Publication - Research and analysis

Removal, storage and disposal of vehicles regulations: analysis of consultation responses

Published: 29 Mar 2019

Analysis of written responses to our consultation on the removal, storage and disposal of vehicles regulations.

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Contents
Removal, storage and disposal of vehicles regulations: analysis of consultation responses
5. Other Issues for Consideration

59 page PDF

615.9 kB

5. Other Issues for Consideration

5.1. This section presents the findings relating to Questions 9-11, covering respondents' views of: potential unintended consequences of the scheme; the frequency of review; and experiences of the system in place in England and Wales.

Question 9

5.2. Question 9 asked:

Do you think there any unintended consequences of the Scottish Government's proposals or other factors not currently taken into account?

Responses

5.3. Almost all of the respondents (31, or 91%) addressed this question. Three respondents (9%) did not address the question.

Overall views

5.4. Of those who addressed the question, although there was no "tick box" almost half stated "no" or "don't know", suggesting that they were not aware of any unintended consequences of the Scottish Government's proposals, or other factors not currently taken into account.

5.5. Just over half of those who responded to this question provided comments.

5.6. By type, this included: all, or the majority of: the vehicle recovery professional or trade bodies; individual respondents; insurance companies and their professional or trade body. It also included over a third of the VROs and one of the road haulage professional or trade bodies.

5.7. Within these comments, there were three main themes, as follows:

  • Unintended consequences.
  • Other factors not taken into account.
  • General comments.

Unintended consequences

5.8. Several respondents identified what they considered to be unintended consequences of the Scottish Government's proposals.

5.9. Among these, a few identified issues relating to potential abuse of the system by contractors. Two, for example, stated that there could be very high charges should a "menu" model be adopted (as described at Annex F of the consultation document and set out for reference in this report at Annex 5). These respondents suggested that the charges should be fair and reasonable, and the same for whoever initiates the uplift (the customer or police). One stated that the only possible difference should be the inclusion of the VAT element.

5.10. One other respondent stated that the contractor framework should be carefully addressed to avoid contractor abuse, and suggested that a combination of the suggested base rates with framework standards and auditing might control this.

5.11. A few other unintended consequences were identified, each by a small number of respondents. Two, for example, suggested a possible negative impact on the service. One of these respondents stated that the police recovery scheme could collapse, with an uneconomical pricing structure making it unviable for qualified professional recovery operators to function. The other stated that, without the correct rewards to allow contractors to provide updated staff training and modern equipment, a fast, local service would not be provided.

5.12. One respondent expressed the view that a further unintended consequence may be that the concept of what constitutes a vehicle being "laden" or "unladen" may be open to interpretation. They suggested that photographic evidence should be captured at the scene, in order to justify any additional costs.

5.13. Another respondent identified the potential for continuing judicial challenge to the statutory fee system. The same respondent expressed the view that the proposed matrix system would, in their view, increase the costs to the general public and industry, and would attract even greater scrutiny.

5.14. A further issue, identified by one respondent, was a perceived risk that VROs could be left with a large number of unclaimed vehicles if the level of the charge were to outweigh the value of the vehicle.

Other factors not taken into account

5.15. Several respondents identified other factors which they suggested had not been taken into account.

5.16. The most common (mentioned by a few respondents) related to management company issues. These included views that:

  • A scheme managed directly by the police would allow a better and faster response, allowing direct communication between the VRO and the police, rather than involving a third party.
  • A scheme managed "in-house" would allow more customer service consistency, with hauliers receiving a better service, and recovery operations running more smoothly.
  • VROs had the burden of balancing two contracts (with the police and management company), each with different obligations.
  • The recovery operator had to work alongside the management company, which required other services to be included (which would then have to be reflected in the costs in the fee the public had to pay).

5.17. A small number of respondents mentioned specific types of incident which, in their view, had not been taken into account, including:

  • Burned-out vehicles.
  • Chemical spills.

5.18. One respondent stated that this raised the issue of who cleaned up the mess. The same respondent noted that there could not be an exhaustive list of incident types, as each recovery was different.

5.19. A further respondent stated that some recoveries required extra staff or equipment after risk assessment (e.g. where there was hazardous waste), and they expressed the view that there should be some provisions for this built into the system.

