A Bit of History
After almost a year of DVLA-driven (ha ha!) nonsense, it's now safe to discuss in the open.Last year my employer adjusted it's approach to national travel, and essentially allowed me to use rentals to cover the lengthy journeys to / from client site. At that point we were working with a client in Norwich, which isn't very easy to get to on public transport - it was far easier to commute once a week by road.
Everyone's a winner - I get a nice new-ish car every week I'm supposed to be on site, and hand it back when I get back to the Midlands. I don't have to pay for wear and tear on my own car, and it's very slightly cheaper for the company.
So I had my own car sitting on the drive almost entirely unused for a couple of months in the lead up to xmas - what's the point of paying tax and insurance on a vehicle I literally don't use? None. So the obvious route is to SORN the vehicle and let my insurance policy lapse at the end of the year. Of course because the DVLA are involved nothing is that simple - when we moved house a few years ago they failed to send me the new V5C, and only occasionally send me V11s... 2018 was a no-V11 year as it turns out.
What does that mean? Well I can't use the limited digital facilities provided by the DVLA to register the SORN, and - using their own instructions - get a V890 hard copy ready to send. Simply paying for tax requires all sorts of documents, which prevents Samaritans simply paying random vehicle tax (which would happen all the time of course), but SORN is equally baffling. Why not use the license ID of the registered driver? The DVLA have this information too.
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| From the DVLA website |
Of course being a paperless business we've no printers so I have to get to [Insert High Street Stationary Brand] and get the forms printed. Already cost me a quid because the DVLA can't deliver documents properly!
We were off on a holiday to see family in Australia for most of December and some of Jan, so I wrote a letter to accompany the V890 and we dropped the envelope in the postbox on the way to the airport. Of course not being familiar with the process I was expecting no further paperwork
And So It Begins
We had a great time catching up with family in Oz, and returned refreshed (but shivering) back to the UK in early Jan. Back to work, off to client site and so on. Until about the 15th of Jan, when by some miracle a DVLA letter arrived. I was vexed and perplexed, however, that they were claiming my insurance had lapsed and they hadn't gotten their cut.I just assumed that my original V890 & letter were probably being used to mop up a coffee spill on someones desk in the Enforcement department, and sent a duplicate V890 and letter back to them, carefully stating that I'd already sent one on the 14th of December.
It all went quiet.
Too quiet. Watched too many films to not know that was perfect time for an ambush. January flies past, as does February.
Then at the beginning of March I get another envelope from the DVLA, which contained a nice little SORN acknowledgement slip; I didn't think much of it at the time but the SORN effective date was 14th December 2018, but the printed date on the slip was 8th March 2019. I simply assumed that some paperwork took them a while.
Of course by the time the unexpected SORN acknowledgement had arrived, I was considering selling the car due to it's lack of use. No further carrier pigeons arrived from Swansea and I eventually sold the vehicle a few months later in August. The new keeper got their V5C - I wasn't bitter about not getting mine over the last few years - and the transaction was complete.
The Back Swing
It was never going to be that simple, was it? I'd returned from a trip to London on Friday 13th September at around lunchtime, to find David Wills stood leaning against his white van on our driveway."Are you the owner?" he asks.
"Who are you?" I ask.
He keeps asking if I'm the owner and I keep asking who he is - all of a sudden I'm thinking of the time I worked at a debt management business for some reason. I smile and suggest he introduce himself, which he then does. We shake hands and start talking.
It turns out he represents Marstons and is here to collect on a debt. We have a professional and calm conversation - he allows me to take photos of the information he has on his tablet and but has no paperwork to show me. Turns out I'd been convicted of a motoring offence in March or May and a fine had been levied.
A little advice for you if you find yourself in this situation - if you're 100% certain there's a mistake, you've not received any of the paperwork yet and you'll be getting a refund back, pay the bailiff and explain you'll be having the conviction set aside. They will have to refund the entire amount and it's dealt with there and then.
If you're not 100% confident and you haven't received any of the notices in the post, ask to see the warrant. If the bailiff can't produce the warrant, ask for the phone number for head office and speak to someone there. Don't open the door or get your keys out. If at all possible walk away and don't return to your door for another few hours.
If they don't have a warrant to seize goods on them (which they usually don't until after the first visit is unsuccessful), or won't prove it you shouldn't let them in. However if you've ignored any notices it's already too late.
