It is amusing that all these companies throw POFA around as if because they have heard of it then they know all about it.

You were perfectly correct in advising them the first time to send your details to the parking company.

This would have absolved Lex from any risk of subsequently being pursued by the creditor,

providing Lex had complied with the POFA regs,

should you not have paid.

Hire vehicles

13

(1)This paragraph applies in the case of parking charges incurred in respect of the parking of a vehicle on relevant land if—

(a)the vehicle was at the time of parking hired to any person under a hire agreement with a vehicle-hire firm; and

(b)the keeper has been given a notice to keeper within the relevant period for the purposes of paragraph 8(4) or 9(4) (as the case may be).

(2)The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b)a copy of the hire agreement; and

©a copy of a statement of liability signed by the hirer under that hire agreement.

(3)The statement of liability required by sub-paragraph (2)© must—

(a)contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer;

(b)include an address given by the hirer (whether a residential, business or other address) as one at which documents may be given to the hirer;(and it is immaterial whether the statement mentioned in paragraph (a) relates also to other charges or penalties of any kind).

(4)A statement required by sub-paragraph (2)(a) or © must be in such form (if any) as may be prescribed by the appropriate national authority by regulations made by statutory instrument.

(5)The documents mentioned in sub-paragraph (2) must be given by—

(a)handing them to the creditor;

(b)leaving them at any address which is specified in the notice to keeper as an address at which documents may be given to the creditor or to which payments may be sent; or

©sending them by post to such an address so that they are delivered to that address within the period mentioned in that sub-paragraph.

(6)In this paragraph and paragraph 14—

(a)“hire agreement” means an agreement which—

(i)provides for a vehicle to be let to a person (“the hirer”) for a period of any duration (whether or not the period is capable of extension by agreement between the parties); and

(ii)is not a hire-purchase agreement within the meaning of the Consumer Credit Act 1974;

(b)any reference to the currency of a hire agreement includes a reference to any period during which, with the consent of the vehicle-hire firm, the hirer continues in possession of the vehicle as hirer, after the expiry of any period specified in the agreement but otherwise on terms and conditions specified in it; and

©“vehicle-hire firm” means any person engaged in the hiring of vehicles in the course of a business. [/color]

This section also absolves Lex from breaches of the DPA .

It might be worth showing Lex this section which is totally different from them receiving a PCN from the Council .

With them, if the driver doesn't pay, then the Hirer is liable which gives an indication that tickets issued by parking companies are much less certain to be valid.

Ericsbrother hasn't touched on it but in view of the fact that Lex have it written into your contract [well not just yours but all their hirers] it may be that that particular clause must fall foul of the Consumer Rights Act 2015.

For instance it cannot be right that Lex can pay a Penalty Charge notice without reference to the driver since the payment prevents the driver from challenging the ticket.

Not only may the hirer have to pay a ticket that they believe they are not liable for but they are also charged an extra amount that would appear to be a penalty.

That part of their contract is even worse when it comes to Parking Charge Notices.

At the moment very few parking companies have managed to get all their notices, procedures and documents into anything like a lawful manner resulting in most being challenged and the motorist absolved.

Sectio 62 [4] says (4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

and in

Schedule 2 Part 1 gives a list of terms that may be unfair. For example

2 A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.

3 A term which has the object or effect of making an agreement binding on the consumer in a case where the provision of services by the trader is subject to a condition whose realisation depends on the trader’s will alone.

that is something to use when they fail to respond properly to your demand to remove the defaults.

You could include it in that letter or as part of a lba which you lay out your claim in monetary terms as well as the correction of your files.

I wasn't sure if EB thought that argument had legs.

It was obviously written for the protection of Lex alone.

No motorist would ever voluntarily agree to that clause.

When Lex pays it is an admission of guilt to the creditor ;

you cannot get your money back from the creditor;

to compound matters Lex clumps you with an "admin" charge out of proportion to the work involved

and they pay the money regardless as to whether the motorist has a genuine defence or not

PS

How much is their admin charge and does it vary depending on the type of charge being levied or the seriousness of the offence you are being accused of?

to throw a bit of doubt into the mix you would have to look up cases where a judge has commented on such things to get any certainty.

consumer contracts are supposed to work for the consumer as they dont have the same access to lawyers that a business to business contract would allow

there is this fluid idea of a level playing field rather than a battle down to last man standing that some commercial contract get to.