5.20. One respondent commented on types of vehicle which had not been included, stating that caravans and trailers were not covered in the scheme (an issue mentioned earlier in this report), but that these cost local authorities a lot of money for disposal.

5.21. The same respondent mentioned issues relating to abandoned vehicles, including:

  • A perceived lack of focus on the role of local authorities in dealing with abandoned vehicles.
  • Issues with vehicles left on private land.
  • The time and costs associated with disposing of abandoned vehicles (usually requiring three separate visits).

5.22. They suggested that:

  • The DVLA should prosecute keepers for failing to notify a change of ownership or address.
  • The work required should be recoverable, with a mileage rate plus disposal cost.
  • Landowners should be allowed to recover costs (with the respondent stating that this would help housing associations where a tenant moved, leaving a vehicle behind.)

5.23. Two respondents raised issues related to the introduction of smart motorways, and the need to consider this, and their impact on costs and safety. One stated that the police and Highways Agency would not currently allow breakdown recovery vehicles onto a motorway to attend a breakdown without implementing the smart motorway system, and in some cases would only allow the recovery vehicle to attend if the police or Highways Agency were present. They stated that safety was paramount to the recovery of vehicles, and operators had the skills to manage the situation, so should be able to attend and assist at a breakdown to move vehicles safely rather than have to wait for outside agencies (which could add significant delays).

5.24. Another respondent suggested that the safety of operators had not been taken into account, citing recent fatalities.

5.25. A further respondent identified issues relating to the storage and disposal of vehicles, suggesting that the length of time, and the number of vehicles which had to be stored free had not been taken into account. The respondent also suggested a need to consider waste management issues for some vehicles which were burned-out, or contaminated.

5.26. Other factors identified as not having been taken into account (mentioned by single respondents in each case) were:

  • The retention of vehicles for civil cases.
  • Poor training for police and Procurators Fiscal.

General comments

5.27. Several respondents made more general comments at Question 9.

5.28. One, for example, highlighted the need for the police to be able to call on rapid and competent local recovery operators, and the potential difficulties if such a service was not available. This respondent also expressed the view that many operators were declining work on the basis that the Managing Agent was taking a large proportion of the fee.

5.29. One respondent expressed general support for the proposed matrix system and another mentioned the benefits of having set fees (rather than various rates for different items). It was suggested that this was fair, would allow everyone to know what the bill should be, and would prevent bills being padded out for extra costs. A further respondent stated that they were opposed to a "menu" model.

5.30. Two respondents suggested that it would be important that the "finer detail" of the statute was applied properly in relation to the handling of VAT and other payment issues.

5.31. Two other respondents suggested that there should be a joint approach with Traffic Scotland, where the management of any incident on the road would be treated in the same way. The respondents suggested that any breakdown that is not an emergency or related to criminal activity should be dealt with by Traffic Scotland.

5.32. Lastly, one respondent suggested that once the consultation was complete, the Scottish Government should re-tender the contract with Police Scotland, taking into account points made in the consultation, and taking steps to prevent overcharging and to make it fair for all parties.

Question 10

5.33. Question 10 asked:

Should any prescribed charges be increased annually based on inflation (bearing in mind that this will require a Scottish statutory instrument to be prepared each year), or should the regulation be reviewed at specified times such as every 3 or 5 years?

Responses

5.34. All of respondents addressed this question. Most (33) did so at the question, while the remaining respondent made relevant comments in a letter.

Overall views

5.35. There was a clear preference for the regulation be reviewed at specified times, with over two thirds of respondents expressing this view, as summarised below. Just over a quarter stated that the prescribed charges should be increased annually based on inflation, while two respondents did not address the closed part of the question.

Table 7. Responses to Q10

Should any prescribed charges be increased annually based on inflation or should the regulation be reviewed at specified times such as every 3 or 5 years?

Response Number %
Review at specified times 23 68
Increase annually based on inflation 9 26
Did not express a clear "yes" or "no" view 2 6
34

5.36. By type, all, or a majority of respondents in nearly all of the categories favoured reviewing the regulation at specified times, such as every three or five years.

5.37. In the two cases where the respondents did not express a clear "yes" or "no" view to this question, one did not tick a preferred option and the other provided their comments in a letter. Both, however, stated that they considered regular reviews of statutory charges to be appropriate, in order to prevent large or guaranteed increases.

