Walmsley v Transport for London & Ors [2005] EWCA Civ 1540

“(1) Subject to the following provisions of this article, a charge imposed by this Scheme shall be paid by the purchase from Transport for London of a licence for a specified period falling on or beginning with a specified date.”

“(1) Where it appears to the recipient that one or other of the grounds mentioned in paragraph (3) are satisfied, he may make representations in writing to that effect to the charging authority who served the penalty charge on him. (2) . . . (3) The grounds are – (a) that the recipient – (i) never was the registered keeper in relation to the vehicle in question, (ii) 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 or (iii) became the person liable after that date. (b) 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 in the manner required by the charging scheme, . . . (e) that the penalty charge exceeded the amount applicable in the circumstances of the case, (f) . . . . . . (6) It shall be the duty of a charging authority to whom representations are duly made under this regulation – (a) to consider them and any supporting evidence which the person making them provides, and (b) to serve on that person notice of their decision as to whether or not they accept that the ground in question has been established.” (i) never was the registered keeper in relation to the vehicle in question, (ii) 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 or (iii) became the person liable after that date. (b) 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 in the manner required by the charging scheme, . . . (e) that the penalty charge exceeded the amount applicable in the circumstances of the case, (f) . . . (a) to consider them and any supporting evidence which the person making them provides, and (b) to serve on that person notice of their decision as to whether or not they accept that the ground in question has been established.”

“(2) The cancellation of a penalty notice under this regulation shall not be taken to prevent the charging authority from serving a fresh penalty notice on the same or another person.”

“(1) Where a charging authority serve notice under regulation 13(6) that they do not accept that a ground on which representations were made under that regulation has been established, the person making those representations may appeal to an adjudicator against the charging authority’s decision . . . (2) On an appeal under this regulation, the adjudicator shall consider the representations in question and any additional representations which are made by the appellant on any of the grounds mentioned in regulation 13(3) and may give the charging authority concerned such directions as he considers appropriate (3) It shall be the duty of any charging authority to whom a direction is given under paragraph (2) to comply with it.”

“5.The Claimant is the registered keeper of her car, a Ford Puma the registration number of which is W616 OJC. She used it within the charging area of the Scheme on 29 and 30 October 2003. Owing to a breakdown in the telephone system by which she usually pays the charge, she paid on the Internet. She correctly entered the first 4 characters of the registration number. Unfortunately, however, she keyed in the last 3 letters of the registration number of her previous car: she keyed in W616 JBF. She made the same mistake on both days. She paid a total of £10, the charge of £5 for each of the days in question. 6. The Claimant's car was duly photographed, and it was found that no charge had been paid on either date for W616 OJC. Transport for London promptly issued penalty charge notices dated 30 and 31 October 2003, stating that the car had been used in the charging area "without payment of the appropriate charge". The notices give information for paying the penalty charge. They inform the addressee: ‘… you are advised to pay the penalty charge or, if you have reasonable grounds, dispute this notice in the form of a representation by completing and returning the representation section provided at the back of this form. You have 17 days to pay the discounted penalty charge of £40.00. If the discounted penalty charge is not received before 16 Nov 2003 then the full penalty charge of £80.00 is payable. If you fail to pay the penalty chargeable or make a representation by 30 November 2003 a Charge Certificate will be pursued which will increase the amount payable to £120.00.’ 7. Page 3 of each of the notices contained information for the making of a representation against the penalty charge. It set out the grounds on which a representation against the notice could be made. The second ground reads: ‘I had paid the congestion charge due on that date (please enclose proof of payment).’ 8. Not surprisingly, the Claimant thought that this ground applied to her. She had indeed paid the charge, and she had proof of her payments. On 7 November 2003, she duly completed and returned the representation section in each of the notices. Under the heading "Details of your representation" she wrote: "I paid the charge and enclose a copy of the receipt." She also sent a letter dated 7 November 2003, stating that the penalty notices were both erroneous because she had paid the charge, and that she enclosed a copy of the receipt. 9. Transport for London replied on 24 November 2003, rejecting the representation. Its letter stated that the Claimant had paid for a different vehicle registration number. It informed her that the discounted penalty of £40 per penalty charge notice would be accepted if payment was received within 14 days, but that otherwise the full payment of £80 per penalty charge notice would be required, and failure to pay within 28 days of the date of the letter would result in the issue of a charge certificate, which would increase the charge by 50 per cent to £120 per penalty charge notice. The letter also informed the Claimant of her right of appeal, and a form of notice of appeal was attached. 10. The Claimant appealed against the rejection of her representation. She completed the notice of appeal and sent it off on 7 December 2003. The notice of appeal form set out the available grounds of appeal with tick boxes. One of the grounds stated was: ‘The charge has already been paid’. She ticked the box for this ground of appeal, and stated, in the box for the details of her appeal: ‘As you see from the attached receipt, I did pay the charge for the days in question. However, I paid on the Internet and made a keying error while inputting my car registration number. I put the 3 final letters as JBF – which were the letters of my previous car. … Very sorry!’ She also enclosed a receipt for her payment of the charge on another date, so as to show that W616 OJC was indeed her car.” ‘… you are advised to pay the penalty charge or, if you have reasonable grounds, dispute this notice in the form of a representation by completing and returning the representation section provided at the back of this form. You have 17 days to pay the discounted penalty charge of £40.00. If the discounted penalty charge is not received before 16 Nov 2003 then the full penalty charge of £80.00 is payable. If you fail to pay the penalty chargeable or make a representation by 30 November 2003 a Charge Certificate will be pursued which will increase the amount payable to £120.00.’ ‘I had paid the congestion charge due on that date (please enclose proof of payment).’ ‘As you see from the attached receipt, I did pay the charge for the days in question. However, I paid on the Internet and made a keying error while inputting my car registration number. I put the 3 final letters as JBF – which were the letters of my previous car. … Very sorry!’ She also enclosed a receipt for her payment of the charge on another date, so as to show that W616 OJC was indeed her car.”

