Echoes of MetPro - Procurement failings not cured

Mr Mustard does not like litter louts, injustice or incompetent councils. Sadly he lives in the London Borough of Barnet and thus he is exposed to three things he doesn't like, all of the time.

This will be a long blog so best put the kettle on & then settle down for a read.

Let's go back in time to 2011 when procurement at Barnet Council was a dog's dinner (nothing has changed).

Mrs Angry blogged extensively on the subject of MetPro, here is just one of her delights for the reader

Mr Mustard blogged in a less amusing manner on the procurement action plan, a plan which the wheels have fallen off, probably due to the numerous potholes in Barnet these days.

Let's move on 5 years.

On 8 March 16 the Environment Committee of Barnet Council approved the trial of streetscene enforcement:

On 25 July the 'Contract for services relating to a streetscene enforcement project' commenced:

 The Contract also contained the following clause:

 

and the following one:

a clause which does not appear to have been used. If it had been exercised, that would give NSL Ltd a valid contract up until 24 October 2017. If not, and no contract extension has been provided to Mr Mustard in response to his Freedom of Information request, then the contract to enforce expired on 24 January 2017.

On 8 November 2016 the Environment Committee received an update on the Streetscene Enforcement activity.

The Environment Committee noted the update. They also agreed to increase fly tipping penalties to £400. Littering penalties remained at £80 although the difference between littering & fly tipping is borderline. By September 16, 570 Fixed Penalty Notices had been issued, 15 in July, 138 in August and 419 in September 16, as staffing numbers increased. 564 of the FPNs were for littering. At that time, 52% of the FPNs had been paid, 85% of them at the discounted rate. 16 cases were going to the Magistrates' Court on 10 November.

On 15 March 2017 a further report went to the Environment Committee.

 which led to the following decision

The committee approved the procurement of a street scene enforcement contract with the view of an income shared model, without setting any parameters limiting the respective shares. That was not their best ever decision.

From the March 17 committee meeting

note the potential extension for evaluation purposes

So, Barnet Council paid all of the costs of setting up the trial. They then let NSL keep all of the penalty income. Genius.

This was profitable for NSL but cost the council four times as much as the profit which NSL made.

 

The trial is not contracted, at least not legally, until 31 March 17.

On 19 February 18, Mr Mustard asked, under Freedom of information legislation, for the current enforcement contract. He was sent the contract which started on 25 July 16, no contract extension, and was told that the 'full contract is currently out to tender'.

Mr Mustard has checked the Barnet Council procurement portal and did not find an opportunity on offer and the OJEU (The EU procurement portal) and he did not find an opportunity to bid there either. He questions the use of the word 'currently' as meaning, 'we might get round to this soon, especially now that you have shown an interest'.

In Mr Mustard's opinion, and he will defer to specialist local authority & procurement lawyers, in fact to any lawyer at all, no penalty charge issued since 24 January 2017 has been legal.

He questions how NSL Ltd, could legally issue a Fixed Penalty Notice for fly tipping to the business which he is assisting, in February 2018 as they don't have a contract to issue Fixed Penalty Notices?

In addition, the council knew that in September 16 the value of the Fixed Penalty Notices exceeded the value at which the contract should have been advertised under EU rules.

It appears to Mr Mustard that Barnet council have been playing fast & loose with procurement law & internal procedures since September 16 and that every Fixed Penalty Notice for littering, fly tipping & dog fouling etc. issued since 24 January 2017 in the name of Barnet Council, is invalid.

Over to the lawyers.

Yours frugally

Mr Mustard

Death Cafe - 30 April

Mr Mustard thinks that Brits talk about death enough, so here is your chance to talk about it a bit more, in sensitive & understanding surroundings.

50% tribunal wins = council failure

Parking Appeal stats 2016/17

In the news this week was the fact that 50% of immigration tribunal appeals were successful. One quote from the BBC article is: 'Nearly half of decisions that go to appeal in England and Wales are overturned, suggesting the system is "seriously flawed", the Law Society said.'

It struck Mr Mustard that there were parallels with the parking penalty charge notice system in which, across London, 47% of tribunal Appeals were successful. In the majority of cases there will have been two chances for the council to cancel the PCN, the first when considering the informal challenge received in response to service of the PCN & the second when considering the formal representation made in response to the Notice to Owner.

Mr Mustard thinks that the rejection of the informal challenge is almost routine and that the council can chance their arm in rejecting because the motorist is more worried about losing the 50% discount than anything else. Mr Mustard doesn't worry about the discount as he has the experience to correctly guess, most of the time, what the outcome will be at adjudication. Here is an example of Barnet Council needing two opportunities to make the correct decision.

Here is the informal challenge:

I represent Jane Doe as attached authority.

She was parked wholly outside number 23 (I should know, I live next door).

The suspension sign suspended parking from the right hand boundary of #23

Jane's car therefore was not within the suspended area and no contravention has occurred.

Please cancel the PCN.

