ECP ANPR PCN - Solent Retail Park, Havant, Hants - POPLA misinterpreting PoFA

[Brucella]

Apologies for the long post, however my question is extremely simple. Is POPLA interpreting PoFA correctly - namely the difference between an NtK being sent and given. Both my appeal and complaint have been rejected and they say that they will not respond any further. What should I do?

I appealed to POPLA on the various grounds discussed above. My appeal was rejected. The one solid ground that I thought I had was that the Notice to Keeper was not received by me, the Keeper, within the 14day window under PoFA. I only received an NtK by post and there was no windscreen notice.

My appeal said:
The alleged parking contravention occurred on 15th August 2019, the date of the issue of the notice is stated to be 30th August. The date of the notice being 'given' (i.e., delivered) is assumed by PoFA to be the second working day after the date of posting. This puts it on 3rd September. The 14 day notice period begins on 16th August (day 1) and day 14 of the notice period is therefore 29th August. Indeed, the Parking Charge Notice was not issue until after the 14 day period had expired.
They cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper. There is no legal requirement to name the driver at the time and I will not be doing so.

The appeal rejection said:
I am being charge as registered keeper of the vehicle but the notice to keeper was not compliant with the Protect of Freedoms Act (PoFA) 2012.
The event occurred on 15 August 2019 and the PCN was issued on 30 August 2019.
Paragraph 9 (5) of PoFA 2012 states: The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
Therefore, the day after the period of parking was 16 August and the 14 day period from this date allows up to 30 August, the date on which the PCN was issued.
I am satisfied that the PCN was issued within the correct relevant period, and the appellant has clearly been identified as the keeper.

I complained to pOLA under their complaints procedure, saying:
One of the main grounds for my appeal to POPLA was that the Notice to Keeper (NtK) was sent by the parking operator was outside the time period laid down in the Protection of Freedoms Act 2012 in which the operator needs to inform the Keeper, in my case by mail.

The Act states:

(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 14 days beginning with the day after that on which the specified period of parking ended.

(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.
In other words, the time limit is nothing to do with the NtK being issued, but about it being given i.e. received. Your assessor did not apply the legislation correctly.

I received the NtK outside of the statutory period and so my appeal should be allowed.

I received a rejection of my complaint, stating:
I note that you feel the NTK does not comply with PoFA 2012. You state that the notice was not received within the relevant period.

However, having looked at the document, I can see that the date of the contravention was 15 August 2019. Therefore, the relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. The 14 days would start after the 16th meaning that the last day to send the notice was the 30th August 2019. The NTK was issued on the 30th August therefore, has complied with PoFA 2012.

Please note that within PoFA it states:-

(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.

Although you state you did not receive this within the relevant period, you have not proved this. And therefore, it is presumed to have been delivered.

I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct.

As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter. For clarity, should you choose to reply it will be noted, however we will not respond.


Am I interpreting PoFA incorrectly?
What should I do next?
Is it possible to contact How can I get in touch with John Gallagher directly?
Would that help?

Any advice most gratefully received!

[honeybee13]

Hi.

 

Have you taken advice on this before appealing? I can't see a thread here.

 

HB

[Brucella]

Yes, I have obtained advice from another forum and strictly followed it through to POPLA appeal.  My strongest case I thought was non-compliance with POPLA as the NtK was sent on day 15 by my calculation and therefore received (given) two working days after. 

 

 However, the POPLA adjudicator and the complaints team seem to think that being sent within the 14 days is sufficient and will not accept my assertion that according PoFA, it needs to be delivered within that time, rather than just sent.

 

However, the reason that I am asking this forum, is that no one can advise me what to do when one runs out of road with POPLA who continue to deny their error.  I have emailed them, phoned them and attempted to contact the lead adjudicator without success.

 

Therefore, I am seeking any help available. 