“The issue in this appeal is whether the correct payment was made for the correct vehicle registration for these charges in accordance with the Congestion Charge Regulations. There is a high level of responsibility on the registered keeper of the vehicle to pay any charge incurred by it by midnight of the day on which the charge was incurred. Liability is strict. The Congestion Charge Regulations afford no discretion in this situation. The registration recorded on the receipt must be for the vehicle used within the Zone during the prescribed hours. Article 6(5)(a) of the Congestion Charging Scheme states, 'a licence may be purchased only for a single vehicle having a specified registration mark'. The appellant did not pay for the vehicle's specified registration mark. I accept that this was a genuine error but I have no alternative other than to refuse this appeal.”

“1.The adjudicator has found as a fact that I had made a genuine error in completing the internet payment details in respect of the registration mark of my car. It follows that he accepts that I have made payment in the sum of £10 for a licence for the use of my car on the two relevant days. 2. The Scheme for Congestion Charging in Central London by Article 4(1) imposes a charge in respect of each day on which a relevant vehicle is used on a designated road during charging hours. My car was a ‘relevant vehicle’ as defined by Article 1(v). 3. Article 6 of the Scheme provides for the purchase of a licence. By paragraph (5) a licence may be purchased only for a single vehicle having a specified registration mark. The term, ‘specified registration mark’ is not otherwise defined. The Adjudicator’s finding is that ‘the appellant did not pay for the vehicle’s specified registration mark’. I was required to pay for the vehicle, not the registration mark and I have done so. 4. Further, by reason of appealing to the Parking and Traffic Appeals Service within the specified period for appeal, I am now required to pay the Full Penalty Charge of £80 for each of the two occasions. I have already paid £10 for my car. I am now asked to pay a further £160. Had I accepted the original penalty, I would have paid only £80 within the discount period. It took 10 months to Adjudicate on my appeal. My right to the fair and speedy determination of my civil rights and obligations under Article 6(1) of the ECHR has been infringed in that I am penalised for appealing and have an unreasonable wait for the result.”

“(a) In the events that happened, was the Claimant liable to penalty? (b) Did the adjudicator have any discretion to reduce or to relieve her of the penalty by reason of her payment and her admittedly genuine error in specifying the registration number of her car?”

“33. . . . Sensibly construed, the Scheme requires that when purchasing a licence, the purchaser must specify the registration mark of the vehicle to which it relates. The licence that the Claimant purchased was for a single vehicle having a registration mark that she specified when she purchased it on the Internet (i.e., W616 JBF), and the vehicle that she drove on 29 and 30 October 2004 did not have that registration mark, but a different one, namely W616 OJC. It seems to me that any other interpretation of article 6 of the Scheme is liable to render the Scheme unworkable. But I make it clear that this is the only consideration that leads me to this conclusion, and having regard to the lack of clarity of the provisions of the Scheme, I do so reluctantly and without confidence or satisfaction.”

