Benefit Sanctions

Although this post is not strictly motoring related I think there are some lessons from the motoring context that can inform how we respond to the issue of benefit sanctions.

Today I was sent a link to this excellent piece by Dr David Webster.

Webster reports that 

Benefit sanctions are an amateurish, secret penal system which is more severe than the mainstream judicial system, but lacks its safeguards. It is time for everyone concerned for the rights of the citizen to demand their abolition.

For anyone who has ever been on job seekers allowance the incredible pettiness of the job search scheme and the ever present threat of sanctions is very real and very demoralising.

For my own view the scheme of sanction is an absolutely disgraceful attempt to undo any understanding of solidarity in the social security system.  This is not to suggest that sanctions are never warranted, of course they may be, but the truly horrifying element of this story is that such sanctions seem whimsical in the extreme.  No due process, no fair hearing, no presumption of innocence, no mistakes are allowed (sound familiar to any claims made about speeding FPN enforcement? although of course at least there the income isn't taken at source and probably doesn't represent your entire income, and you do have the option of an independent tribunal BEFORE any income is taken).

Sanctions may at times be needed but as Webster points out the overwhelming majority of sanctions are aimed at incredibly minor infractions.  Such infractions could include only taking 35 instead of the required 40 job steps that week, taking a Sunday off job searching, failing to log into the governments Universal Job Match (which if anyone has ever used the system as I have should concur that it is absolutely rubbish, it doesn't allow sector specific searches and seems designed solely to cater to agency jobs (which again from personal experience aren't really jobs just speculative adverts trying to get you to sign up or are actual jobs that you can apply for directly  without the agency)).

What struck me particularly, and this is where it links in with motoring enforcement, was the chart.  The data lines look broadly similar to speeding enforcement by way of FPN and Speed Awareness Course.  In speeding the awareness course is now the main means of "punishment", FPN fines have reduced.  What strikes me is that some people I have interviewed for my PhD have given a reason for not attending the course that 'its obvious you shouldn't speed so there is nothing to learn'.  Now I'm not sure this is entirely true, generally such views are accompanied by a view that its easier and cheaper (when factoring in the time) to pay the FPN.  However I can understand that point it really is quite easy to understand the prohibition against speeding.  Now compare that to the situation with benefit sanctions, welfare law is notoriously complex (it probably rivals tax law as the most complex area) and yet in this complex area perhaps where some education would help in understanding the process (and the incredibly complex forms you have to fill in) sanction seems to be the easiest word!

Before anyone objects to the above, think of this.  Would any employer be entitled to run a system like this?  It would be an illegal deduction from your wages in all likelihood, and given that they would in effect be stopping all your wages it is likely that you would have been constructively (if not directly) dismissed.  Only tuppenny ha'penny firms still stuck in the 1970's would ever consider acting in this manner (and would likely have unfairly dismissed you), and yet this is the government we have now.  If you receive benefits not only are you expected to work 365 days a year (and vastly below the minimum wage particularly if enrolled on the work fare program), you are expected to know the intricacies of the benefit regime and if you don't, well then you either starve or get to a food-bank if you are lucky (and look how angry ministers get when food-banks are brought up!)

Where is the compassion or understanding? Again I would reiterate the point I'm not talking about long term unemployed here the evidence suggests that the majority of sanctions are for those who are short term.  It is ridiculous and part of an attempt to shape a particular form of citizenry that approaches an ideal that very few can match.  It wouldn't be so bad if sanctions were a last resort, but they are not, they are the first go to policy option.  If there is a problem a financial sanction can solve it (unless it involves people we like or who might vote for us then we can think about education first).

In any event I hope after reading this you do read Websters blog and report it is depressing and makes me incredibly angry! 

Mobile Phone Driving Device

The desire to find technological solutions for law enforcement issues is an endless topic of fascination for me.  I found this interesting example the other day whilst perusing twitter.  Norfolk County Council plan to use a ‘Mobile Phone Detection System’ which will detect whether a vehicle has a mobile telephone in it that is currently being operated and will signal a sign to light up.

Yes you read that right that is the extent of the technological development, it will detect whether a vehicle has an active mobile phone in it.  It won’t detect whether the driver is using the mobile phone, it could be the passenger. 

It doesn't say in the report how or what triggers the sensor, whether it is use of the mobile phone for calls and texts or whether data usage also triggers the device.  Presumably it will detect data use otherwise it seems outdated since use of facebook, twitter or whatsapp may not trigger the device unless data use was also detected.  This would be a clear problem for the device since such use is more common than actually talking on the phone behind the wheel.  If it does detect data use then presumably it will also detect back ground data usage on running apps or service updates.  Furthermore it doesn't make clear whether the data use has to be outgoing or in-going, for example will receiving a call or text set off the device regardless of whether answered or not?

Hopefully these questions were asked by the council before committing to purchase.  What is clear from the report is that the council and police force are completely unconcerned about false positives: (e.g. receiving a call and not answering, or passenger using a phone).

