate was posted to that same address.
However, a week later (on 24 November), the NTO was returned to the Council in the course
of the post. It is not clear why the letter was returned (e.g. whether it was because the address
at the DVLA was wrong, or for some other reason). Further enquiries were sent by the Council
to the DVLA in January, February and March 1996, but apparently no response was received,
and no further enquiry appears to have been made. However, in November 1996, the Councils
computer shows that the Appellants home address was added: it is unclear from where this
information came, but, as I have indicated above, it seems that the Appellant had written to the
Council very shortly after the issue of the PCN, and that letter contained his home address
details. A second NTO was sent to the Appellant at his home address on 6 February 1997.
The Appellant received that NTO and, within days, he made representations to the Council in the
following terms (and with grammar and spelling as in the original)::
This ticket has been issued incorrectly as you sent me two more earlier last week. I
dont know wethear your trafic-warden has been careless or youve got problems with
your computer. I live in the Borough and holding an orange and blue badge. Still dont
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know on what circumstances you have given me this tickets. If you cant cancel them
please arrange a court hearing. There might be someone listen to me.
Those representations were sent on 17 February 1997. They were rejected by the Council 5
months later, on 22 July 1997, with an apology for the delay in response. The Council rejected
the representations, on the basis that a disabled badge does not allow parking on yellow lines
except for up to 20 minutes to allow a disabled person to be picked up or for goods to be
collected.
Again very promptly, on 26 July, Mr Rezvani appealed to the Parking Appeals Service, in the
following terms:
Aparently youd given me this ticket almost 3 years ago which I have no knoledge
about it, first of all. Second of all, I am disabled involve with kidney failure going on
dialysis, have had heart attack, extremely anaemic. I live in the Borough and holding
orenge and blue badge finalcialy, I am really in a very bad situation. I cant aford a
penny. You tell me how am I supose to pay for a ticket which had been issued three
years ago. I want to appeal against the decision. Please can you cancel it. If you
cant please send me a Court Order so I can explain it to them. Thank you for
understanding my situations.
The appeal came before Parking Adjudicator Paul Wright on 16 September 1997. He allowed
the postal appeal, giving the following reasons:
Without a copy of the attendants notebook I cannot be satisfied as to the observation
carried out in respect of the vehicle. Furthermore, the unconscionable delay in the
case has severely prejudiced the Appellants ability to collate and preserve evidence.
A copy of the PCN was available to the Parking Adjudicator at the hearing, which indicated that
the vehicle had been seen in Pitt Street between 11.42am and 12.08pm. There was also a
computer printout from the hand-held computer, but this did not indicate the observation period.
The Parking Attendants hand-written notebook was not available. The Council said:
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[We] apologise for the fact that we do not have a copy of the PAs pocket-book. It
was archived and cannot now be found.
The Council sought a review of the Adjudicators decision by letter to the Parking Appeals
Service of 28 October 1997.
At the hearing of the review, the Council submitted a copy of what purports to be the relevant
Parking Attendants hand-written notes. They are headed with the correct PCN number
(KC82031753). However, these notes apparently show that, at the relevant time on 31 July
1995, the Parking Attendant whose notes these are was not in Pitt Street, but in Holland Street:
and there is no reference to vehicle registration mark L397 GUY between 11.42am and 12.08pm
(or, indeed, in the notes at all).
C. Beaudecor Ltd (PAS Case No 1970161595) (PCN No KC73035254)
The Appellant is a company of painters and decorators. It is the registered keeper of a grey
Toyota vehicle registration mark M624 ALA.
The Council say that that vehicle was seen at 9.03am on 7 December 1995, parked in a
suspended meter bay in Kensington Park Road. A PCN was issued and attached to the vehicle.
The Appellant wrote to the Council shortly after the incident. Not all of the correspondence is
now available (because, the Council say, as the case is old the Councils record of
correspondence from Beudecor has been archived and we are unable to access these for the
purposes of this appeal): but the Council have lodged a letter from them dated 12 December
1995, which refers to a letter from the Appellant dated 8 December 1995 (not now available).
The Councils letter said that they were willing to accept payment at the reduced rate of 30 but,
if that payment was not received by 3 January 1996, an NTO would be sent. However, a letter
was sent on 8 January 1996 from Sureway Parking Services Ltd (expressly on behalf of the
Royal Borough of Kensington & Chelsea: Sureway are the Councils parking contractors),
saying:
Thank you for your letter with regard to the above PCN. Unfortunately we are
unable to reply at present, however we would advise that we will investigate your case
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as soon as possible and reply to your letter in due course. In the meantime your details
have been logged and your case has been put on hold.
The Appellant heard nothing more about this for 14 months, when it received an NTO dated 25
February 1997. This 14 months was the material delay in this case. There is no explanation for
this delay: Mr Yates of the Council merely said, A standard acknowledgement was sent in
response to a letter but procedures are now in place to identify matters requiring a substantive
response.
Promptly, on 3 March 1997, the Appellant wrote in response to the NTO:
With reference to the enclosed penalty charge: please note that this penalty has been
incorrectly issued. How is it possible for the PCN Issue Date to be 7.12.95 and we
receive this notice now in March 1997. We have no record of receiving a fixed
penalty in Kensington Park Road at 9.03am on 07.12.95.
Those representations were turned down 3 months later, on 6 June 1997, although the Council
indicated in the letter of rejection that it was still willing to accept payment at the reduced rate of
30 if made by 23 June 1997. However, no payment was made: rather, the Appellant appealed
to the Parking Appeals Service on 7 July 1997, giving its details of appeal as follows:
The first indication of the PCN arrived at our office on the 3 March 1997. The notice
to owner was dated 25 February 1997. However, the NTO says the PCN was issued
on 7 December 1995... We never contravened parking laws in Kensington Park Road
in December 1995. How can a NTO be issued 15 months after an alleged parking
contravention; especially since we have no record of ever receiving a penalty notice.
It seems that Sureway can backdate or make-up any penalty notices going back a over
a year and the public have no way of proving innocence. How can a computerised
system forget and suddenly find a penalty notice over 15 months old?...
The postal appeal came before Parking Adjudicator Susan Turquet on 27 August 1997. She
allowed the appeal, giving the following reasons:
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Although there is evidence that Beaudecor responded to the PCN in December 1995
at the time, the subsequent delay of 15 months in sending out the NTO is prejudicial to
the Appellant and is an abuse of process.
The Council sought a review of this decision by letter of 28 October 1997.
D. Patras Mahgaram (PAS Case No 1970213021) (PCN No KC71041959)
The Appellant is the registered keeper of a black Mercedes 300SE Auto registration mark D668
TGK.
The Council say that, on 14 October 1995, that car was seen parked in Gloucester Road, at a
place where parking and loading/unloading restrictions were in force. There was no response to
the PCN, and the Council made enquiries of the DVLA to identify the keeper on 6 November
and 4 December 1995 (to which there was no response as at 9 January 1996): and a third
enquiry was made on 14 May 1997 (some 17 months after the second enquiry), which did elicit a
response on 26 May 1997. An NTO was then sent to the Appellant on 3 June 1997.
The material delay in this case is between the second and third requests by the Council for
details of the owner, from the DVLA. In his letter of 27 October 1997 to the Parking Appeals
Service, Lawrence Blake (the Councils Senior Parking Assistant) explained the delay as
follows:
The Council accept however that there was a long delay between the issue of the
second and third VQ4 forms - some 17 months. The explanation for this is that as a
result of the Council taking over enforcement of parking from the Metropolitan Police,
new systems had to be introduced between the Council and its Contractors. Inevitably,
there were some problems experienced with those systems, one of which has resulted in
delays occurring on the reissue of VQ4 enquiries. I am pleased to say that these
problems are now being resolved...
It is again to be noted that the material delays in this case were not caused or contributed to by
the Appellant.
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The Appellant responded to the NTO within days, on 14 June, in the following terms:
I was disconcerted to find that I received this [PCN] as attached. I have absolutely
no recollection of receiving any notice on my windscreen on the date mentioned.
Furthermore, I am surprised to have received this notice one year and eight months
after the alleged offence occurred. I am certain that this is a clear misunderstanding
and, as a matter of urgency, I would be very grateful to receive confirmation from your
offices of a cancellation of this [PCN]. This is the first ticket I have received and I
would like to point out that I have always observed penalty parking restrictions when
parking in the Borough.
Those representations were turned down by the Council in a letter of 27 August 1997. The
Appellant then appealed (on 1 September 1997), giving the following as his details of appeal:
I surprised to receive your letter dated 27th Aug 1997 Notice No KC1041959. This
matter has already carry to close upon 2 years. Hence I am pleading once again to
ask you to cancel the penalty charge. As I mentioned to you in my previous letter, I
never received the penalty notice at all. Nor for your information, traffic warden has
in fact not even taken the excise licence number. I trust that at this late stage you will
kindly use your high offices to cancel all my penalty notices what you have mentioned
in your letter. Thank you very much.
The postal appeal was adjourned on 13 October 1997, to allow the Council to explain the delay in
pursuing the penalty, which the Council did in Mr Blakes letter of 27 October to which I have
already referred. The case was adjourned to be dealt with by me, together with the other,
review cases I am now dealing with.
E. General
I deal with the particular issues that these cases raise below. However, it will be apparent from
each of the individual cases that:
(i) The respective owners of the relevant vehicles were surprised and concerned to
receive documentation that indicated the Council was pursuing a penalty many
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months after the alleged contravention. Some expressed their views in forceful
or angry terms.
(ii) In a number of cases, the owner indicated that he could not remember - and
could not be expected to remember - the circumstances of the parking of a
particular vehicle on a particular day, many months or even years before.
(iii) In the case of Saeed Rezvani, the Appellant was not the only one with evidential
problems, because the Council archived the parking attendants notes and could
not find them prior to the first hearing, and, when the notes were found prior to
the review hearing before me, they appeared to show no reference to the
Appellants car and indeed that, at the relevant time, the Parking Attendant was
not in the same street as appeared on the Appellants PCN. Similarly, in
Beudecor Ltd, the Council indicated that, because of the age of the case, it had
archived certain relevant correspondence, which they could not access for the
appeal.
Whilst on the individual cases, what is in issue in each of them is a matter of law of far wider
application than their cases alone, and the Council have - in accordance with common practice -
consequently confirmed, both in their letter of 22 October 1997 and at the hearing before me,
that, whatever the result of the review, they will not pursue the Appellant for any penalty or
charge in any of these particular cases.
The Councils Case
Hopefully doing justice to a substantial and carefully argued case, I summarise the Councils
case as put by Mr Harrison as follows.
1. Limitation
A cause of action to recover a sum of money due under the 1991 Act arises when a
PCN is properly issued and served under Section 66 of the 1991 Act, i.e. when a
Parking Attendant, with grounds to believe that there has been a contravention of the
parking regulations, affixes a PCN to a vehicle or gives it to the driver/person in
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charge. It is irrelevant, Mr Harrison submits, that the owner of the vehicle (the only
person against whom a penalty can be enforced) may know nothing about the issue of
a PCN.
By Section 9 of the Limitation Act 1980, the sum of money recoverable is subject to a
