ICA = "Independent Complaints Assessor" - as opposed to ICO (Information Commissioner's Office) who deal with matters of data protection and Freedom of Information issueS.
The Vehicle Certification Agency (VCA) - one of the agencies of the DfT - has useful guidance about ICAs at http://www.dft.gov.uk/vca/referral-to-ica.asp
For DVLA complaints see https://www.gov.uk/government/organisations/driver-and-vehicle-licensing-agency/about/complaints-procedure
For DfT complaints see https://www.gov.uk/government/organisations/department-for-transport/about/complaints-procedure
A motorist has been unable to get a yes no question answered by the DVLA. The question was not especially difficult.
Is compliance with the BPA Ltd CoP a necessary requirement for the DVLA in determining reasonable cause?The story begins when the motorist was issued a windscreen ticket by Local Parking Security (LPS) Ltd who at the time were in breach of the British Parking Association Ltd Code of Practice (CoP). Although there were several breaches, the main one was that the charge was only decreased by 33% for early payment, not 40% as required by the CoP. The motorist therefore brought this to the attention of the DVLA who stated that details are only given out to organisations who adhere to the code of practice.
The motorist asked the DVLA not to give out his details to LPS Ltd because as they were in breach of the CoP there was no reasonable cause to access his data.
The DVLA gave out his data anyway, and replied on 12 November, reiterating that reasonable cause does not relate to full BPA Code compliance.
The motorist replied on 13 November.
“I take serious issue with your statement, "As previously mentioned, reasonable cause does not depend on full compliance with the code of practice"
This is a complete 'U' turn and an unequivocal contradiction on your previous response in which you stated that;
"....vehicle keeper information is disclosed only to companies that are members of an Accredited Trade Association (ATA) and adhere to its code of practice"
The motorist then chased the DVLA for replies up to 28 February when they finally replied.
Information from the vehicle record is released under reasonable cause provisions where the reason for the request relates to the vehicle or its use, following incidents where there may be liability on the part of the driver. The Agency would not be able to justify withholding personal information from third parties able to demonstrate reasonable cause without evidence that such disclosure would cause unwarranted and substantial distress or damage.He replied on 3 March
Full compliance with the Code of Practice either applies to reasonable cause or it doesn't; which is it, I don't want any stock DVLA 'lines’ trying to fudge the answer, I am entitled to a ‘yes’ or ‘no’ straight answer from the DVLA to a straight question.The DVLA relied on 14 March, with a stock DVLA line, fudging the answer
The motorist wrote again on 17 March
“The issue that I require you to address is that of the effect of non-compliance with the BPA Ltd CoP on 'reasonable cause'. You will note that both David Dunford and Liz Symons have sought to duck and dive the issue. In her latest response, for example, Liz Symons has deliberately changed the meaning of my enquiry from (in essence); is compliance with the CoP an essential ingredient of 'reasonable cause' to does compliance with the CoP equal 'reasonable cause' and to which she has then answered in the negative. What Liz Symons has done is deliberately manipulated and misrepresented my enquiry in order to avoid answering it. I know full well that compliance with the BPA Ltd CoP does not equal 'reasonable cause' because there are also other factors taken into account. That wasn't my question. My reasonable enquiry therefore still stands. Is compliance with the BPA Ltd CoP a necessary requirement for the DVLA in determining reasonable cause? Yes or No.Kevin Watts from the DVLA replied on 28 March. Kevin Watts lost his letter, but luckily the motorist was able to provide a copy to the ICA investigator.
“The disclosure of vehicle keeper data under the reasonable cause provisions is a discretionary power of the Secretary of State, who has adopted a policy that requires all private car parking operators to obtain membership of an appropriate Accredited Trade Association (ATA) in order to request vehicle keeper details. This policy is intended to protect vehicle keepers from misuse of their information. One of the conditions of the membership of an ATA would be to abide by its Code of Practice (COP). The requirement for an operator to comply with an ATA’s COP is just one of the measures government has put in place to improve standards in the private parking industry through encouragement of robust self-regulation rather than government regulation at significant public cost. Essentially, the reasonable cause legislation is a legal gateway in which to request data from the DVLA. Compliance with an ATA’s COP is just one of the requirements to help inform the DVLA of the legitimacy of the request. Strict contract terms detail when information may be requested and how it can be used. No organisation has direct access to DVLA vehicle keeper data. If you feel that any of the practices used by the company do not comply with the BPA’s code of practice, you may wish to contact the BPA at Stuart House, 41- 43 Perrymount Road, Haywards Heath, RH16 3BN. I hope this makes the DVLA’s position clear.”
The ICA investigator found that:
The short answer to your question is “No, compliance with the code is not a necessary requirement in determining reasonable cause”.