We have seen in the Beavis case that there is a liking in sections of the legal profession that they would like to see ALL contracts on the same footing and this is a massive disadvantage to the consumer as Beavis shoves it towards the commercial interpretations that fly in the face of legislation.

they also dared the govt not to legislate on this to undemine their decision

EB is right that the Consumer Rights Act 2015 is not a sure fire certainty.

For a start there is very little case Law built up with this Act as yet since the Act itself is less than two years old.

However there is some help from the old UTTCR.

3 A term which has the object or effect of making an agreement binding on the consumer in a case where the provision of services by the trader is subject to a condition whose realisation depends on the trader’s will alone.

and it still exists in the current Act.

Interestingly Farrer& Co solicitors in reviewing the new act finally said

As CRA 2015 is a new piece of legislation, now is the time to review existing consumer terms and conditions. It would also

be prudent to treat complaints from consumers with some care and to adopt as flexible an approach as possible.

I think you could realistically point out how much that particular clause is weighted against the customer

-they do not get any benefit at all from this clause indeed they are given extra punishment.

You could put the points I have high lighted also on my earlier post to Lex and say that you are perfectly happy to take them to Court for redress of the situation.

However they must see that if they end up on the losing side in Court they will have to redraw all their existing contracts with their hirers plus no doubt have loads of opprobrium rained down on them from other Hire companies for risking the situation in Court.

Lex wont have to redraw their contracts, as a CC decision is not binding on other courts

they will still fight any claim on a case by case basis unless they fancy an appeal against a decision they didnt like and possibly hope that the costs they incur will put you off defending the rematch.

The reason the parking co's exist is because they arent stupid enough to fight every case to the bitter end.

what they do is abuse the civil procedure to use the courts as another step on the unlicenced debt collection front rather than for making justifiable claims.

If they had a cast iron contract and proper signage they would not only win defended claims but appeal a load of the ones they have already lost

but if they did that with the current state of their business

they would have to risk getting done on criminal grounds if they continued

as it would surely upset someone enough to throw some real money at the problem.

PE are owned by Capita

they have the ear of Govt and will use their influence to create an absolute liability by the keeper if they could

but as most of the smaller companies get things so wrong they know that they wont get their way with the level of complaints to MP's and the current clogging of the court system.

Lex would have been wise to consider this and answered your complaint better

but they didnt

it means thay have assessed the liklihood of you taking some sort of action and decided it is cheaper for them to let you make the first move

Thanks for all the advice thus far.

A couple of developments.

Firstly, having made a request to Experian to flag the balance as disputed, they asked me to confirm if £939 was the correct balance!

I immediately queried this with Lex and received the response below:-

"I can confirm that Lex Autolease received two transfer payments on 13th June 2017 (£450) and 11th July 2017 (£100), totalling £550.

Neither payment was sent with any instructions from yourself as to the specific reasons for the payments or indeed which specific invoices they were in relation to.

As five invoices remained outstanding at the time and none of the invoices matched the amount received from yourself the team could not allocate the cash to any of the invoices specifically.

The Business Services Treasury team attempted contact with you twice, on the 11th and then 12th July, in order to establish which invoices you wanted these funds allocating to. As no response was received in relation to our calls the file was passed to the Credit Controller.

The report for the credit file is an automatically generated report, pulling off the data from outstanding invoices on the account and it cannot take in to account any cash held (as is the industry practice).

As the cash on account could not be allocated to any specific invoices, the total amount outstanding on invoices for your account was £939.

As such, the reporting for the credit file was correct.

It is correct that the amount outstanding and owed to Lex Autolease, when taking into account cash held on account, is £389.64

They have effectively misrepresented the alleged amount outstanding to the CRA, with very little effort to contact me (considering how much correspondence there is between Lex and myself!). The explanation about unallocated cash is complete flannel as far as I am concerned, and what the hell is "industry practice"!

Secondly, I had received a second "final response" letter to my complaints.

Yet again they claimed to have fully investigated "at a senior level" yet have completely ignored my requests to clarify Clause 8 of the Hire Agreement which they are relying on for the recharging of parking charge invoices to me.

I pushed back again to the MD's office, and then today I received the email below from him directly.

