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    • I had forgotten that the fleecers had already played a lot of their cards in the WS they made opposing your set aside application (post 12 for anyone looking in) so that means we can already tighten things up.   Obviously the paragraph numbering will now take one hell of a beating, but that can be sorted out later.   Observations in blue, changes in red.     IN THE COUNTY COURT SHEFFIELD    CLAIM NO: XXXX   HX PARKING LTD  (CLAIMANT) VS XXX (DEFENDANT)   Date: 3rd May 2022   Witness Statement   1. I Mr XXX, of xxx and I am the Defendant against whom this claim is made. 1.1. I was the registered keeper of the vehicle XXX. 1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.   INSUFFICIENT & CONFUSING SIGNAGE  This is likely to be one of your aces so will need a lot of work once you get photos.  The fleecers have also shown a plan where they claim there are signs (their WS post 12, PDF page 15 which you need to confront).   2. I confirm that i was the registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma leisure centre Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in (the bank statement proof exhibit 1).   3. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.   3.  Even if the driver had seen the signs, they would have been extremely confusing.  A car is normally allowed to be parked for five hours, yet after midnight this is changed to one hour.  This begs the question for how long a motorist entering at 10pm for example is allowed to stay.  Is it for five hours until 3am or until 1am?   3.1. The PCN/NTK states "period of parking 00:02:05".  It is common sense that a couple of minutes was needed to enter the complex, find McDonald's and find a parking space, before the period of parking began, so it was likely the car entered the car park before midnight allowing the driver to park the car there for five hours.   4.  Even if the driver had seen the signage - they did not - the mention of a £100 charge is literally the last word on the last line of a long board of text.   4. I am not liable to the Claimant for the sum claimed, or any amount at all and this is my Witness Statement in support of my defence as already filed.     UNFAIR TERM   4.  In an interview with the local newspaper (exhibit XXX) Ms Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site" which makes sense.   5.  This therefore begs the question of why this limit is cut by a massive 80% after midnight when the cinema and eateries are still open.  The driver indeed ate at McDonald's.   6.  Ms Berkeley continued: "Five hours is sufficient time to visit the cinema and also eat at a restaurant".  Certainly five hours are sufficient.  One hour is not.    7.  I would maintain this is an unfair term under the Consumer Rights Act 2015 part 2 section 62 (6) ""A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer".  Such a term has absolutely nothing to do with efficient management of a car park and everything to do with trying to catch diners or cinema-goers out and thus have an excuse to issue PCNs.   NO KEEPER LIABILITY   5. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.  Is this really in the PoCs? - you need to look and find out.    The rest of your section is about the use of POFA at airports which is completely irrelevant.    Adapt LFI's suggestions re POFA and keeper liability -   First is the fact that they must have a parking period and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit. All that takes time so that is one fail.   The other fail is in their wording when they are trying to transfer the liability of the alleged debt from the driver to the keeper. They are supposed to include at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)". That in itself makes it non compliant but the fact that they haven't got a parking period means they haven't met the applicable conditions.   PROHIBITION  This deals with no stopping cases.  Yours in not no stopping so it is completely irrelevant.   LOCUS STANDI   You have quoted a different contract in a different place with a different PPC.  You need to read and try to find holes in the contract they produced (post 12, page 15 of the PDF for anyone looking in).   Adapt LFI's suggestions -   Looking at their contract, the names of the signatories and their positions in their respective  companies have been redacted. You do need strict proof of who actually signed. There is no specific authorisation from the Client to allow Court action in pursuit of non payers. In section 11 which is like an addendum it states" the Company shall provide parking control" but doesn't state if that includes legal pursuit as well and it does not appear to be signed.   ILLEGAL SIGNAGE   8. After checking, I have found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.   LFI's suggestion -   They are supposed to comply with the Law and the IPC code of Conduct and they have done neither. The new Private Parking Code of Practice  draws attention to it as well  s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."   ABUSE OF PROCESS  I've cut some bits out as the CoP hadn't been published when the fleecers went after you.  Are you sure the Unicorn Food Tax in the PoCs is £60?   9. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.    9.1. As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/privateparking-code-of-practice/private-parking-code-of-practice).    9.3. Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”   9.2. Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100.    9.4. Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ‘’Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.’’    9.5. In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain HamiltonDouglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ‘’It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''    9.6. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.   Statement of Truth    I believe that the facts stated in this Witness Statement are true.   I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
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Who Pays For Elderly Mentally Infirm Nursing Care?


