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0845 service charges, Do we think "penalty exceeds" if a service charge is > 0?
cp8759
post Mon, 2 Jul 2018 - 16:39
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As is common knowledge, Ofcom changed the rules a while back so that you can no longer advertise an 0845 number and just say "national calling charges apply" or similar BS. The official guidance published at https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost says:

"The cost of calling 0843, 0844 and 0845 numbers is made up of two parts: an access charge going to your phone company, and a service charge set by the organisation you are calling.

The service charge for calls to 084 numbers is between 0p and 7p per minute.
"

https://www.ofcom.org.uk/phones-telecoms-an...-for-businesses says:

“What you need to do
Review all your materials and advertising. If your business or organisation is contacted on a number beginning 084, 087, 09 or 118, you must ensure that your service charge is clearly displayed wherever you advertise or promote that number. The service charge should be prominent and in close proximity to the number itself. The recommended form of wording is:

“Calls cost xp [or xp per minute] plus your phone company's access charge.”


Let's ignore for now the fact that councils are in likely breach of regulations made under section 59 of Communications Act 2003 because they don't publish the charges anywhere, as that wouldn't have a direct impact on the validity of a PCN (fear not I've raised the matter separately with Ofcom).

I've been collecting data via FOI on what the service charges are, these are the results to date:



And here arises the difficulty: If the council runs the 0845 number themselves, it's all clear cut: The service charge money goes to the council, therefore a penalty exceeds case is very easy to make. But what about a service charge that goes to the pocket of a third party? Is that lawful or not?

There are two possible interpretations I can see:

A) The service charge is an unlawful charge that the council is demanding is paid to a third party, the fact that the council doesn't pocket the money is irrelevant. It's a bit as if they said you can pay online using a third party payment processor, who will charge you a "checkout fee", the fact that it's the third party that pockets the money makes no difference. The service charge cannot be compared to the cost of a stamp that would be incurred in a postal payment, because that would be the equivalent to the access charge for an 0845 number (i.e. the cost incurred by the payer to get his payment to the council). Therefore the council should use a different telephone number (be it 0345 or 020 or whatever) or an 0845 number with a zero service charge. By using a third party provider that charges a service charge the council is likely gaining a financial benefit (as it stands to reason that it's cheaper for the council to use a payment provider that also makes money off the 0845 service charge), but even if it isn't, the service charge is unlawful.

B) The service charge is not going to the council, it's going to a third party and the cost of the service charge is equivalent to the cost of a stamp on a postal payment. Therefore the penalty exceeds grounds do not apply.

So, what do we all think?


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post Mon, 2 Jul 2018 - 16:39
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PASTMYBEST
post Mon, 2 Jul 2018 - 20:02
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Think you know my feeling the councils cannot ascribe a service charge to the payer. It is no different from them expecting that the credit card fee they have to pay be passed to the payer the high court have ruled that illegal

The service is provided to them and they are responsible for its cost


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DancingDad
post Mon, 2 Jul 2018 - 20:41
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As far as I am concerned, any service charge is within the control of the council and therefore additional to the access charge and thus an excess charge.
That you have found councils that have a zero service charge means it is possible to avoid.
Doesn't matter if the council have subcontracted call handling, they need to get the terms right.
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Korting
post Tue, 3 Jul 2018 - 20:55
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Most councils now charge between 20p and 40p when you pay by phone. Is that illegal especially where in places like Barnet, you cant pay by cash?
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PASTMYBEST
post Tue, 3 Jul 2018 - 21:06
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QUOTE (Korting @ Tue, 3 Jul 2018 - 21:55) *
Most councils now charge between 20p and 40p when you pay by phone. Is that illegal especially where in places like Barnet, you cant pay by cash?



see here

http://www.bailii.org/cgi-bin/format.cgi?d...)+AND+(parking)


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cp8759
post Tue, 3 Jul 2018 - 21:20
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QUOTE (Korting @ Tue, 3 Jul 2018 - 21:55) *
Most councils now charge between 20p and 40p when you pay by phone. Is that illegal especially where in places like Barnet, you cant pay by cash?

Can you share evidence of that at all?