six year limitation period, i.e. the Council can pursue the penalty at any time up to six
years after the issue and service of the PCN. That is the effective time restriction
beyond which an authority cannot seek to enforce a penalty.
2. Striking-out
Where delay is the only relevant factor, a Councils ability to pursue a penalty is not
jeopardised except to the extent that their right to pursue a cause of action would be
jeopardised in a County Court action, i.e. on the basis of the principles set out in Birkett
-v- James [1978] AC 297 and summarised by the Court of Appeal in Trill -v- Sacher
[1993] 1 All ER 961. In short, there must have been inordinate and inexcusable delay
on the part of the Council, such that there arose a substantial risk that it would not be
possible to have a fair determination of the issues or such as is likely to cause serious
prejudice to the recipient of the NTO: and, even then, a case will not normally be
struck out within the limitation period. Although Mr Harrison did not express it as
such, it seems that it is inherent in this submission that an authority should be allowed to
proceed to enforce a parking penalty by issuing an NTO for six years after the issue of
a PCN, irrespective of the prejudice that may have been caused to the recipient of an
NTO by delay (that prejudice only being relevant where an NTO has been issued
within six years, but proceedings continue through the six year point). However, even
where delay is a factor to be taken into account, in line with these authorities, Mr
Harrison considered that a fair trial of the issues arising out of an alleged parking
contravention could be fairly determined despite delay, so long as the owner had not
been prejudiced. Prejudice, he said, was the crucial factor: and the very high burden
of showing prejudice falls upon the car owner (just as the burden of proof on an
application to strike out for want of prosecution is on the defendant).
Therefore, in short, Mr Harrisons submitted that, under the statutory scheme, the
Council is able to issue an NTO at any time up to six years from the issue of a PCN:
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and, even where there is delay after the issue of the NTO, it would be unlikely that that
delay would be such as to warrant the enforcement proceedings being struck out. On
this basis, an authority could quite properly take six or eight or more years to complete
proceedings to enforce a parking penalty.
3. The Duty to Act Fairly
The Council (through Mr Harrison) accept that, when exercising any of its functions
under the scheme, it has a duty to act fairly (or, as he preferred it to be put, a duty not
to act unreasonably), arising out of the limb of natural justice requiring there to be a
fair hearing: and that delay can be a relevant factor in determining whether the Council
have acted in breach of that duty. Mr Harrison conceded that it would be possible for
an authority to behave so outrageously that it would be a breach of natural justice to
allow it to pursue any penalty in the circumstances (e.g. where an authority by delay
deliberately manipulated the statutory scheme to its own advantage): but, in the
absence of conduct of that sort, there would be no breach of the duty to act fairly
unless the owner had been prejudiced. Again, the burden of proving sufficient
prejudice would fall on the owner himself.
He said that, for the purposes of this case, Article 6(1) of the European Convention on
Human Rights would (even if applicable) impose no greater an obligation on an
authority than do the rules of natural justice. He submitted that Article 6(2) and (3) of
the Convention (which apply to criminal proceedings) would not in any event apply to
the enforcement of parking penalties under the 1991 Act: but, even if they did, they
would not impose a greater obligation on an authority than do the rules of natural
justice.
4. Evidential Matters
The Council rely upon contemporaneous records, in the form of parking attendants
hand-written and computer-recorded notes. Whilst accepting that a (civil) burden of
proof lay upon the Council to prove that the contravention occurred, Mr Harrison
submitted that, so long as the Adjudicator is satisfied on the balance of probabilities that
the details were recorded accurately and had not subsequently been altered, then the
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only supportable conclusion will be that the contravention occurred. Such
documentary records will be as credible after a lengthy period of time as after a
shorter period. On the other hand, the recollection of the driver/owner - who is
unlikely to have any relevant contemporaneous documents - can only fade with time,
so that, as time passes, an Adjudicator can only rely more heavily upon the (Councils)
documentary evidence showing a contravention did indeed occur. Therefore, Mr.
Harrison said, Adjudicators should therefore be very slow indeed to find that, as a
matter of evidence, time alone meant that they could not be sure that a contravention
had occurred (cf the decisions of the Adjudicators in the cases of Paul Richard Davis,
Saeed Rezvani and Beaudecor Ltd, that are now before me on review).
5. Conclusion
The Council say that, in each of the cases before me, the delay was not caused by
them and/or the Appellant has failed to prove that any delay by the Council has caused
prejudice to him.
For these reasons, the Council asked me to refuse the appeal in each case.
I deal with each of these submissions below. However, in considering these matters, Mr
Harrison in particular urged me to view an authoritys pursuit of a penalty against a car owner as
the same as any other County Court action, such as (for example) the pursuit of damages by a
plaintiff in a running down case. He said that that should be the starting point in my
consideration of issues such as limitation, striking out and the effects of delay. I have already
commended Mr Harrison for his careful and helpful submissions, but I consider this to be an
over-simplification and a misconception of the true position.
First, there is a difference in the purpose. The proper purpose of a claim for a typical claim for
damages in the County Court (in, e.g., a running down case) is the recovery of compensation:
but the paramount purpose of the scheme for the enforcement of parking regulations under the
1991 Act is not fiscal, but rather for good traffic management. A Council is not bound to pursue
every parking penalty, irrespective of the circumstances: and the extent to which very belated
attempts to recover penalties lead to better future compliance must be doubted. Indeed, it is
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possible that, if such attempts are perceived by the public to be inherently unfair, they will result
in an undermining of the public confidence in the system as a whole.
Second, there is a difference in the nature of the scheme. Under the statutory scheme, so far as
the determination and enforcement of penalties are concerned there are three distinct stages:
(i) The First Stage : From the issue of the PCN to the rejection of any representations
made in respect of the NTO.
During this stage, the local authority is not only the enforcing authority, it is also the
decision-making authority (although not, of course, a Court because it does not
exercise any judicial function, its role being administrative only). The subject matter is
the penalty charge. During this stage, neither the local authority nor the recipient of
the NTO has any right to take any step before either the Parking Adjudicator or the
County Court.
(ii) The Second Stage : From the rejection of representations against an NTO to the
determination of an appeal by the Parking Adjudicator.
Once the local authority has rejected the representations of the recipient of the NTO,
that person has the right to appeal against that administrative decision to the Parking
Adjudicator. In any appeal, as the respondent, the local authority continues to be the
enforcing authority: but the decision-making authority is now the Parking Adjudicator.
An Adjudicator is a Court because he or she exercises judicial functions and forms
part of the judicial system of the country rather than the administration of the
Government (see Peach Grey & Co -v- Sommers [1995] 2 All ER 513 at 519-521, per
Rose LJ, who was in that case considering the status of an industrial tribunal: he found
that such a tribunal was an inferior Court, for the purposes of contempt of Court, and
it is noteworthy that he did so despite the fact that an industrial tribunal is not a Court
of record and that its monetary awards have to be enforced ... by the County Court
... (page 519H)). Before the Adjudicator, the subject matter remains the penalty
charge. During this stage, the local authority cannot take any steps in the County
Court: its sole role is as respondent in the appeal before the Adjudicator. Neither can
the recipient of the NTO take any steps in the County Court at this stage.
- 24 -
(iii) The Third Stage : From the determination of liability for the penalty charge.
This stage will commence at the conclusion of any appeal before the Parking
Adjudicator, or earlier if the recipient of the NTO ceases to dispute liability for the
penalty earlier. By this stage, even if there has been an appeal, the Parking
Adjudicator is functus officio. The local authority continue to be the enforcing
authority, and it can at this stage issue a charge certificate in respect of, not the penalty
charge, but the increased charge which, in amount, is the original penalty charge plus
50%. If this is not paid within 14 days, then the local authority can seek an order from
the County Court for the recovery of the increased charge.
The County Court therefore only becomes involved at a stage when liability for the
increased charge has been settled (either because the penalty is accepted by the
vehicle owner, or he does not dispute it, or an Adjudicator has determined it), and the
resulting liability is simply enforced through the County Court as a County Court money
order or judgment. At that stage, enforcement can go no further without the
assistance of a Court. The County Courts role is therefore very late in the scheme,
and limited to enforcement: indeed, the right to challenge liability for the increased
penalty is expressly excluded (although, as I have indicated, the County Court order
can be set aside on procedural grounds if, for example, the NTO was never received
by the relevant person).
Therefore, whilst in these novel areas it is sometimes helpful to work from analogy, I do not
consider the statutory scheme for the enforcement of parking regulations can simply be looked at
as if it were a running down case wending its course through the County Court, with the service
of the NTO being the equivalent of issue (or service) of a County Court Summons and the
recipients representations being the equivalent of a Defence. I do not consider that an
authoritys statutory duty to consider representations (under Paragraph 2(7)(a) of Schedule 6 to
the 1991 Act) can be equated with a plaintiffs consideration of a Defence in a typical County
Court case. It seems to me that the Councils submissions fail to give proper weight to its public
responsibilities under the 1991 Act and the purposes of that Act. Those purposes are quite
different from the purposes of a County Court plaintiff in a damages action, whose only concern
is compensation (i.e. the recovery of damages of monies he considers due to himself). The
- 25 -
scheme of the 1991 Act is an entirely distinct creation of statute, in which the role of the County
Court (as the ultimate enforcer by way of recovery of the increased charge) is purely incidental.
This is a matter to which I will return when I deal with the Councils submissions on the specific
issues.
Nor did I find helpful the comparison between the 1991 Act scheme and the Inland Revenue
scheme for the collection of taxes, in which there is a six year limitation period (made by Linda
Wheeler, the Councils Head of Parking Operations, in her letter to the Parking Appeals Service
dated 28 October 1997). Again, both the purposes and the nature if the relevant schemes are
very different. The purpose of the Inland Revenue scheme is fiscal (the collection of taxes),
whereas the purpose of the 1991 Act scheme is not (it is for good traffic management). The
taxation scheme has express limitation provisions built in: for example, in cases brought by the
Revenue (which Miss Wheeler prayed in aid), an action must be brought within six years from
the end of the chargeable period to which the claim relates by virtue of the specific provisions of
Section 34 of The Taxes Management Act 1970. There are no similar express provisions in the
1991 Act. Bearing in mind these differences between the 1991 Act scheme and the scheme for
taxation, the extent to which useful parallels can be drawn is very limited.
Limitation
As I indicate above, the Councils argument on limitation is simply put. They say that a cause of
action to recover a sum of money due under the 1991 Act arises when a PCN is properly issued
and served under Section 66 of the 1991 Act, i.e. when a Parking Attendant, with grounds to
believe that there has been a contravention of the parking regulations, affixes a PCN to a vehicle
or gives it to the driver/person in charge. As this is a sum recoverable by virtue of a statute (the
1991 Act), they say that Section 9 of the Limitation Act 1980 applies, so that the penalty
recoverable is subject to a six year limitation period, i.e. the Council can pursue the penalty by
way of action at any time up to six years after the issue and service of the PCN when the cause
of action accrued. The step the authority takes to stop the limitation clock running is the issue