Rob S
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I have contributed to other threads about paying the cost of nursing care for elderly people with alzheimers and other medical conditions, but it's time to start my own thread on this subject.

 

My father suffered a stroke in 1996 which affected the left side of the body. His mobility was affected and he learnt to walk (albeit very slowly) again. In recent years arthritis has ravaged his good limbs and he is now at the stage of being unable to walk at all. Vascular dementia has also taken its hold on him and his short term memory is shot to pieces. He is prone to aggressive outbursts of both language and attempting to hit anyone in range. It's very sad to see a man who was once very proud and served his country for 37 years in the RAF to be reduced to this.

 

We managed to get my parents into very sheltered accomodation in March this year. It is a new building built in 2002 and they have their own self contained flat, but with staff on hand to keep an eye on them. But my fathers condition has rapidly deteriorated and he was admitted to hospital on the 5th June with an infection. This has cleared up but the hospital will not discharge him back to his home because they don't have the expertise or facilities to look after him properly. He has to be hoisted in and out of bed now.

 

Enter social services and the hospital authorities into the situation. Their only interest has been the family assets. My parents sold their house after moving into the sheltered accomodation and because of this social services have deemed it the family responsibility to find a suitable home and fund it. We have applied to one home but they turned my father down because of the advancement of his condition.

 

We had a meeting with the hospital staff and social services and they laboured the point it was a family responsibility to sort this out. There was no mention of continuing NHS care, so they were most surprised when I mentioned this. The assessment for continuing NHS care has now been completed and it was no surprise that my father was declared as not eligible. Suffolk PCT has a reputation for not paying for this care and they are second only to a PCT in Derbyshire when it comes to not paying out for NHS care. They only fund 57 patients in the whole of Suffolk!

 

So now battle commences. I am grateful to Emma and Bankover for the support they have given me in this matter, and I will be taking them up on their kind offers of help, but anyone else out there who can pitch in will be most welcome.

 

It is a disgraceful situation that NHS continuing care is effectively a post code lottery and it shouldn't be like this. It is also wrong that care costs in Scotland are funded by the state but not in England and Wales. Shame on the government for allowing this to happen.

Edited by Rob S
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Hi Rob- don't worry, you are actually in the right. Your father is ill and needs care.

 

Who did the assessment for continuing care? The PCT or Social services?

 

Did they give you a copy of their decision/criteria?

 

Suffolk PCT are obviously trying to reduce their costs by ignoring their responsibilities- standard procedure for the NHS at present.

 

You will win, if you appeal their decision- I did! Cheque received yesterday!

 

Shout when you need a hand.

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Cheers Emma,

 

It was the PCT who did the assessment and I have now received a copy of their criteria and also the assessment panels decision and their reasoning behind why they stated my father does not qualify.

 

I agree with you about their tactics. Suffolk PCT have the second worst record in the country when it comes to accepting their responsibilities for paying for continuing NHS health care. They only pay for 57 patients in the whole county. It works out they pay for one patient in every 10000 residents in the county. Compare this to the PCT that covers Harrow in North West London who pay for 42 residents in every 10000 in the area that they cover.

 

The whole thing really is a post code lottery and there are something like 28 different criteria being used by PCT's across the country. A new national framework is being introduced on the 1st october but it will still need to be Coughlan compliant for it to be lawful.

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That is the crux of the matter. It is the Coughlan ruling which must be followed. That is the law, and all the criteria the PCTs can cobble together mean nothing.

 

Pam Coughlan is leading a full life, with the help when necessary from her carers. She would not comply with half the criteria which the PCTs have created for themselves. And yet it is her needs which have provided the legal framework for continuing care provision.

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That's why I am confident that the PCT will eventually have to accept it is their responsibility to fund my fathers care costs Emma. The Coughlan judgement is very clear and it has been further reinforced by the Grogan judgement. Using the RNCC guidelines Pam Coughlan would struggle to get on the medium band of nursing needs, but she has paved the way for the rest of us to fight the NHS and get them to accept their legal responsibilities.

 

I find it amazing that despite the issue of updated guidance by the Department of Health in 2006, following the Grogan judgement, that Suffolk PCT have failed to change their criteria to ensure it is Coughlan compliant.

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Well, after the Grogan judgment, PCTs were supposed to be going through all cases in their areas to FIND cases they may have missed.

