POPLA appeal with UKPC

[JHH001]

Hi

 

I wondered whether I could seek some advice for my appeal with POPLA against UKPC please?

 

To summarise,

UKPC issued a Parking charge ticket on a vehicle on 9/8/2015 for parking in a disabled persons space without displaying a badge.

The vehicle owner was not the driver at the time.

 

A NTK was then issued by UKPC to the vehicle owner on 8/9/15 and the following appeal was sent to UKPC by the keeper:

 

As UK Parking Control Ltd (UKPC) have failed to contact the keeper of the above vehicle within the time stipulated in the provisions of the PoFA,

then on this basis UKPC Ltd are timed out and therefore the Notice to Keeper issued is deemed to be invalid.

 

Please note that the Notice to Keeper was issued on 8 September 2015.

According to PoFA a Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid,

must be delivered NOT later than 14 days after the vehicle was parked (alleged date the vehicle was parked is 09/08/2015).

 

Therefore, as UKPC Ltd are timed out to pursue the above parking charge and have breached the PoFA guidelines,

this shows that UKPC Ltd have failed to comply with the PoFA rules and as a result any further contact about this matter will result in a complaint of harassment.

 

Also, due to UKPC Ltd’s failure to comply with the above rules BPA, POPLA

and Trading standards have been notified of UKPC Ltd’s illegal practices as a company.

The above appeal was rejected by UKPC and a Popla code was issued.

 

An appeal was then made by the Keeper to Popla with the following:

 

The parking incident was on 09/08/2015 and the Notice to Keeper was received on 08/09/2015.

According to PoFA, paragraph 9(5), a Notice to Keeper can be served by ordinary post

and the Protection of Freedoms Act requires that the Notice, to be valid,

must be delivered NOT later than 14 days after the vehicle was parked

and therefore keeper liability does not apply.

 

The parking company can therefore only pursue the driver.

 

As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were,

I submit I am not liable to any charge.

 

Further to this PoFA, paragraph 8(e) requires the creditor to state that they do not know the name of the driver

and a current address for service for the driver. T

his is not mentioned on the Notice to Keeper, although it is one of the criteria’s that is required to be met, as stipulated by the law.

 

In addition, no Creditor has been identified on the Notice to Keeper.

Failing to include specific identification as to who 'the Creditor' may be is misleading and not compliant,

in accordance to paragraph 8(2)(h) and 9(2)(h) of Schedule 4 of the POFA.

 

The Notice to Keeper simply mentions UKPC as the company the payment is to be made payable to.

However, in the Notice to Keeper UKPC makes reference to ‘your vehicle was recorded on our client’s private property’

but does not refer to or specify the details of the actual creditor making this £100 parking charge demand.

 

Also, the total charge due in the Notice to Keeper is £100.

I strongly believe that this charge is punitive.

 

According to the Unfair Terms Consumer Contracts Regulations 1999, the charge of £100 exceeds the potential cost

or consequential loss to the landowner and therefore, the burden of proof is on UKPC to prove that it is not.

 

UKPC replied to the popla appeal with the following defence:

 

On 09.08.15 our warden issued a parking charge to vehicle registration ? at ?.

The parking charge was issued because the vehicle was parked in a disabled person’s space without clearly displaying a valid disabled person’s badge.

 

The Parking Charge amount was £100, reduced to £60 if payment was received within 14 days.

 

An appeal was received from ? on 30.09.15, to which the appeals department investigated and decided to reject.

 

?? states in appeal to both UKPC and POPLA that the notice to owner she received is invalid as it cannot be sent

later than 14 days after a charge has been issued, a notice to owner is only sent after 14 days if it has been issued by an ANPR camera.

As ?? charge has been issued by a warden, the NTO was sent out after 28 days therefore not breaching the BPA code of practice.

 

We note your reference to Schedule 4, Section 7(2)(e) of the Protection of Freedoms Act 2012.