and service of the NTO which, it is said, commences the action Mr Harrison said that
Parliament had therefore provided that an authority should have six years to pursue a parking
penalty, with limitation providing the effective cut-off date for pursuit of a penalty: he
submitted that Parliament had contemplated with apparent equanimity the possibility of a local
authority pursuing the owner of a vehicle for a parking penalty six years after the alleged
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contravention, even though (for reasons referred to below) the owner may during that time be in
complete ignorance of his potential liability.
However, this position appears largely to derive from the Councils position that the 1991 Act
scheme can be equated with a typical County Court damages action. As I have pointed out, that
position fails properly to distinguish between the three distinct stages of the scheme referred to
above. On a proper construction of the relevant statutory provisions, I do not consider that
limitation provides any effective restriction at all on an authoritys right to pursue a penalty under
this statutory scheme.
Although the Courts today properly abhor undue delay, at Common Law, if one had a right, there
was no time limit on when it could be enforced by way of Court action. Leaving aside the
equitable principles of acquiescence and laches (not relevant in this case), time restrictions on
the bringing of an actions derive from statute, now the Limitation Act 1980. Under that Act,
periods of limitation begin to run when the cause of action accrues. Action is defined in
Section 38(1), to include any proceeding in a Court of law.... A cause of action is a factual
situation which gives a person a right to a remedy in the Courts. As I have already indicated, in
my view, for these purposes both the County Court and the Parking Adjudicator are Courts of
law.
Therefore, in the scheme of the 1991 Act, when does a cause of action arise? At which stage
does the authority accrue a right to a remedy from either the Adjudicator or the Court? The
answer to that is, not before a default in payment of the increased charge following the service
of the charge certificate.
It seems to me that no cause of action arises at the time of the issue of the PCN, when the
Council have no right to seek recourse from either the Court or the Adjudicator. Similarly, no
cause of action arises when the NTO is served. The recipient of the NTO only has the right to
make representations to the local authority in respect of it: and neither he, nor the local authority,
has any recourse to either the Court or the Adjudicator. Therefore, in my view, clearly no cause
of action arises during the first stage of the procedure referred to above.
During the second stage, the recipient of the NTO has the right to challenge the administrative
decision of the authority to reject his or her representations before the Adjudicator. Although the
- 27 -
Adjudicator exercises a judicial function and is a Court, the local authority can take no steps to
enforce the penalty whilst an appeal is being determined. Indeed, at this stage, it is only the
penalty charge that is in dispute: and the penalty charge (as opposed to the increased
charge) is never capable of being enforced by the authority. Therefore, I do not consider that
any cause of action arises in the authority during the second stage, either.
The third stage is clearly different. Liability for the penalty charge has been determined and, if
not paid promptly, the local authority are able to serve a charge certificate in the amount of the
increased charge. If not paid within 14 days, it is the recovery of the increased charge that can
be enforced by the local authority through the County Court. The Council has no cause of action
- it has no right to a remedy in any Court of law - prior to 14 days after the service of a charge
certificate for the increased charge under Paragraph 6(1) of Schedule 6 to the 1991 Act. I
note that, as indicated above, under Paragraph 7 of Schedule 6, it is in respect of the increased
charge (and not the penalty charge) that proceedings can be taken in the County Court by way
of enforcement.
My view that the authority does not have any cause of action prior to 14 days after an issue of
the charge certificate is in line with the general principle that a cause of action is complete only
when someone has the right to seek a remedy in Court in respect of it. I have in mind that there
are some cases - albeit rare - when time for limitation purposes may begin running before
anyone has such a right. In OConnor v Isaacs [1956] 2 QB 288, Diplock J (as he then was), in
a full judgment upheld as to decision and reasoning by the Court of Appeal ([1956] 2 QB 288 at
328), differentiated between those cases where a later event is an integral part of the cause of
action and those cases where a later event merely removes a procedural bar to the bringing of
the action. Cases falling within each category are given in the text books (e.g. Limitation
Periods by Andrew McGee, 2nd Edition (1994), at pages 85-9). In my view, it cannot properly
be said that the various actions necessary under the 1991 Act scheme prior to an authority
having the right to take action in the County Court are merely a procedural bar to recovery.
Rather, they are essential steps necessary for the crystallisation of liability for the increased
charge that alone the authority can pursue by way of Court claim. The service of the charge
certificate - at which time, for the first time, the increased charge becomes due - is an essential
ingredient of the cause of action: without it, the authoritys cause of action is incomplete.
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None of the cases before me turns on whether time for seeking a County Court order
commences for limitation purposes at the time of service of the charge certificate or 14 days
thereafter (when action in the County Court can be commenced), and it is unlikely that any case
will ever be dependent on such a point. However, on the basis of principle, I consider it would
be the later date.
Therefore, as a matter of limitation, having served a charge certificate and waited the statutory
14 days, an authority will have six years within which to seek a County Court order under CCR
Order 48B Rule 2. But, prior to the service of a charge certificate, I do not consider the
Limitation Act imposes any restriction upon an authoritys ability to pursue a penalty.
Of course, once an application for an order has been granted by the County Court, the provisions
of Section 24 of the Limitation Act will apply, as it applies to all money orders and judgments:
but, because actions on (as opposed to enforcement of) judgments will be very rare indeed, the
effective limitation on pursuit of the order will be the requirement to seek leave to enforce the
order under CCR Order 48B Rule 5(1) and Order 26 Rule 5.
Striking-out
The power of a Court to dismiss an action for want of prosecution or abuse is based on the
inherent jurisdiction to control its own procedure, and not on any statute or Rule of Court (Trill v
Sacher [1993] 1 All ER 961 at 975, per Neill LJ: see also the historical review of this aspect of
the inherent jurisdiction by Brooke LJ in AB & Others v John Wyeth & Brother Limited [1997]
8 Med LR 57 at 70 et seq). A Parking Adjudicator is a tribunal entirely created and governed by
statute and regulations. Although he has a wide discretion to govern his own procedure (see,
particularly, Regulation 9(2) of The Road Traffic (Parking Adjudicators) (London) Regulations
1993), he does not have the same inherent jurisdiction as the Court.
In considering the cases before me - in which, I have found, limitation plays no effective part and
the circumstances in which the jurisdiction to control the tribunals own procedure are different
from that of the High Court - I do not consider that I can be assisted by what a Court does in its
inherent jurisdiction, when cases are commenced before - but then pursued beyond - the lapse of
the limitation period. What I must do is to construe the relevant statutory provisions that apply to
the statutory scheme of the 1991 Act, to which I now turn.
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The Duty to Act Fairly
Whilst at several stages the statutory scheme fixes a minimum time period before which an
authority cannot go to the next stage of the process (of course, to allow payment of the relevant
penalty, which would bring the matter to a conclusion), it does not specifically provide for a
maximum period within which (e.g.) an NTO must be sent out following the issue of a PCN, or
an authority must respond to representations in respect of an NTO. Outside the scheme for
clamping and removal (where the authority are holding the penalty and release charges, which
the owner is attempting to recover), the statutory provisions provide no specific time limit for any
action of the authority, at least prior to the service of the charge certificate (that is the last stage
of the statutory scheme: the enforcement scheme from there onwards is simply the same as in
respect of any County Court money order or judgment). However, this does not mean that there
are no time limits at all.
In construing the relevant statutory provisions, the question to be asked is whether the intention
of those provisions is that there be no limit on the time in which an authority can pursue the
enforcement of a penalty the subject of a PCN: or whether they intend some limit and, if so,
what that limit is. Of course, although at root one may be striving to ascertain Parliaments
intention or what Parliament meant to enact, one can only seek the intention of the words
Parliament uses: that is, not what Parliament meant but the true meaning of what they said
(Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at
613, per Lord Reid). However, do the statutory provisions really mean to allow an authority to
pursue a penalty under a PCN years - perhaps many years - after the alleged contravention? I
have come to the conclusion that this is not the proper construction of the relevant provisions:
and that the proper construction requires the enforcing authority to take each step in the process
within a reasonable time. Such an implication is necessary, so that justice is done and the
purposes of the statute are not frustrated. My reasons for coming to this conclusion are as
follows.
The Council accepted - in my view quite correctly - that, in exercising any of its functions under
the scheme, it has a duty to act fairly or, as Mr Harrison preferred it, a duty not to act
unreasonably. In my view, because an authority must be acting unreasonably if it does not act
fairly, the duty to act reasonably entirely encompasses the duty to act fairly. The more specific
- 30 -
and preferred terminology in this context is the duty to act fairly (see R v The Secretary of
State for the Home Department ex parte Fayed [1997] 1 All ER 228 at 230 per Lord Woolf
MR): and that is the terminology I will use in this decision.
The duty to take any decision in a manner which is fair encompasses two basic requirements
(the so-called rules of natural justice), which are often expressed in the Latin maxims nemo
iudex in re sua (the rule against bias) and audi alteram partem (the duty to hear the other
side). The duty is unaffected by the absence of any specific procedural provisions: the principles
of fairness supplement even detailed regulations concerning procedure (Wiseman v Borneman
[1971] AC 297 at 308, per Lord Reid). On the delegation of any power, unless the contrary
appears, there is an implication that Parliament has not authorised the exercise of such powers in
breach of these principles (Fairmount Investments Limited -v- Secretary of State for the
Environment [1976] 1 WLR 1255 at 1263, per Lord Russell): and a decision which offends
against these principles is outside the jurisdiction of the authority (Attorney-General -v- Ryan
[1980] AC 718), and is consequently ultra vires and void.
The implication can of course be rebutted by the express words of the empowering statute,
although to oust such fundamental principles, the words used must be clear and unambiguous. In
the case of the scheme of the 1991 Act, there is a derogation: because, by Paragraph 2 of
Schedule 6 to the 1991 Act, the relevant authority must consider any representations made
against the NTO - and either accept or reject them - despite the fact that that authority has an
interest in the decision it is making, because it is the ultimate beneficiary of any penalty that
eventually becomes due. Consequently (and certainly not uniquely), the authority is in a very
real sense a judge in its own affairs, contrary to the rule against bias (which applies to
authorities exercising an administrative power, as well as those exercising a judicial one).
However, this is as a result of clear words in the empowering statute, which provide other
safeguards to the recipient of an NTO. These of course include the right to appeal to an
independent Parking Adjudicator.
However, this derogation is limited: and there is no derogation from the second requirement.
Although this derives from the audi alteram partem rule (i.e. that requires the other side being
heard), it is now a far-reaching principle embracing every aspect of fair procedure. Any
derogation from the principle requires clear statutory words, and there is none in the 1991 Act.
Indeed, the Secretary of States guidance indicates that it is the intention of the statute that those
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who are subject to the scheme must be dealt with fairly at every procedural stage, whether that
stage is administrative or judicial.
The Courts have emphasised that the requirements of the principle must be flexibly applied to the