I was furious at potentially having a serious issue getting my security checks failed and (if this matter had gone to a county court for recovery) potentially failing a credit check too. My SIA license might get cancelled or blocked from renewal. This would be disastrous for employment as no client would allow me on site. It wasn't David's fault, he's just the guy in the van today.
I also knew with absolute confidence that there had been a breach of proceedings and that I would be able to get the conviction set aside somehow. More on that later. I got home about £660 lighter then started prepping and researching.
More worrying to me was that I couldn't tender any new bids for work for my company out of fear that the BPSS / CBR / CC checks would fail. That would fail the bid instantly, and likely ruin any potential future relationship with parties involved, which could be disastrous for my business.
Fighting Back
After stewing and ranting over the weekend I got my extra strong coffee from the top shelf Monday morning, and set to work.First up was a call to Marstons head office - partly to put them on notice not to spend that cash, and partly to see what information they could provide. They talked me through the details they had - an original balance (fines) of £350, their fees of £310; a sentencing on 13th May 2019 and on 29th of August Marstons allegedly sent me a notice of enforcement.
What's chilling here is that I can live without the car tax rebate check arriving and I expect physical post to be largely unreliable; but I don't expect to lose so much critical post. I honestly don't believe it's the postie as there's huge organisation behind him with many faults. On the flip-side of that I also realise that with the details Marstons had been provided by DVLA, they could have found more reliable contact details within sixty seconds on a web search. My name is unusual and unique so there's an extremely high probability a PM on Twitter is reaching the right person. e.g "Are you [my full name]? If you are could you call us please so we can verify who you are and talk about a serious situation."
It's also interesting that I suspect the collection agents were originally going to probably look to seize the vehicle as payment, but when I sold it at the beginning of August unaware of all the events that had happened, that loophole was closed. I wonder if that precipitated the doorstep visit?
Regardless I got the details of Hereford magistrates court and tried a call to them and "HMCTS". Hereford clerks first tried to pass me to the county courts, which just isn't appropriate in a criminal case. Then I asked them about HMCTS and they didn't know what I meant. Some google-fu later and I'm speaking to HMCTS. In Birmingham.
A real legal tour of the region.
The clerks there were pretty patient, probably happy to speak to someone who wasn't in tears or swearing I suspect, and helped me file for a statuatory declaration (SD). The SD is the medium by which a conviction and and following actions are unwound. If you've simply ignored the situation I'm afraid this isn't going to do you any good - it's designed for those scenarios where communication has broken down and service has not been delivered.
The last thing I had time for on the Monday was to venture into more familiar territory; raise a SAR and a FOIR. The SAR was simply to get the DVLA to send - in electronic format to avoid delivery "issues" - all events, documents and details associated with myself and the VRN (whilst I was the registered keeper of course) from November 1st 2018 onwards. Key bit of information we'll come back to that data point.
The original FOIR gave me an opportunity to ask the DVLA how many items are produced and "sent" to registered keepers over a given time frame (since Jan 2018); how many are tracked and how many go missing. Around 0.03% of all items appear to be tracked and they simply don't keep records of how many of the tracked items are returned as "undeliverable". The request isn't yet complete and I've asked for clarification after the authority dodged some questions e.g. what QA is done to ensure the produced documents are all collected by the mail service provider (MSP), and where in the overall process are the most documents lost.
DVLA have committed to some form of response by the 25th of November, and you can see the request in full here.
Back to my week of investigation w/c 16th September; and over the next couple of days I'd spoken to HMCTS in Brum, and had managed to get an SD hearing in for the 27th of September. I was still livid at the DVLA.
I also thought about the follow-on activities of the SD, which I intended to plead "not guilty" and have to mount a defence. I couldn't find much through the usual research channels other than to some cases reported in the press, where the DVLA had lost during the application of common sense by the courts. Not sure they're precedents at that level and the DVLA didn't appeal so they're anecdotal at best. However to me it highlighted that similar situations were happening in 2010 as are today. One of the cases involves someone else using FOIR to forcibly extract the facts from the DVLA too.
