Do Fixed Penalty Notices work?

Hundreds and thousands of Fixed Penalty Notices are being issued in the name of Barnet Council for littering, fly-tipping, dog fouling and fly posting. A 6 month trial started in July 2016 and has continued each month without a proper tendering of the contract in accordance with EU procurement law (imho).

The sums involved are large.

These are the values of paid and unpaid Fixed Penalty Notices for the first 4 months of 2018

 

The percentage paid column for April 18 will doubtless be up at the 50%+ level given more time for payments to be made.

The Environment Committee is meeting on Tuesday 5 June & Mr Reasonable has asked the council to tell him what income the council themselves have derived from the non-contract. Mr Mustard thinks the answer is nothing at all, as during the initial 6 month trial period NSL Ltd were allowed to keep all of the income & no-one at the council thought to renegotiate as time passed . That was a council employee playing a game of contract negotiation during which NSL had all aces and the employee had nothing as NSL have the data from other boroughs and so know how many FPNs they can issue per shift & what they cost, so naturally they wouldn't have agreed to the deal if they were going to lose money on it.

Since then the non-contract has been allowed to run on and eventually we might have a proper procurement exercised concluded.

In the meantime, did Barnet Council obtain best value? It doesn't look like it.

The EU procurement threshold, at which a contract should be tendered, is £181,302 p.a. Let's call it £15k a month. The first month in which £15k was paid was September 16 and it hasn't dropped below that since. The director in charge of street scene should have noticed this a year ago and acted. However, if all the money was going into NSL's pocket then it might not have been flagged up, although there are meant to have been monthly meetings about the progress of enforcement (Mr Mustard will do an FOI for the records).

Here are the monthly figures for the 22 months that the trial has been followed by out of contract enforcement action.

Mr Mustard thinks that the blunt instrument of a Fixed Penalty Notice does not deter, except the person who wouldn't dream of littering in the first place. This is because he thinks that over the last 2 years the amount of littering and fly-tipping in Barnet has increased and this may well be a consequence of reduced street cleaning and bin-emptying activity by the council. If the public realm looks less tidy, thanks to the council's reduced activity in that area, the public conclude that the council don't care and so why should they and down goes the litter and the dumped mattresses onto the pavement.

Amazingly the council only issued 4 FPNs for dog fouling (as in fouling by dogs that wasn't removed) and 8 for fly-posting. It looks like the target has been soft enforcement.

Mr Mustard has been contacted by two businesses who have proper arrangements with licensed waste carriers (one of them the council & the other Veolia) with one paying out £8,000 a year to ensure the proper disposal of their rubbish, who have been given FPNs for fly-tipping. The trouble with the FPNs is that unlike parking PCNs, which have a strict timetable and no additional costs for Appealing, if you want to dispute a FPN there is no formal mechanism or rules to do so (the system rather assumes guilt) and you have to wait until a summons to the Magistrates' Court arrives and then you need your solicitor together with the attendant time & expense and then somewhat summary justice is dispensed.

The committee meeting is on Tuesday, so if you want to ask any questions you need to email them in by 10am tomorrow. Mr Mustard is off to do that now.

Before he goes he will caution you against dropping a sweet wrapper or a cigarette butt or in fact anything at all and if you are a business don't let anyone you know re-use anything of yours without you first of all having removed anything which identifies the business as it will be assumed that a dumped box bearing your business name will have been dumped by you.

Mr Mustard suspects that this example is just the tip of the iceberg which was put into reasonable order after the MetPro scandal and is now back in turmoil.

Yours frugally

Mr Mustard

Do you suppose the council is doing anything to find out why people dump, like asking the ones they have caught, and then doing anything to change behaviour? No, Mr Mustard doesn't think so either.

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

Fly ticketing in Barnet

The council in their mid-term budgeting papers going before the Policy & Resources Committee next Tuesday, 13 February, plan to close some of their budget gap & make more money by issuing even more penalties for fly tipping & littering. Prosecutions are rare for fly tipping but plenty of fixed penalties are being dished out for minor matters to soft targets.

