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Proof councils cannot use 0845 numbers, Adjudicator decision vs. Croydon
stoneman
post Wed, 29 Jan 2020 - 12:02
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Well here we have it. I received a ticket from Croydon council, appealed on the grounds of them using an 0845 number, they rejected appeal so I went to adjudication , here is the result.

Look who the Adjudicator was

https://1drv.ms/u/s!ArJbGHuFxG2mg6czU7ueGfPgYwjLfA
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post Wed, 29 Jan 2020 - 12:02
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hcandersen
post Wed, 29 Jan 2020 - 12:39
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No we don't!

This decision was based on the facts of YOUR case and these included you making reps on this point which were not addressed by the authority who then, following a request for further info from the adj, still did not address the issue.

This is a specific set of facts.

We have seen other decisions where the council did benefit from a premium rate charge but where the adj regarded the amount as de minimis.

The moral here is to make the point consistently throughout the enforcement and appeals processes as this must enhance chances at appeal. However, I would still not recommend appealing only on this point without knowing the authority's argument.

This post has been edited by hcandersen: Wed, 29 Jan 2020 - 12:40
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makara
post Wed, 29 Jan 2020 - 13:10
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Well done on the result!!
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The Rookie
post Wed, 29 Jan 2020 - 13:16
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I agree with HCA, by not addressing (and then responding) it the council have (possibly deliberately) not handed you a ruling on that point.

Well done though and indicates how they may behave in the future.

By NOT handing you that ruling they have a plausible deniability in continuing to do it and enrich themselves.


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stoneman
post Wed, 29 Jan 2020 - 14:52
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QUOTE (hcandersen @ Wed, 29 Jan 2020 - 12:39) *
No we don't!

This decision was based on the facts of YOUR case and these included you making reps on this point which were not addressed by the authority who then, following a request for further info from the adj, still did not address the issue.

This is a specific set of facts.

We have seen other decisions where the council did benefit from a premium rate charge but where the adj regarded the amount as de minimis.

The moral here is to make the point consistently throughout the enforcement and appeals processes as this must enhance chances at appeal. However, I would still not recommend appealing only on this point without knowing the authority's argument.

Thanks for your input.

This is the 5th time I have used this argument ALONE and in every occasion except this one my tickets have been canceled on first representation.

So I won't recommend to others that they should only use this as a rep but I will carry on doing so.
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PASTMYBEST
post Wed, 29 Jan 2020 - 16:14
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My feeling is that these two paragraphs

QUOTE
It is clearly established by the Tribunal, and upheld by the High Court, that an Enforcement Authority cannot add any fee additional to the penalty charge other than that prescribed by law, for example if the vehicle is subsequently immobilised (‘clamped’) or removed (‘towed-away’), which is not the case here.

Specifically, the Enforcement Authority cannot charge a handling fee or similar for using a credit or debit card and the Appellant’s submission amounts to this being analogous to a charge greater that a normal telephone call fee in order to pay the penalty charge.


Intimate that the charge could be considered an additional charge, the problem is not so much that it is De mimimis but that the TPT do not consider it a charge that is a benefit to the council, rather they feel the cost of a telephone call is analogous to buying a stamp to pay by post .

We have to keep trying but must advise OP;s that it is not an accepted argument as yet.


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oldstoat
post Wed, 29 Jan 2020 - 17:17
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Intimate that the charge could be considered an additional charge, the problem is not so much that it is De mimimis but that the TPT do not consider it a charge that is a benefit to the council, rather they feel the cost of a telephone call is analogous to buying a stamp to pay by post .

An 0845 premium rate number is not analogous to a postage stamp.

A postage stamp fee goes to the Post Office.

The cost of a premium rate 0845 call is split between the phone company and the user of that 0845 number (in this case, the council). Therefore they are being enriched

https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost

This post has been edited by oldstoat: Wed, 29 Jan 2020 - 17:19


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Fredd
post Wed, 29 Jan 2020 - 17:29
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QUOTE (oldstoat @ Wed, 29 Jan 2020 - 17:17) *
The cost of a premium rate 0845 call is split between the phone company and the user of that 0845 number (in this case, the council). Therefore they are being enriched

Not necessarily - the service charge element of the call can be set to be zero.


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PASTMYBEST
post Wed, 29 Jan 2020 - 20:40
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QUOTE (oldstoat @ Wed, 29 Jan 2020 - 17:17) *
Intimate that the charge could be considered an additional charge, the problem is not so much that it is De mimimis but that the TPT do not consider it a charge that is a benefit to the council, rather they feel the cost of a telephone call is analogous to buying a stamp to pay by post .

An 0845 premium rate number is not analogous to a postage stamp.

A postage stamp fee goes to the Post Office.