“40.The question that arises under regulation 16(3) (sic) is whether it confers a discretion on the adjudicator to direct the charging authority to cancel a penalty charge notice in circumstances where the appellant has not established one of the grounds set out in regulation 13(3), but there are grounds for mitigating the penalty or totally relieving the appellant of the penalty. The provision that the adjudicator ‘may give the charging authority concerned such directions as he considers appropriate’ is entirely apt to confer discretion on him to relieve the appellant in a suitable case. If it had been intended to restrict the powers of the adjudicator, I should have expected the regulation to provide that he is to consider the representations of the appellant on the specified grounds and determine whether or not that ground or those grounds have been established to his satisfaction, in which case he is to direct the charging authority to cancel the penalty charge notice, and if not to dismiss the appeal and direct that the notice is to stand. Such language is used in regulations 14 and 15, and it is to be presumed that different words were used in regulation 16 because a different meaning was intended. I add that, although it is a minor point, the use of the plural "directions" does not assist the Defendants' interpretation.”

“43. Faced with these conflicting considerations, I think that it is right to construe the Regulations as conferring discretion on the adjudicator in a case such as the present. The Claimant did consider, and contended to the adjudicator, that she had established that she had paid the charge ‘in the manner required by the charging scheme’, i.e. the ground set out in regulation 13(3)(b). After considering her representations on that ground, the adjudicator was entitled to ‘give the charging authority such directions as he considers appropriate’, and, given the mitigating circumstances that he accepted, he might reasonably consider it appropriate to direct that the penalty charge notice be cancelled even though the ground had not formally been established. 44. This interpretation of regulation 16 has the effect of reconciling the provisions of the Scheme as a whole with its purpose, which is to ensure that charges are paid for cars that enter the Zone and that those who fail to pay are penalised. It is not a purpose of the Scheme to penalise those who make a genuine error as to their vehicle's registration number. As has been seen, many people do make such errors and are relieved of penalty. It is and must always have been obvious to Transport for London that there were bound to be many people who would mis-state the registration numbers of their vehicles. For example, it is obviously easy to confuse the letter I with the numeral 1, and the letter O with the number zero, quite apart from the room for mistyping or simple mistake as occurred in this case.”

“45. . . . It was open to him in the circumstances of this case to direct that the penalty notices served on the Claimant should be cancelled. Indeed, there was good reason so to direct.”

“It is only those matters which he can consider, and only those in respect of which he can issue directions”

“1. In the two month period between the 19 April 2000 and 19 June 2000 eleven parking fine notices (more accurately described in law as “Penalty Charge Notices”) were issued against Mr. Alexander Woolfson by Westminster City Council, the claimant in these proceedings. He appealed against these notices to a Parking Adjudicator, who upheld the appeal and issued a direction whose effect was that no penalties could be imposed in respect of any of the penalty charge notices. . . . The claimant now seeks to challenge the determination of the Adjudicator by way of judicial review. . . . “7. Mr. Woolfson has a number disabilities, the major one being spina bifida. He can only walk a limited distance and then only with the aid of crutches. It is not practical for him to travel by public transport, and the continuing use of taxis would be expensive. Of the eleven occasions when he was issued with a relevant parking ticket, nine of them were when he was in Westminster in the evening for social events, and two were in the daytime when he was attending job interviews. On each occasion he knew that he was parking where he was not ostensibly supposed to be, but no other appropriate parking spaces were available. Moreover, he took the view that the restriction on his liberty to park was an interference with his rights under Articles 8 and 14 of the European Convention on Human Rights. He did not, therefore, think that the restrictions were legally enforceable against him.”

“On an appeal under this paragraph, the parking adjudicator shall consider the representations in question and any additional representations which are made by the appellant on any of the grounds mentioned in paragraph 2(4) above and may give the London authority concerned such directions as he shall consider appropriate.”

“9. However, Mr. Woolfson, through counsel, also submitted to the Adjudicator that under paragraph 2(4)(f) of the Schedule, to which I have made reference, the expression “the amount applicable in the circumstances of the case” did not, as the claimant submits, simply mean the amount of the penalty specified in the relevant order for the particular offence. Rather it referred to all the circumstances of the case, both those relating to the offence itself and any circumstances relevant to the offender. Accordingly, it was submitted that the Adjudicator was entitled, and indeed obliged, to take into account all mitigating circumstances in determining whether or not there should be either a reduction of the penalty or indeed no penalty at all.”

