Appeal of Continuous Registration Penalty Charges

Dear Mr Horner

Thank you for your e-Mail dated 29 December 2008 in which you have
requested information about the appeal procedure in relation to
Continuous Registration enforcement action undertaken by the Driver and
Vehicle Licensing Agency (DVLA).

The information you have requested is being dealt with under the terms
of the Freedom of Information Act 2000 (FOIA) and you will receive a
response within the statutory 20 working days from the date of receipt.
We will endeavour to respond to your request prior to the 20 working
days.

If you have any queries about this letter, please contact me quoting
the above reference number in any future communication.

Yours sincerely

Freedom of Information Champion
Local Services Network

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Dear Mr Horner

Thank you for your e-Mail dated 29 December 2008 addressed to DVLA,
Swansea, in which you have made a request for information under the
Freedom of Information Act 2000 (FOIA). I am replying as Head of
Customer Services and Compliance.

In answer to your first request:

+AJM-Please explain what the official Appeal Procedure is for someone
served a late Licensing Penalty, under the Road Vehicle (Registration
and Licensing) Regulation 2002 (as amended), who contests liability for
the penalty.+AJQ

It may help if I explain that it has been a legal requirement since
January 1998 for the registered keeper of a vehicle to ensure that it
is, at all times, either currently licensed, or that a Statutory Off
Road Notification (SORN) declaration is made. Under the system of
Continuous Registration (CR) introduced from 1 January 2004, the
registered keeper remains responsible for re-licensing or declaration of
SORN until he or she has formally notified the Driver and Vehicle
Licensing Agency (DVLA) of the vehicle+IBk-s transfer, destruction, export
or theft. Failure to do so will result in a Late Licensing Penalty
(LLP) letter being issued.

I should explain that there is no formal appeals procedure in CR cases.
In disputed cases, or those involving ongoing correspondence in respect
of a CR offence, each case is given individual consideration and is
managed via a Local Office Casework System (LOCS). Also, when escalated
DVLA+IBk-s Complaints procedures can be used as a channel for appeal
cases. The Agency+IBk-s +AJM-Customer Service Guide and what to do if
things go wrong+AJQ leaflet (INS101) may be obtained from our website at
http://www.direct.gov.uk/Motoring, which outlines the steps to be
taken.

In answer to your second request:

+AJM-If there is no official and published appeal procedure to an
independent body please explain on what basis you consider, without any
hearing by a legally constituted Court or Tribunal,+AJQ

I will deal with each point you have raised under this heading
separately.

In answer to Point (a) of your request relating to:

+AJM-the imposition of these penalties.+AJQ

DVLA+IBk-s aim is to proceed with all breaches of the CR legislation
identified wherever viable. The Agency must, however, have some
flexibility to allow for consideration of mitigating circumstances, and
the pursuance of the LLP may be discontinued because the registered
keeper has supplied sufficient mitigating evidence.

On receipt of a response to a penalty letter issued in respect of a CR
offence, each case is given individual consideration. The decision to
proceed or not with enforcement action is dependent on the information
provided. If more than one mitigating reason is provided in a reply,
consideration is given to each individual circumstance. Each reason
must be considered on its own merits. Should one or more of the reasons
provided be sufficient to mitigate an offence, the CR enforcement case
will be discontinued.

Without a manual interrogation of each CR case, it is not possible to
determine the reason(s) why enforcement action was not pursued. I can,
however, confirm that there are guidelines to assist in the assessment
of whether mitigating circumstances exist. Information concerning the
guidelines employed when assessing mitigating circumstances in CR
enforcement cases is being withheld as it falls under the exemption in
Section 31(1)(d) of the FOIA.

We recognise the public interest in providing this information in order
to demonstrate that DVLA deal with all enforcement cases with a
consistent, even-handed and fair approach. However, there are
corresponding and outweighing public interest considerations in favour
of protecting this information. We consider that disclosing information
relating to mitigating circumstance guidelines utilised in respect of
such cases would, or would be likely to, prejudice the collection of
Vehicle Excise Duty (VED) as knowledge of what may constitute mitigating
circumstances (and hence when supplement liability is unlikely to be
pursued) would be likely to lead to an increase in late, or possibly
non, payment of duty.

This exemption can only be relied upon where, in all circumstances of
the case, the public interest in maintaining the exemption outweighs the
public interest in disclosing the information. Having considered the
public interest, I have decided to withhold the information for the
reasons provided in Annex A.