The cost of a premium rate 0845 call is split between the phone company and the user of that 0845 number (in this case, the council). Therefore they are being enriched

https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost


We know that but the TPT do not agree at present, but we will no doubt endeavour to perceiver


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David - fair tel...
post Thu, 30 Jan 2020 - 02:23
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Please forgive my inexpert use of this forum, I have joined essentially just to post this message.

The fair telecoms campaign has been focussing on "improper" use of 084/087 numbers for payment lines by local authorities for many years, and with some successes.
Our latest list is published at "Rip-off surcharge on local authority payment lines".

We recognise that, in cases such as that covered by this thread, this can provide a valuable means of avoiding a penalty.
It is however our objective to see all use of 084/087 numbers eliminated, as these primarily serve the interests of the telephone companies and no-one else.

The Cabinet Office Guidance (mandatory for central government, but guidance for all other public sector bodies) is helpful in persuading local authorities to abandon use of these numbers - whether directly or through revenue collection sub-contractors.
The determination that application of a Service Charge (for which a zero rate is a theoretical, but unused, option) may invalid imposition of Penalty Charge should be a matter of great concern to all local authorities. Communication of this should help with this campaigning point.
An image of part of a printed document makes interesting reading for us. To press this point however we need an authoritative reference - to a published version of the specific adjudication, or the "established position of the Tribunal" and / or the High Court decision, on which the adjudication relied.

If anyone could help with this, the fair telecoms campaign would be immensely grateful.

(Contact information should be available on my profile page.)
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cp8759
post Mon, 3 Feb 2020 - 21:38
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This is a great result, but sadly reality is always more complicated than one would hope.

@Fredd the service charge for an 084/085/087 number is always at least 1p per minute, if the service charge is zero you get on 03XX number.

@everybody else, whether the service charge enriches the council or not is council-specific. There's three scenarios:

1) The council pockets the charge
2) The council doesn't pocket anything but it benefits financially because it pays less to its payment processing provider / telephony provider than what it would pay if a non-premium rate number were used
3) The council doesn't benefit financially because the council's contractors pockets the fee but the contractor would charge the council the same amount even if a non-premium rate number were used.

The ground of appeal is made out in scenarios 1 and 2 but not 3. The PCN master spreadsheet has relevant FOI evidence in column E, where there's a service charge amount and the cell is not yellow, the link takes you to an FOI disclosure that can be used to win an appeal on this ground. Where the cell is yellow, it's still a work in progress.

FWIW I didn't even know Croydon had an 0845 number, I'd be interested to see the PCN.


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The Rookie
post Wed, 5 Feb 2020 - 10:12
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QUOTE (cp8759 @ Mon, 3 Feb 2020 - 22:38) *
@Fredd the service charge for an 084/085/087 number is always at least 1p per minute, if the service charge is zero you get on 03XX number.

Not according to Ofcom
QUOTE
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.
The access charge – which is additional to the service charge – will vary depending on your phone company, and can range from 8p to 65p per minute. Choose a provider from the table below for more information on their pricing.

My emphasis
https://www.ofcom.org.uk/phones-telecoms-an...all-really-cost

Interestingly Croydon currently employ an 0345 number
https://www.croydon.gov.uk/transportandstre.../pfines/ppfines

This post has been edited by The Rookie: Wed, 5 Feb 2020 - 10:15


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PASTMYBEST
post Wed, 5 Feb 2020 - 14:18
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QUOTE (cp8759 @ Mon, 3 Feb 2020 - 21:38) *
This is a great result, but sadly reality is always more complicated than one would hope.

@Fredd the service charge for an 084/085/087 number is always at least 1p per minute, if the service charge is zero you get on 03XX number.

@everybody else, whether the service charge enriches the council or not is council-specific. There's three scenarios:

1) The council pockets the charge
2) The council doesn't pocket anything but it benefits financially because it pays less to its payment processing provider / telephony provider than what it would pay if a non-premium rate number were used
3) The council doesn't benefit financially because the council's contractors pockets the fee but the contractor would charge the council the same amount even if a non-premium rate number were used.

The ground of appeal is made out in scenarios 1 and 2 but not 3. The PCN master spreadsheet has relevant FOI evidence in column E, where there's a service charge amount and the cell is not yellow, the link takes you to an FOI disclosure that can be used to win an appeal on this ground. Where the cell is yellow, it's still a work in progress.

FWIW I didn't even know Croydon had an 0845 number, I'd be interested to see the PCN.


For 3 if that was the case, without the telephone premium the provider would have to charge the council more to receive the same payment for service. Harder to prove but the principal being responsible for the agent must come into play


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David - fair tel...
post Thu, 6 Feb 2020 - 19:05
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QUOTE (cp8759 @ Mon, 3 Feb 2020 - 21:38) *
@Fredd the service charge for an 084/085/087 number is always at least 1p per minute, if the service charge is zero you get on 03XX number.