Here is an email that Mr Mustard has just received:

I am hoping you can help me resolve a dilemma similar to the ones described on your website about ludicrous local council actions.

I live in Pimlico and engaged the services of a professional organiser who took some donations to a charity shop in North Finchley, near where she lives. They accepted the items, and she specifically remembers them accepting a ceramic ornament which was donated in a padded envelope to protect it.

A week later I received a fixed penalty notice from Barnet Council claiming that I had committed the act of fly tipping this envelope, along with some boxes and clothes (I had not donated any boxes or clothes).  I explained the situation, and also provided proof that I had been elsewhere at the time and date of the incident.  The envelope is the only evidence linking me to the waste as I know they have no CCTV footage of me, since I did not fly tip! However, they rejected my claim, stating that they had my name and address on the envelope.  Surely this envelope does not provide sufficient proof that I am guilty of fly tipping?

Furthermore, if the ceramic ornament was accepted by the charity shop, does safe disposal of the envelope not become the responsibility of the charity shop?
I'd be very grateful for any advice you have, and think that Barnet Council's unreasonable aggression deserves wider attention.

Ludicrous doesn't even begin to describe this situation.

The writer, let us call her Ms P, lives in Pimlico, does not have a car, works as a private tutor and is in her thirties.

Mr Mustard's observations:

How likely is it that Ms P would come all the way to Barnet from Pimlico to dump a padded envelope?

Once the goods were taken by the professional organiser they were no longer the property of Ms P. and so she is not liable for what happened to them afterwards. It was a reasonable belief that a professional organiser would not litter.

The padded envelope possibly fell out of the charity shop's bin when being emptied 

or 

they gave it to a customer to protect a fragile item and that customer threw it away

or 

someone went through their bins looking for anything they could turn into money.

The council cannot prove that Ms P visited Barnet.

Equally they cannot prove that the item was dumped by Ms P.

The council cannot prove that all of the dumped items were dumped at the same time.

The council, or perhaps their enforcement agent NSL, refuse to listen to reason because revenue is the main attraction of issuing penalties for enforcement.

Councils have too much power and cannot be trusted with it. All penalty income should go to central government in order to break the link between enforcement and revenue.

Yours frugally

Mr Mustard

Selective attention to litter

with credit to the Barnet Press

The above items appeared on adjacent pages. The council crowing about how many Fixed Penalty Notices have been issued for littering (Mr Mustard will not defend you against one of those as he is against littering) and Richard Logue, a fine citizen from Mill Hill, bemoaning the fact that he and his team couldn't stand the state of his local park any longer.

A few points spring to Mr Mustard's mind:

1. If the council are issuing 12 FPN a day then their educational messages are not getting through. Any FPN is a failure to educate residents, and visitors, to not drop litter in Barnet. The state of the borough may make them think littering is normal. The cleaner the borough the less likely littering is to occur.

2. The penalties collected are retained by NSL under the terms of their contract. NSL are not a charity so it seems doubtful in the extreme that they are making a loss on it so we, the council tax payer, must be overpaying. It is also a question of public policy. Negotiating a deal where a private company directly profits from public wrongdoing, they are paid a fixed price so the more penalties they issue the more profit they make. It just seems wrong to Mr Mustard. He suspects that they will go for the easy targets like fag butts rather than tackling the big stuff, like bags of shop rubbish and dumping of fridges & mattresses.

3. The cleaning of parks does not have a high enough priority if 10 bags of waste can be removed from just one park. Are there sufficient bins in the park and are they emptied frequently enough?

4. Volunteers should not have to make up for Barnet Council's policy & performance deficiencies.

5. We all pay council tax because it is cheaper to pay collectively in order to keep our public spaces clean. Mr Mustard is not going to pay twice by also volunteering to clean up his local park (besides which most of his time is taken up in fighting parking PCN).

6. It is for the same reason that he won't volunteer to play at being a librarian.

7. If you want to be a volunteer then there are plenty of more worthy causes than Barnet Council, such as Age UK and the North London Hospice where your time will be genuinely appreciated, rather than just as a political message.

Yours frugally

Mr Mustard