circumstances of a particular case: they are not engraved on tablets of stone (Lloyd v
McMahon [1987] AC 625 at 702, per Lord Bridge). In Russell -v- The Duke of Norfolk [1949]
1 All ER 109 at 118, Tucker LJ said:
The requirements of natural justice must depend on the circumstances of the case, the
nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to
be dealt with, and so forth.
More recently, Lord Mustill confirmed the need for flexibility and, having reviewed the
authorities, set out the following guidance as to the proper modern approach to the duty of those
to whom powers have been delegated to act with procedural propriety and fairness (R v
Secretary of State for The Home Department ex parte Doody [1994] 1 AC 531 at 560):
(1) Where an Act of Parliament confers an administrative power there is a
presumption that it will be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. (3) The principles of fairness are not
to be applied by rote identically in every situation. What fairness demands is
dependent on the context of the decision, and this is to be taken into account in all its
aspects. (4) An essential feature of the context is the statute which creates the
discretion, as regards both its language and the shape of the legal and administrative
system within which the decision is taken. (5) Fairness will very often require that a
person who may be adversely affected by the decision will have an opportunity to
make representations on his own behalf either before the decision is taken with a view
to producing a favourable result, or after it is taken, with a view to procuring its
modification, or both. (6) Since the person affected usually cannot make worthwhile
representations without knowing what factors may weigh against his interests fairness
will very often require that he is informed of the gist of the case which he has to
answer.
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In assessing the scope of the duty in relation to the 1991 Act scheme, it seems to me that the
following factors are particularly relevant.
(i) Parking contraventions may not seem important relative to some other wrongdoings, but
people who are involved often regard them as serious and worry over them, particularly
those who are in difficult financial or social circumstances and the elderly. Although not
criminal, the scheme is penal; and where a PCN or NTO has been served, the recipient
is entitled to have the matter concluded with reasonable expedition, so that it is not
hanging over him for an unreasonable time.
(ii) Although there is a clear legal distinction between a criminal fine and a civil penalty (and
the decriminalisation of the enforcement of parking regulations is at the heart of the 1991
Act scheme), members of the public do not regard them as very different animals.
Understandably from their point of view, they see very little difference between paying a
fine to Magistrates (as they do in those areas outside London where the 1991 Act
scheme has not yet come into effect), and paying a penalty to a local authority (under
the scheme, for example within London). Members of the public are aware that, if a
criminal parking fine is not pursued within 6 months (by the laying of an information
within that time), then they cannot be pursued for it (Section 127 of The Magistrates
Courts Act 1980). Although I do not consider this practice in the criminal arena formally
gives rise to a legitimate expectation (as that technical term is used in cases such as R
v Commissioners of Inland Revenue ex parte Unilever plc [1996] STC 681), if several
months pass at any stage within the 1991 Act procedure without the driver or owner
hearing anything, he assumes that the penalty is not going to be pursued. In the cases
before me, individual appellants reacted with astonishment - and some with anger - at
the process being revived after a lengthy delay. Certainly, such a disparity between the
criminal and civil schemes in the ability to pursue a penalty would be odd and would be
contrary to the intention of the decriminalised legislation that procedures under it should
be speedy.
(iii) The expectations of the public - that they will be pursued promptly or not at all - are
heightened by the fact that, just as the police often exercise their discretion not to
pursue a contravenor of parking regulations, the enforcing authority under the scheme
has a similar discretion. Indeed, as I indicate above, the back of the PCN says that, in
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the event of non-payment, the Council may proceed to issue an NTO to the owner.
That makes clear that the Council also may not pursue the penalty. The recent
guidance from the Secretary of State (Paragraph 8.6: quoted above) makes it clear
that, an enforcing local authority should carefully consider exercising its discretion in
cases where there are extenuating circumstances. After a reasonable period of time,
the recipient of the PCN (who will, in many cases, be the owner) is entitled to assume
that the Council has decided, for one reason or another, to exercise its discretion not to
pursue the penalty further.
(iv) There are time limits imposed on certain procedural steps that the recipient of the PCN
and NTO are required to do. To take advantage of the 50% discount, he must pay the
penalty within 14 days of the PCN being issued (Section 66(3)(d) of the 1991 Act).
Representations against an NTO have to be made within 28 days, or the authority can
simply ignore them (Paragraph 2(3) of Schedule 6). An appeal to the Parking
Adjudicator generally has to be made within 28 days of the rejection of representations
by the authority (Paragraph 5(1) of Schedule 6). Payment of the full penalty has to be
made within 14 days of the rejection of an appeal by the Adjudicator, or the authority
can issue a charge certificate. If the authority were under no time constraints at all,
there would be a peculiar one-sidedness about the obligations under the scheme, in
favour of the enforcer rather than person in jeopardy of the penalty.
(v) As time passes, evidential difficulties arise. The authority largely rely upon written
evidence - the Parking Attendants notebook, the computerised record, the PCN and
NTO themselves - and such evidence is less prone to such difficulties. Nevertheless,
the particulars of the case of Saeed Rezvani set out above (in which the Council could
not locate the Attendants notes after two years because they had been archived and
were lost: when found, prior to the hearing of the review, they suggested that the
Parking Attendant was not at the relevant place at the time of the alleged
contravention), and Beudecor Ltd (in which relevant correspondence had been archived
by the Council, and was consequently not available at the hearing or the review) show
that time withers even documentary evidence. Memories certainly fade, and in many
cases the recipient will have only his memory to rely upon. The scheme concerns an
everyday activity. Many people - and not just those who drive as part of their living -
park in various places many times a day. There is often nothing memorable in any
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particular incidence of parking, and consequently they are unlikely to remember the
circumstances of one incident of parking for very long. Therefore, delay is likely to
prejudice an owner differentially.
Mr Harrison sought to use the fact that an Appellant was likely to have only his memory
to rely upon in support of his submissions. In his skeleton argument he said:
The allegation of a driver that a notice was not received is in fact of less
weight as time goes on and recollection may become more blurred than if the
evidence is heard earlier, e.g. a driver may reliably and confidently state that
they did not receive a ticket in the last week but it may be harder to assert a
negative for a period of more than two years ago.
However, this proposition merely highlights the inevitable evidential prejudice suffered by
an Appellant, reliant upon his memory rather than documentary evidence.
There is a further evidential point. As the Council properly accept, the burden of proof
lies upon them to show that there was a contravention (Ronald Kenrick Douglas v The
London Borough of Brent (PAS Case No 1960031276, 4 July 1997)). Mr Harrison
makes the point that the Council usually rely upon documentary evidence to satisfy this
burden: and such evidence is less likely to diminish in value. However, where the
Appellant has (or may have) a defence to the contravention - for example, that he was
engaged in loading or unloading, which comprises an exception to most regulations) - the
burden of proof falls on him. Undue delay may well not only restrict an Appellants
ability to challenge evidence put forward by an authority, it may also prejudice his ability
to satisfy the burden of proof that falls upon him in relation to these matters: after such
delay he may simply be unable to recall what he was doing at a particular time, yet alone
provide cogent evidence of it.
I believe it is for this reason that, in cases involving extensive delay, Adjudicators have
held that they are not satisfied that the contravention in fact occurred. For example, in
Paul Richard Davis, the Adjudicator found that, after the delay: It is unreasonable to
expect Mr Davis now to recall events. The contravention is disputed. I find there must
be considerable doubt that it did occur. In Saeed Rezvani, the Adjudicator found that:
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... the unconscionable delay in the case has severely prejudiced the Appellants ability
to collate and preserve evidence. Of course, the passage of time may diminish the
credibility of evidence to such an extent that an Adjudicator cannot be satisfied that the
contravention occurred: but, in my view, it is not necessary for an Adjudicator to make
any such finding in every case involving unreasonable delay. He may simply find that the
authority has failed to comply with its obligation to act within a reasonable time: although,
of course, in considering this issue, the actual or potential prejudice suffered by an
Appellant as the result of delay (including potential evidential difficulties to which he may
be put) is a relevant factor that the Adjudicator can and should take into account.
(vi) Such difficulties for the owner are compounded by the fact that the scheme imposes
strict liability for a parking penalty on the owner of the vehicle, who may well not have
been the driver or in charge of the vehicle at the time of the alleged contravention. The
person responsible in fact may be a relative, or a friend, or a garage that has the car for
repair (R v The Parking Adjudicator ex parte The London Borough of Wandsworth,
QBCOF 96/1153/D, Unreported, 1 November 1996), or a customer borrowing a car
from a garage whilst his car is being repaired, or some other person who has hired the
vehicle other than under a vehicle hiring agreement agreement as defined in the
statutory provisions: whereas the person liable to pay the penalty under the 1991 Act will
be the owner. The Council submitted that it did not matter that the owner may not know
about the issue of a PCN for months or years after the alleged contravention. But, as
months and years pass, the owner may well be unable to trace the person responsible
against whom he may well have a moral or even legal claim: for example, a hire
company may - in the ordinary course of its business - destroy its hiring records after a
certain period of time. This form of so-called owner liability is inconsistent with
potential lengthy delays in the enforcement of penalties by authorities.
(vii) To enable an authority to enforce a penalty, a PCN must be issued and served, by being
handed to the driver or person in charge of the vehicle, or (more usually) being affixed to
the vehicle (Section 66(2)). Once the PCN has been served by being fixed to the
vehicle, for the purposes of enforcement, it does not matter if the PCN does not come to
the attention of the owner, or even the driver/person in charge. Therefore, an authority
can enforce a penalty even if a PCN is removed (e.g. by a third party) prior to the
return of the driver/person in charge to the vehicle. In these circumstances, lengthy
- 36 -
delay could severely prejudice the owners ability to obtain or retain evidence with
regard to the alleged incident. Again, this characteristic of the scheme (whereby it is
quite possible that the person potentially liable may not know of his potential liability until
service of an NTO) is inconsistent with lengthy delays in the enforcement of penalties
by the relevant authority.
(viii) As indicated above, the primary purpose of the 1991 Act is for the good management of
traffic (the ex parte Cran and ex parte The London Borough of Bexley cases referred to
above). It is difficult to see how the pursuit of stale penalties after a lengthy period of
time can in any way assist that purpose: certainly, there is no evidence before me that
that purpose is facilitated.
Although the scheme is not fiscal in purpose, it may well be that timeliness on the part of
the enforcing authority will also result in a higher recovery of penalties: the recent
guidance from the Secretary of State (Paragraph 8.6: quoted above) suggests that full
and prompt replies to representations results in fewer appeals to adjudicators and more
PCNs paid. However, bearing in mind the proper purpose of the scheme, this is a
matter to which I can attach little, if any, weight.
Mr. Harrison argued that, to disenable an authority from pursuing a penalty after a
limited time (say, six months), would defeat the traffic management purposes of the
scheme, presumably because it may in some way encourage motorists to contravene the