(Incidentally the removal lorry had already departed and it would be helpful to residents if you didn't suspend bays until midnight which is not necessary for household removals).

Here is the informal rejection:

Following the Notice to Owner the formal representations were made:

I represent Jane Doe as attached authority.

She was parked wholly outside number 23 (I should know, I live next door).

The suspension sign suspended parking from the right hand boundary of #23

Jane's car therefore was not within the suspended area and no contravention has occurred.

Please cancel the PCN.

(Incidentally the removal lorry had already departed and it would be helpful to residents if you didn't suspend bays until midnight which is not necessary for household removals).

This time, the council accepted them.

You have to ask yourself why the council rejected the challenge the first time when clearly it was a valid one? You might think it is cynical behaviour on the part of the council as they know what most people don't, that you can challenge a PCN (one placed on your car) three times (only twice for a postal PCN). In this case the council wisely decided not to chance their arm at the tribunal as they were facing a pretty certain loss & they have to pay a tribunal fee of £30 (no charge for the motorist).

If you now look at the table above you can see the percentage of occasions on which the council got their decision wrong. Barnet are up there in the top quartile of the leader board.

Do please continue to take your PCN to the tribunal if you think it is wrong as you do get an independent review of your PCN unsullied by the prospect of extra revenue for the tribunal who are funded by fixed price payments per PCN by enforcement authorities. 

Put more simply, an adjudicator will not find against you because he/she profits by it, unlike councils who want the revenue and are under pressure to meet their annual projections. 

The system needs to be redesigned to remove the incentive for councils to issue more PCNs and to refuse more challenges.

Yours frugally

Mr Mustard

Sharp eyed readers will have noticed that if you were to sort the above table in size order of the number of parking PCNs taken to Appeal at London Tribunals, Barnet Council come out as the council whose PCNs get taken to the independent tribunal more often than any other council in London (TfL not being a London council).

Well done to the residents of, & visitors to, Barnet who are clearly becoming more independent & leading the fightback against unfair ticketing & revenue raising.

Odds of being struck by lightning twice are 1 in 9 million, or maybe not.

There is nothing in the legislation that mandates a payment method

The odds must be about the same as Mr Mustard being told by Crapita that he could only change his council tax payments from 10 instalments a year to 12 a year if he set up a direct debit, except Mr Mustard would have taken your money at evens that Barnet Council/Crapita would try it on a second time. Readers with good memories will remember this blog.

Mr Mustard purchased a house to do up in September 17. He told the council of the purchase and received a council tax bill for 2017/18 spread over 4 payments which he duly paid. The bill arrived recently for 2018/19 and was split across 10 payments. Mr Mustard expected to be selling the property long before March 19 so he emailed the council and said:

21 March 2018

I refer to my council tax bill dated 16/03/2018.

I would like to pay it in 12 instalments please.

With a boring inevitability back came the reply from Crapita

26 March 2018

Thank you for your email received.

Please note that in order to pay by 12 instalments you are required to set up a Direct Debit, we are unable to set up 12 cash payments.

Yours sincerely

Redacted to save their blushes
Local Taxation Officer
Barnet Council

Mr Mustard's fingers graced the keyboard once again & sent Crapita an invitation to dig themselves further into a hole:

26 March 2018

Thank you for your reply.

Is that council policy or just what the law says?

Many thanks

Suddenly the opposite was true:

5 April 2018

Thank you for your recent email regarding the above council tax account.

I apologise for the confusion, but 12 monthly payments are available without setting up a direct debit and I have now amended your instalments.

A new bill will be with you in the next few days.

Never content to leave a good bone Mr Mustard sent back a further polite request, as he couldn't see how confusion could have arisen, unless the meaning of the word has developed from the natural meaning of 'disorder' to now meaning an outright lie, especially a bad one, or incompetence.

5 April 2018

What was it you were confused about?

When is a direct debit ever compulsory?

Many thanks

Whatever the true reason and Mr Mustard suspects that it is an inept & misguided internal unofficial policy decision (councillors are meant to decide policy) by some low ranking member of management at Crapita to make it easier to hit the council tax collection target as that generates extra earnings for Crapita. The Conservative councillors, who voted like lemmings for outsourcing to Crapita, never thought through the consequences of their actions nor that now council tax is dealt with out of their sight it is certainly out of their mind and outwith their control.

Mr Mustard would like to know if you have been coerced into setting up a direct debit when you didn't really want to on the assumption that the council, in the voice of Crapita, would be telling you the truth.

It is high time to cancel your direct debit and replace it with a standing order through your online bank account, which is how Mr Mustard pays. Occasionally direct debits go wrong, with those holding them, like Barnet Council or their less than competent agents, demanding payments twice in one month, as happened a few years back. Banks sometimes also make the same mistake but errors with standing order payments seem to happen far less often. A standing order puts you in control, as you can change it without anyone else's involvement, whereas with a direct debit you are reliant on the person you are paying correctly helping themselves to whatever they want.