 

I may be doing some PCTs a disservice, but I haven't heard of anyone being contacted by a PCT who think they may be able to qualify for continuing care. It certainly didn't happen in my case!

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Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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The situation is not right and my sympathies are with you and your family.

 

Sefton Council lost a big case on the care issue. From what I remember they had to pay back substantial sums to families that were in the same situation as you.;-)

Any advice given by me is based solely on my experience in claiming, my experience in CAG or my opinion. I have no legal background. I want to encourage others to reclaim what is theirs.

 

Got a DCA breaking OFT guidance. Complain to the OFT about the DCA. Help put an end to these practices-

 

http://www.consumeractiongroup.co.uk/forum/letter-templates/155095-complain-oft-about-unfair.html#post1652270

 

Register with CAG today, its free, its a great community:

http://www.consumeractiongroup.co.uk/forum/register.php

 

[email protected].

 

 

 

Thankyou Kennythecelt:)

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  • 5 weeks later...

The saga rumbles on. I managed to get the matter referred back to the original assessment panle level as the information they were given was woefully inadequate. They met again on the 30th August but it has been deferred until this Thursday because they did not get the updated information in time. Just as well that I was expecting things to take their time:rolleyes:

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  • 3 weeks later...

What was the length of your Fathers assessment period when in hospital.Assessment meaning physical needs/mental health.What treatment was your Father receiving for his viscular dementia.Do the panel base their decision on your Fathers needs,do they refer to the nusing assessment.

 

Whizzy

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Whizzy,

 

The original assessment was for 3 days and it was completed ( I use the term loosely) by nurses on a general medical ward. It comprised of a half page of scribbles which were neither signed or dated (in contravention of NMC guidelines on record keeping).

 

The assessment is based on a criteria decided by the Primary Care Trust and Strategic Health Authority, and this is the main problem. Their criteria will only determine if someone is eligible if they have a complex condition that is unstable and requires specialist nursing intervention. It flies in the face of the Coughlan judgement and is, in my opinion, unlawful.

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Rob, sorry to butt in, I really have nothing constructive to add, but would you mind clarifying a few things? I ask this because as someone with no knowledge of this type of situation, I could barely follow the above, and thought that it might help others.

 

What does PCT stand for? Who are they, what do they do (or supposed to do), and who do they respond to?

What is the Grogan case?

What is the Coughlan case?

 

(Sorry, just worked out that PCT = Primary Care Trust)

 

Thanks in advance if you can answer. :-)

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Any entries made by nursing staff in patients notes/records are considered legal documents.All entries must include date and time entry was made,note must be signed twice ie signature of nurse and also name printed,and notes must be legible.Any barrister would pull nursing staff apart for shoddy documentation.Also the NMC take a very dim view of poor record keeping.Your Father should have been assessed by a consultant specialising in psychiatry of old age (geriatrician) for specialist nursing intervention/care/treatment while he was an in patient in the medical ward.I am really susprised and indeed shocked that this was'nt done.

 

Whizzy

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Rob, sorry to butt in, I really have nothing constructive to add, but would you mind clarifying a few things? I ask this because as someone with no knowledge of this type of situation, I could barely follow the above, and thought that it might help others.

 

What does PCT stand for? Who are they, what do they do (or supposed to do), and who do they respond to?

What is the Grogan case?

What is the Coughlan case?

 

(Sorry, just worked out that PCT = Primary Care Trust)

 

Thanks in advance if you can answer. :-)

 

Hello Bookworm,

 

The Coughlan case is the Court of Appeal case involving Pam Coughlan. She was badly injured in a road accident in the 70's and is a tetraplegic. She took the NHS to court and won when they tried to close down her accomodation that she was living in and said she would have to move into a home managed by the local authority. This meant she would have to fund her care costs in full.

 

BBC NEWS | Programmes | Panorama | NHS care criteria 'fatally flawed'

 

This site gives a lot of background information about this case and the whole issue of NHS continuing care.

 

NHS funded Continuing Care and the Coughlan case

 

The Grogan case was along similar lines where Ms Grogan challenged her local PCT and SHA (strategic health authority) over the criteria they used to assess her case.

 

Our response to the Grogan case (25.01.06)

 

HTH,

 

Rob:)

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Thanks for this post Rob S.

We are going thru a similar situation ourselves and I knew nothing of Coughlan until now. This will really help us.