QUOTE (PASTMYBEST @ Tue, 3 Jul 2018 - 22:06) *
QUOTE (Korting @ Tue, 3 Jul 2018 - 21:55) *
Most councils now charge between 20p and 40p when you pay by phone. Is that illegal especially where in places like Barnet, you cant pay by cash?



see here

http://www.bailii.org/cgi-bin/format.cgi?d...)+AND+(parking)

without highlighting: http://www.bailii.org/ew/cases/EWHC/Admin/2011/295.html


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The Rookie
post Wed, 4 Jul 2018 - 11:07
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QUOTE (Korting @ Tue, 3 Jul 2018 - 21:55) *
Most councils now charge between 20p and 40p when you pay by phone. Is that illegal especially where in places like Barnet, you cant pay by cash?

In my opinion, while its not illegal per se, (like the Camden 1.3% card charge) it means they are asking (making, requiring, take your pick) the keeper to pay more than the statutory amount which renders the PCN invalid under TMA 2004 and provides what should then be a successful appeal point. Noting that the council get a cut of that fee.


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Steve_999
post Wed, 4 Jul 2018 - 15:05
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QUOTE (The Rookie @ Wed, 4 Jul 2018 - 12:07) *
QUOTE (Korting @ Tue, 3 Jul 2018 - 21:55) *
Most councils now charge between 20p and 40p when you pay by phone. Is that illegal especially where in places like Barnet, you cant pay by cash?

In my opinion, while its not illegal per se, (like the Camden 1.3% card charge) it means they are asking (making, requiring, take your pick) the keeper to pay more than the statutory amount which renders the PCN invalid under TMA 2004 and provides what should then be a successful appeal point. Noting that the council get a cut of that fee.


Was post #4 not referring to payment for parking rather than paying a PCN? Slightly different!
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The Rookie
post Wed, 4 Jul 2018 - 15:19
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Not as far as I'm aware, the whole thread is about paying the PCN's.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Rookies 1-0 Birmingham

PPC PCN's
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cp8759
post Thu, 12 Jul 2018 - 15:41
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For future reference: Ofcom has a power to make rules under section 59 of the Communications Act 2003 that apply to someone other than a telecoms provider, they have only made 1 rule which is found on page 341 of https://www.ofcom.org.uk/__data/assets/pdf_...753/annexes.pdf

"Condition 1 – Advertising requirements in relation to the use of a telephone
number
1.1 This condition applies where a Service Provider advertises, promotes or procures the
advertisement or promotion of any Unbundled Tariff Number in connection with the
provision by the Service Provider of a Relevant Service to Consumers by means of
that Unbundled Tariff Number.
1.2 The Service Provider shall include or procure the inclusion in any advertising and
promotion of the Unbundled Tariff Number the Service Charge which applies in
respect of a call by a Consumer to that number.
1.3 The Service Provider shall ensure that the Service Charge is displayed in a
prominent position and in close proximity to the Unbundled Tariff Number in any such
advertising or promotion of the Unbundled Tariff Number.
"


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cp8759
post Sun, 29 Jul 2018 - 14:01
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Been going through my backlog of emails, useful service charge data:

London Borough of Hillingdon: 5p per minute https://www.scribd.com/document/384939127/G...e-2018-Response
City of London Corporation: 5p per per minute https://www.scribd.com/document/384939554/G...e-2018-Response
Coventry City Council: 5p per minute https://www.scribd.com/document/384940196/Req-04320
Trafford Council: 3p per minute https://www.scribd.com/document/384941994/G...for-0845-Number
Northamptonshire County Council: 4 p per minute https://www3.northamptonshire.gov.uk/counci...g-waivers-.aspx
Bristol City Council: 2p per minute https://imgur.com/NksBoo3

So charge exceeds can be used against any and all PCNs from the above authorities that include the 0845 number.

This post has been edited by cp8759: Sun, 29 Jul 2018 - 16:47


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cp8759
post Mon, 6 Aug 2018 - 09:43
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So credit to Mad Mick V for prompting me to check EE's website, it turns out a few telecoms operators publish a table to match number prefixes to service charges, such as:
https://ee.co.uk/content/dam/everything-eve...august-2018.pdf
https://sales.talktalk.co.uk/images/pdf/010...fix_mapping.pdf
and http://www.virginmedia.com/content/dam/vir...ial_Code_V3.pdf

From this we can work out the following:



Seems like we're going to have a bit of a turkey shoot here.