In answer to Point (b) of your request relating to:

+AJM(b)the corresponding (and accompanying) threat of seizure of the
vehicle concerned.+AJQ

It may be helpful at this point to give some background to the
enforcement process. It is an absolute offence under Section 29 of the
Vehicle Excise and Registration Act (VERA) 1994 to keep or use an
unlicensed vehicle. The only exception is when it is being driven to,
or is returning from, a pre-booked MoT test appointment. The judicial
process requires a sighting of an unlicensed vehicle being so used or
kept and a formal witness statement to that effect in a form acceptable
to the Courts. Normally, the Police, Traffic Wardens and DVLA Officials
as part of their day to day duties, report unlicensed vehicles that are
so used or kept, which can require their attendance at Court as a
witness.

Where a Vehicle Excise Duty (VED) offence has been committed, the law
allows DVLA to make an offer to compound proceedings, commonly known as
an Out of Court Settlement (OCS). This provides a straightforward and
simple means of disposing of the matter without recourse to Court
action.

DVLA and its devolved partners have legislative powers under the
Vehicle Excise Duty (Immobilisation, Removal and Disposal of Vehicles)
Regulations 1997 to immobilise, seize and impound unlicensed stationary
vehicles in a relevant place, that are believed to be committing a
Section 29(1) offence under VERA. This enforcement action is a separate
offence to the issue of a LLP for a CR breach.

In answer to your third request:

+AJM-To be compatible with the Human Rights Act 1998; specifically:

(a)the Article 6 Right to a fair trial.
(b)the protocol 1 right to peaceful enjoyment of his possessions.+AJQ

The Agency believes that the imposition of the supplement is lawful and
that the provisions contained in Section 7A of the Vehicle Excise and
Registration Act 1994 are not in conflict with the Human Rights Act. As
you are aware, Article 6 provides for the right to a fair trial. The
supplement payable under the legislation may be recovered as a debt due
to the Crown and therefore the DVLA can instigate legal proceedings in
the County Court for the recovery of the monies owed. It is during such
proceedings that your right to a fair trial arises as you would be able
to file a Defence to the claim issued against you and then attend Court
to put your side of the argument to the Judge hearing the claim.
Similarly, Article 1 of the First Protocol does not impair the right of
a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties. It is also worth
noting that the CR legislation was drafted after the Human Rights Act
and has therefore been drafted in accordance with it to ensure full
compliance.

The information supplied to you continues to be protected by the
Copyright, Designs and Patents Act 1988. You are free to use it for
your own purposes, including any non-commercial research you are doing
and for the purposes of news reporting. Any other re-use, for example
commercial publication, would require the permission of the copyright
holder.

Most documents supplied by the Driver and Vehicle Licensing Agency will
have been produced by government officials and will be Crown Copyright.
You can find details on the arrangements for re-using Crown copyright on
the Office of Public Sector Information website at:

http://www.opsi.gov.uk/click-use/index.htm

If you are unhappy with the way the Agency has handled your request,
you may ask for an internal review. You should contact the Local
Services Network and Enforcement Directorate Freedom of Information
Champion, DVLA, +IBg-A+IBk Block, Longview Road, Morriston, Swansea, SA6
7JL.

If you are not content with the outcome of the internal review, you
have the right to apply directly to the Information Commissioner for a
decision. Further guidance of DfT complaints procedures are detailed in
Annex B.

Yours sincerely

(sent unsigned)

Steve Alexander
Head of Customer Services and Compliance

Annex A

Exemption - Section 31(1): Information which is not exempt information
by virtue of Section 30 is exempt information if its disclosure under
this Act would or would be likely to prejudice-

(d): the assessment or collection of any tax or duty or of any
imposition of a similar nature.

Factors for disclosure:

+ALc To demonstrate that DVLA deals with all enforcement cases with a
consistent, even-handed and fair approach.

+ALc To demonstrate that discretion can be shown in limited mitigating
circumstances, when it is presented in enforcement cases.

Factors for withholding:

+ALc To ensure that DVLA are able to collect Vehicle Excise Duty (VED) and
to pursue those who fail to comply with their statutory obligations by
enforcing Continuous Registration (CR) legislation.

+ALc More specifically, to ensure that information about circumstances
where enforcement action is not commenced or continued is not utilised
to avoid or frustrate that action.

+ALc To ensure DVLA+IBk-s policy of enforcement in relation to the
Continuous Registration (CR) regulations remains effective and continues
to deter or prevent the evasion of VED, and the inaccuracy of the
vehicle register.