We contacted our local authority and the conversation went something like this

 

"Hello,I'm enquiring about EMI homes etc in the borough"

 

"They'll have to sell their house"

 

"Who will?"

 

"Whoever needs the care!"

 

"But we're just enquiring about what's available and the various processes"

 

"Yes, but they'll have to sell their house"

 

This actually happened. No "Who is it and what care do they need?" or any other questions. Just a straight "sell the house" line.

As for the hospital,we have a 76 year old relative who's just had a hip operation and she fell in the ward the other day.

 

Makes a mockery of the notices they have everywhere "We will not tolerate abusive behaviour to our staff"

 

Once again,thanks for the post , the links and good luck to everyone in this situation.

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Cymraeg,

 

They will misinform you at every oportunity so be prepared for a long hard battle. Another site that will be of use you is this one:-

 

Free nursing care information

 

It's a very good forum with some very knowledgable contributors and lots of support from others in similar situations.

 

Good luck in your battle too and thank you for the kind wishes.

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  • 11 months later...

I thought I would update you on the latest. My father had another assessment in February. Unsurprisingly he was turned down again, so it was referred to the local Strategic Health Authority for an independent panel review which I attended yesterday. I submitted that my fathers primary needs were health needs and the NHS should be paying. The panel agreed!! So, after a long and hard battle (not as long as some people who have been fighting far longer than I have) we have won!! To say I am elated is an understatement!!:D

 

The panel have stated there should be another assessment in light of the fact my fathers health has deteriorated since the last assessment, so I am still on my guard, but should they try and say again that my father does not have primary health needs it will be a lot easier for me to challenge them, as all I will have to say is "what has changed in my fathers needs since the decision of the independent review panel":)

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Congratulations Rob- it is great when you win, after all you are winning care for your father.

 

I understand why you are on your guard regarding the fresh assessment. The problem is that in general the assessors are not fully aware (or made aware) of the legal situation, just being told to tick boxes. Try to be there for the assessment and lead them through it if possible (this may irritate the living hell out of them, especially when they find you know more than them).

 

It still amazes me that people every day are tricked into thinking they need to pay for their care. It is horrendous.

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Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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Hi there, I just stumblerd upon this thread, but it has been a wealth of information, especially as my friend has been here today and was telling me that his old uncle has to go into a home because he has alzheimers and they have said that he will need to sell his house, and after reading this, I dont think he will, so I will be passing the information on.

 

Well done Rob and good luck to you all.

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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Lula,

Please don't hesitate to contact me if you need any assistance. I am fed up with people who are vulnerable being hoodwinked by the authorities. Is your uncle living in the house on his own?

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Actually it is my friends uncle and he was living there alone but they have moved him, he was wandering the streets in his pj's and getting himself locked out, poor old thing, my friend has a meeting next week with the Social Services and the hospital to see what is the best solution for him.

Lula

 

Lula v Abbey - Settled

Lula v Abbey (2) - Settled

Lula v Abbey (3) - Stayed

 

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Don't let your friend be hoodwinked into agreeing to have their uncle's house sold. Read this site.

 

NHS funded Continuing Care and the Coughlan case

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Call Serve- CCA 14/08/08

Littlewoods- no CCA letter 03/09/08- Lowells now

Wescot- CCA 19/9/08

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Any opinions are without prejudice & without liability. All information has been obtained from this site. If you are unsure, please seek professional advice. .

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I read this thread with interest, as I actually work on a specialist ward in a community hospital which treats dementia patients....

 

I had heard other staff talking about patients who 'no longer meet the criteria.' and I have to say, I did wonder what the criteria were, so if they are keeping the staff in the dark, what are they doing to the patients families?? Now I know - thank you!

 

PS well done Rob!

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02 Apr 2008, 23:55

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i like that!! its simple and good and gets the fans involved aswell x x x

 

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  • 4 weeks later...

Hi Rob, I was in this situation with my mother. See my thread from last year.

 

I refused to move my mother into a home, saying to them that I wanted fully funded NHS care, the result was they had to reconsider her eligibility and move her themselves.

 

I won the battle for Continuing NHS care by refusing to do their job for them. If they move her to a Nursing home then they should pay, don't sign anything and don't have any financial assessments. And last but not least tell them that Social Services have no role to play as your father has an illness not a social need.

 

Regards

Bankoff

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