“. . . he concluded that in this case it would not be appropriate to impose any penalty. His reasons for doing so were summarised in his decision as follows: ‘I accept that up until the receipt of the 31 July letter (whenever that was) Mr Woolfson held a genuine belief that the [Human Rights Act 1998] would support him in his claim to be able to park as he did in the individual circumstances of each occasion, and that he did only park thus when he found no alternative legitimate parking place. For these reasons I do not consider that in all the circumstances Mr. Woolfson should be liable to pay these penalty charges and I find that the penalty charge exceeded the amount applicable in the circumstances of each case. Accordingly I allow these appeals, using the powers above. I accede to Mr. Tugendhadt’s plea that I should grant Mr. Woolfson the equivalent of an absolute discharge.’” ‘I accept that up until the receipt of the 31 July letter (whenever that was) Mr Woolfson held a genuine belief that the [Human Rights Act 1998] would support him in his claim to be able to park as he did in the individual circumstances of each occasion, and that he did only park thus when he found no alternative legitimate parking place. For these reasons I do not consider that in all the circumstances Mr. Woolfson should be liable to pay these penalty charges and I find that the penalty charge exceeded the amount applicable in the circumstances of each case. Accordingly I allow these appeals, using the powers above. I accede to Mr. Tugendhadt’s plea that I should grant Mr. Woolfson the equivalent of an absolute discharge.’”

“20. . . . In my view the power lies in the fact that Schedule 6 does not oblige the authority to enforce the penalty charge notice. It may serve a Notice to Owner where the penalty remains unpaid after 28 days - the language indicating that service is discretionary- and even if any representations made under paragraph 2(4) are rejected, there is still equally a discretion whether or not to serve the charge certificate. Finally, the authority would in any event retain a discretion whether or not to seek to take enforcement proceedings against someone who was refusing to pay. 21. By contrast, where the grounds referred to in paragraph 2(4) are established, the council is obliged to cancel the notice to owner. There is not discretion. 22. In short, there are two distinct categories of representation. First, there are the statutory representations which, if successful, oblige the authority to cancel the notice to owner and impose no penalty. There are then other representations which may cause the authority to choose not to exercise its discretion to pursue or enforce payment, but which do not oblige it to do so. No doubt in a very exceptional case that discretion could be challenged by way of judicial review if there were grounds for saying that it had been unlawfully exercised. However, the statutory power of the adjudicator is limited to the consideration of the matters which are statutorily set out in paragraph 2. It is only those matters which he can consider, and only those in respect of which he can issue directions. Accordingly, the wider mitigating or extenuating factors which may affect the exercise of the authority’s discretion when deciding whether or not to collect parking fines are not issues which the adjudicator can consider. They simply fall outside his province: his powers are limited by the statutory provisions.”

“24. . . . I am satisfied that the adjudicator’s powers are limited in the way contended for by the claimant. It follows that he had no power to issue the directions which he did in this case and I quash them. I also declare that the adjudicator has no power to take mitigating circumstances into account when determining the amount of any payment payable by a person adjudged to be in contravention of a parking regulation.”

“. . . the statutory power of the adjudicator is limited to the consideration of the matters which are statutorily set out in paragraph 2. It is only those matters which he can consider, and only those in respect of which he can issue directions.”

“In my judgment, the adjudicator is given express power to consider ultra vires in paragraph 2(4)(d), but, even apart from that express power, it is my view that he would have been entitled to do so. The law on collateral challenge often raises difficult and interesting questions. I was taken to the speeches in the House of Lords in R v Wicks [1997] 2 WLR 876. Lord Hoffmann said, at 892A: ‘The correct approach in my view is illustrated by the decision of the Divisional Court in Quietlynn v Plymouth City Council [1988] QB 114’. In that case Webster J had said that the question could be determined by the proper construction of the legislation in question. [Counsel] argues that questions such as the validity of article 12 are much better decided by judges with expertise in judicial review cases rather than parking adjudicators and that anyway the adjudicator’s decision could only be binding in the case under consideration. My conclusion is that Parliament has entrusted the work of parking adjudicators to those who are legally qualified (section 73(4), Road Traffic Act 1991). They are unlike magistrates who often have to consider the validity of bye-laws, and on a true construction of Schedule 6 they are entitled to consider the issues of collateral challenge that arose in this case.”

“52 …If Transport for London has a discretion to waive the penalty in circumstances where none of the grounds mentioned in regulation 13(3) of the Enforcement and Adjudication Regulations is established . . . it must exercise that discretion rationally and by reference to relevant facts. So far as possible, different decisions should be made in different cases only where there are relevant differences between their facts.”

“53.Lastly, at the beginning of this judgment I referred to the need for the Scheme to be clear, easily understandable and accessible and to be operated fairly. The provisions of the Scheme to which I have referred are not clear or easily understandable. If the Scheme requires accurate specification of a registration number by the person paying the charge, the penalty notice is misleading. The wording of the Scheme (in particular article 6(5)) and of the documents used for it (in particular the penalty charge notice) should be made clear. The requirement that the correct registration number must be specified by the person paying the charge must be spelt out, and the relevant ground for challenging a notice clearly stated. If Transport for London has a policy for the exercise of the discretion that it assumes it has to relieve from penalties, the public is entitled to know what that policy is and to be assured that it is a policy that is fair and fairly applied. ”