Protection of Freedoms

Memorandum submitted by Lambeth Parking Services (PF 74)

Summary:

The London Borough of Lambeth wishes to raise its concerns regarding the introduction of a ‘Seriousness Threshhold’ under Section 30(3)(b) of the Regulation of Investigatory Powers Act 2000 which would restrict the use of Directed Surveillance by Councils to offences attracting a custodial sentence of 6 months or more. Whilst we have no practical objection to the idea of judicial oversight as envisaged in the Bill, it is the Councils submission that the introduction of the proposed threshold will undo the great strides that it has made in tackling misuse of the blue badge scheme. This note sets out the history of this scheme, the extent of that abuse and the important part surveillance under RIPA plays in tackling this issue.

1. Introduction to the Disabled Person’s Blue Badge Parking Scheme

1.1 The blue badge scheme is a concession, recognised across the European Union, to make parking easier for disabled persons with mobility issues. Under this scheme, those who qualify receive a badge which entitles them or another to park close to their intended destination (i.e. shops, hospitals etc.) and in many instances, parking free of charge for the duration of the disabled person’s stay at that location. In the current financial climate, these features make them a highly valuable commodity, resulting in abuse by inconsiderate individuals, attempting to fraudulently benefit from the free parking concessions.

1.2 Persons with severe mobility problems relying heavily on the scheme to carry out tasks that most of us take for granted, for example grocery shopping, are finding it increasingly difficult to park close to the places they need to access because of high levels of blue badge abuse. Having looked at figures from three inner London Local Authorities (LAs) – Lambeth, Croydon and Wandsworth – where blue badge fraud is being actively enforced, around 40% of cases identified involve use of lost, stolen or forged badges, or badges belonging to deceased persons, with the remaining 60% accounted for through blatant misuse of the scheme by friends or family members of genuine badge holders.

1.3 Each year, LAs issue many thousands of these Badges within the community, and guidance is provided by the Department of Transport on how to correctly use them. A large quantity of badges are issued to vulnerable persons – who are children, or elderly, or may suffer from mental illnesses such as dementia – all of whom are unable to monitor the use of the badge that has been issued for their personal benefit. This allows for carers, friends or family to fraudulently take advantage of these concessions, usually without the badge holder being aware.

2. Why Blue Badge Fraud is so prevalent

2.1 Parking charges have been introduced in nearly every town centre and high street across the Country, and the average cost of living has risen dramatically over the past few years. Persons commuting to work in London boroughs are hit hard by the parking charges, both on-street and in car parks, with daily expenses in some authorities costing commuters more than £20. There is also the congestion charge, costing visitors and commuters alike £10 per day, with a 10% discount for persons signing up to the ‘auto pay’ system.

2.2 As the blue badge scheme offers free parking concessions in most boroughs throughout England where parking restrictions are enforced, and permits two cars to be registered for congestion charge exemption, this has unsurprisingly lead to an increase in numbers of person’s misusing blue badges belonging to friends and family members – in an attempt to fraudulently cut down on daily work commute costs.

3. Putting blue badge fraud into context

3.1 To understand why abuse of the blue badge scheme is such a pressing issue for LAs, it is important to gain clear perspective of the challenge the scheme poses for parking enforcement teams.

3.2 The Road Traffic Regulation Act 1984 (RTRA) was passed to combat certain traffic and parking related offences, and – with particular reference to parking offences – was based on systems in place at the time for a small number of parking contraventions, found in a few authorities, and which at that time were enforced by the Police. The blue badge scheme (originally known as the ‘Orange Badge’) was not as widely recognized as today, and parking was relatively easy to come by, with the inconsiderate or illegal parking associated with disabled bays being viewed as more of a matter of anti-social concern than a criminal offence. Within the RTRA, however, provision was made for the prosecution of persons who misused the concessions offered under the scheme, although the penalty imposed for this offence reflected the attitude that it was more about tackling inconsiderate parking than setting out to stymie fraudulent misuse of such badges. One would suppose that this was because there was no or little real financial gain in misusing a blue badge at the time the RTRA was introduced, unlike today.

3.3 The relevant section of the RTRA, s.117, states:

Wrongful use of disabled person’s badge. E+W

(1) A person who at any time acts in contravention of, or fails to comply with, any provision of an order under this Act relating to the parking of motor vehicles is also guilty of an offence under [ this subsection ] if at that time-

(a) there was displayed on the motor vehicle in question a badge [ purporting to be ] of a form prescribed under section 21 of the http://www.legislation.gov.uk/ukpga/1984/27/section/117 - commentary-c1356344#commentary-c1356344 Chronically Sick and Disabled Persons Act 1970, and

(b) he was using the vehicle in circumstances where a disabled person’s concession would be available to a disabled person’s vehicle,

but he shall not be guilty of an offence under [ http://www.legislation.gov.uk/ukpga/1984/27/section/117 - commentary-c1887900#commentary-c1887900 this subsection ] if the badge was issued under that section and displayed in accordance with regulations made under it. ]

(1A) A person who at any time acts in contravention of, or fails to comply with, any provision of an order under this Act relating to the parking of motor vehicles is also guilty of an offence under this subsection if at that time-

