CHALLENGING A COUNCIL’S ANNUAL ACCOUNTS
After completion of a council’s annual statement of accounts it is made available for public scrutiny for one month before the District Auditor checks and approves them (or requires changes). Most or many council’s financial year ends 31st March with accounts published during July. Councils are required to publish in the local press these details in the month before.
Any elector of the council’s area (or anyone acting on behalf of an elector) can provide in writing a Notice of Objection to the DA to any item of the council’s income or expenditure that appears contrary to law. Income from penalty charges will be contrary to law if the PCNs were issued at places where parking/traffic signage (notices and road markings) are illegal. If so proved to the DA with clear evidence he must disallow money taken by the council which has been shown to be unlawfully-derived income and therefore never in lawful ownership of the council.
PCNs are issued for alleged contravention of those parking/traffic restrictions that are authorised for enforcement by a Traffic Order, all Traffic Orders (TROs or TMOs) are created by the powers provided by the Road Traffic Act 1984. The RTRA 1984 specifies that parking/traffic must be exactly as prescribed in the Traffic Signs Regulations and General Directions 2002, or, exactly as specified by a Special Direction authorised via the DfT. If parking/traffic signs are not exactly in accordance with this requirement of the RTRA 1984 then the signage is automatically illegal so the TRO/TMO is not lawfully enforceable and penalty money taken by the council was/is income contrary to law.
Income relating to illegal parking/traffic signage is unlawfully-derived income that is subject to being disallowed by the auditor whether a council knew that signage on the street was illegal or not (if they did know the taking of penalty money was/is criminal conduct subject among other things to the Fraud Act and requires investigation by the police and prosecution if proved.
It is very unlikely that income from on-street or off-street penalty charges will be shown in the Statement of Accounts. It is usually or always in a subsidiary account which is collected together with other associated incomes and expenditure into a general item in the Statement of Accounts such as ‘Car Parking’. If the DA agrees that there is unlawfully-derived income in the accounts it will then be for the council to extract and summate those monies that are unlawfully derived and due to be disallowed.
The procedure is to send a formal Notice of Objection to the DA with copy to the Finance Department of the council. The opportunity of an audience with the DA will then follow at the end of the public scrutiny period.
Procedure preliminaries. Before writing a Notice of Objection the following steps are recommended.
1. Find when the council’s accounts are open and subject to objection. The information may be available at http://www.orchardnews.com/accounts.htm . If not, enquire from the council offices. The council website should show under committee meetings agenda, minutes etc of the Audit Committee (of the council) which should also show the Statement of Accounts if it is current.
2. Find the full contact details of the District Auditor assigned to the council. Either phone the Audit Commission on 020 7828 1212 (probably the best way) or enquire from the council.
3. If not already known when a Notice of Objection can/should be made – ask the office of the DA. Enquire from the DA’s office all you need to know about dates and procedure.
4. Details of electors’ rights and procedure for notifying an objection are set out in statute and regulation. Relevant extracts are available on this website (Information > Documents > Legal Documents). See documents 1 & 2.
5. Evidence is not required with the Notice of Objection but will be required at interview with the auditor or if otherwise requested by him/her.
6. When presenting evidence and arguing the case you will make reference to the RTRA 1984 and other legislation to prove the illegalities as set out in your Notice of Objection. A set of the necessary extracts of all these relevant legal documents is available on this website – documents 3, 4, 5, 6. and 7. These can be discussed with and given to the auditor as required. (Note that neither the RTRA 1984 nor the Traffic Signs Manual Chapter 1 are published on the web; documents 3 and 6 provide the necessary extracts).
Tip: For easy reference this post can be copied and pasted into a blank document for printing out as a reminder-check list.