regulations, chancing their arm that the authority will not pursue them in good time.
With respect, this argument has no merit. On the face of the argument, it seems highly
unlikely that requiring an authority to act with reasonable expedition would encourage
law breaking. But, in any event, as I point out in paragraph (ii) above, Parliament has
seen fit to impose a six month time limit on commencing criminal proceedings in those
geographical areas where the 1991 scheme is not in force.
Furthermore, following criticism of delays on the part of authorities in the Parking
Appeals Service Report 1994-5 and elsewhere, the Parking Committee for London (of
which The Royal Borough of Kensington & Chelsea is a member) said in their 1995-6
Report (at page 8): [The Parking Committee for London is now seeking a change in the
law to impose a six month maximum delay between serving a PCN and the first
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[NTO]. The London Local Authorities Bill currently before Parliament (a Bill
promoted by all London boroughs except Barnet, but including Kensington & Chelsea),
with some exceptions (for example where there have been undue delays in the DVLA
providing details of a registered keeper), it is proposed expressly to prevent an authority
from pursuing a PCN if it has not issued an NTO within 6 months (Clause 29). It is
inconceivable that such a Bill would be so sponsored if it were thought that such a time
limit would defeat the purposes of the scheme. Indeed, the proposed provision suggests
that the requirement for reasonably prompt prosecution of process by authorities is
regarded as an important element in the scheme.
(ix) A further, important purpose of the scheme is to provide for the quick and simple
determination of liability for, and enforcement of, a particular parking penalty. The
Secretary of States Consultation Paper (referred to above) refers to the quick and
simple procedures of the Parking Appeals Service: the intention of the Act would be
denied if the speed and simplicity of such procedures were compromised by
unreasonable delays on the part of the relevant local authority.
(x) Although yet to have been incorporated directly into our domestic law, the United
Kingdom is a signatory to the Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) (the European Convention on Human Rights). The
Human Rights Bill currently before Parliament expressly provides that all domestic
primary and secondary legislation must be read so as to be compatible with the
Convention rights (Clause 3). In the meantime, the Courts have vacillated about
whether the Convention has any effect in this jurisdiction. Although there are conflicting
authorities, the generally held view (set out, for example, by Lord Donaldson MR in R v
Secretary of State for the Home Department ex parte Brind (1991) 2 WLR 588) is that,
where the English statutory provisions are clear, the terms of the Convention have no
relevance: but, where the statutory provisions are ambiguous, then there is a presumption
that Parliament intended to comply with the Governments Convention obligations. In
other words, the Courts will strive to interpret English law in accordance with the
Convention wherever possible (Attorney General v Guardian Newspapers Ltd (No 2)
[1988] 3 All ER 545 at 658, per Lord Goff).
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Reflecting the Universal Declaration of Human Rights (Paris, 10 December 1948; UN 2
(1948); Cmd 7662) upon which it is based, Article 6 of the Convention provides
(emphasis added):
1. In the determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law...
2. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language he understands and in detail,
of the nature and cause of the accusation against him...
Whether a contravention of parking regulations under the scheme of the 1991 Act is
criminal or civil is a moot point. Mr. Harrison considered, on balance, that it was
civil. However, although the Act decriminalises such contraventions, that is not decisive:
nor is the fact that the sanction for the contravention is not serious (a penalty and
charges that can in aggregate amount to no more than 100 or so at maximum). The
European Court case of ztrk v Germany (1984) 6 EHRR 409 was considered at the
hearing of this review. German law allows minor traffic offences - including careless
driving - to be treated as regulatory and dealt with by administrative authorities.
Nevertheless, the European Court held that, despite decriminalisation, such offences
were still criminal within the meaning of the Convention, and consequently attracted
the greater protection of Article 6(3). The Court said (at pages 423-4):
...[T]he Court would firstly note that, according to the ordinary meaning of the
terms, there generally come within the ambit of the criminal law offences that
make their perpetrator liable to penalties intended, inter alia, to be deterrent and
usually consisting of fines and of measures depriving the person of his
liberty....The fact that it was admittedly a minor offence hardly likely to harm
the reputation of the offender does not take it outside the ambit of Article 6.
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Therefore, although it is not a matter I need to decide for the purposes of this decision, it
is certainly arguable that the 1991 Act scheme is such as to bring Article 6(3) into play.
That would require the contravention to be notified to the owner (presumably by service
of the NTO) promptly.
In any event, whether criminal or civil under the Convention, Article 6(1) applies, and
that requires the determination of rights by an independent and impartial tribunal - in the
case of the 1991 Act scheme, that would be a Parking Adjudicator - within a
reasonable time. That necessarily requires all preceding steps to be taken reasonably
timely. Factors to be taken into account in considering whether there has been undue
delay include (i) the conduct of the relevant administrative and judicial authorities (i.e.
whether responsibility for delay lies with the authorities or the Courts): and (ii) the
complexity of the issues involved (the more complex, the greater the reasonable time
they may take to investigate and determine) (Conig v Federal Republic of Germany
(1978) 2 EHRR 170). I do not find the cases that have come before the European
Court with regard to delay of which I am aware to be particularly helpful on what might
be regarded as reasonable in the context of the 1991 Act scheme: but, of course, the
issues involved in most cases under the 1991 Act are not complex, and do not require
any substantial investigation at all. In none of the cases before me has complexity been
suggested as a reason for any delay. Furthermore, in all of the cases, the Council has
been guilty of material delay: and the Appellant has not been guilty of none.
I need say no more about Article 6 for the purposes of this decision: other than to
remark that the provision again underlines the concern expressed in many places and in
many fora about the evils of delay in the determination of rights, echoing the adage that
Justice delayed is justice denied.
In all of the circumstances, I am satisfied that, the wording of the statutory scheme necessarily
imposes on an authority a burden to take all steps within a reasonable time. What will amount to
a reasonable time will, of course, depend upon the individual circumstances of a particular case.
Where an authority has used its best efforts to pursue a penalty, but are thwarted (e.g.) by a
vehicle owner avoiding service of the NTO, then a substantial period may pass without the
authority losing the ability to pursue a penalty. However, where delay lies at the door of the
authority itself, then the period may be relatively short.
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Mr Harrison for the Council suggested that delay alone - without prejudice to the owner of the
vehicle - could never be sufficient to deny an authority the right to pursue a penalty. That
submission was based upon the premise that the authoritys right to pursue a penalty could only
be prejudiced in the same way as a right to sue in Court. For the reasons set out above, I
consider that analysis to be wrong. The extent to which the owner has been prejudiced by the
delay is, in my view, just one factor that has to be taken into account in assessing whether that
delay has been reasonable. It is neither necessary nor determinative: and there is no burden
falling on the owner to prove that delay is prejudicial to him before delay can be held to be so
unreasonable that the Council are denied from further pursuing the penalty (although of course
evidence of prejudice in a specific case may be compelling). I do not consider that the statutory
scheme envisages a detailed examination of the individual circumstances of an Appellant and a
particular instance of parking in every case, in a search for specific prejudice to be balanced
against the legitimate rights of an authority to pursue a penalty, where an authority has
unreasonably delayed in pursuing a penalty under the scheme. The scheme requires in this
aspect - as in so many others - a simpler and more robust approach than that.
I must stress that each case will depend on its own facts, and there are consequently dangers in
expressing any view as to appropriate times for an authority to take a particular step. The
Council submit - and I fully agree - that it would be wrong for either local authorities or
Adjudicators to operate any fixed absolute time limit on the performance of any act under the
scheme, that would be applied in all circumstances, or even a rigorously applied rule of thumb.
However, I know that the Council (and other authorities) are understandably looking to this case
in the hope that it may give them some guidance for the future. Therefore, with the caveats I
have made and with some diffidence, before returning to the individual cases before me, I will
make some general comments on some of the factors that I consider relevant when considering
whether a delay has been reasonable or unreasonable.
(i) Issue of NTO
In considering what is a reasonable time for service of an NTO, I consider the following factors
are relevant:
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(a) The authority has a discretion as to whether or not it issues an NTO
(Paragraph 1 of Schedule 6 to the 1991 Act), and it is clear from the face of the PCN
that the authority may (or, alternatively, may not) pursue the penalty by serving an NTO.
As it is clear that the authority may legitimately exercise its discretion not to proceed,
there will come a time when the passage of time will legitimately lead the driver/person
in charge and owner to believe the matter not to be pursued.
(b) In the parallel criminal scheme (operating in most areas outside London), a
parking fine cannot be pursued if an information is not laid within six months
(Magistrates Courts Act 1980 s 127). That six month period is, of course, a log stop
limitation: in practice, the period between alleged contravention and the police
proceeding is usually much shorter.
(c) In its Annual Report 1994-5, the Parking Appeals Service recommended that
the first NTO be sent out within six months of the PCN: and, where it had not been, then
a senior member of the authority should consider whether there were any exceptional
reason as to why an NTO should be served. Otherwise, it was recommended that the
PCN should be cancelled. As in the criminal scheme, this six month period was put
forward as a long stop limitation for all but extraordinary cases.
(d) In response to criticisms about delay, the Parking Committee for London
indicated in its 1995-6 Report that it was seeking a change in the law to impose a six
month maximum period for the issue of the first NTO. As indicated above, the
Committee have since sponsored The London Local Authorities Bill, Clause 29 of which
would expressly prevent an authority from pursuing a penalty if it had not issued an
NTO within six months of the PCN. However, that Bill excepts circumstances in which
there have been undue delays by the DVLA in providing details of a registered keeper.
(e) When the 1991 Act scheme was first introduced to London, The Association
of London Authorities and The London Boroughs Association commissioned a Code of
Practice on Parking Enforcement, which was published by The Parking Committee for
London. That Code of Practice (Paragraph 4) assumed there would be a computer
transfer data system with the DVLA (with a turnaround time of 7-8 days), and indicated
that an authority should submit an application to the DVLA for data at or around 21 days
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after the issue and non-payment of a PCN, so that NTOs could be sent out very shortly
after 28 days had elapsed after issue of the PCN. The Code assumed that each
authority would issue an NTO in appropriate circumstances as soon as it could, to obtain
payment as quickly as possible. However, even the Code envisaged circumstances in
which a request to the DVLA was unsuccessful: it suggested a repeat request after 6
weeks (Paragraph 4.5).
(f) Although at the outset it was anticipated that there would be a computer link
between the authorities and the DVLA, this has not materialised. Enquiries are made by
enforcing authorities by post, on a VQ4 form. The Council complains about substantial
delays in the DVLA responding. In her letter to the Parking Appeals Service dated 28
October 1997, Miss Linda Wheeler (the Councils Head of Parking Operations) said:
A large number of cases are delayed due to poor and erratic performance of
the DVLA and their enquiry procedures. As a result, information is not
obtained until the second, third or even fourth attempts. Despite repeated