There is provision for a zero rate service charge - SC001 is the code.
There are currently no ranges of numbers to which this code is assigned.

QUOTE (cp8759 @ Mon, 3 Feb 2020 - 21:38) *
@everybody else, whether the service charge enriches the council or not is council-specific. There's three scenarios:

1) The council pockets the charge
2) The council doesn't pocket anything but it benefits financially because it pays less to its payment processing provider / telephony provider than what it would pay if a non-premium rate number were used
3) The council doesn't benefit financially because the council's contractors pockets the fee but the contractor would charge the council the same amount even if a non-premium rate number were used.

Whilst these scenarios do exist in practice, the principle outlined by Ofcom through the regulations is that the "Service Charge" is set by the Service Provider. The arrangements it makes to collect and distribute the revenue from that charge have no bearing on this point of principle.
A collections contractor is acting simply as an agent of the Council, it cannot be considered to have any separate role in respect of the relationship between the payer and the Council.

The fair telecoms campaign publishes a list of Councils - see Rip-off surcharge on local authority payment lines. If anyone knows of any omissions, please advise.
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cp8759
post Sat, 8 Feb 2020 - 23:32
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QUOTE (PASTMYBEST @ Wed, 5 Feb 2020 - 14:18) *
For 3 if that was the case, without the telephone premium the provider would have to charge the council more to receive the same payment for service. Harder to prove but the principal being responsible for the agent must come into play

What you describe is scenario 2. I have listed scenario 3 because I've found an instance where I'm satisfied it's what's happened. i.e. the council pockets nothing and the contractor would charge the council the same fee even if an 034 number were used.

QUOTE (David - fair telecoms @ Thu, 6 Feb 2020 - 19:05) *
Whilst these scenarios do exist in practice, the principle outlined by Ofcom through the regulations is that the "Service Charge" is set by the Service Provider. The arrangements it makes to collect and distribute the revenue from that charge have no bearing on this point of principle.

Been there, done that, the tribunals are not willing to accept this, hence we've resorted to obtaining evidence under FOI to prove that individual councils fall under scenario 1 or 2. It would have saved me a lot of hassle if the tribunal adjudicators were simply willing to accept as a matter of principle that the service charge is set by (and benefits) the council, but there's been more than one case (Bristol and Cambridgeshire spring to mind) where the tribunal has said that it would not accept that and there would need to be specific evidence to show that the council had benefited from the service charge.


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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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David - fair tel...
post Sun, 9 Feb 2020 - 02:34
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QUOTE (cp8759 @ Sat, 8 Feb 2020 - 23:32) *
Been there, done that, the tribunals are not willing to accept this, hence we've resorted to obtaining evidence under FOI to prove that individual councils fall under scenario 1 or 2. It would have saved me a lot of hassle if the tribunal adjudicators were simply willing to accept as a matter of principle that the service charge is set by (and benefits) the council, but there's been more than one case (Bristol and Cambridgeshire spring to mind) where the tribunal has said that it would not accept that and there would need to be specific evidence to show that the council had benefited from the service charge.

There is no accounting for the perversity of tribunals, however Ofcom needs to take action to assert its principles if its regime is not being respected.
I would be very grateful to receive some detail of the arguments advanced in these cases, including the presentation and rejection of Ofcom-sourced evidence, as I have a meeting with Ofcom in 10 days time.

I am surprised that a FOI request could be used. I understand that the terms of the contract with the telephone service provider are covered by an exemption from the requirement to provide information under the FOI Act.
We have hit this before and been forced to fall back on getting the user of the number to confirm whether they benefit from their Service Charge or gift that benefit to someone else. The classic "Knave or Fool" argument. Aside from the embarrassment of being seen to gift public money to a commercial partner, I cannot see how a Tribunal would accept the gifting of a benefit due as being an absence of benefit.
If there is a lack of clear evidence from Ofcom, to prevent the situation as it is being advised to the satisfaction of a Tribunal, then we will take this up with the relevant Ofcom people.
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cp8759
post Sun, 9 Feb 2020 - 11:16
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QUOTE (David - fair telecoms @ Sun, 9 Feb 2020 - 02:34) *
There is no accounting for the perversity of tribunals, however Ofcom needs to take action to assert its principles if its regime is not being respected.
I would be very grateful to receive some detail of the arguments advanced in these cases, including the presentation and rejection of Ofcom-sourced evidence, as I have a meeting with Ofcom in 10 days time.