We have now corresponded with you on more than a single occasion and in doing so, we have clearly identified that we are the creditor

and that we seek the outstanding charge. A

 

s you have correctly pointed out, identifying ourselves as the creditor is not the same as naming ourselves as the creditor.

We have sent correspondence to you in our own name, we also have our registered address, contact details and a means to pay on our documentation,

all of which fully complies with the requirements in the Protection of Freedoms Act and all of which indicates clearly that we are the creditor.

 

The highest court in the UK, the Supreme Court, has unambiguously confirmed that parking charges issued on private land are fully enforceable.

In the case of ParkingEye v Beavis [2015] UKSC 67 their Lordships stated that private parking charges were enforceable

because they served a legitimate interest and were in the interests of the public generally.

The case confirmed that the amount of the charge does not have to reflect any loss that might have been caused by breach of the terms and conditions of parking.

 

The Supreme Court decision is binding law on all other courts throughout the UK.

 

UKPC asked ?? for a disabled badge as she was clearly parked in a disabled bay, as this was not provided the charge was correctly issued.

 

We have a duty to ensure these bays are kept free for disabled people under the 2010 Equality Act a

nd there is sufficient signage in view of ?? vehicle stating the terms and conditions on site.

 

There are sufficient signs warning drivers that should they choose to park in a disabled person’s space

without clearly displaying a valid disabled badge they may become liable to receive a Parking Charge.

 

?? vehicle was parked without clearly displaying a valid disabled badge and consequently the Parking Charge was issued correctly.

Please note for anonymity name has been replaced with ??.

 

 

Based on the above I would be grateful if anybody could offer advice as to whether there is anything further I need to submit to win the appeal?

 

 

I have 7 days from today to reply to Popla.

 

 

Also, is the appeal submitted strong enough to win the appeal?

 

Thanks in advance.

[Raykay]

If the claim is in respect of a windscreen ticket, the time for the NTK is between 28 and 56 days, not 14.

 

POFA. sch.4, s.6 1(a) & s.8 (5).

[JHH001]

If the claim is in respect of a windscreen ticket, the time for the NTK is between 28 and 56 days, not 14.

 

POFA. sch.4, s.6 1(a) & s.8 (5).

 

Yes, the claim is in respect of a windscreen ticket, but the driver of the vehicle at the time was not the keeper of the vehicle. The keeper of the vehicle is making the appeal.

 

Would the above grounds for appeal not be valid?

 

Thanks

[Raykay]

The time limits for claiming for the keeper are 28 -56 days in respect of a windscreen ticket (as above), or 14 days in respect of a camera etc. ticket - POFA sch.4, s.6(1)(b) and s.9(5).

 

As your case involves a windscreen ticket, the 14 day limit does not apply and would not be valid grounds for an appeal.

[armadillo71]

A little knowledge.....

 

 

As Raykay has stated, you have quoted the incorrect paragraph of the POFA.

 

 

 

 

8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;

©state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), © and (f);

(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)© have been paid in part, specify the amount that remains unpaid, as at a time which is—

(i)specified in the notice to keeper, and

(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph © or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;

(i)specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).

(4)The notice must be given by—

(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.

(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.

(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and

(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

 

 

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

 

 

 

 

You must add to your POPLA appeal that you demand to see, through sight of contract, that UKPC have lawful authority from the landowner to issue and pursue parking charge notices at this site.

[JHH001]

Ok. Thanks for the advice. I will reply with the following, which I think is a robust answer:

 

UKPC do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract or terms & conditions of parking. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow UKPC to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

 

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

 

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between UKPC and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): http://nebula.wsimg.com/0ce354ec6697...essKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

 

I refer the Adjudicator to the Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

 

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

 

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

 

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

 

Is the above sufficient?

[JHH001]

Also, just to be specific UKPC refer to a breach of terms of conditions as opposed to a breach of contract. Would the above argument still apply?

 

Thanks