Reasons why public interest favours withholding information:

To disclose information concerning mitigation accepted in enforcement
cases would prejudice the collection of Vehicle Excise Duty (VED) as
knowledge of what may constitute exceptional circumstances (and hence
when supplement liability is unlikely to be pursued) would be likely to
lead to an increase in late, or possibly non, payment of duty.

Annex B

DfT Complaints Procedures

You have the right to complain about the way in which your request for
information was handled and/or about the decision not to disclose all or
part of the information requested. In addition a complaint can be made
that DfT has not complied with its FOI publication scheme.

Your complaint will be acknowledged and you will be advised of a target
date by which to expect a response. Initially your complaint will be
re-considered by the official who dealt with your request for
information. If, after careful consideration, that official decides
that his/her decision was correct, your complaint will automatically be
referred to a senior independent official who will conduct a further
review. You will be advised of the outcome of your complaint and if a
decision is taken to disclose information originally withheld this will
be done as soon as possible.

If you are not content with the outcome of the internal review, you
have the right to apply directly to the Information Commissioner for a
decision. The Information Commissioner can be contacted at:

Information Commissioner+IBk-s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

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Dear Mr Horner

Thank you for your further e-mail of 21 January 2009 in which you have
requested a review of the disclosure of information under the Freedom of
Information Act 2000 (FOIA).

Your e-mail is currently receiving attention and a reply will be sent
to you as soon as possible.

If you have any queries about this letter, please contact this Agency
quoting reference number FOIR 1339/09/IR in any future communication.

Yours sincerely

(Sent unsigned by e-mail)

ED/LSN Customer Services Team

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Dear Mr Horner

FOI Request - Appeal of Continuous Registration Penalty Charges

I am in receipt of a copy of your e-mail of 21 January stating your wish to appeal against the Agency+IBk-s decision not to release the information you requested.

I have been asked, as Freedom of Information decision-maker for Vehicle Customer Services, to review all correspondence relating to your request for information made under the Freedom of Information Act (FOIA).

I can confirm that I agree with the advice given by Steve Alexander in his reply of 19 January. Information regarding mitigating circumstances contributing to a withdrawal of enforcement action should not be released in accordance with the exemption in Section 31(1)(d) of the FOIA.

As stated by Mr Alexander, the Agency recognises the need for public confidence in its procedures. However, it is clear under the FOIA that information is exempt from release if it would likely to prejudice the assessment or collection of any tax or duty etc. Also, Mr Alexander has stated that Article 6 of the Human Rights Act provides for a right to a fair trial and that right would apply should an enforcement case be brought against you in Court. Your comments regarding an attempt to +IBg-subvert+IBk Article 6 are an opinion that is not shared by this Agency.

I should add that the appeals process for the other motoring related offences described would only set out the guidelines for making such an appeal to the issuing authority. The disclosure of particular details regarding successful or otherwise appeals would not be contained within such guidelines for the reasons already mentioned.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting. Any other re-use, for example commercial publication, would require the permission of the copyright holder.

Most documents supplied by the Driver and Vehicle Licensing Agency will have been produced by government officials and will be Crown Copyright. You can find details on the arrangements for re-using Crown copyright on the Office of Public Sector Information website at: http://www.opsi.gov.uk/click-use/index.htm.

If you are not content with the outcome of this internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:

Information Commissioner+IBk-s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Yours sincerely

Richard Batchelor
Operations Manager

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Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Driver and Vehicle
Licensing Agency's handling of my FOI request 'Appeal of Continuous
Registration Penalty Charges'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/ap...

please reconsider the decision to withhold your criteria for
mitigation under Section 31(1)(d) of the FOIA. The paramount
consideration in this matter is that the public can have confidence
that legislative powers are being used consistently and fairly.

The DVLA goes to great lengths, including the contracting of
private Debt Collection Agencies, to avoid LLP cases being heard in
court. This could be seen as a clear and deliberate attempt to
subvert the S6 HRA rights of people accused of these alleged
contraventions and to collect on debts which have not been proved.

As such, it is vital that the entire internal procedure leading up
to such subversion, including the criteria on which representations
are accepted is open to full scrutiny.

In this case, the guidelines for accepting representations are no
more a matter for Section 31(1)(d) of the FOIA than the appeals
process for other motoring penalties, such as parking offences,
which are all clearly established and available for public
scrutiny.

Yours sincerely,

Joe Horner

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