references to this in reports to the Parking Committee, no acknowledgement of
this difficulty appears to be made by the Parking Appeals Service. This is not a
service that can be obtained elsewhere and neither the [Parking Committee] or
the [local authorities] have any appreciable input to change the position.
It is our strong position that the enforcement of parking law should not be
compromised by the failure of the sole information source to properly administer
their records.
Similarly, Mr Yates in his evidence (Statement dated 26 November 1997) said:
It is evident from the four cases that one request to the DVLA for owner and
vehicle details is seldom sufficient. In some instances the reply that is provided
contains no information or incomplete information. In other instances, the lack
of information kept by the DVLA is attributable to failure by the owners to
provide information when there is a change of ownership or address, which is
often only remedied within a period of up to one year in addition to processing
time because of the obligation to renew road tax at least once a year.
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Without sufficient information as to current owner and a current address, no
[NTO] can be issued with regarding to the enforcement of the penalty charge.
However, in the four cases before me, the material delays were not directly caused by
the DVLA. It is true that, in the case of Patras Mahgaram, three requests to the
DVLA for keeper details were necessary before the relevant information was provided,
but, as explained in the evidence of Mr Blake (quoted above), the material delay was a
period of 17 months between sending the second and third request, apparently because
of a systems failure at the Councils end, which problems are now being resolved. In
the case of Saeed Rezvani, the DVLA returned the address of the finance institution for
the disabled, Motability, as the registered keeper (and post was apparently returned from
that address unopened). However, it seems that Mr Rezvani had in any event written to
the Council shortly after the PCN was issued, with his home address: and there is no
evidence that the Council made any efforts to trace an address for service on Mr
Rezvani through the Motability organisation. There were no suggested delays at the
hands of the DVLA in the other two cases.
Nevertheless, I know from experience in other cases that delays can occur when the
DVLA are slow in responding to even repeated requests. In a case where the authority
has done everything it reasonably can to obtain the owners details from the DVLA (by
regular requests, if necessary), or other sources, then that is something which can and
should taken into account in assessing whether an NTO has been served within a
reasonable time. Similarly, where an owner has by his own act or omission led to
difficulties in obtaining this information - for example, where a new owner has not sent
his details to the DVLA promptly - that too is a matter that should be taken into account.
(g) An owner may seek to avoid service of the NTO, and thereby cause delay,
by all sorts of other means. Where delay has been caused by the owner, this is of course
a matter that should be taken into account in considering whether there has been
unreasonable delay in service: particularly in circumstances in which the authority has
done what it can to ensure prompt service.
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(h) Of course, local authorities have many and diverse calls upon their time and
resources: the resources for any particular function are necessarily not limitless, and that
applies to parking enforcement as much as any other function. In relation to the Patras
Mahgaram case (in which there was a 17 month delay in the Council sending a repeat
request for keeper details to the DVLA), one reason given for the delay was the
amount of time that can be allocated to this task by the Councils Contractors (letter
from Lawrence Blake of the Council to the Parking Appeals Service dated 27 October
1997).
The way in which valuable resources are allocated by local government is, of course, a
matter of policy for the relevant authorities. However, it is unlikely that a lack of
resources (or the manner in which scarce resources are allocated) would render
reasonable an otherwise unreasonable delay in serving an NTO.
(i) Similarly, with a failure of the systems used by the Council. In his letter of
27 October 1997 referred to above (dealing with the case of Patras Mahgaram), Mr
Blake of the Council said, in explanation of the 17 month delay between the issue of the
second and third enquiry forms to the DVLA:
The explanation for this is that as a result of the Council taking over
enforcement of parking from the Metropolitan Police, new systems had to be
introduced between the Council and its contractors. Inevitably, there were
some problems experienced with those systems, one of which has resulted in
delays occurring on the reissue of VQ4 enquiries. I am pleased to say that
these problems are now being resolved...
In her letter of the following day to the Parking Appeals Service, the Head of Parking
Operations for the Council (Miss Linda Wheeler) wrote, in similar terms:
It is accepted that at the start of the local authority enforcement of parking
restrictions the computer systems were underdeveloped and untested.
Where administrative procedures were insufficient to identify these
blockages a number of cases became stuck at fairly early stages in the
process. These were minor problems in themselves but as they were not
- 45 -
spotted for some time a large number of cases were involved. Subsequently,
strenuous efforts have been made to catch though it is a process that has to
be phased over a number of months to avoid overload of the DVLA,
administration and representation clerks.
However, again, it is unlikely that such problems would render reasonable an otherwise
unreasonable delay: but, some comfort can be drawn from the fact that these problems
appear to have been of a teething nature and not long-term.
(j) The Code of Practice referred to above indicated that a ground for cancelling
a PCN (and, presumably, an NTO) could include where there has been undue delay in
the processing of the PCN (Paragraph 7.7).
(k) In Mr Blakes letter to the Parking Appeals Service dated 27 October 1997,
he indicates that the 2 month between the issue of the PCN and issue of the NTO in the
Patras Mahgaram case, was considered by the Council to be quite normal in processing
the case. In the Paul Richard Davis case, it took about 10 weeks from the issue of the
PCN (on 7 November 1995) to the issue of a charge certificate (on 24 January 1996).
In other cases before me, of course, it took several months or more to issue the NTO or
respond to representations.
(l) In two of the cases before me, following the issue of a charge certificate, the
Appellant successfully applied to the County Court (on the basis of a statutory
declaration) for an order setting aside both the charge certificate and NTO, on the basis
that he had never received the NTO. Paragraph 8(5) of Schedule 6 to the 1991 Act
effectively makes the statutory declaration conclusive proof that the original NTO was
not received by the owner, and that is something I do not consider an Adjudicator can
properly go behind.
Therefore, I must work on the basis that in each of these cases the Appellant received
an NTO for the first time many months after the alleged contravention. In the case of
Paul Richard Davis, the alleged contravention was in November 1995: the first he knew
of the contravention was in February or March 1997: and, following the setting aside of
the first NTO, a second NTO was served in April 1997 (18 months after the
- 46 -
contravention). In the case of Saeed Rezvani, the alleged contravention was in July
1995: and, following the events which I have set out above, an NTO was first served on
the Appellant in February 1997 (again, 18 months after the contravention).
Where there has been an aborted attempt at service of an NTO - followed later by
successful service - again it will depend upon the circumstances of the case as to
whether the delay has been unreasonable. Where an authority has been expeditious in
obtaining and attempting to enforce a charge certificate, that will clearly be an important
factor that will have to be taken into account. However, where the authority has not
been prompt - and particularly where the owner has not been at fault - the fact that the
effective NTO is not the first may well not be determinative. On the basis that an NTO
can normally be served within 2-3 months of an alleged contravention, even in a
statutory declaration case the (second) NTO could normally be served within six months
of the PCN. However, in such a case an authority may have more compelling reasons
why a longer period is not unreasonable, for example where the delay has been caused
by the owner himself (e.g. where the owner has failed to keep up to date his details as
registered at the DVLA, and that resulted in the failed service of the first NTO).
As an alternative to their submission with regard to limitation, the Council submitted that in any
event it would not amount to unreasonable delay if an NTO were issued up to six years after the
issue of a PCN. I cannot accept this. Bearing the above factors in mind, and reiterating the
caveats I have made above, I would say that for my own part I consider that, bearing in mind the
administration of these matters that is involved, in the usual case an NTO should certainly be
served within six months after the issue of the PCN upon which it is based. Even after the
expiry of six months, it would still be open to the authority to show that the time taken to serve
the NTO was not unreasonable in all of the circumstances (unlike under the proposed statutory
amendment that, if enacted, would generally restrain an authority from serving a first NTO more
than six months after the PCN). However, at that stage it would in my view be incumbent on
the authority at least to show good reason why there had been delay and that, in all the
circumstances of the case, they should be allowed to proceed to enforce the penalty.
(ii) Consideration of Representations
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In considering what is a reasonable time for an authority to consider representations made to it, I
consider the following factors are relevant:
(a) The authority has a duty to consider representations (Paragraph 2(7) of
Schedule 6) and, in addition to a duty to accept them if one of the statutory grounds are
met (Paragraph 3(1)), it has a discretion as to whether or not to cancel the NTO at this
stage. Indeed, this is the stage at which matters of mitigation can be taken into account.
As with the service of the NTO, as it is clear that the authority may legitimately exercise
its discretion not to proceed at this stage, there will come a time when the passage of
time will legitimately lead the owner to believe the matter not to be pursued.
(b) The Parking Committee for London Code of Practice referred to above says
(at Paragraph 6.3):
There is no stipulated time limit for authorities to deal with representations
against an [NTO], but authorities will, no doubt, wish to respond speedily in
order to obtain payment as quickly as possible...
(c) In a case of clamping or removal (where the authority is holding the money
of the driver/owner), the authority is required to consider representations within 56 days
(Section 71(6) of the 1991 Act). A precise time limit is necessary in this instance
because there is a specific sanction in default, namely the authority are deemed to have
accepted the representations and they have to effect a refund of both penalty and
charges (Section 71(9)). However, Parliament clearly considers 56 days a reasonable
time (as a long stop limitation) for an authority to consider representations made to it in
respect of clamping and removal.
(d) In its Annual Report 1995-6, the Parking Appeals Service made the following
recommendation:
All representations, whether following clamp or removal, or [an NTO], should
normally be dealt with as soon as possible, preferably within 28 days but, in any
event, within 56 days, despite the fact that Schedule 6 does not impose a 56 day
bar on dealing with representations following [an NTO]. Where there is good
- 48 -
reason for taking longer than 56 days, for example the representations require
the local authority making further investigation. A holding letter should be sent to
the person making the representations explaining the reason for the delay and
that the matter is being held open by the authority pending the investigation.
Where representations have not been considered within 56 days for no good
reason (lack of resources is a doubtful reason) the Section 71(9) procedure
should be followed and the representations adopted.
Bearing the above factors in mind, and again reiterating the caveats I have made above, for my
own part I consider that in the usual case representations in respect of an NTO should be
considered by an authority within 2-3 months from receipt. However, again, thereafter, it would
still be open to the authority to show that the delay in considering the representations was not
unreasonable in all of the circumstances. That may be a difficult task, as the consideration of
the representations is likely to be entirely within their own hands: but, for example, as the Parking
Appeals Service Report points out, a particular case may require further investigation (into the
facts and/or legal issues) and such investigation may mean that a period of over 2-3 months
would be quite reasonable.
(iii) Enforcement of a Charge Certificate
In considering what is a reasonable time for an authority to serve, register with the County Court