He also found that only lip service is paid to the stated requirements. If a breach is found and reported to the DVLA they do nothing themselves. The most they will do is pass information to the BPA, who then also do nothing.
In fairness to the DVLA, your report of alleged breaches by LPS did not itself amount to proven breaches: it was for the BPA to investigate, take any necessary action in relation to LPS’s accreditation and then inform the Agency of the outcome. In that circumstance LPS might fail to meet a key criterion to receive DVLA data; future applications by LPS, and access to the DVLA database, could then be refused or suspended. However, although the DVLA says it has tough expectations of the ATA, for some reason enforcement action was not taken by the BPA in the period in which LPS was given your data or, apparently, since.
Turning to the essence of your complaint, I am not at all reassured that the DVLA gave you sufficient evidence of its concern that the BPA should fulfil its obligations. It states that its delegation to the ATA “promote[s] greater self regulation and further reinforce[s] protection of motorists’ privacy” but little or nothing seems to have happened after it referred your genuine compliance concerns to the BPA. In the absence of a clear statement from the BPA, based on a robust investigation, that LPS was in full Code compliance, my view is that LPS’s status as a data recipient remained open to question.
On balance, I cannot see that the DVLA’s handling is congruent with its aim of instilling confidence in the disclosure process and ensuring fair treatment and clear standards. I contrast the BPA’s limp response referred to you by the DVLA (paragraph 14) with the DVLA rhetoric reproduced in paragraph 28. I do not think that the Agency’s handling here was consistent with the oversight of “tough safeguards” which is suggested in its literature.
In the latter stages of the correspondence you pressed the DVLA for a yes/no answer to the straightforward question I dealt with in the previous section. For some reason, the Agency did not feel able to answer this question even though to do so would have required fewer words than the statement that it had answered the question already. That said, I think the underlying point in your case had little to do with reasonable cause - incontestable in your case – and everything to do with the basis of the Agency’s assurance that LPS was code compliant and suitable to provide data to.
The investigator decided that no maladministration had taken place
Unfortunately the Agency’s handling of your correspondence stalled before and after you had requested ICA review. The Agency was then unable to provide me with key documents. This necessitated further communications with you (see paragraph 21).
As I have stated, the erratic and piecemeal disclosure of information in your case is completely uncharacteristic of the DVLA. I acknowledge your view that this is part and parcel of a deliberate approach designed to thwart your complaint. However, I also note that some of the documents I have struggled to obtain, for example the DVLA’s letter of 28 March, represented clear and timely statements of the Agency’s position. The Agency also knew from an early stage that I was approaching you direct so my view is that no advantage could come from resisting disclosure deliberately. On balance I find that the Agency’s undoubted poor administration fell short of maladministration.
Taking all of the above into account, I have no doubt that the DVLA mishandled the correspondence with you and me. I remind it of the Ombudsman Principle “Public bodies should create and maintain reliable and usable records … [and] should manage records … to ensure that they can be retrieved and that they are kept for as long as there is a … business need”. I uphold this part of your complaint. I recommend that the CEO of the DVLA apologises to you for the lapses I have identified and offers you a payment of £75 in recognition of the Agency’s poor administration which, as well as stalling at the local stage, occasioned a delay of at least three months in my review and further time and effort on your part in preparing a document set for me.
Essentially were are therefore left in the same position as before. The DVLA trumpets far and wide that it only discloses data where there is reasonable cause, but the nitty gritty is rather different. There is very little actual effort made to ensure this, and the audits the DVLA boasts about are little more than rubber stamping exercises. The vase number of complaints uncoverable via an internet search show that the industry goes unregulated; there is no pro-active effort made to uncover dodgy practices and when these are uncovered, no timely effort is made to sort these out or punish transgressors.
The following conclusions can be drawn from the investigation
- The DVLA attempted to hide relevant correspondence from the ICA – which is a breach of the Civil Service Code of Conduct
- The ICA appears to confirm that the DVLA does not have sufficient safeguards in place
- The ICA has concluded that the DVLA has obligations to investigate but that it has delegated that to the BPA.
- The ICA finally confirms that the DVLA’s usual response and business standard is in direct conflict with what they claim it to be.
- The ICA confirms that the DVLA have a policy of being useless and thus when they are useless they are policy compliant.
- The DVLA welcomes further complaints about non-compliant parking companies
- The standards set out in the civil service code of conduct are treated with disdain by the DVLA
- The DVLA have a policy of saying they are doing something, in the hope that complaints go away and then they file and forget
- This quote should be included in all complaints to the DVLA; "Concluding, the issue of real concern to me here is the lack of evidence of vigilance in the DVLA’s dealings with the BPA “ This lack of vigilance can then becomes evidence as a norm in the DVLA to build up the picture to the ICA/Ombudsman.
The Parking Prankster