If you have a standing order you can easily set up 12 payments if that is what you want, you still have to ask the council to amend the demand, but whilst they are doing that you can get on with paying the first of the 12 instalments, as Mr Mustard has, so that arrears do not arise.

At some point later in the year Mr Musatrd will probably buy another property. He will ask to pay his council tax by 12 instalments. Will another silly person try to bluff him into paying by direct debit? Mr Mustard thinks they will.

Yours frugally

Mr Mustard

Bought? / sold ? Just give us the money

Opposites

The below is an extract of a recent tribunal hearing decision concerning Barnet council and their inability to read what was plainly in front of them. It was probably the result of either a sloppy error or the result of an overwhelming desire to reject representations as the penalty must be collected at all costs.

The Authority's case is that the Appellant's vehicle was parked in a restricted street during prescribed hours when in Rotherwick Road on 7 December 2017 at 11.07.

The Appellant's case is that he purchased the vehicle on the 7 December 2017 at approximately 3pm, which was after the time of the contravention.

I have considered the evidence and I find the Appellant's evidence to be credible and I find that at the time of the contravention on 7 December 2017 he was not the owner. I find that he had not purchased the vehicle until after the contravention had occurred and was at work at 11.07am that day.

Further, the Appellant made his position clear in his representations and informed the Authority that, 'I bought the car on the same day at around 3pm in the afternoon'.

In the Notice of Rejection the Authority has responded as follows, 'I note your correspondence which states that your vehicle was sold before the contravention occurred'.

This statement by the Authority is the opposite of what the Appellant had informed them, and I find the Authority's Notice of Rejection has not complied with its duty, under regulation 5(2)(a) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, which is to consider the representations and respond accordingly.

I find that the failure to accurately consider the representations of the Appellant to be a procedural impropriety.

Regulation 7(2) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that if the Adjudicator concludes that a ground specified in Regulation 4(4) above applies, "he shall allow the appeal".

An Appellant is entitled to have the points he raises properly considered by the enforcement authority pursuant to its duty under regulation 5(2)(a) of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.

Accordingly, taking these matters together or separately I find this Penalty Charge Notice cannot be upheld.

In light of my finding that the Appellant was not the owner at the time of the contravention I have cancelled the Notice to Owner but not the Penalty Charge Notice*.

The appeal is allowed.

*The PCN is not cancelled as that leaves the field clear, in this particular case, for the council to go back to the seller of the car, although they probably won't bother.

Mr Mustard has dealt with a similar case which turned on Newham Council  deciding that the buyer must have owned the car for the whole of the day as the DVLA registered him as the new keeper from the day of purchase. There will nearly always be two owners on the day of purchase with vehicles not usually changing hands at midnight.

This was the result from that case.

The Authority point out that neither the registration document nor the receipt show the time of the sale, and so their position is that because Mr L. was shown as the registered keeper of the vehicle on the material date, he was liable for this penalty charge.

It is perhaps surprising that the forms produced by DVLA for notifiying the transfer of a vehicle to a new keeper do not provide any field for the entry of a time of day, which clearly can be very important in cases like this. However I have had the advantage of hearing from Mr L. in person, and found him an entirely convincing and credible witness. I am quite satisfied that he has rebutted the presumption that as the person shown as the keeper of this vehicle on the date of this contravention he was the owner at the time of this contravention.

The appeal is therefore allowed.

If you aren't the liable party, take your fight to the tribunal, you will be listened to carefully.

Yours frugally

Mr Mustard

Engineering payment failure

This is the sign that tells you how to pay by text within the London Borough of Barnet.

Some people still use text as they do not have a touch screen phone and even some that do have one still like to use text.

Having done exactly what you are told this is the message you get back.

The council have a duty to adequately sign the restrictions in place at each location which previously was standard signs with arrows pointing to meters i.e. not only the times have to be stated but also where to pay. If the council insist that you pay by phone they must give you the correct information with which to do so. Has no-one thought to update the signs?

Does the council have the right to waste your time & possibly money texting an out of date number? It wouldn't be procedurally fair but that is where we are.

If you get a PCN because your text payment went wrong, this may give you grounds of escape.

Yours frugally

Mr Mustard

experimental new cash cow in NW2

Mr Mustard isn't often in NW2 at rush hour so doesn't know how hard it is for pedestrians to cross the road at these locations or who has raised concerns about the level of traffic and pedestrian safety, quite possibly hardly anyone at all? He does know that if the No Motor Vehicles sign is used, and a cctv camera is quietly installed on a pole way above head height where it won't be noticed, a large number of residents (as well as strangers to the area) will fall foul of the new restriction and receive a numbers of PCNs in the post before they notice the new signs. He also thinks it will make Platt's Lane & Hermitage Lane busier 

and will render Pattison Rd & Briardale Gardens one way (as arrowed) for part of the day as the Order does not state that the restriction is only for traffic from one direction of approach so there will be no entering those two side roads at all at peak hours.

Please tell everyone you know who travels through NW2 so they avoid making a £130 mistake.

Yours frugally

Mr Mustard