DVLA under scrutiny over penalty notice dating game

The Department of Transport is to look at allegations that the DVLA has been breaking the law in its treatment of off-road penalty notices, and that it is hiding behind "client privilege" to refuse to answer questions about its conduct.

The allegations surfaced a few months back when motorbike courier James Collins noticed that the penalty notice he had received for not declaring a vehicle to be off-road (SORN) carried the date when it was printed – and not the date when he received it.

The exact date when a penalty notice is deemed to be received is legally quite complicated. However, after carrying out some research Mr Collins believed the DVLA were not adhering to the letter of the law. He said: "Delivery of notices is subject to something called the Interpretation Act (pdf). This quite clearly says that notices are deemed to be delivered within a period from the time they go into the post. Not the day they are printed.

"Notices issued with a print date on them are misleading – especially when you realise that by the time they have gone through the DVLA’s systems it is not unusual for them to turn up a week to ten days after that date."

If Mr Collins is right, the consequences for the DVLA could be severe. According to the DVLA, in the period from March 2003 to November 2006, 995,000 SORN penalty notices were issued, and the number of SORNs issued has been going up annually since they were first introduced. Assuming that these all collected the reduced charge of £40, that represents nearly £40m of revenue over a three year period. In practice, many motorists will have paid the full £80, and some will have been taken to court or been subject to debt collectors.

Motorists who received wrongly-dated notices would still owe the penalty. However, any legal action taken against them could itself have been unlawful – and additional penalties would therefore not be enforceable. In the worst case, motorists might be able to recover the costs of enforcement action taken against them and possibly counter-claim for the hassle caused.

Chris Hunt Cooke, Vice-Chairman of the Road Traffic Committee of the Magistrates’ Association, agreed that the law could be on Mr Collins's side. Speaking personally he said:

"What effect this would have on any enforcement action is debatable. A court might well take the common sense position that the precise mechanics of when notices were posted and delivered were not an issue. However, it is not impossible that a court that had a discrepancy in the date of notice drawn to its attention might dismiss the case."

In an effort to get to the bottom of this, Mr Collins put in a Freedom of Information request to the DVLA in May. The DVLA maintain they answered this promptly and in full, although Mr Collins feels he only received a comprehensive response last week.

Whilst claiming that they had not breached the law, they were unwilling to explain their reasons for believing this. According to the DVLA, "the disclosure of legal advice on how we interpret (the) legislation is deemed to be covered by legal privilege". Mr Collins has since spoken with the Office of the Information Commissioner: "They were not sure that this was a correct use of legal privilege, so I shall be pursuing the matter further."

Although the immediate effect of this case could be serious problems for the DVLA, legal experts are already wondering how widespread the issue might be. According to one expert: "It does look as though the DVLA have just done what felt right and not been too careful about what the law actually is in this area. If the DVLA got it wrong, how many other government departments might be affected?

"If a Department such as Social Security or Working Tax Credit have made similar errors, the cost to government could be immense. This could be the bank charges issue all over again."

Lib Dem Shadow Transport Secretary Norman Baker MP commented: “This is an important matter that goes to the heart of how the DVLA acts. They have a duty to treat all people fairly, and not in a slipshod manner.

"Mr Collins may have done us all a service by his actions. The matter he has raised certainly needs to be fully investigated.”

Mr Collins spoke with the Office of Transport Minister Jim Fitzpatrick last week, and they agreed to look into the matter. ®