Managing fines related to parking offences can prove to be a legal, financial and HR administration nightmare for fleet decision-makers and company car and van drivers alike.
The complexity and confusion of the system in place and the fact that the issuing of penalty/parking charge notices (PCNs) and any subsequent appeal process involves a myriad of different organisations, adding further to the nightmare for fleet operators.
“The whole system is a mess,” says John Pryor, chairman of ACFO.
“Regulations and the bodies involved are very different, in respect of PCNs issued by local authorities, or as a consequence of a parking offence being committed in a private car park. Legal action always provokes worries. Fines must be taken seriously, but the processes involved are both confusing and complicated, and deadlines apply to the process of identifying drivers in company vehicles and paying or appealing a fine.”
A PCN is issued to a vehicle’s owner, who is legally responsible for paying the fine, although there are special rules for short-term hire vehicles: the hirer will usually be asked to sign a statement of liability for PCNs.
In respect of a company vehicle, the PCN will be issued to the registered keeper of the vehicle after information has been obtained from the DVLA by the local authority or company managing the private car park.
Furthermore, different processes used by leasing and rental companies frequently mean that a fleet or driver may have no time to appeal a parking fine as the vehicle provider may automatically pay the fee and then recharge the cost to the client while also adding on an administration charge.
Gerry Keaney, chief executive of BVRLA, says: “Our members will take a variety of approaches to dealing with parking and road traffic offences depending on the commercial arrangements they have with their customers.”
“In some cases they will transfer liability immediately to the customer, sometimes they will pay the fine and recharge the company or driver, and in other cases they may make a representation on behalf of the customer. We know that the vehicle rental and leasing industry has to deal with fines and charges issued by a huge variety of private, national and regional organisations.
“Nearly all of them take a different approach to the way in which penalties are issued, payments are made or appeals are handled, which puts a major administrative and cost burden on our members and their customers.”
He adds: “The BVRLA continues to call for a more standardised approach to fines and penalties that would see a single, streamlined process for paying fines or appealing against them.
“We also don’t believe it is fair that a person appealing against a fine should automatically forfeit the ability to pay that fine at the discounted rate.”
Correctly-worded contracts of employment are critical, to enable employers to identify company vehicle drivers as responsible for a fine and then take action to recoup the cost and potentially take disciplinary action, says Rebecca Lynch, partner in the employment team at law and professional services firm Gordon Dadds.
“If employers give staff a contract of employment with the right flexibility then they should not have a problem in identifying the driver responsible for the PCN and enforcing their payment of the fine, which would normally be deducted from their pay, either in one lump sum or perhaps over time if the payment is large,” she says.
Around eight million parking-related PCNs are issued annually, split equally between London and the rest of
the country. A Freight Transport Association survey earlier this year found that 72% of parking fine appeals in London are successful.
In relation to parking on private land, 550 to 600 appeals are lodged per week across England and Wales with about half won.
Here we outline the system for parking fines issued by local authorities and companies managing private car parks and the appeal process for each.
Parking tickets on public land where the local authority is responsible
In most parts of the country, including the whole of London, PCNs are issued by civil enforcement officers, also known as traffic wardens.
In areas where a local authority does not have civil parking enforcement powers, parking is enforced by the police or police-employed traffic wardens.
PCNs can be issued for many reasons, including: parking on yellow lines, in a permit-only zone without a clearly displayed valid permit, in a council-owned car park or on a metered space if the correct charge has not been paid or parking ticket not displayed and anywhere else where parking is banned, for example, on white zig-zag lines or on the pavement.
Employers have a choice of paying the parking fine or identifying the driver to the local authority and transferring liability. In the latter case, ACFO recommends giving advice to the driver on paying the penalty or disputing the fine.
A PCN is a civil offence and can be issued by post, by hand or applied to a vehicle windscreen. By law the PCN must be issued within 28 days of when the traffic warden saw the parking rule was broken or it was caught on camera.
Drivers can challenge the fine or have 28 days to pay: a discount of 50% is available for payment within 14 days (21 days if vehicle is caught on camera and the PCN is posted).
If a driver does not believe the PCN should have been issued an appeal can be lodged. The legal reasons for disputing a PCN are many and varied. They start with
an appeal to the council within 28 days of the date of issue. The ‘informal challenge’ should be made in writing and include evidence for the appeal. If that is rejected there is then a ‘formal challenge’, which the local authority has 56 days to consider.
If the appeal is dismissed, a notice of rejection will be received giving details of the next stage of the appeal process. Outside London that is to the Traffic Penalty Tribunal for England and Wales or, in the capital, the London Tribunals with appeals lodged within 28 days.
Appeals to the Traffic Penalty Tribunal for England and Wales can be made in three ways – in writing, online or by telephone – and there are three types of hearing: e-decision (includes postal decision/without a hearing), telephone hearing or face-to-face hearing.
London Tribunals conducts appeals in person or by post. The Tribunal adjudicator will gather evidence from both parties and then issue their decision with the full charge due if the appeal is lost.
After the review decision, either side may apply to the High Court for a judicial review but only if they think the adjudicator has made a mistake of law.
Appeals in Northern Ireland are heard by the Northern Ireland Traffic penalty Tribunal and in Scotland by the Scottish parking appeals service.