5.38. Most respondents provided additional comments at this question, and there were two main themes, which mirrored the strands of the question, with comments on:

  • Reviewing the regulation at specified times.
  • Increasing the prescribed charges annually based on inflation.

5.39. Further details of the comments are provided below.

Reviewing the regulation at specified times

5.40. The most common theme, and the largest number of comments, related to reviewing the regulation at specified times, or regularly.

5.41. Most of these comments related to the respondent's favoured timescale, while some related to the benefits of, or reasons for, reviewing the regulation at specified times or on a regular basis. A range of suggestions were made.

5.42. The most common time period identified was three years (identified by just under half of those who suggested a timescale). Where reasons for this view were provided, these included that:

  • This period would balance the need to reflect increased costs in the charges and the need to keep the cost of change within acceptable limits.
  • An annual review would be administratively complex.
  • Five years would be too long.

5.43. One respondent suggested that reviews should be undertaken every three years "without fail", referring also to the fact that the matrix in use in England and Wales had not, at the time of the publication of this consultation, been reviewed for 10 years.

5.44. Just over a quarter of respondents who suggested a time period stated that this should be every 3-5 years. Where reasons for this view were provided, these included that this:

  • Provided an appropriate review schedule.
  • Would be proportionate.
  • Would be ample, otherwise the process would become too onerous.

5.45. Other time periods mentioned (by small numbers or single respondents in each case) were:

  • 5 years (e.g. to avoid: uncertainty; the administrative burden on the Scottish Government and stakeholders; and costs).
  • 2–3 years.
  • 2 years.
  • Every few years.

5.46. A small number of respondents mentioned general perceived benefits of reviewing the regulation at specific times or on a regular basis. These included to:

  • Prevent large or guaranteed increases (as noted above).
  • Reflect the varied and fluctuating costs involved in the recovery industry.
  • Avoid problems relating to an annual review based on inflation, which could be time-consuming and lead to unnecessary administrative burdens.

Increasing the prescribed charges annually based on inflation

5.47. Some respondents made comments about increasing the prescribed charges annually, based on inflation.

5.48. Among these, one respondent reiterated their general support for this approach, and another set out specific perceived benefits, namely that:

  • Fee levels would be "up to date".
  • This would allow for longer and more sustainable workloads and contracts.

5.49. One respondent suggested that, as well as annual increases, there should be a periodic review of fee levels (which they suggested should be every 3 years) to ensure that VROs' businesses remained viable.

5.50. A small number of respondents who favoured increasing the prescribed charges annually made additional suggestions, including that:

  • Regional variations should be allowed as a way of dealing with different cost levels across the country.
  • Payment arrangements would have to be considered carefully to ensure that the "finer details" of the statute were being applied properly.
  • Wording changes should be built into the Scottish Statutory Instrument (SSI).

Question 11

5.51. Question 11 asked:

Are there any factors the Scottish Government should take into account to reflect on the experiences of the matrix system that has been operating in England and Wales since 2008?

Responses

5.52. Almost all of the respondents addressed this question (33, or 97%). One respondent (3%) did not address the question.

Overall views

5.53. The majority of respondents (52%) stated "yes", indicating that they believed there were factors the Scottish Government should take into account to reflect on the experiences of the matrix system that has been operating in England and Wales since 2008. Less than a third stated "no", while just under a fifth did not express a clear "yes" or "no" view.

Table 8. Responses to Q11

Are there any factors the Scottish Government should take into account to reflect on the experiences of the matrix system that has been operating in England and Wales since 2008?

Response Number %
Yes 17 52
No 10 30
Did not express a clear "yes" or "no" view 6 18
33

5.54. By type, those who stated "yes" included all or the majority of: insurance companies (and their professional or trade body); individuals; vehicle recovery professional or trade bodies; and the police respondent. Views of VROs were mixed.

5.55. Among those who did not express a clear "yes" or "no" view (who did not address the "closed" part of the question), one stated that they were "not sure" and two stated that they had "no comment". Three, however, made further comments, which are reflected in the qualitative material below.

5.56. Most of the respondents to this question made additional comments about factors the Scottish Government should take into account to reflect on the experiences of the matrix system in England and Wales.