‘The system can't detect whether it’s a passenger using a phone in a vehicle or whether a hands-free device is being used. But of course, those people don't need to be worried if they get a flash from the sign’

One has to ask what on earth is being signaled by the second sentence in this quote, worried about what? Clearly it’s not an enforcement tool so there is no danger of official action here, all that happens is a no mobile use sign will be displayed. 

According to the head of Norfolk and Suffolk Roads Policing Unit:

Driving while using a mobile phone is dangerous because it distracts your attention from the road.

Quite how a flashing illuminated sign helps refocus is not quite clear, I could see how the sign could quite easily distract a driver particularly when it gives a false positive (flashing sign but no mobile phone use, e.g. an incoming call or passenger call).  Here it seems it would be quite distracting to have to wonder why I have been given a signal when I am not using my phone.  If it detects data use as well then the possibility for more confusion arises as we wonder why on earth the sign has been illuminated. 

It’s also worth thinking about who this sign is ultimately aimed at, it seems it is aimed at those drivers who use their mobile phone and are unaware that it is an offence to do so.  Now to me that seems a very small (very very small) number of drivers.  Those who use their phone whilst driving regardless of the law are unlikely to be affected.

I should point out that I am not against similar signs that highlight the speed limit (I believe it is a similar company to the most common illuminated speed sign company).  With speed limit enforcement the law is not fixed, it is variable depending upon the portion of the road you are travelling on, so a timely reminder of the speed limit could act to help slow us down to the appropriate limit.  Mobile phone use is completely different it is a complete offence regardless of the road you are on (public).

It reminds me somewhat of the don’t drink and drive signs on the motorway, of course no-one should and those that need telling are unlikely to respond to a road side sign.  Now with drink driving again there is an element of public ignorance about how the body processes alcohol and so there is an educational message to be made about morning after (even afternoon after) sobriety.  But with mobile phone use I can’t see the issue.

So I’m left with the feeling that at this point without more knowledge about the actual workings of the system it all seems like a bit of a waste gimmick.  I’d love to know the cost of the system. It seems designed as a system to target those who won’t care or don’t care and may cause more distraction than it is worth.

Illegal Parking Fines Part II

It seems the RAC foundation have engaged legal opinion on the position of private parking 'fines'.  I am satisfied to see a reference to the original Somerfield Stores decision!

Paragraph 37 of de Wall QC's opinion is the crux of the argument and represents the best hope for litigants in the Parking Eye case due before the Court of Appeal at the end of the Month (Judgement expected a month or so afterwards).

de Waal's reasoning is certainly more restrained than some of today's news stories may suggest.  it is worth quoting para 37 in its entirety:

(37)  But I am not sure that this reasoning would apply to parking charges of the kind identified above. These charges are not expressed to be part of a fee for the provision of services, but a charge for exceeding the maximum time allowed on the car park – they are really best understood as a ‘default provision’, that is to say a price paid by the consumer when he or she has done something wrong. Therefore it seems to me that the reasoning expressed in the First National Bank case has more application than that in the subsequent Abbey National case (No emphasis added)

Firstly note 'I am not sure'  which suggests some difference of opinion on the matter.  If I were a parking operator I would certainly be arguing that these terms are not a 'default provision' but a means of providing the service of a managed parking facility.  If the car park operator provides a level of service that manages demand within the parking system then we as consumers benefit from this managed demand.  It allows us to park where otherwise we may not be able to do so at all, or only in potentially dangerous ways.

Thus I would suggest this will be the crux of argument, do private parking companies provide a service over and above merely penalising motorists? I think the answer to that argument is generally quite clear (of course it depends on the particular land in question) they do provide a service which manages demand and controls parking behaviour (even if they charge nothing in the first instance).  The charge is part of that service of managing demand (i.e. you can park here longer than stipulated because the excess charge will compensate the management problem).  Whether this is always the case really is a matter of fact, having received a ticket for a 8 minute overstay on a 1/4 acre piece of scrub-land (first 15 minutes free) on a bank holiday perhaps I should have challenged the notice!

My own personal view is that this part of the challenge will fail, parking companies do provide a management service (in certain circumstances) and as such the price paid for overstay is really a price paid for the space so that the company can provide a managed car park.  Thus the price of the parking ticket cannot be classed as unfair (even if we think it is) since price charged under a contract is not subject the unfair contract terms regime.

de Waal does make an interesting point at para's 59-60, particularly where the car park does not limit time but charges a regular price throughout the day.  Here the excess charge does represent something of a penalty since the car driver could have paid a smaller amount to stay and the car park owner would have accepted this smaller amount.  The excess charge starts to resemble damages which the car park owner would need to justify with reference to any costs they had faced.  Whether those costs could be justified and how those costs are determined would be a very interesting exercise.

Shoup (1994) has estimated, in the US, the actual cost of a free parking space which when adjusted for today's prices is roughly equivalent to $478 per space per month (on a very conservative estimate).  This research is sorely in need of repeating in the UK and is worth revisiting how Shoup arrived at these figures to try to obtain a less conservative estimate.

If the claimants in the court of appeal case lose on this point it seems that private parking tickets will be around for quite a significant time.  As I suspect will arguments about the fairness of parking enforcement.