(a) there was displayed on the motor vehicle in question a badge purporting to be a recognised badge, and

(b) he was using the vehicle in circumstances where a concession would, by virtue of section 21B of the Chronically Sick and Disabled Persons Act 1970, be available to a vehicle lawfully displaying a recognised badge,

but he shall not be guilty of an offence under this subsection if the badge was a recognised badge and displayed in accordance with regulations made under section 21A of that Act. ]

[ "recognised badge" has the meaning given in section 21A of the Chronically Sick and Disabled Persons Act 1970. ]

Footnote: It is important to point out that the law that governs what constitutes an ‘offence’ under this piece of legislation stipulates that the badge holder must not be present when the vehicle is parked and driven away. Therefore an offence is only ‘complete’ if the driver arrives and parks at a location on his/her own, placing the badge on display, and then returns later to that same location where the vehicle is parked, and drives away on his/her own from that location. Regulation 14 of the Disabled Persons (Badges for Motor Vehicles) (England) Regulations 2000

3.4 Law makers at the time could not have guessed what a significant role badges would play in society some 25 years later, nor the level of abuse this scheme would experience, and so the penalty associated with this offence was set at the lower end of the punitive scale, (currently £1000) despite the offence involving calculated and often prolonged systematic abuse of the scheme.

3.5 Parking has seen immense changes since the RTRA was introduced. As a result of the increased number of vehicles on the roads, town centres are more congested and demand for on-street parking facilities has grown exponentially. Controlled Parking Zones spread out to nearly every town centre and high street in the country, with numerous types of contravention codes implemented to account for the growing numbers of offences associated with ever changing road layouts. Pressure on Police resources lead to parking enforcement becoming a low priority, so by means of the Road Traffic Act 1991 (RTA), enforcement responsibilities passed from the Police to LAs, who applied for legal powers to carry out enforcement under the RTRA.

3.6 Coupled with the increased level of drivers demanding parking, was the rising number of badges being issued. This alone created greater demand for designated parking bays to accommodate the growing number of badge holders. Today, as a society, average life expectancy has improved by comparison with twenty years ago, which means we are living longer, but doesn’t necessarily mean we stay fit for longer. With illnesses such as diabetes, cancer and heart disease becoming more prevalent, the number of badges issued each year is only likely to increase, putting even greater pressure on Councils to provide adequate parking facilities for badge holders.

3.7 There is a limit to how many bays can realistically be set aside for disabled badge holders within busy town centres and packed residential roads. With this in mind, the scheme extended its concessions, allowing badge holders to park in certain non-disabled parking bays, such as shared-use parking bays (where drivers display a valid resident’s permit or pay-and-display ticket to park legally) and pay-and-display only bays, commonly located in town centres and high streets. Badge holders benefit from free parking in both types of bays, often using pay-and-display only bays, as they are generally located closer to places that badge holders will visit regularly, i.e. shopping centres, hospitals, restaurants etc. These bays are also perfectly positioned for many members of the public who work in these shops or restaurants, allowing them to park near to work on a regular basis as part of their daily commute. Unfortunately, due to their convenience, these bays have become very expensive to park in, particularly for prolonged periods of time – unless you have access to a blue badge, in which case, a fraudster can obtain all day, charge free parking wherever it is convenient.

3.8 So now Councils have a new pressure on their already limited on-street parking resources. Prime pay-and-display and designated disabled bays fill up with fraudulent badge users commuting to work and on shopping trips, forcing genuine badge holders and other fraudsters to use shared-use bays in nearby streets. This in turn means that resident’s vehicles are being displaced – despite paying a premium for resident’s permits to park in the street in which they live. Factor in a resident with small children and heavy groceries having to park a block or two away from their home, and you get more and more residents unhappy that they’re paying for a service they are unable to benefit from because of inconsiderate fraudsters.

3.9 Of far greater importance is the effect fraudulent parking behaviour has on genuine badge holders. Some persons may be so severely disabled that if they can’t park within a short distance of their intended destination, they ultimately have to turn their car around and go home and try again at another time when they might be lucky enough to find a disabled parking bay. What a great inconvenience it must be for more vulnerable members of our community if they are unable to gain access to a GP surgery, pick up medication or buy groceries – things that able bodied people take for granted.

3.10 Responsibility lies with LAs to administer the scheme and ensure that genuine badge holders benefit entirely from the concessions to which they are entitled in order to make their lives easier despite their disability. It is also the responsibility of LAs to ensure that their residents are able to drive on the roads safely, and gain access to parking. As badge concessions go hand in hand with ensuring parking is available, LAs need to make sure they’re fulfilling these obligations to the best of their ability, and one vital way of doing so is through tackling blue badge fraud.

4. What’s being done to tackle the problem

4.1 Approximately 8 years ago, LAs like Tower Hamlets and Wandsworth started to take enforcement action on vehicles displaying forged, stolen and deceased person’s badges, merely issuing Penalty Charge Notices (PCNs) to the vehicles. Other authorities began to follow suit, but in 2005 the London Borough of Wandsworth became the first authority to actively prosecute an offender for abuse of the scheme under the RTRA. Over the last three years alone, Wandsworth has successfully prosecuted 699 offences, of which 70% related directly to blue badge misuse, and were prosecuted under s.117 of the RTRA.

