Van hire violations - TfL guilty of illegality

When you rent a van and contravene parking or moving traffic rules (stopping in yellow boxes, banned turns etc) liability for the PCN can be transferred from the hire company to you if certain details are on the hire agreement for agreements lasting up to 6 months (less a day).

Transfer for long leases is possible by another method.

Years ago Mr Mustard was introduced to a Barnet based hire company by a mutual acquaintance. Let us call them BV. Mr Mustard only helps BV with their problem PCNs as they employ a person to deal with the routine.

If a PCN can be transferred to the customer then it is. BV routinely provide a copy of the hire agreement as proof that the rules for transfer have been complied with. BV had a little white Euro 6 compliant van. They hired it to SL (hirer #1) for a period of almost 5 months. Here are the hires for those 5 months.

SL stopped with half the van in a red route bus stop on 27 January.

On 28 January TfL asked DVLA for keeper details.

On 29 January DVLA supplied the details of BV.

On 31 January TfL sent a PCN to BV.

On 4 February BV supplied the details of SL.

On 16 February TfL sent a fresh PCN to SL who didn't immediately deal with it but did finally pay up on 4 May.

So far so good. SL returned the van early by arrangement. It was driven after that by a number of law abiding renters who all avoided incurring PCNs. Notable by their mistakes was hirer #6 who made the classic error of using the Rotherhithe Tunnel which now has a van gross vehicle weight limit of 2 tonnes. This has caught out tens of thousands of drivers as there are far too many signs to take in at once.

What should have happened next for each of the April PCNs was that TfL should have asked DVLA for the keeper details on each of those dates and sent BV a PCN for each alleged contravention. This is in accordance with the London Local Authorities and Transport for London 2003 Act.

TfL didn't do that. They sent PCNs to SL who knew they were a mistake. He phoned TfL who told him to make representations. SL did not do so and you can partly understand why, he had returned the van, he knew he was not liable, he probably assumed the errors would be corrected. In August the PCNs had progressed, even though TfL knew they had the wrong man, and they got sent to bailiffs.

It was only in November that Mr Mustard got involved. He complained to TfL and that was when he discovered that TfL keep a secret database of hire agreements and although they ask DVLA to confirm ownership in relation to every single PCN they only use that to check the hire company is still the same and if it is they skip the legal requirement to send a PCN to the hire company, let them make representations and then transfer liability to the hirer, because TfL think they know who the hirer is. That is the big flaw in their 'approach' as TfL blithely call their illegal acts. 

BV tell Mr Mustard that only 60% of hires complete on the pre-planned end date and so TfL's database will often be wrong, as it was in this case. Innocent motorists should not be dragged into the PCN process for other motorists. Having obtained the facts from TfL (they had to be dragged out of them, requiring 3 emails over 6 weeks, silence often a clue that you have hit a painful nerve) Mr Mustard has now made a complaint and pointed out what Mr Mustard considers are data processing breaches and demanded action:

1        Forward this email to the officer responsible for data breaches to consider whether TfL should self report.
2        Forward this email to the officer responsible for ensuring that TfL (and their contractor, believed to be Capita) strictly follow the 2003 Act and follow it in future when issuing PCNs by sending the PCN to the keeper as registered at the DVLA on the relevant date.
3        Delete the entire database of vehicles on hire or at least stop adding to or referring to it.
4        Cancel the five PCNs which have been illegally sent to an innocent party.
5        Apologise to both BV and SL and make offers of compensation.

BV have been deprived of five £18 PCN processing fees which hirer #6 should have paid.

Mr Mustard will update you when he gets a response.

In the meantime Mr Mustard wonders if any other enforcement authority in London has decided upon the same wizard wheeze to save time and postage. If you are reading this, you work at a council in London and you have an illegal database like TfL (or heaven forfend you all share one) Mr Mustard suggests you run for the hills as he is coming for you.

End

Nasty Newham Council

Mr Mustard has a client who doesn't like bothering him so tries to sort out parking tickets themselves and this sometimes goes wrong and the odd PCN ends up with a bailiff. That isn't too bad a problem as the car belongs to Motability and is used to transport a disabled person so cannot, in law, be removed by a bailiff (although they will threaten to remove it to bully you into paying). The physical needs of the disabled person are clearly quite severe as they qualify for a Motability car and their mental needs are such that they have a litigation friend under the Mental Capacity Act 2005.

Newham Council have ended up with a PCN at the bailiff stage against the Litigation Friend as that is the name recorded on the V5 registration document rather than the disabled person. That record will be amended.