and enforce a charge certificate it has obtained from, I consider the following factors are
relevant:
(a) The authority has a discretion as to whether or not to serve, register or
pursue a charge certificate (Paragraphs 6(1) and 7 of Schedule 6: both of which
specifically identify the discretion by the use of the word may). Once more, the same
point can be made with regard to the exercise of the authoritys discretion here, as at
earlier stage of the procedure: there will come a time when the passage of time will
legitimately lead the owner to believe the matter not to be pursued.
(b) There is no express limitation period for the service of a charge certificate.
Having served the certificate and waited the statutory 14 days, as a matter of limitation,
an authority will have six years within which to seek a County Court order under CCR
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Order 48B Rule 2. After the order has been obtained, a warrant of execution will not
issue more than six years after the order, except with the leave of the Court (CCR
Order 48B Rule 5(1) and Order 26 Rule 5).
(c) In its Annual Report 1995-6, the Parking Appeals Service made the following
recommendation:
The penalty charge should be cancelled without further process if more than
six months has elapsed after the service of the charge certificate without the
local authority taking steps to register the debt at the County Court. If delay is
anticipated in taking the decision to register debts, warning letters should be sent
to defaulters giving a further opportunity to pay and warning again of the
potential debt registration
It seems to me at this stage of the procedure, the real incentive for an authority to ensure speedy
enforcement (in a case where it decides to enforce through the County Court) is that, if the
owner submits an application under Paragraph 8 of Schedule 6 to the 1991 Act - and
successfully revokes the charge certificate and NTO - the authority may be unable to prosecute
a second NTO because of that delay, if it has not acted expeditiously. In these circumstances, it
is unlikely that delay at the charge certificate stage will feature in many cases.
Nevertheless, the case of Paul Richard Davis is one example of such a delay: in that case, the
Council did not seek a County Court order for 12 months after purporting to serve the charge
certificate on Mr Davis. However, the reason for this delay (the lack of a computer link-up with
the relevant County Court) appears now to have been dealt with, and is unlikely to be repeated.
There seems to me to be no good reason for an authority to take any great length of time in
deciding to proceed to serve, register and enforce a charge certificate. A vehicle owner is just
as entitled to know where he stands with regard to enforcement at this stage, as at any other.
However, bearing in mind the fact that an authority will jeopardise its own ability to enforce
through a second NTO (if the person the subject of the first lodges a proper statutory
declaration), it seems to me that cases will be so rare and so turn on their own individual facts
that it is unnecessary - and would be unwise - for me to suggest any time that I would consider
reasonable in a normal case. Each case will have to be considered upon its own facts.
- 50 -
Evidential Matters
I have already considered these fully, when dealing with the duty to act fairly, above.
Consequences of a Breach of the Councils Duty to Act Fairly
In a case where a Parking Adjudicator finds that an authority (such as the Council) has acted in
breach of its obligation to act with reasonable timeliness, what are the consequences of that
failure?
Mr Harrison submitted that, in any case of undue delay, the Council would in practice consent to
an appeal to the Adjudicator being allowed, under Regulation 14(c) of The Road Traffic (Parking
Adjudicators) (London) Regulations 1993. It is certainly hoped that that would be the case with
any local authority - but it does not address the question of the jurisdiction of the Adjudicator in
these circumstances.
I have held that the Councils obligation to act with reasonable timeliness is part of its wider duty
to act fairly. The Council is itself a creature of statute, and cannot act outside the powers that
have been conferred upon it by Parliament. As I have already indicated, unless the contrary
appears, there is an implication that Parliament has not authorised the exercise of such powers in
breach of this duty: and a decision which is taken contrary to the obligations imposed by the duty
is outside the jurisdiction of the authority, and is consequently ultra vires and void.
Where an authority may have acted outside its lawful powers, a Parking Adjudicator is entitled
to consider the vires of the authority and adjudicate upon the matter. That this is the role of a
Parking Adjudicator was endorsed by the Divisional Court (Scott Baker J) in R v The Parking
Adjudicator ex parte The London Borough of Bexley (CO/1616/96, Unreported, 29 July 1997)
(Transcript, pages 12E-15D). That case concerned the collateral challenge to part of an
underlying traffic management order, and the Court found that the Adjudicator had express
powers to consider the vires of this order by virtue of Paragraph 2(4)(d) of Schedule 6 to the
1991 Act: but it made clear that, even without that express provision, it would have considered
the Adjudicator would have been entitled to consider the vires of the authority (Transcript, page
14E). The fact that the Adjudicator has no power to make a declaration as to the invalidity of
- 51 -
such an order does not affect his ability to consider a collateral challenge to that order (Chief
Adjudication Officer -v- Foster [1993] AC754 at 764 E-G, per Lord Bridge).
I do not consider there is any difference in principle between a collateral challenge of a traffic
management order (as in the Bexley case) and of a decision of an authority to pursue a penalty
in circumstances in which it has breached its duty to act fairly. That duty is implied into the
statutory provisions and is as much a part of them as the express terms of the statute or order
themselves.
If the Adjudicator did not have this power, where an owner received an NTO in circumstances
in which the authority had breached its duty to act fairly, the Adjudicator would be unable to
allow the appeal. The only course open to an owner would be to seek judicial review of the
authorities decision to pursue the penalty. The parking penalties in question give rise to financial
liabilities of a modest level. I do not consider that Parliament could have intended such penalties
to give rise to a cumbrous duplicity of proceedings which could only add to the already over-
burdened list of applications for judicial review awaiting determination by the Divisional Court
(Chief Adjudication Officer -v- Foster [1993] AC 754 at 766H, per Lord Bridge). Insofar as
owners of vehicles were deterred from seeking judicial review - by the work and time that would
necessarily be involved - the result would be that the improper exercise of statutory powers
would go unchecked. This could not have been the intention of Parliament.
If an Adjudicator upholds a collateral challenge, the correct analysis is not that the contravention
did not occur. Rather, it is that the authority has failed to comply with the requirements of the
statutory regime (including the implied obligation to act fairly), to dis-enable it from pursuing the
penalty. Therefore, where a PCN failed to include all of the information it was required to
include (under Section 66(3) of the 1991 Act), the Adjudicator found that the PCN was ultra
vires and void, and the authority could not rely upon it to enforce a penalty (Frederick Moulder v
The London Borough of Sutton (PAS Case No 1940113243, 24 May 1995)).
Similarly, where an Adjudicator finds that an authority has acted ultra vires in failing to comply
with its duty to act fairly, for example by not acting with reasonable timeliness, he can - and,
indeed, must - find that the authority cannot pursue a penalty based upon its own unlawful act,
with the result that he must allow the Appellants appeal.
- 52 -
Individual Cases: Determination
I now return to the individual cases. Because I have already set out the facts of each case at
some length and dealt with the issues of principle, and because the Council has indicated that
they will not pursue any penalty against any of the Appellants in any event, I can deal with the
determination of these appeals quite shortly.
A. Paul Richard Davis (PAS Case No 1970198981) (PCN No KC97014601)
As I indicate in my review of the facts of this case above, the Appellant appears to have acted
promptly at all times. On the other hand having served a charge certificate on 24 January
1996, the Council did not register the order at the County Court until 3 February 1997. The
reason for that was, apparently, no cases were registered manually, and the computer link to the
County Court was not up-and-running until November 1996. The Appellant was successful in
having the charge certificate and first NTO set aside by the County Court. However, had it not
been for this delay, the Counsels second NTO could have been served in this case in under six
months after the alleged contravention. In the event, the Appellant received an NTO only 18
months after the alleged contravention.
I do not consider that the Council acted with reasonable timeliness in this case. It is clear from
the Notice of Appeal lodged on the Appellants behalf that the driver of the relevant vehicle
during the period during which the alleged contravention took place, was not the Appellant
himself (who was the owner of the vehicle). The Appellant was abroad. Not surprisingly given
the passage of time and circumstances, neither the driver nor the Appellant could not recall any
incident at all. Certainly, none of the delay was their fault.
In the circumstances, I consider the Council did breach their obligations to act in a timely
manner, with the result that they cannot now pursue any penalty against the Appellant. For
these reasons, having reviewed the case, I uphold the decision of Parking Adjudicator Henry
Michael Greenslade of 15 October 1997 in allowing the appeal.
- 53 -
B. Saeed Rezvani (PAS Case No 1970182813) (PCN No KC82031753)
Leaving aside the delay in this case, on the available evidence (including the Parking Attendants
hand written notes, that were available on the hearing of the review but not at the original
hearing before Parking Adjudicator Paul Wright), I am not satisfied that this contravention took
place. There is no reference at all to the Appellants vehicle in the notes: and, from the notes, it
appears that the Parking Attendant was in a different street at the relevant time.
However, even if the Council did not face these evidential difficulties, I would find that the delay
before issuing the second NTO was unreasonable and inadequately explained. Again, it resulted
in the Appellant not receiving an NTO until 18 months after the alleged contravention. By the
time he received that NTO, he says (and I accept) that he had no knowledge about or
recollection of the incident. That the penalty was pursued so long after the alleged
contravention, clearly caused the Appellant (who is disabled) considerable distress. The
Appellant was not responsible for any of the material delay.
In the circumstances, not only do I find that the Council have failed to satisfy me that there was
indeed any contravention of the parking regulations, but also I consider the Council breached
their obligations to act in a timely manner, with the result that they cannot now pursue any
penalty against the Appellant. For these reasons, having reviewed the case, I uphold the
decision of Parking Adjudicator Paul Wright of 16 September 1997 in allowing the appeal.
C. Beaudecor Ltd (PAS Case No 1970161595) (PCN No KC73035254)
In this case, the PCN was issued on 7 December 1995: the Council sent the first NTO out on 25
February 1997 (about 14 months later). The material delay is unexplained by the Council, but
there appears to have been a system failure, in that a letter from the Appellant dated 8
December 1995, which required a substantive response, was not considered or answered (other
than by a holding response from the Councils parking contractors). Again, by the time the NTO
was received by the Appellant, despite the earlier correspondence (which even the Council
cannot now locate, because of the passage of time), the Appellant had no record of the PCN nor
could recall anything about it. None of the delay lies at the hands of the Appellant.
- 54 -
In the circumstances, I consider the Council breached their obligations to act in a timely manner,
with the result that they cannot now pursue any penalty against the Appellant. For these
reasons, having reviewed the case, I uphold the decision of Parking Adjudicator Susan Turquet
of 27 August 1997 in allowing the appeal.
D. Patras Mahgaram (PAS Case No 1970213021) (PCN No KC71041959)
The delay in this case was caused by the passage of 17 months between the Counsels second
and third requests to the DVLA in respect of details of the registered keeper. By the time (first)
NTO was sent to the Appellant (on 3 June 1997), 20 months had elapsed since the alleged
contravention. The Appellant indicated that he had no recollection of receiving the PCN, nor of
the relevant incident. None of the delay was caused by him.
In the circumstances, I consider the Counsel breached their obligations to act in a timely manner,
with the result that they cannot now pursue any penalty against the Appellant. This is not a
review case, but a substantive appeal. For the reasons set out above, I allow this appeal and
direct the Council to cancel the PCN and NTO.
G R Hickinbottom
30 March 1998