See Hannah Clark v Cambridgeshire County Council (FC00004-1901, 08 February 2019) on the PCN master spreadsheet (adjudications tab) http://bit.ly/2ALghSS

Also if you're talking to OfCom, ask them how the investigation of Ofcom Reference 00557740 is going. Under that reference raised in summer 2018 I highlighted to OfCom that many councils do not comply with the requirement to print the service charge alongside the premium rate telephone number but from what we see not all councils have fallen in line.

QUOTE (David - fair telecoms @ Sun, 9 Feb 2020 - 02:34) *
I am surprised that a FOI request could be used. I understand that the terms of the contract with the telephone service provider are covered by an exemption from the requirement to provide information under the FOI Act.

We don't need the terms of the contract, we just need to know the financial benefit to the council. If you have a look on the PCN master spreadsheet, see the first tab then follow the link in column E for Denbighshire County Council, Newcastle-under-Lyme Borough Council, North Somerset Council, Trafford Metropolitan Borough Council and Wakefield Metropolitan District Council. An appeal on the 0845 ground against any of those councils should be an easy win.

That being said, the section 43(2) exemption does not apply just because the council says it does, rather the council needs to demonstrate the prejudice test as per Christopher Martin Hogan and Oxford City Council v the Information Commissioner (EA/2005/0026 and 0030, 17 October 2006) is satisfied, see https://ico.org.uk/media/for-organisations/...judice_test.pdf
Where the contract is many years old, it is unlikely the test will be met.


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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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David - fair tel...
post Sun, 9 Feb 2020 - 21:50
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QUOTE (cp8759 @ Sun, 9 Feb 2020 - 11:16) *

I will avoid quoting the relevant sections of the message to which I reply.

Responsibility for enforcement of the requirement to declare the Service Charge and refer to the Access Charge, when giving 084 numbers, is held by the ASA. Ofcom has no general statutory power of regulation over telephone users, but the ASA accepts its role in this and does act. The PSA regulates providers of Controlled Premium Rate Services (e.g. on 087 and 09 numbers) and applies the relevant requirements.

I will definitely raise all the points with Ofcom, including asking why case reference 00557740 has not received a response similar to what I write above.


Thanks for update on the 43(2) exemption.
The "financial benefit" to any user of an "unbundled tariff" number IS the "Service Charge" (excluding VAT).
That is the point which must be made clear to all Tribunals, from the mouth of Ofcom.

(More points follow by PM - please feel free to publish anything from there which may be of interest to forum users.)
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cp8759
post Sun, 9 Feb 2020 - 23:12
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QUOTE (David - fair telecoms @ Sun, 9 Feb 2020 - 21:50) *
Responsibility for enforcement of the requirement to declare the Service Charge and refer to the Access Charge, when giving 084 numbers, is held by the ASA. Ofcom has no general statutory power of regulation over telephone users, but the ASA accepts its role in this and does act. The PSA regulates providers of Controlled Premium Rate Services (e.g. on 087 and 09 numbers) and applies the relevant requirements.

Not quite. Ofcom has a power under section 59 of the Communications Act 2003 to make conditions binding on non-providers (i.e. persons other than a telecommunication provider), one such condition has been made. The condition is included on page 341 of Annexes to the statement "Simplifying non-geographic numbers – final statement" published on 12 December 2013 at https://www.ofcom.org.uk/__data/assets/pdf_...753/annexes.pdf

The condition states:

"Part 2: The Condition
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.
"

The page here https://www.ofcom.org.uk/phones-telecoms-an...-for-businesses confirms that:

What happens if I don’t include this information on every piece of material which promotes my
contact number? Who will enforce this?


All rules must be adhered to. Ofcom has overall responsibility for regulating non-geographic
service numbers.

The Phone paid Services Authority (PSA) is appointed by Ofcom to carry out day-to-day operations
for premium rate services, which includes the 09 and 118 number ranges, as well as any 087
numbers with a service charge of 7p per minute (or a 7p fixed per-call charge) or higher (all
figures are inclusive of VAT). Further information about the PSA can be found at
www.psauthority.org.uk

Separately, the Advertising Standards Authority (ASA) has responsibility for regulating “paid-for”
ads, the content of TV and radio ads, and claims made by companies on their own websites and in
social media spaces under their control. The ASA enforces rules including a prohibition on
misleading advertising, which covers providing adequate information about the cost of calls. More
information about the ASA can be found on its website (also the website of the ASA’s sister body, the
Committee of Advertising Practice).


The Advertising Standards Authority is not an authority at all, it's just a private company, although a company that enforces this rule thanks to delegated authority from OfCom. However because a Penalty Charge Notice issued for an alleged parking or traffic contravention doesn’t fall within the definition of “advertising”, the ASA has no jurisdiction to look into the matter. The Phone paid Services Authority does not deal with 0845 numbers, so it has no jurisdiction to deal with the matter either.

Hence when I brought this up, OfCom had no choice but to concede that it would need to deal with the issue directly.


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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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