Most interesting to me out of all of these is a FOIR made by James Collins in 2009, for almost exactly the same set of circumstances as I've seen. In fact the DVLA appear to have even lost items sent by recorded delivery - after they've been signed for by DVLA. I was impressed that Mr Collins had held DVLA to account but also amazed that the net result showed the DVLA were unable to ensure produced documents get delivered - and that received documents are processed outside of relevant QA processes. For me this was key to the whole problem.
In his case, Mr Collins was found not guilty with the court agreeing that he had fulfilled his obligations; that the DVLA has no statutory powers to compel drivers to chase paperwork sent in. It is firmly the DVLAs responsibility to apply common sense rather than prosecute. Even in 2009 there were calls for the DVLA to become transparent and provide an independent appeal system.
Clearly nothing has changed a decade later. At this point I'm beginning to see the scale of the problem and create a second FOIR focusing on how much the DVLA spends on all its postage and stationary. I wanted to understand how much of the DVLA budget is spent on sending and receiving (processing inbound) documents in order to balance the initial assessment on their document processing errors.
I asked the DVLA to provide their budget for the previous and current financial periods; as well as a breakdown of items such as envelopes and document printing relating to registered keepers. On the 25th of October, the DVLA belatedly respond attempting to claim the information was too difficult to acquire. I call cow poo.
I know that if I'm defining costs or doing programme budget projections for my clients and need some stats from their finance teams, I can get almost all details whilst I wait over the phone. I challenged the DVLA to reconsider their response with an internal review and you can see the latest on this one here.
The Defence
So a couple of months on in November and progress has been made. The Birmingham Magistrate agreed my SD, entered my "not guilty" plea and had the previous conviction and fines set aside. The moment I explained that I'd sent the V890 in twice and even had a back-dated acknowledgement the atmosphere in the courtroom changed. Immediately the intention was to set up a case management hearing, rather than go straight to the trial hearing. The magistrate was even kind enough to delay this CM until after the dates the DVLA claimed it would respond to my SAR and FOIRs.
The DVLA eventually responded to my SAR using a secure email system - quite why they don't use this for more use cases including replacing postal SORN's is mind-blowing. Of most interesting to me was that whilst they provided the copies of the documents specifically associated with the case (and nothing else), they provided the timeline as a reference.
This in itself is damning. They acknowledge receiving my duplicate SORN on 21st January 2019. The next date is the 1st of March... where they note that the V890 was ..."resent to Vehicle Input [sic] as they may not have been sent as previously stated.". Quoi???
Hang on so they received my second V890 and admit it took them nearly six weeks to pass it from the Enforcement department to their own VI department to update the record? Hmmm. More interesting is that, a week later when VI actually process the V890, this update is either not noted by the Enforcement department in charge of working with DVLA prosecutors, or automated decision making (ADM) is at play.
Bear in mind that there are provisions of data protection law which require safeguards in ADM for example GDPR Article 22 section 4 generally, and DPA 2019 Part 2 section 14(2) relating to "significant decisions".
Therefore either the DVLA have failed to deliver an ADM solution with safeguards it is required to by law, or the staff of it's enforcement division are trained to focus on fines and revenue rather than the application of common sense. DPA-breaching systems or inadequate staff?
According to the timeline, the DVLA prosecutor then appears to continue with prosecution in my case, as I hadn't paid a fine I had no idea at the time was allegedly due. For an infringement the DVLA had already acknowledged did not exist by pre-dating my SORN to 14th December 2018.
My defence centred around the fact that I am not obliged to chase the DVLA, nor do they have any statutory power to compel me to possess a valid V5C (as long as the registered keepers details are up-to-date) - for which they charge £25 for replacements. Which they lost to start with. I even sent them a request for a new one with cheque a couple of years ago. Cheque wasn't cashed and I didn't receive a new V5C either. So the only route left open to me was the postal route I'd used. Their direction, not mine.
The evidence provided by the DVLA themselves paints a picture of a disorganised and unreliable document processing approach, which is far from fit for purpose.
I also focused on the fact that the prosecution could not say with any certainty that the warnings, notices & service documents had actually been sent - nor could they or their MSP's prove that they had.
To the contrary - the DVLA appeared to employ bullying tactics with the sole aim of increasing revenue, rather than applying a pragmatic approach which allows an independant review & challenge process - without utilising debt collectors and the courts. I collated a 23 page document of skeleton arguments and evidence, which contained numerous admissions by the DVLA that they simply had no idea how many documents were either received by their recipients; or processed correctly once received in Swansea.