[dx100uk]

simple answer is don't waste you time

you shouldn't have appealed in the 1st place 

 

please complete this

 

 

[Brucella]

1 15 Aug 2019

 

2 Date on the NTK [this must have been received within 14 days from the 'offence' date]

[scan to follow]

 

3 PCN issue date 30 August

    Presumed date of delivery (under PoFA) 3 September

 

4 Does the NTK mention schedule 4 of The Protections of Freedoms Act 2012? - YES

 

5 Is there any photographic evidence of the event? YES - ANPR photos of reg plate

 

6 Have you appealed? [Y/N?] YES

Have you had a response? [Y/N?] as below

 

7 Who is the parking company? EURO

 

8. Where exactly: Solent Retail Park, Havant, Hants

 

For either option, does it say which appeals body they operate under. POPLA

 

 

 

If you have received any other correspondence, please mention it here

 

Appeal refused:

Assessor summary of operator's case:

 The operator has issued the Parking Charge Notice (PCN) due to the vehicle was parked longer than the maximum period allowed. 

Assessor summary of appellant's case:

 The appellant has provided the following grounds of appeal:
I am being charge as registered keeper of the vehicle but the notice to keeper was not compliant with the Protect of Freedoms Act (PoFA) 2012.
I assert that Euro Car Parks has not demonstrated that it has the authority to impose such a charge on behalf of the landowner.
The signage was inadequate and not compliant with the BPA Code of Practice.
The vehicle was parked in a ‘free’ car park but it is alleged that it was parked for longer than the maximum period allowed but no evidence to prove this has been provided.
The appellant has provided additional evidence for the appeal. 

Assessor summary of reasons:

 In this case, the driver is unknown, so I must consider the Protection of Freedoms Act (PoFA) 2012, as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle.  
The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. 
The appellant has been identified as the keeper; as such, I will be considering their liability for the PCN as the keeper.
The operator has provided photographic evidence of the signage. The sign states: “Maximum stay 2 ½ hours” and “Failure to comply with the above will result in the issue of a £100 parking charge notice”.
The operator has provided Automatic Number Plate Recognition (ANPR) images of the vehicle, entering the car park at 12:06, and leaving at 15:08. They have remained in the car park for 3 hours 1 minute.
I am being charge as registered keeper of the vehicle but the notice to keeper was not compliant with the Protect of Freedoms Act (PoFA) 2012.
The event occurred on 15 August 2019 and the PCN was issued on 30 August 2019.
Paragraph 9 (5) of PoFA 2012 states: The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
Therefore, the day after the period of parking was 16 August and the 14 day period from this date allows up to 30 August, the date on which the PCN was issued.
I am satisfied that the PCN was issued within the correct relevant period, and the appellant has clearly been identified as the keeper.
I assert that Euro Car Parks has not demonstrated that it has the authority to impose such a charge on behalf of the landowner.
The operator has provided a witness statement to show that they are authorised by the landowner to issue PCNs on that land and that it was in effect on the date of the event.
Paragraph 22.16b of the British Parking Association’s Code of Practice states:
Witness statements were introduced as an alternative to the provision of a full/redacted landowner contract within an independent appeal evidence pack and as such these statements must be signed by a representative of the landowner or his agent, and not by a member of the operator’s staff.
I am satisfied that that the witness statement provided shows they have authority to issue the PCN on the date of the event.
The signage was inadequate and not compliant with the BPA Code of Practice.
It is the responsibility of the motorist to make sure they are aware of the terms and conditions of the car park before deciding to remain. As they have remained, they have accepted the terms. 
I am satisfied from the images provided by the operator that the terms of the car park and the amount of the PCN are on the signs and that they have provided a reasonable opportunity for the motorist to read the signs.
The signs on entrance to the car park indicate that the motorist is entering private land and that they should read the signs in the car park for the terms and conditions.
I am satisfied that the signs were in the car park on the date of the event and it was the motorist’s responsibility to read these before remaining. If they did not agree with the terms or did not understand them, there was reasonable opportunity to leave the car park.
The vehicle was parked in a ‘free’ car park but it is alleged that it was parked for longer than the maximum period allowed but no evidence to prove this has been provided.
The operator has provided images of the vehicle from ANPR entering and exiting along with time stamps of the images. I am satisfied that this shows the length of time the vehicle was in the car park. The appellant has not provided any compelling evidence to show otherwise.
After reviewing the evidence, I can see that the motorist has parked in the car park and has remained for longer than the maximum time allowed. As the vehicle was parked longer than the maximum period allowed, the PCN has been issued.
As such, I conclude that the PCN has been issued correctly.
Accordingly, I must refuse this appeal. 

Kind regards

POPLA Team

 

I complained that they had misinterpreted PoFA and received a rejection of my complaint

I received a rejection of my complaint:

 

Thank you for your detailed response.