5.57. A range of themes were identified, which included:

  • Definitional issues, and issues for clarity.
  • Cost issues.
  • The need for review / update.
  • Overall benefits of the system in England and Wales.
  • Management issues.
  • Issues for specific vehicles.
  • Differences in Scotland.
  • Other issues and requirements.

5.58. Some respondents made other comments.

5.59. Further details of the comments are provided below.

Definitional issues, and issues for clarity

5.60. The most common theme, in identifying factors the Scottish Government should take into account to reflect on the experiences of the matrix system in England and Wales, related to definitional issues and issues for clarity (mentioned by almost two thirds of those who made comments).

5.61. A few respondents suggested, for example, that factors relating to the coverage of the matrix needed to be taken into account. Two specific issues were mentioned:

  • What would / would not be included in the matrix charge.
  • When an incident was deemed to start and stop (e.g. to remove the opportunity to apply additional costs for specific services).

5.62. A small number of respondents mentioned issues for clarification or consideration relating to specific incidents and scenarios, including:

  • Whether a vehicle was uplifted on the instructions of the police, or at an owner's request.
  • Where a load had become detached from a vehicle, and instances where it should be transferred to ensure it was salvaged, or to protect the integrity of the vehicle.

5.63. One respondent suggested that there should be a notification process when a recovery operator had a vehicle incurring daily storage charges. They stated that the regulation should have a specific clause to state that no storage charges could be made whilst a vehicle was on police hold, and the recovery agent should not be able to enforce any storage charges once the vehicle was taken off police hold if they hadn't informed the owner (or insurer if the vehicle damage was likely to form part of insurance claim) that storage charges were being applied. It was suggested that this would avoid time-consuming disputes.

5.64. Some respondents (small numbers or single respondents in each case) suggested a need for clearer definitions of aspects of:

  • Significant / substantial / extensive damage.
  • On/off-road.
  • Loaded / not fully loaded.
  • Spilt load.

5.65. Two respondents suggested a need for clarity about the circumstances in which a police officer should invoke a statutory power of removal, and where a removal should be regarded as an owner's request. They stated that it was often the case in England and Wales, and in Scotland, that the owner could make their own arrangements and the recovery vehicle arrive only for the Police to turn them away and instead use their powers of removal.

5.66. These respondents expressed the view that vehicle removal should only be classed as a statutory removal when the vehicle was of interest to the police, or causing an obstruction, possibly in a dangerous place. Outside of this, they stated that the removal should be classed as an owner's request with the owner at liberty to find their own recovery operator to carry out the recovery.

5.67. A small number of respondents suggested that there should be clarity and transparency or guidelines on the charges, with two citing the need for their consistent application, and the need for charges to reflect the work required fairly.

Cost issues

5.68. A further common theme in identifying factors the Scottish Government should take into account to reflect on the experiences of the matrix system in England and Wales related to costs and charges. Several respondents identified such factors.

5.69. Among these, the issue raised most frequently was the need to prevent perceived abuses, with those mentioned being:

  • Potential profiteering from storage costings.
  • Misinterpretation of the fees (seen to have led to apparent breaches of the original legislation in England and Wales).
  • The application of additional charges (e.g. yard release fees).
  • Prevention of other accredited providers entering a yard for removal.

5.70. As noted above in relation to definitional issues and issues for clarity, issues were also raised relating to the need for clear and transparent charges.

5.71. A small number of respondents also mentioned factors relating to the level or nature of charges, including suggestions that there should be:

  • An increase of 32.5% to all categories.
  • Charges which would be fair to all stakeholders.
  • Charges which would reflect the work required by the VRO.
  • The ability to reflect regional variations in costs (e.g. urban / rural).

5.72. One respondent raised an issue relating to who was responsible when a fee was challenged, suggesting that this should be resolved. Two raised issues about the management fee and its impact on VROs.

The need for review / update

5.73. Several respondents noted that the system in England and Wales had not been reviewed, even though this had been planned at the outset. Two stated that the scenario rates were, as a result, ten years out of date, creating a large hurdle to overcome in bringing them back into line.

5.74. One respondent stated that a lack of adjustment for inflation had impacted on the viability of such work to VROs. Two stated specifically that the matrix should be reviewed more frequently.