This post has been edited by cp8759: Mon, 6 Aug 2018 - 10:47


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DancingDad
post Mon, 6 Aug 2018 - 09:46
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Just need to get some through to adjudication and see what happens.
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The Rookie
post Mon, 6 Aug 2018 - 11:08
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Unless someone where to appeal on the '0845' matter only I suspect adjudicators would look for other reasons to uphold so as not to upset the proverbial round and green fruit carrying horse drawn vehicle.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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DancingDad
post Mon, 6 Aug 2018 - 11:31
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QUOTE (The Rookie @ Mon, 6 Aug 2018 - 12:08) *
Unless someone where to appeal on the '0845' matter only I suspect adjudicators would look for other reasons to uphold so as not to upset the proverbial round and green fruit carrying horse drawn vehicle.


Suspect that you are right, assuming they can find something else to cancel on.
I also suspect a few councils may cave in at formal or even appeal stage when faced with it, though will be for other reasons, not phone surcharge.

Have a nasty feeling that London Tribunals will push this into the direction of a panel hearing a la Miller and Others, where they will decide it is acceptable, probably for some arcane reason.
Unless of course an adjudicator does decide in favour of it and a council takes it to JR.
I'm confident there is plenty of merit and a JR will follow Camden ruling but won't know until it gets there.
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cp8759
post Mon, 6 Aug 2018 - 11:40
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Well this thread http://forums.pepipoo.com/index.php?showto...121432&st=0 has no solid basis of appeal other than the surcharge, so it might be a bit of a test case. If it goes to the tribunal I'll offer to attend.


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DancingDad
post Mon, 6 Aug 2018 - 11:55
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QUOTE (cp8759 @ Mon, 6 Aug 2018 - 12:40) *
Well this thread http://forums.pepipoo.com/index.php?showto...121432&st=0 has no solid basis of appeal other than the surcharge, so it might be a bit of a test case. If it goes to the tribunal I'll offer to attend.


TPT so won't be a hearing to attend as such.
They have moved to telephone hearings only (or on papers) unless you can persuade them that a personal hearing is needed.




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cp8759
post Mon, 6 Aug 2018 - 12:44
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QUOTE (DancingDad @ Mon, 6 Aug 2018 - 12:55) *
QUOTE (cp8759 @ Mon, 6 Aug 2018 - 12:40) *
Well this thread http://forums.pepipoo.com/index.php?showto...121432&st=0 has no solid basis of appeal other than the surcharge, so it might be a bit of a test case. If it goes to the tribunal I'll offer to attend.


TPT so won't be a hearing to attend as such.
They have moved to telephone hearings only (or on papers) unless you can persuade them that a personal hearing is needed.

They might have made it hard to ask for a hearing, but under the regulations they have to offer one if you insist. But it's very much down to the OP.


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PASTMYBEST
post Mon, 6 Aug 2018 - 14:50
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QUOTE (cp8759 @ Mon, 6 Aug 2018 - 13:44) *
QUOTE (DancingDad @ Mon, 6 Aug 2018 - 12:55) *
QUOTE (cp8759 @ Mon, 6 Aug 2018 - 12:40) *
Well this thread http://forums.pepipoo.com/index.php?showto...121432&st=0 has no solid basis of appeal other than the surcharge, so it might be a bit of a test case. If it goes to the tribunal I'll offer to attend.


TPT so won't be a hearing to attend as such.
They have moved to telephone hearings only (or on papers) unless you can persuade them that a personal hearing is needed.

They might have made it hard to ask for a hearing, but under the regulations they have to offer one if you insist. But it's very much down to the OP.


would be good to kill the two birds of surcharge and on personal hearing. I would want to attend as a member of the public, so what would happen to your right to a hearing in public if denied


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cp8759
post Thu, 9 Aug 2018 - 13:35
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Edinburgh council seem to have caught on and have dropped the 0845 number from their PCNs, see http://forums.pepipoo.com/index.php?showtopic=122048


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