Mid Sussex District Council Parking Services Enforcement of Foreign Vehicles

Transcription

1 Mid Sussex District Council Parking Services Enforcement of Foreign Vehicles REPORT OF: Judy Holmes, Assistant Chief Executive Contact Officer: Claire Onslow, Business Unit Leader Parking Services Tel: Wards Affected: All Key Decision No 1. Purpose of Report 1.1. To report the current issues relating to the enforcement of unpaid Penalty Charge Notices served against Foreign Registered Vehicles, and a proposed solution. 2. Recommendations It is recommended to Management Team that Parking Services enter into a Service Level Agreement with Euro Parking Collections (EPC) services, in order to take enforcement action against foreign registered vehicles. 3. Background 3.1. If a Penalty Charge Notice remains unpaid the Council applies to the DVLA to obtain the owner s details so that it can commence recovery action. However, there is no international framework in place to recover ownership details from Foreign Vehicle Licensing Agencies (FVRAs) to enforce against foreign registered vehicles, and there is no other option but to write off these Notices 3.2. This has an effect on enforcement, and the recovery of charges, as briefly surmised below: Financial PCNs served on Total number of Percentage Charges Year Foreign Vehicles PCNs written off Written Off lost 2011/ % 5, / % 3, / % 5, / % 4, / % 6,810 Total % 26, This can also mean that foreign registered vehicles can continue the following parking behaviours without recourse: (a) Parking in restricted areas which can cause obstruction or safety issues (b) Parking without payment, causing a minor loss of income. (c) Parking in a designated user bay, which prevents the rightful owner from parking such as a disabled driver or a permit holder This is an issue which has been recognised by the Government, in its report of 14 th October 2013, which stated: Where PCNs are issued to foreign-registered vehicles it can be difficult for local authorities to collect payment. Transport for London (TfL) told

2 us that "recovering unpaid penalties incurred by vehicles registered outside the UK can be problematic and is a well-known problem". [)] there is no specific Europe-wide power to enforce civil parking debts across national boundaries. 4. Euro Parking Collections 4.1. Euro Penalty Charge Notices is the only agency based in the United Kingdom which currently has access to overseas information. Although it does not have contact in all countries, and not all are able to supply the information EPC undertake the following services: (a) Issue of Statutory Notices (up to pre-court level) from the Council to the Appellant in their language. (b) Translation of any documents sent from either the Council or the Appellant to each party. (c) Collection of payments for the Penalty Charge Notice, sometimes in the currency of the Appellant, and transfer of these to the Council. (d) There is no charge for any of these services if payment is not made. (e) The Council will only be charged upon successful payment of a PCN, based on 30% of any charge paid To date, sixty Local Authorities have an agreement with EPC, as indicated in Appendix One, together with three hundred European enforcement agencies The proposal is that MSDC enters into a SLA with EDC for them to carry out enforcement action against foreign registered vehicles The following requirements must apply: (a) The action is undertaken following full consultation with the Data Protection Officer and officers of the Council s legal department. (b) The action will be only undertaken once a Service Level Agreement is in place. (c) Both agencies will remain within the legislative requirements of the Data Protection Act EPC is registered with the Information Commissioner s Office, under the Data Protection Register No. Z (UK) Upon receipt of such information via EPC, the Council will carry out its own intelligent tracing where appropriate in order to ensure that UK based residents may be pursued by the Courts if required. 5. Other Options Considered 5.1. The Traffic Management Act allows Councils the powers to immobilise vehicles with unpaid Penalty Charges. Currently, West Sussex County Council does not support the immobilisation of vehicles There are no other European recovery agencies in place, aside from European Municipality Outsourcing which is based in Italy. 6. Anticipated Outcomes 6.1. There will be a small margin of foreign vehicle owners who will pay, which would be an improvement on the current situation.

3 6.2. Those who are traced may well cease the same parking behaviour in future Some of the owners are most likely UK based residents who could be traced and enforced under the UK Court process. 7. Risk Management Implications 7.1. There may be claims from Appellants that Data Protection may have been breached. The Data Protection Officer has been consulted and is satisfied with the proposed action The result of the Referendum to leave the European Union is not yet known to have had an effect on EPC s operations. It should, however, be noted that some of the Agencies utilising EPC are not part of the EU. 8. Additional Information 8.1. The proposed Service Level Agreement has been examined and approved by the Assistant Solicitor and Monitoring Officer to the Council. The draft SLA is attached as Appendix Two A letter indicating Power of Attorney will be signed by Business Unit Leader for Parking Services as the Authorised Officer on behalf of the Council and published on EPC s website to indicate the authority to enforce on the Council s behalf. Draft versions of these documents are attached as Appendices Three and Four Upon the recommendation of the Assistant Solicitor and Monitoring Officer to the Council, procedures have been produced laying out how the Council and EPC should approach recovery and communication with the owners of foreign vehicles. This provides transparency regarding the recovery process. The proposed procedures have been attached as Appendix Four Since the initial creation of this report, Adur and Worthing Borough Council have commenced enforcement via EPC. They confirm that, as of February 2016 they had recovered c. 1000of unpaid debt.