 

I note that you feel the NTK does not comply with PoFA 2012. You state that the notice was not received within the relevant period.

 

However, having looked at the document, I can see that the date of the contravention was 15 August 2019. Therefore, the relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. The 14 days would start after the 16^th meaning that the last day to send the notice was the 30^th August 2019. The NTK was issued on the 30^th August therefore, has complied with PoFA 2012.

 

Please note that within PoFA it states:-

 

(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.

 

Although you state you did not receive this within the relevant period, you have not proved this. And therefore, it is presumed to have been delivered.

 

I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct.

 

As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

 

In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter. For clarity, should you choose to reply it will be noted, however we will not respond.

 

Yours sincerely,

 

Ashlea Forshaw 

POPLA Complaints Team

[Gick]

The result of a POPLA appeal is only enforceable on the PPC. ie. if it had been in your favour the PPC cannot take it any further. The appellant does not need to do anything.

 

The only recourse for the PPC is to either make a claim in the County Court, or give up.

 

There is nothing you can do about the perverse decision of POPLA, as it is funded by the PPC's and is only marginally better than the IAS as far as legal understanding is concerned.

 

It is for these reasons and from a number of years experience that CAG does not generally advise appeals to either the PPC or POPLA.

 

You can look forward to numerous letters, some threatening, often quoting Parking Eye v Beavis in the Supreme Court usually out of context.

 

The next step for you will be to come back if you receive a Letter before Claim . You will then receive advice on how to deal with it.

 

[Brucella]

Thank you. 

 

My reason for appealing to POPLA was my naive belief that since the contravention of PoFA was so obvious that my appeal would have been allowed. 

 

I am sure that you are aware that Moneysavingexpert forum does advocate appealing. 

No doubt you have had a healthy debate in the past.

 

Nevertheless, can you confirm my interpretation of PoFA?

 

Alleged offence: 15 Aug

Date of issue:      30 Aug

 

Thanks

[dx100uk]

thats immaterial

 

can you scan up the NTK please both sides to one multipage PDF.

read upload carefully

 

the problem with appealing is everytime it shoots you in the foot because it identifies your as the driver. 

that removes any protection you have under POFA and thus popla. it doesn't matter the NTK might have been out of time once you ID the driver as its a notice to KEEPER.

 

 

 

[Brucella]

I will happily scan the NtK if it will help my case.  Please tell me what is the benefit now that I have got past the POPLA stage?

 

[FTMDave]

To see if the PPC have messed up the details of the NTK (here we are talking about errors that would be picked up by a real judge, not POPLA that have a very limited remit).

 

Gick's post above is excellent.  It doesn't really matter that POPLA have refused your appeal, the only way you can be forced to pay the invoice is if a judge orders you to after a court case, and you're miles from that point at the moment.  

 

 

[Brucella]

OK, thanks.  I will get scanning and redacting.

 

However, isn't the fact that the NtK was 'given' out of time, sufficient to resist a claim in court?  I presume that I am correct in my interpretation of  PoFA?

 

[FTMDave]

I haven't a clue TBH, such detail is outside my field of expertise!  However, there are experts on this site who know the POFA inside out and who have a great track record of seeing off the fleecers, so wait for them to come on tomorrow.

 

There are many ways to skin a cat.  Your POFA detail, but also if they even have the right to sue you (unlikely, they just administer a car park, it doesn't belong to them) or if their signs have planning permission (again unlikely, they are usually too lazy/arrogant to get the correct legal permissions), etc., etc.

[dx100uk]

forget anything to do with pofa and popla and court ..small immaterial fry to a court.

 

 

[lookinforinfo]

I think you are worrying too much.

 

Euro has mistimed their sending of the NTK so that they no longer have the facility to pursue you, the keeper in the event that the driver does not pay.

 

You will notice that POPLA agrees that you were the keeper so Euro  now can only pursue the driver, who they do not know. 

Even though as the keeper you cannot be charged, the driver still can.

 

That will not stop them from chasing you for the driver details.

So just ignore them from now on.

 

They lie, cheat and generally disregard the law in pursuit of money not owed to them.

Just live with it knowing that you were not the driver and therefore safe.

 

Please fill in the above questionnaire to help us give you best advice.