Newham have their own bailiffs who work under the umbrella name of OneSource which is a shared service company (OneSource Partnership Ltd has filed dormant accounts) owned by the boroughs of Havering, Newham & Bexley.

To ensure the life of the disabled person was not disrupted by the wrongful removal of the car Mr Mustard emailed OneSource as follows:

As you know, a Motability car cannot be clamped or removed by you for two reasons. The first is that it is not the property of A (the litigation friend) or B (the disabled person). The second is that a car used for the transport of a disabled person is exempt, and a Motability car is patently such a vehicle & is so used.

What came back, after a bit of email ping pong, was this:

We are aware that Motability vehicles cannot be removed. Please be aware that under the standard terms and conditions of the Motability scheme the registered keeper of the vehicle is liable to pay all outstanding penalties and fines and failure to do so is likely to be regarded as “breach of contract” and may lead to the cancellation of the agreement and/or to you being refused Motability finance in future. oneSource Enforcement Services will notify Motability of all cases where we believe the scheme is subject to misuse and a refusal to pay has been identified.

As Mr Mustard was writing as a representative the use of 'you being refused' clearly points to this being a standard wording. Mr Mustard had heard of such threats before but not seen them in writing. The 'paramount' privacy statement and the threat of disclosure seem somewhat at odds with one another?

He was unhappy with the proposed actions so he emailed OneSource again.

You are hereby cautioned not to intervene in a private contractual arrangement to which you are not a party and in which your proposed actions would amount to a Data Protection Breach. I would suggest you consult the borough's in house legal team / information experts before you take such a step.

This email has been copied to my solicitor.

That was 2 months ago and no further email has been received by Mr Mustard which is the usual modus operandi of an authority caught in a compromising situation - go quiet and hope the problem goes away.

One bailiff letter has been sent since threatening that they will take control of goods but they have no right of forced entry to premises and as both the disabled person and the litigation friend are in receipt of state benefits they are unlikely to have anything worth the costs of seizure and sale.

The whole way in which councils go about chasing debts due (& there is one here although there is an 84% chance Mr Mustard would have beaten the PCN if given it at the beginning) from the disabled and/or mentally ill is just wrong, it is based on the blunt use of force. There needs to be nuance and finesse and a tailored approach. Offering time to pay to people who don't have the money now would be a much better solution for both parties but councils rarely offer instalments and the bailiff approach of pay it all or else leads to resistance to paying anything. 

What it probably needs is one council to analyse current results for all PCNs involving the physically or mentally disabled (this will show up by the nature of the contravention i.e. blue badge slipped off dashboard cases) and then try a new approach of inviting instalments, arranging a meeting with the vehicle owner if there are multiple outstanding PCNs to both try and stop further PCNs being issued and to see what arrangement can be made about current ones or to establish if the financial situation of the person is so hopeless that writing off the debt is the only logical step. What the council are meant to do is to make 'due adjustment' for the disabled. It isn't greatly in evidence.

Councils automatically increase unpaid PCN values by 50% as soon as they possibly can. They do not have to do so. The regulations say 'may' increase not 'must'.

Sadly, Mr Mustard thinks that in a year's time, nothing will have changed.