4 Appendix One Current UK Agencies utilising Euro Parking Collections Adur and Worthing Councils Ashford Borough Council Bridgend County Borough Council Brighton and Hove City Council Brittania Parking Ltd Buckinghamshire County Council Bury Council Cambridgeshire City Council Canterbury City Council Ceredigion County Council City and County of Swansea City of York Council Denbighshire County Council Derbyshire County Council Dorset District Council Dover District Council Euro Car Parks Ltd Flintshire County Council Gwynedd County Council HA Dart Charge Isle of Anglesey County Council Isle of Wight Council Local Parking Security Ltd London Borough of Barnet London Borough of Brent London Borough of Bromley London Borough of Camden London Borough of Croydon London Borough of Ealing London Borough of Hackney London Borough of Lambeth London Borough of Richmond London Borough of Southwark London Borough of Tower Hamlets London Borough of Waltham Forest London Borough of Wandsworth London Luton Airport Operations Ltd Medway Council National Anti-Fraud Network (NAFN) Nottingham City Council Nottinghamshire County Council Portsmouth City Council Pembrokeshire County Council Portsmouth City Council Powys County Council Reigate and Banstead Borough Council Royal Borough of Greenwich Sefton Council Severn River Crossing PLC Shepway District Council Stratford on Avon District Council Swindon Borough Council Swale Borough Council Thanet District Council The City of Edinburgh The City of Westminster The Royal Borough of Kensington and Chelsea Thurrock Council Transport for London (Bus Lanes, Congestion Charging, Low Emission Zone and Moving Contraventions) Tunbridge Wells Borough Council Vale of Glamorgan Council Warwickshire County Council Weymouth & Portland Borough Council Wrexham County Borough Council Wycombe District Council

5 Appendix Two 1. Parties Service Level Agreement 1.1. Euro Parking Collection plc and its subsidiary Contractum Limited ( EPC Group ), is a business service provider specialising in the administration of traffic related investigations and contraventions incurred by foreign or non-domestic registered vehicles, or by rental vehicles with foreign or non-resident hirers ( FRV ) /Client name/ ( Client ) is an approved issuing organisation and wishes to use the EPC Group to identifying the registered owner/keeper/hirer of a FRV recorded by the Client as having contravened local traffic regulations. 2. Service 2.1. The EPC Group will (i) (ii) (iii) (iv) 3. Geographical Coverage liaise and where possible obtain the relevant data from the appropriate Vehicle Licensing Agencies ( VLA ) and hire companies; send the relevant notification(s) to the registered owner/keeper/hirer translated into the language of the contravener and with the outstanding amount converted into the local currency with local payment options; administer all monies received in any relevant currency; Receive communications and liaise with the Client were applicable as per separate instructions The EPC Group will use its best efforts to obtain the relevant data from the VLAs. Due to domestic regulations, certain VLAs may have restricted disclosure, which will result in limited or no access to the EPC Group. These cases will remain in the EPC database for 12 months from date of contravention, should access be provided. If no access is provided within the period the cases will be closed. 4. Delivery of Data 4.1. All relevant information will be transferred by the Client to the EPC Group using predefined instructions, including the file formats used for the transfer of data. 5. Supplementary Client Information 5.1. The Client will forward to the EPC Group the following information needed to perform the service: (i) (ii) Logo the Client assigns the right for the EPC Group to reproduce its logo on any notifications produced on their behalf, and for any other matters relating to the service; Legislation, contravention codes, description, location codes and any other relevant information; 5.2. The Client shall provide EPC with guidance and instructions ( Business Rules ) on the notification procedure. The Business Rules shall stipulate how communications from contraveners should be processed. If no instructions are provided, EPC shall adopt its own internal process for issuing of notifications and handling communication. 6. Reports 6.1. Clients will have access to online reports through which will provide details of the status of cases uploaded to the EPC Group. Additional reports such as payout reports and closed cases report will be forwarded monthly via to the designated address provided by the Client. 7. Commission and Fees 7.1. EPC shall transfer 100% of the monies received to the bank account provided by the Client In the event of direct payment to the Client, where the case has been uploaded for collection, the same commission is due. The Client must notify the EPC Group as soon as is practicable of receipt of any such payments for collection to cease The EPC Group will invoice the Client monthly and payable after 30 days: (i) 8. Currency Risks 30% commission on the amount collected The EPC Group shall pay the Client in GBP. The fine value will be converted when the first notification is issued to the currency of the vehicle owner/lessee/hirer. The same currency rate used for the initial conversion will remain throughout the collection process The EPC Group shall (for the purposes of reducing the currency exchange fluctuation risk and given the same currency rate remains constant throughout the whole collection process), following any currency conversion and prior to the relevant notification being issued, increase the amount that it calculates (which is based on the European Central Bank spot rate) as the amount payable in the contravener currency, by a marginal percentage to reflect the average rate used by commercial banks for similar payments. The EPC Group will offer payment in the currency of the Client, if requested. The EPC Group shall be responsible for the foreign exchange risks and absorb any foreign exchange differences. 9. VAT 9.1. All costs are exclusive of VAT where applicable.