 

We also need photos of

the carpark

especially the sign at the entrance,

plus the others inside the car park,

especially where those signs are different.

Also if there is a payment meter a photo of the T&Cs on that.

 

So along with their PCN we should be able to add to the reasons why they are unable to form a contract with any motorist.

 

Totally ignore all correspondence from them and their unregulated debt collectors as well as their solicitors who know less about the law than my grand daughters.

 

The only time to come back to us is if you get a Letter of Claim . 

 

Look at other cases here that have similarities to your own to help understand why you owe nothing but still they harass you.

It's called greed.

[brassnecked]

If they do send ar tey a claim the POC will probably aver that the keeper is driver, and in any WS trot out Elliott v Loake (criminal so not applicable to civil claims) and CPS v AJH Films, ( Employer employee relationship so again inapplicable) both these have been discredited in court in parking claims, a research on Parking Prankster's blog is very useful, to prepare ammunition if they are silly.

[Brucella]

dx100uk says: "forget anything to do with pofa and popla and court ..small immaterial fry to a court."

 

Does that mean that the failure of the operator to meet the PoFA time window to pursue the Keeper is irrelevant? Surely that is necessary in order for the Court to even consider Keeper liability?

 

I will try again to rescan the PCN, but the initial file size was too large, and when I reduced it, it was too blurry.  I have some photos of the signs too.  I'll try later today

 

Many thanks to you all for taking an interest

[dx100uk]

try reducing the default DPI for your scanners JPG photo setting

scan at 150 dpi then you wont need to reduce the size.

 

as for my comment ..

I was trying to alleviate the over thinking and worrying you seem to be doing on this simple speculative invoice.

its not a fine, it cant get you nor your budgie thrown in jail . 

 

the issue of pofa or popla is small fry to a court and any claim will easily be dealt with by them IF IF IF it ever gets that far. it is not irrelevant.

[Brucella]

Here are scans 

 

 

 

docs+pix.pdf

[dx100uk]

everything put in one multipage PDF above in post now.

pcn page 1 properly redacted removing reg/pcn number from letter text body.

 

the NTK is out of time.

 

you haven't seen the agreement 

you don't know its even been signed upto nor paid for either.

might have only have been paid for the 1st 12mths so no longer enforceable.

 

dx

 

 

 

 

[Brucella]

You are a star DX.  Thanks

 

I know that I have been stressing about the NtK being out of time under PoFA, and the fact that POPLA is making the calculation error too, but I feel that many people may be being wrongly treated like this.

 

Therefore, I have just phoned the BPA and spoke to a very sympathetic person who confirmed that the operator was out of time in sending the PCN to the Keeper.  

 

I gave them the dates of the incident and the date of issue of the PCN but no other details of the case.

She asked me to fill in the complaints form on the BPA website and upload my PCN.

 

Before I do this, is there any danger in doing so?  

I know that Newbies like me can be too trusting and naive, so advice please before I do this.

 

On the other hand, it might sort the problem for other people?

 

Thanks

[dx100uk]

well they are all cheats any liar.

its a numbers game

85% of people blindly pay as they think its a fine!!

[ericsbrother]

The POFA allows the parking co to create a KEERPER liability if certain conditions are met.

 

POPLA have got the timings wrong as the parking co is allowed 12 days plus 2 days for service so they must send out the NTK in time (28th) regardless of whether it drops on your doorstep within the 14 days.

 

So they failed to create a keeper liability

- this doesnt mean that there wasnt a contract with the driver but they cant assume that the keeper and driver are one and the same but this has never stopped a parking co from persuing the person named by the DVLA even if the procsessing of your personal data is unlawful cos they ahve screwed up on their dates. they just lie to the courts and hope.

 

The BPA will do nothing other than side with the person who pays their wages for the above reasons. they will waffle about assumed driver still a contract so someone ahs to pay and it will be you unless you name someone esle etc. All cobblers but they cant burst the bubble.

 

Better off saving ink and fighting the parking co if they want to start something but let them waste their time and money in the meanwhile.

 

If the car park is local to you get some pictures of the entrance, the signs in there and piccies of any signsthat are different to the signage at the entrance.

tell us about the event, the place, time what it is they said you did wrong etc

[FTMDave]

Any update here?

I ask as ECP are hassling a new Cagger at this site.