4.2 A breakdown of blue badge fraud offences prosecuted by Lambeth between 1st April 2008 and 31st March 2011 shows that, of the 500 badge offences prosecuted during this period, badges involved were:

Type of Fraud

Percentage

Stolen/Lost

5%

Forgeries

30%

Expired

7%

Belonging to deceased persons

1%

Misused

57%

4.3 National Fraud Initiative statistics recognise badge fraud as one of the highest contributing factors in loss of revenue to LAs. The diagrams have been referenced from their past two reports. Figure 1 shows results of the 2004/05 audit exercise, and Figure 2 the same for 2006/07 and 2008/09 audit exercises.

Figure 1

Figure 2

4.4 To further substantiate why badge fraud needs to be tackled, let us break down parking costs into a realistic figure to illustrate potential loss to councils. Badges are valid for up to three years, and if parking in the centre of London costs on average £15 a day, that means £75 per week, thus £3,375 annual average for a person commuting to London for work, and over £10,000 over the life span of the badge. Not all persons found misusing a badge blatantly offend to this degree, but if only 10 people in each borough in London were to misuse badges this way, that alone would add up to over £3.3 million in three years, without factoring in the losses incurred through defrauding the congestion charge zone. That excludes the casual fraud by many thousands of people who misuse badges occasionally to go shopping or visit a restaurant or cinema.

5. Using Legislation correctly

5.1 Going back to the earlier footnote reference to ‘complete offences’ we see that a substantial level of observation must be done to confirm the necessary aspects of the offence, namely that the badge holder was not present in the vehicle at any point while the badge was being used. There is no other way to gather the level of evidence required to prove an offence than to witness these actions. The suspect must be physically seen to arrive and depart from the same location where he/she has been parked displaying a blue badge without the badge holder ever being present to satisfy the burden of proof. But gathering this evidence has to be done in a legitimate manner, without breaching The Human Rights Act 1998 in any way.

5.2 This is where the Regulation of Investigatory Powers Act 2000 (RIPA) has been invaluable, as it provides officers investigating badge fraud offences the opportunity to carry out directed surveillance to prove a person is using a badge to which he/she is not entitled, and thereby defrauding the Council and massively inconveniencing genuinely disabled badge holders.

5.3 The value of RIPA is evidenced in its use to identify and prosecute the high level of offences at Wandsworth – 70% of all badge fraud offences – and at Lambeth – 57% of blue badge related fraud offences. If we put these figures into context based on the estimate of just 10 people in each borough costing local authorities in London alone £3.3 million over three years, it’s clear to see the value of tackling this type of fraud throughout the UK, making full use of the RTRA and Section 117 offence to save Local Authorities across the country millions.

6. In conclusion:

6.1 In closing, I would refer you to some relevant passages from the Operational Guidance issued to LAs by the Department for Transport (DfT) in March 2008. In that document the DfT identifies several ways in which Blue Badges can be misused and referring to targeted surveillance operations makes the following point:

"The most common form of abuse tends to be misuse of the badge by the friends and family of the holder. Where this is a clear problem (and there is a business case for tackling it) DfT strongly recommends that authorities set up a specialist Blue Badge enforcement team to carry out undercover surveillance work. The team can identify suspected systematic abuse and apply for permission to carry out undercover surveillance (under RIPA) in order to build up evidence that can later be used to prosecute the individual in the Magistrates Court."

Paragraph 9.12 on Page 65 of Operational Guidance to Local Authorities: Parking Policy and Enforcement

6.2 Section 117 of the RTRA is a highly valuable piece of legislation targeting a very real type of fraud, which may be viewed as a mere parking offence by some, but ultimately costs LA millions of pounds annually and seriously disadvantages vulnerable members of our community. Without RIPA, this piece of legislation cannot be enforced, making it redundant. In a climate where Council’s are under pressure to provide the highest quality of service possible to their residents – while still finding ways of reducing costs and generating income fairly – taking away the ability to conduct covert surveillance to gather evidence that confirms badge fraud, which as mentioned earlier could costs millions each year, seems entirely counter productive. It opens up the floodgates for badges to be abused by able bodied persons, depriving genuinely disabled persons the right to a reasonable standard of life, and allows fraudsters to steal millions of pounds from Councils.

6.3 It is with this pressing issue in mind that we request strongly that consideration be given to creating a "carve out" for directed surveillance operations which target cases of blue badge misuse, so that investigations can continue to reduce this ever present fraud within our communities.

References:

· Figure 1: The Audit Commission National Fraud Initiative report 2006/07 (released May 2008)

· Figure 2: The Audit Commission National Fraud Initiative report 2008/09 (released May 2010)

· Keith Parcel, Parking Fraud Investigator – London Borough of Wandsworth

· Ashley Brandon, Parking Investigations Manager – London Borough of Lambeth

May 2011