6 10. Unidentified Payments Appendix Two The EPC Group will receive payments which, despite investigations, cannot identify the payer and, therefore, the Client relevant to the case. For unidentified payments which cannot be refunded, EPC shall use this fund to pay for improvements in the collection of cases that shall generally benefit the Client as a whole, such as lobbying for an integrated European collection policy, obtaining access to previously unavailable VLAs, improvements in collection methods, systems development or covering the legal pursuit of contraveners who refuse to pay. 11. Force Majeure Neither party shall be liable in damages for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. The Client and the EPC Group shall not be liable for any special incidental, indirect or consequential damages arising out of or in connection with the supply of the service or failure of supply of the service. Notwithstanding any other provision contained within this terms and conditions, the Client and the EPC Group shall not be liable for any failure to provide or for any delay in providing the service hereunder by reason of war, riot, explosion, fire, flood, strike, industrial action or computer failure or any other cause beyond the reasonable control of the Client and the EPC Group. 12. Economic Loss The Client and the EPC Group cannot be held responsible for any changes to laws in countries where they operate, or for any loss of income that may arise from any such changes. In no circumstances shall the Client and the EPC Group be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof: a. for any increased costs or expenses, b. for any loss of profit, business, contracts, revenues, or anticipated savings or c. for any special indirect or consequential damage of any nature whatsoever arising directly or indirectly out of the provision of tracing contraveners and endeavours to achieve collection of cases. 13. Governing Law and Arbitration This Agreement shall be governed by and construed in accordance with the law of the England and Wales The EPC Group will adhere at all times to the Code of Practice of the Approved Operator Scheme administered by the British Parking Association. 14. Assignment Except as set out herein, such as debt collections, the parties have no right, without the other s permission in writing, to assign or subcontract its rights duties or liabilities in this service agreement. Such permissions not to be unreasonably withheld or delayed. 15. Data Protection The Client agrees that under no circumstances any member of its staff shall disclose to any person outside the Client; a. any personal information held on any the EPC Group s database; b. any technical information such as but not limited to collection procedures or collection rates; c. any passwords or user names. The Client and the EPC Group agree to comply with the Data Protection Act 1998 and amendments. The Client and the EPC Group agree to follow the European Data Protection laws Data Directive 94/95/EC of the European Parliament of 24 Oct 1995 and amendments. 16. Exclusivity The Client agrees to solely and exclusively use the EPC Group for the above service as specified in this agreement for the duration of this agreement. 17. Agreement Length This Agreement shall be valid for 24 months from the date of acceptance. It shall be automatically renewed after each period, for a further 24 months, unless it is specifically terminated by either party Either party can terminate this Agreement by giving three (3) months written notice to the other party at any time. 18. Announcements The parties agree that they are allowed to publicly announce their collaboration. 19. Limitation of Liability Notwithstanding anything contained in the agreement, the EPC Group s liability to the Client in respect of the terms and conditions, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to the value collected and paid for the last 3 months prior to the alleged breach. For and on behalf of the Client For and on behalf of Euro Parking Collection plc and Contractum Ltd Name Position Date Name Position Date

7 Appendix Three Delegation of Authority/Power of Attorney (To be issued on the Client s letterhead) TO WHOM IT MAY CONCERN Delegation of Authority (the Client ) hereby confirms that we have delegated our function of tracing, issuing and collecting of traffic related notices/fines/fees issued to vehicles registered outside the Client s jurisdiction to Euro Parking Collection plc, of Shepperton House, Shepperton Road, London N1 3DF, United Kingdom ( EPC ) by a certified contract. EPC acts on our behalf and the ultimate responsibility lies with the Client. This delegation of authority is granted in accordance with the laws of the Client s country. Power of Attorney The Client hereby appoints EPC to be its attorney with authority to act in these matters (as described in the delegation of authority above.) EPC has the authority, in any relevant jurisdiction and on behalf of the Client, to appoint a lawyer or other professionally qualified person to assist EPC in the performance of the delegation described above. This includes bringing any relevant action or other legal proceedings. This Power of Attorney is valid until further notice. Signed and dated (The Client) Page 7 of 10

