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Is the use of Response Master unlawful?
cp8759
post Sat, 25 Jan 2020 - 23:46
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Many councils seem to have adopted this piece of proverbial https://www.youtube.com/watch?v=OrzkEdxl0ts

Councils have a public law duty to consider representations. Does a council officer picking options from drop down menus amount to "consideration" for thee purposes of the legislation? Can there by "consideration" if the council officer simply does what the computer tells him? I think not, but I'd be interested to hear the views of others.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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post Sat, 25 Jan 2020 - 23:46
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The Rookie
post Sun, 26 Jan 2020 - 08:35
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No doubt the councils will argue that the consideration is the parameters they put into the software in the first place?


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mickR
post Sun, 26 Jan 2020 - 10:59
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Clearly the fairness of the programming is the crux. It does have the positive attribute to recognise certain words and frazes which may indeed lead to a decline in representations not being considered by a pleb who cant be bothered (orninstructed not to bother)
I dont hold out much hope tho.
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rosturra
post Sun, 26 Jan 2020 - 14:32
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I think the sw could be beneficial, but it is a tool.

The ideal would be highly trained and motivated staff with time for full consideration of each challenge.
This , to be honest, is difficult due to cost and no doubt churn of staff in what must be a boring, low paid and unrewarding job.

If the package can be written , as described, to correctly apply law and policy or suggest options based on current law and policy. Then this can only be a 'good thing'.

It could remove errors we see such as Right hand turns allowed in YBJ, and apply policy such as Allow first instance of fluttering ticket etc.

Any such package is reliant on it being up to date with law and policy.

But at the end of the day, the staff member needs to read the final letter and be happy to sign it.
Cannot use the excuse 'the computer says no'!

If so consideration is duly given. IMO.
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cp8759
post Sun, 26 Jan 2020 - 19:41
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QUOTE (rosturra @ Sun, 26 Jan 2020 - 14:32) *
But at the end of the day, the staff member needs to read the final letter and be happy to sign it.
Cannot use the excuse 'the computer says no'!

Experience suggests the council officers will sign anything the machine spits out. An awful lot of the letters we see amount to "computer says no"


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No, I am not a lawyer.
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phantomcrusader
post Sun, 26 Jan 2020 - 21:18
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It would be unlawful if no regard is given to these paragraphs from the secretary of state's statutory guidance. The underlined could particularly be used to counter.

QUOTE
10.2 It is in the interests of the authority and the vehicle owner to resolve any dispute at the earliest possible stage. Authorities should take account of the civil enforcement officer’s actions in issuing the penalty charge but should always give challenges and representations a fresh and impartial consideration.

10.3 An authority has a discretionary power to cancel a penalty charge notice at any point throughout the process. It can do this even when an undoubted contravention has occurred if the authority deems it to be appropriate in the circumstances of the case. Under general principles of public law, authorities have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest.

10.4 Enforcement authorities have a duty not to fetter their discretion, so should ensure that penalty charge notices, Notices to Owners, leaflets and any other advice they give do not mislead the public about what they may consider in the way of representations. They should approach the exercise of discretion objectively and without regard to any financial interest in the penalty or decisions that may have been taken at an earlier stage in proceedings. Authorities should formulate (with advice from their legal department) and then publish their policies on the exercise of discretion. They should apply these policies flexibly and judge each case on its merits. An enforcement authority should be ready to depart from its policies if the particular circumstances of the case warrant it.

10.5 The process of considering challenges, representations and defence of appeals is a legal process that requires officers dealing with these aspects to be trained in the relevant legislation and how to apply it. They should be well versed in the collection, interpretation and consideration of evidence; writing clear but concise case-specific responses to challenges, enquiries and representations; presenting the authority’s case to adjudicators.

10.6 Authorities should ensure that their legal departments are involved in establishing a processing system that meets all the requirements of the law. They should also consult them about complex cases.


Sticking only to the parameters set up in response master would be fettering discretion and lack the required flexibility. 10.5 is quite adamant that those tasked with the job should be well trained and able to write case specific responses. Response master dumbs down the need for training and it's not an officer writing the letter, it is an automated programme.

The difficulty is how to present a solid argument to an adjudicator. Perhaps target a specific council, gather helpful info under FOI such as training records, emails between council and response master, evidence that legal depts were consulted prior to using response master etc. Build up a case and then run with it.

This post has been edited by phantomcrusader: Sun, 26 Jan 2020 - 21:18
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