Overall benefits of the system in England and Wales

5.75. A few respondents made specific comments about what they saw as the benefits of the system in England and Wales.

5.76. Those identified included views that:

  • The system was working well.
  • The number of complaints had decreased significantly.
  • There were fewer instances of inappropriate charging.
  • The system had allowed operators to invest in modern equipment and training for staff, giving police the best chance of retaining security and evidence.

Management issues

5.77. A small number of respondents made comments about management issues relating the operation of the scheme in identifying factors the Scottish Government should take into account to reflect on the experiences of the matrix system in England and Wales.

5.78. A few, for example, suggested that the approach of the management companies in restricting the commissioning of removals to a small number of operators was inefficient and created problems (e.g. when the commissioned operator had to travel a long distance or became stuck in traffic queues resulting from the original incident).

5.79. Another stated that, where a vehicle was removed by the police to a distant location to facilitate evidence gathering, this may require those involved to travel long distances (e.g. for viewing).

5.80. One respondent suggested that the scheme should be designed to allow hauliers to recover their own vehicles, where the Police deemed it safe and reasonable for them to do so (e.g. with the introduction of a timescale of 60 or 90 minutes whereby if they could not guarantee recovery it would then be arranged through the scheme). Another stated that there was a need for operators to give local cover to retain the speed of clearances.

5.81. A further respondent suggested that, where all of a local operator's resources had been used, and additional assistance was required from a neighbouring operator (e.g. in complex incidents such as multiple HGV scenarios) there should be a mechanism to enable an operator to attend in a neighbouring area in a limited number of cases to perform a support function, and cover costs should be considered.

5.82. One respondent suggested a need to prevent the involvement of operators with insufficient experience or training, which they stated could lead to roads being closed for longer periods of time, and damage being caused on attempted recovery. They suggested the introduction of a means of proving competence through the completion of training before operators were permitted to join the Scottish scheme. The respondent suggested that this could be done using existing driver Certificate of Professional Competence (CPC) requirements.

Issues for specific vehicles

5.83. A small number of respondents, in identifying factors to take into account in the light of experiences in England and Wales, made comments about specific types of vehicles.

5.84. Those mentioned were the perceived need to:

  • Take account of different types of two-wheeled vehicle.
  • Have a distinction between different sizes of motorcycle.
  • Consider the level of charges levied for 7.5t vehicles, to reflect the work required.

Differences in Scotland

5.85. A small number of respondents highlighted perceived differences between the recovery industry in Scotland compared England and Wales, which they believed should be recognised in any new legislation.

5.86. These respondents identified differences in:

  • Geography and response times.
  • Access to specialist equipment.
  • Access to police personnel.
  • Volumes of work (with lower volumes but the same requirements).

5.87. One respondent suggested that VROs in Scotland tended to work together better.

Other issues and requirements

5.88. A few respondents made comments on other perceived issues and requirements to be taken into account, including views that:

  • Photographic evidence should be obtained at each incident.
  • There should be consistency across all police forces.
  • A clear and transparent complaints procedure should be developed, with dedicated points of contact for Service Level Agreements.
  • Each managing operator should be clearly identified via an appropriate central website, and this information should be communicated to the recovery industry, breakdown providers and insurers at renewal.

Other comments

5.89. A small number of additional comments were made.

5.90. A few respondents made comments about learning from experiences in England and Wales and consulting with those with relevant experience. One suggested, for example, that it would be good for the Scottish Police Authority (SPA) to learn lessons from England and Wales, in order to avoid repeating the same problems. Another suggested that the scheme in England and Wales should be reviewed to decide whether it was working or not. A further respondent suggested that, if a new Scottish scheme was calculated to be fair and balanced, then it could, in turn be adopted in England and Wales as a leading market standard.

5.91. Another respondent suggested that the Scottish Government should consult with trade associations which had members in England and Wales, who, they stated, may be best placed to comment on lessons which could be taken into account in designing a Scottish system.

5.92. Two additional comments were made on other issues. One respondent made comments relating to Question 3, which were included in the relevant section. Another made reference to a separate draft document which they had submitted to the Scottish Government.


Contact

Email: Gary.Gray@gov.scot