8 Appendix Four Euro Parking Solutions Procedures to Enforce Unpaid PCNs against Foreign Registered Vehicles 1. Introduction The background to proceeding with authorising Euro Parking Collections Ltd to act on behalf of the Council is contained within the report entitled Enforcement of Foreign Vehicles, and remains available for review. Euro Parking Collections Ltd ( EPC ) will only act within the remit of the Traffic Management Act and its subsequent Statutory Instruments. EPC is a both a member of the British Parking Association and confirmed as an Approved Member of the same Association. Within the requirements of the Act, Mid Sussex District Council ( the Council ) remains ultimately responsible for the actions of its Agents, including EPC. To this end, the procedures to allow EPC to enforce unpaid Penalty Charge Notices ( PCNs ) on behalf of the Council are stipulated below. EPC currently already use these procedures in accordance with other Enforcement Authorities. Euro Parking Collections Limited act under the following procedures: 2. Notification of Unpaid Penalty Charge Notice 2.1. Under the current Traffic Management Act, the Council is unable to approach the Driver Vehicle and Licensing Agency until the twenty-ninth day from the date the PCN is issued. This is on the basis that there are twenty-eight days in which to pay the Notice and there is no requirement, therefore, to pursue the Owner prior to this date. The same procedure will be undertaken in relation to EPC Upon the unpaid PCN reaching the twenty-ninth day of issue, the Council will send a spreadsheet to EPC containing the following details: a. Penalty Charge Notice Number b. Vehicle Registration Mark c. Vehicle Country (if known) d. Vehicle make e. Place of Contravention f. Date of Contravention g. Time of Contravention h. Contravention Code i. Charge Amount j. Case Photographs (if applicable) 3. Registration Mark Identification 3.1. Upon receipt of the PCN details, EPC will use its in-house expertise to identify the county of origin in relation to the vehicle registration mark.

9 Appendix Four 3.2. Once the country of origin has been identified, EPC will use a variety of interfaces with the relevant country s Vehicle Licensing Agency ( VLA ). Dependant on the country, this will involve differing means of data transfer and differing timescales. The current types of transfer are as follows: a. Direct Access (real time) b. Electronic Transfer (24/48 hours response time) c. Manual (between 2 4 weeks response time) d. 3 rd Party Access 4. Notice to Owner 4.1. The Council is responsible for ensuring that the most up to date legal paperwork is provided to EPC. EPC will convert the Council s Notice to Owner ( NTO ) and its Representation form to the language of the Owner s country Upon a successful response from the relevant Licensing Agency, EPC will issue the NTO, in accordance with the Traffic Management Act Details will also be included as to how to make payment, which shall, in the initial instance, be processed by EPC The NTO will instruct the recipient that they have 28 days from the service of the Notice to either pay the outstanding Charge in full or make representations to the Council as to why they believe the Notice should be cancelled EPC will initially be responsible for taking payment for the unpaid PCN(s). Payment can be made in the form of the Owner s national currency. 5. Representations 5.1. The Owner may make a representation, which is initially sent to EPC, in their own language. EPC will then translate the representation and send it to the Council in order that they may decide if the Notice be upheld or cancelled The Council may then send the response back via EPC, who will then translate the response to the recipient s language and act accordingly should the case be cancelled If the case is not cancelled, the recipient will be provided with details in order to make an Appeal to the Traffic Penalty Tribunal. 6. Charge Certificate 6.1. In addition to the Notice to Owner, the Council is responsible for ensuring that the most up to date version of its Charge Certificate is made available to EPC. The Charge Certificate will also be converted to the language of the Recipient If a Representation or Appeal is dismissed, EPC shall serve Charge Certificate 28 days after the service of the relevant decision. Page 9 of 10

10 Appendix Four 6.3. The Charge Certificate shall inform the recipient that they have not paid the outstanding charge, which will have increased by 50%. It will also inform the recipient that they are too late to pay the full charge or make a representation. 7. Payments 7.1. Euro Parking Collections will be responsible for taking the initial payment from the recipient, which can either be paid online or via Bank Giro. This can be paid in the currency of the recipient s country At the end of each month, Euro Parking Collections will transfer the collected charges to the Council As agreed, Euro Parking Collections will invoice the Council with a commission fee at the end of each month The commission has been agreed as 30% of monies recovered. 8. Reports 8.1. EPC will notify the Council on a monthly basis regarding the current state of each case, including payments and closed cases Additionally, the Council shall have access, via a login and password, to online reports which indicate the statuses of each case. 9. Returns 9.1. EPC shall retain information on each vehicle for a period of 12 months. If no information regarding ownership is received during this time, the case shall be closed and returned to the Council. Page 10 of 10