Miller

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within one hour* of leaving

cm from the edge of the carriageway and not within a

= or other specified distance = optionally add and parking

Introduction March 2008

The policy context March 2008

Objectives of civil enforcement March 2008

Appraising, ensuring the effectiveness of and reporting on civil parking enforcement

Appraising, ensuring the effectiveness of and reporting on civil parking enforcement

Appraising, ensuring the effectiveness of and reporting on civil parking enforcement

Consultation and communication with the public March 2008

Consultation and communication with the public March 2008

Training and professionalism in civil parking enforcement March 2008

Training and professionalism in civil parking enforcement March 2008

Training and professionalism in civil parking enforcement March 2008

Enforcement March 2008

Enforcement March 2008

Enforcement March 2008

Enforcement March 2008

Enforcement May 2008

Enforcement May 2008

Enforcement March 2008

Exemptions, waivers and dispensations March 2008

Exemptions, waivers and dispensations March 2008

Exemptions, waivers and dispensations March 2008

Exemptions, waivers and dispensations March 2008

Policy and administrative functions March 2008

Policy and administrative functions March 2008

Policy and administrative functions March 2008

Policy and administrative functions March 2008

Operational Guidance May 2008

Policy and administrative functions March 2008

Challenges, representations and appeals March 2008

Challenges, representations and appeals March 2008

Challenges, representations and appeals March 2008

Financial assessment March 2008

Financial assessment March 2008

Annex A March 2008

Annex A March 2008

= or other specified distance

Annex D March 2008

Annex F March 2008

Annex F March 2008

Annex F March 2008

Annex G March 2008

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