Parking tickets issued by the police
Parking tickets issued by the police are called fixed penalty notices (FPNs) and are dealt with under the criminal
justice system.
Police forces do not have the power to make offenders pay fines on the spot. Penalty notices are enforced through the local magistrates court.
If committing a parking offence, a police officer or traffic warden will fix an FPN to the vehicle. Details of the offence will be on the notice.
If payment is not made, a notice to owner will be issued – details obtained from the DVLA – reminding the recipient of the payment due or offering a magistrates court hearing.
If further ignored, the penalty will be registered as a fine and the driver ordered to pay one and a half times the original charge.
If the driver does not agree that a parking offence has been committed they can object informally by sending a letter to the central ticket office in the area where the notice was issued. In the case of rejection, a further hearing can be asked for which will result in a summons to attend a magistrates court.
Parking tickets on private land
A ticket for illegal parking on private land, for example in a shopping centre, retail park, hospital or other private-owned car park, can be left on the vehicle’s windscreen or sent through the post to the registered keeper.
Parking tickets issued on private land can be issued for non-payment, staying longer than the time paid for or parking in the wrong place.
If the parking rules are broken, private landowners can issue a PCN and recover the losses they’ve suffered.
Most parking enforcement companies are members of an accredited trade association, usually the British Parking Association or Independent Parking Committee, and are obliged to follow strict rules introduced in the Protection of Freedoms Act 2012.
If a vehicle is captured on CCTV, an accredited trade association parking company must, by law, send a parking ticket to the vehicle’s owner within 14 days, starting from the day after the parking incident took place.
The company responsible for managing the car park is legally entitled to obtain details of the vehicle’s owner from the DVLA.
It can pursue the vehicle’s owner for non-payment although, as with local authority parking, liability can be transferred to the driver by supplying the car park operator with their details.
When the parking company contacts the registered keeper, they issue a parking ticket called a ‘notice to keeper’ – whereas a parking ticket a driver gets face-to-face is called a ‘notice to driver’.
In the notice to keeper, the keeper is asked to name the driver or pay the parking charge.
If the keeper doesn’t respond within 28 days of getting the notice, the parking company can recover the unpaid amount by taking the keeper to court. PCNs should be paid within 28 days with a discount of at least 40% if paid within 14 days.
If appealing against a PCN, drivers should initially write to the parking company, if it is a member of an accredited trade association, stating reasons why payment is not due. Reasons could include poor signage. If unsuccessful, a formal appeal can be made to Parking on Private Land Appeals (POPLA), if the parking company is a member of the British Parking Association.
An appeal to POPLA should be lodged within 28 days of the operator’s notice of rejection. Evidence from both parties will be examined by an assessor. If the appeal is lost, the full parking charge is due within 14 days.
If the parking company is a member of the Independent Parking Committee, an appeal can be lodged with the Independent Appeals Service.
Appeals must be lodged within 21 days of the operating rejecting the initial appeal. If the appeal is lost the full parking charge is due.
If in possession of a ticket in a car park from a parking company that isn’t an accredited trade association member, drivers can write to the organisation stating their reasons as to why the ticket is unfair.
However, a non-accredited trade association parking company is not allowed to obtain details of the registered keeper from the DVLA, will not have contact details and can’t take a driver to court – unless contact details are included in any correspondence in which case the parking company could take court action.
Speeding fines
Police forces in England and Wales issued 711,700 fixed penalty notices for speeding in 2013, the most recent year for which official records are available.
If an employee is caught speeding in a company vehicle, the registered keeper will receive a notice of intended prosecution (NIP).
It is their responsibility to provide details of who was driving at the time of the alleged offence.
Any failure to provide the information and a separate offence will have been committed.
Philip Somarakis, partner and specialist road traffic and regulatory lawyer at law and professional services firm Gordon Dadds and company secretary of ACFO, says: “Fleet managers must exercise reasonable diligence in identifying drivers through checking records: phone calls, emails and receipts, for example.
“If fleet managers are unable to instantly identify a driver, perhaps if they were at the wheel of a pool vehicle, then they must turn detective.
“Ultimately, if a fleet manager cannot identify a driver they must be able to satisfy a court that it was reasonable not to have a record of who was driving that vehicle at that specific time.”
The NIP must be served on the driver or registered keeper within 14 days of the offence, otherwise the offence cannot proceed at court.
Having received the NIP, the Section 172 notice must be returned providing driver details at the time of the alleged offence within 28 days (21 days in Northern Ireland).
If the police are going to send a conditional offer of a fixed penalty notice, they will normally do so shortly after the section 172 notice is returned.
The offending driver must either pay the fine or formally contest the speeding offence in court.
Conditional offers have no official system for appeals, though some police forces do accept informal letters of appeal, especially if the speeding ticket has been issued in error.
If an employee is caught speeding, the action taken will depend on various circumstances, but mostly on how far the speed limit was exceeded.
In most cases a fixed penalty notice with a fine of £100 and three penalty points will be the result, but in the most severe cases a driver will be prosecuted in court and could face a fine of £1,000 (£2,500 of speeding on a motorway), between three and six penalty points, and a possible driving disqualification.
tony.damelio - 23/09/2019 21:34
Please note, in the majority of cases, the Parking ticket to owner/user, does not have an option to disclose driver details, in order for the Council/Private enforcement companies to pursue the fine from the offending driver.