Therefore the prosecution had failed to adequately notify or serve
single justice forms, after losing my original SORN and attempted to criminalise
me for their mistake.
After review from a legal professional, the situation looked extremely promising for my plea of not guilty to succeed. I expected to be in a position to ask the court to make a costs order in my favour if I won. I also expected that if I lost arguing my own case, I would request leave to appeal on the grounds that there was such a substantial amount of documentation to support the case that I would need a proper lawyer to organise and represent it properly (essentially the appeal would rely on evidence not seen previously thusly new evidence). Cases on appeal can unlock awards for legal fees amongst other things, which can be a useful weapon to wield.
Outcomes & Reflections
Ultimately I never got the chance to have my day in court.
I'm not sure if word had reached the prosecutors office of the FOIRs and SAR, or they could just plainly see that the Enforcement department had tied themselves in knots. They withdrew the charge - although the Birmingham Magistrate said I "must attend" the case management hearing in Redditch, and I wasn't about to start trusting the DVLA when they claimed I "did not need to attend".
So I turned up on 4th November 2019, and the usher let me know the case had been discontinued. I was able, however, to speak to the DVLA prosecutor John [Dursely / Dyson? - Apologies I didn't take note of your name]. He brought his laptop in and confirmed some of the details, explaining that a colleague had reviewed the case after the SD was cleared and decided that the "pragmatic approach" - seeing that I had submitted the SORN after all - was to withdraw the charge. When the prosecutor attempted to show me that they'd sent warnings in December 2018, it occurred to me that the SAR response had omitted a lot of events, documents and data. It took the prosecutor all of a few seconds to find this information whilst we were talking.
I only got a brief look at his screen but it appeared to be either an Oracle Forms or VB application judging by the button implementation and layout.
I didn't say much in the room at the time but I suspect they realised I wasn't going to drop it, and show that they were just as culpable as they had been ten years ago in a public courtroom. Perhaps Mr. Collins' case has stuck in their memory. Better to spend their time on a case where actual criminality may have occurred.
HMCTS sent me cheques for the refunded fines and fees; I sent Martsons an invoice for the rest which they transferred back to me in relative short order. However I spent just under five man-days working on the investigation, putting together my own defence; around an entire working day traveling to-and-from various hearings; around £60 on printing my legal documents for the hearings and so forth. I haven't received a rebate on prorata-ed car tax from December 2018 nor August 2019 from the DVLA.
In all likelihood I'll raise a complaint and offer the DVLA the opportunity to compensate me for damages and distress caused; I'll have to think about the potential loss of earnings. I wonder how many of the tens (hundreds?) of contract notification emails I'd watched throughout September, unable to apply a bid and the resulting potential loss of revenue.
I'm
also still waiting for the rest of the information I asked for in my
SAR. Two chasers and no further response. So that's one refused FOIR (assuming DVLA refuse to revisit), one
failed SAR and a questionable data practice to discuss with ICO in
coming weeks too. I've won the case but I'm not going to drop the data protection issues.
I'm not sure how much they spend on filing fees for cases they don't win, possibly something for a FOIR on another day, but this appears to be a massive overspend of taxpayers money. Why not have an independent arbitration panel that gives motorists a fixed period to challenge a fine? If prosecution is the result the date of the offence won't change. Mind you, it won't make a difference if you don't ensure the documents are delivered. Why aren't they storing the email we give them for notification of successful payment of tax, for use with warnings and similar?
The DVLA really do not have any legal power to compel you to chase them - once you've fulfilled your responsibilities properly everything that follows is their own doing. I'm not suggesting you take any chances but certainly don't let their bullying tactics over fines sway you, their inbound call centre is apparently only there for payments and collections. Not SORNs ironically.
Challenge them all where challenge is due. Although if you've genuinely just messed up then I'm afraid that's on you!
Working in digital and IT industries, I'm also amazed that the DVLA hasn't provided a more efficient and sustainable approach to document management. Some things you literally cannot do online or in the post office.
Perhaps this is a good time to note that the disastrous IR35 Intermediaries legislation decimated the pools of project-based consultants in public sector organisations; which may explain why their IT hasn't moved on much in years.