Yours frugally

Mr Mustard

Special warblings - The omnidatashambles

the latest in a long line of Mayors - Brian Schama From: Adams, Nikki P.A. to Nick Sent: 18 May 2012 15:42 To: AllStaff Subject: Weekly Message from the Chief Executive 99% of staff probably hit delete when this lands in their inbox Tuesday evening was Annual Council meeting. Cllr Schama was confirmed as Mayor for the Municipal Year 2012-13. The mayoralty remains a significant part of life here in Barnet undertaking hundreds of visits to groups, special events and representing the Borough at London wide events. Given that this is Jubilee and Olympic Year I’d expect Cllr Schama to have an even busier schedule than usual. Mr Mustard expects that Cllr Schama will be a good mayor and his only concern that Cllr Schama has high standards of what he expects from officers and the time available for him to bring his non-nonsense commonsense why aren't we walking before we try to run view to committee meetings will be much limited. Alongside the ceremonial aspects of Annual Council there is also important political business to transact as appointments for the coming year are confirmed. The only substantial change to the Cabinet was that Cllr Dean Cohen replaces Cllr Brian Coleman as Cabinet Member for Environment. Cllr Coleman has in turn been appointed Chair of the Budget and Performance Overview and Scrutiny Committee. Why the chairman gets £15,333 for chairing that will be the subject of a future blog.   The Opposition Labour Group also nominates a Shadow Cabinet and there have been more changes here. Cllr Cooke becomes Shadow Cabinet Member for Resources, Cllr Houston becomes Shadow Cabinet Member for Children and Education, Cllr Schneiderman becomes Shadow Cabinet Member for Environment, Cllr Brodkin becomes Shadow Cabinet Member for Crime and Policing and Cllr Julie Johnson Shadow becomes Cabinet Member for Housing and Regeneration. A little table would have been easier presentation to absorb.   You can find more details about Committee Memberships on the Council and Democracy pages of the website. But not about allowances which are more deeply buried.   However Annual Council is really all about the mayoralty and the outgoing Mayor spoke with pride about her time in office. Amongst the many highlights she outlined was a day when she had visited places of worship representative of every major faith. Her pride and the on-going enthusiasm of a very diverse community for civic recognition were obvious for all to see. Longer than the longest Oscar speech to all accounts.   And of course in the background are our outstanding Mayoral Team, the Mayor’s drivers, including the never flustered Lewis, and the admin team led by Angela. The out-going Mayor thanked them for their support and I wanted to join her in doing so this week. Finding a way through the protocols, diary clashes and traffic can be a nightmare but the team do it extremely well.   Some of you will have seen news coverage that the Council has been fined £70k by the Information Commissioner for a breach of the OPA. OPA? Don't you read anything Nick or is your P.A. not conversant with the DPA as in the Data Protection Act - actually that seems to be endemic. The loss occurred when a member of staff was burgled and a laptop (encrypted) and papers containing personal data were stolen. Another £70,000 of tax payers' money wasted by Officers. Slippery stuff this data eh Nick? You forgot to mention your previous in this regard when the details of 9000 children slipped out of the council's care in March 2010 and you had to sign a letter promising to be more careful in future. Funny isn't it how closely guarded papers are about the One Barnet programme but data about kids is left lying around. So slow implementing change that another loss occurred. These things tend to come along in threes. What next?   The ICO criticisms focus on the paper record handling policies of the Council. I therefore think it worthwhile reminding staff what current policies, accepted by the ICO, are.   These are: There is a general presumption against taking off-site personal or other confidential data contained within paper records/hard copy material. Personal or other confidential data contained within paper records/hard copy material should only be taken off-site when it is a necessity and not a convenience. Line management approval must be obtained before personal or other confidential data contained within paper records/hard copy material is taken off-site. The approval request must provide details of the personal or other confidential data proposed to be taken off-site and the necessity for doing so and the relevant times. Where personal or other confidential data contained within paper records/hard copy material is taken off-site it should be kept to a minimum both in terms of content and duration. Why don't we provide a fire safe at the home of people who have to take confidential papers home sometimes? Only £30 Whilst off-site and temporarily in the home of an employee (or other person covered by the policy), paper records/hard copy material containing personal or other confidential data, that is not being actively worked upon, must be kept secure and separate from any valuable items such as laptops. So that hopefully the laptop gets stolen and the paperwork is left behind. Where personal or other confidential data contained within paper records/hard copy material is taken off-site and is in transit from one location to another, it should be transported in a way that mitigates against the risks of theft or loss. Computers should be chained down at all times when outside work. It's easy and cheap. This means that, insofar as possible, all necessary steps should be taken to seek to ensure that the paper records/hard copy material are/is not mistaken for a laptop, other electrical device or valuable item by a thief and should be transported in a separate container to such items. Tut tut, hard copy paperwork is a valuable item. Furthermore where paper records containing personal or confidential information are taken off site, staff must ensure they have made a log of the removed/copied papers. This is to ensure that the council can appropriately risk assess the level of harm likely to be caused should a loss of data occur. Why not just scan and encrypt them in the first place and put them on the hard drive?   A full copy of the policy is available on the intranet and staff must ensure they are familiar with it. If you have any concerns in meeting the requirements of the policy, these should in the first instance be raised with your line manager. The onus is placed on the employee. Will managers check?   If you require further advice or guidance on Data Protection or Data Security, please email data.protection@barnet.gov.uk   Nick Nick Walkley Chief Executive London Borough of Barnet, North London Business Park , Oakleigh Road South , London N11 1NP Tel: 020 8359 7001 Barnet Online: www.barnet.gov.uk Sorry if you are really bored with these non-stick messages. Why should the staff suffer alone? Yours frugally Mr Mustard