The first mistake is that the idiot couldn't even get my name right - it isn't Newman!

Dear Mrs Newman

Thank you for your email and unfortunately, despite numerous exchanges, it is clear that we will not be in a position to reach a decision you consider acceptable.

Your complaint has been thoroughly investigated and subsequently reviewed at a senior level. Following both the investigation and reviews our stance remains unchanged as each party’s responsibilities in relation to parking charges are clearly set out in your contract with us.

As we have now exhausted efforts to reach a satisfactory resolution, you should look to approach the Financial Ombudsman, as advised previously.

We will await any further contact from the Ombudsman and we can confirm that we will no longer enter into discussions with you directly in relation to this complaint.

A copy of our complaints procedure is attached which includes contact details for the Ombudsman.

They seem to be completely unwilling to comment on the clause in the Hire Agreement, and now seem to be actively pushing me towards the Ombudsman.

If I continue to make the point that Lex are being unfair in not explaining their contract terms, would it make the Ombudsman less likely to be able to rule that Lex are being "fair and reasonable"??

Approach the FOS quoting the relevant legislation as it is highly unlikely the initial investigator at the FOS will have any clue. When I say quote don't quote something like CRA 2015 S20(11) . Actually copy and paste in the relevant legislation along with an explanation how it should be applied as I have come to the conclusion that the investigators at FOS are not too familiar with legislation and not look up the relevant legislation to understand it.

Also, as they have discussed this and havent allocated monies correctly you should SAR Lex as well to get them to hand over copies of these investigations and reviews and your accounts. Dont let them know you are thinking of suing them yet or they may claim that anything they have is covered by legal priviledge

Hi, an update on this, I have received a package of paperwork provided in response to my SAR.

I would appreciate some SAR related advice please:-

The pack appears to be incomplete - there are a lot of email correspondence between myself and Lex which hasn't been provided - I still have copies of everything but shouldn't they have sent copies to me?

There are no notes from the supposed "investigation" into my complaint. No notes, minutes from meetings, internal emails.

In general there are no internal emails. Where managers are considering an issue and then giving instruction shouldn't there be a record?

It definitely seems to be a pretty shoddy effort in providing data, in line with their behaviour so far. Is this common? What should I do if I think data is being withheld?

thanks

it is common and p'haps some of that is not 'your' data.

no harm in writing and asking mind.

there an sar failure letter in the data protection library section

just adapt it?

after that you go to the ICO to try and force them to hand it over or face being penalised for not doing so. Also, they may be stuffed if you do sue them and they then try and rely on stuff they havent handed over

Thanks.

Do you think that "investigation" notes or minutes qualifies as being "personal data" ?

And internal emails - presumably they are about my account and would have my name on them, so they are personal data ?

Yes,

The only things you wont be entitled to are those that are legally priviledged so communication with their in house lawyers would fall under that rather the just letters to an external lawyer.

However, some companies like to claim everything is legally priviledged once you give notice that yo are going to take legal action. This isnt true but can spread the net a bit wider for not being under a SAR

Also some companies like to claim that havin someone else's name on the email means they cant send you it as it is someone else's personal data.

They should just redact their email addresses then if they arent proud of their work ( I can see the point of redaction, you might start sending abusive emails to all of their staff otherwise)

Lex finally caved.

After refusing a couple of times to release any more data - on the basis that they had sent everything that was "personal".

There's a handy guide to what is personal data on the ICO website - I went through it and identified all the areas where it applied to the data I was requesting - internal emails, notes from meetings, investigations etc.

Lex then said they had "reviewed" my account, and would be writing off the charges, and would take steps to remove defaults from my credit file.

Taken the best part of a year and a degree of effort to keep plugging away at them to get to this.

Of course, they hope that will be the end of it now. Does anyone think I should keep pursuing with a complaint to the ICO? Or any other body?

Many thanks to all who have helped out so far.

Cheers

seriously well done.

well someone needs to be told about this practice

you have a reason for claiming against them for the unlawful and incorrect processing of your personal data and the false entires on your credit files.

Read up on Durkin v DSG, Vidal hall v google and VCS v Philip and let LEX know that are minded to take civil action aganst them unless they make a contribution for you time spent pursuing this matter and the damage done to your credit files.