IAS Appeal - help needed please

Coupon-mad · 25 May 2016 at 10:31PM

Why are you even bothering about the DATE when VCS NTKs don't have the POFA words anyway?!! Why all this needless discussion about a PCN that is not attempting to be a POFA one anyway. Who cares when it arrived, it's a PCN that can only hold a driver liable, regardless of the date received. You are comparing the PCN to a law that VCS do NOT even use!

I realise that I am basing my appeal on a technicality,

DON'T BOTHER. An IAS appeal is NOT worth trying. Just sit tight - however, you could register intent to appeal, to see VCS' hand. Then stop.

henrik777 · 25 May 2016 at 10:54PM

Retired_Grumpy wrote: »

Thank you both for your help, outline details below,

Alleged Contravention Date 10/3/16

Issue Date of PCN 22/3/16 ( not “date sent” or “date given”as required by PoFA)

Date PCN received by me in post 26/3/16 - I dont know how to prove this, as envelope had a business franking from “whistl”, with no date.

Date of my appeal to VCS 1/4/16

Date of VCS’ letter of appeal rejection 28/4/16

Date of Registration of Intent to Appeal (Standard Appeal) to IAS 19/5/16

From what you have said, my thoughts are:
1) that there were 12 days between alleged offence and notice "given", if it WAS posted on 22nd March then the second working day after the day on which it is posted would be the 24th, so it would be DEEMED to have been given within the timescale (just). I don't know how "Whistl" works, but I do know it was delivered by Royal Mail, so I assume its a business competitor of RM who uses the RM network for delivery, so is there any reason it would have taken longer than the 2 working days after it was posted, I wonder?
2) So now, the 25th was a public holiday, and the 26th a Saturday, which is when it was delivered. So my question then is how can I Prove it was delivered on the 26th, and would that be "deemed" outside the time limits of PoFA? Or am I stuffed?

You could contact whistl and ask how it works and/or if they can tell from any info on the envelope when it was collected etc.

Para 54 from http://www.bailii.org/ew/cases/EWHC/Mercantile/2011/B3.html is similar circumstances.

Retired_Grumpy · 26 May 2016 at 3:24PM

VCS have submitted their case to IAS - can you tell me please, am I allowed to type their comments on here so you guys can review my appeal when I put it together?

Coupon-mad, I know the IAS appeal is unlikely to be successful, but I want to give it a d*** good try, because, although i'm a newbie, I hope, with the forums help, that I might be able to contribute to the list of IAS unreasonable and unsuccessful appeals and help others in similar cases.`

Im not entirely sure when a PCN is PoFA or not. Is it just that they will quote they are seeking keeper liability under PoFA if it is? It seems on reading the PCN they have complied with the requirements of Schedule 4, 9). Sorry to be dumb on this Coupon-mad, but if the whole PoFA angle is a non-starter for my appeal, then I will have to mug up on DDA, and make more of the mitigating circumstances in my original appeal to VCS.

henrik777 · 26 May 2016 at 3:54PM

Retired_Grumpy wrote: »

VCS have submitted their case to IAS - can you tell me please, am I allowed to type their comments on here so you guys can review my appeal when I put it together?

Coupon-mad, I know the IAS appeal is unlikely to be successful, but I want to give it a d*** good try, because, although i'm a newbie, I hope, with the forums help, that I might be able to contribute to the list of IAS unreasonable and unsuccessful appeals and help others in similar cases.`

Im not entirely sure when a PCN is PoFA or not. Is it just that they will quote they are seeking keeper liability under PoFA if it is? It seems on reading the PCN they have complied with the requirements of Schedule 4, 9). Sorry to be dumb on this Coupon-mad, but if the whole PoFA angle is a non-starter for my appeal, then I will have to mug up on DDA, and make more of the mitigating circumstances in my original appeal to VCS.

Post away.

Northlakes · 26 May 2016 at 4:05PM

You might not be aware but the IPC was set up because their members couldn't cope with the rigours of any type of scrutiny other than their own

Your IPC evidence will crossed to the other side of the desk in Gladstone's and they will then acertain if they have a viable small claims case against you.

You have to realise expert posters such as CM know the ropes and also know how not to hang yourself.

You need to do some more reading of VCS threads and you will know what I mean.

Retired_Grumpy · 2 June 2016 at 5:48PM

I tried to post this a couple of days ago, but it didn't appear here, so I'll try again:

VCS have submitted their "evidence" to the IAS appeal website, as follows:

The Operator Reported That...
The appellant was the driver.
The appellant was the keeper.
ANPR/CCTV was used.
The Notice to Keeper was sent on!22/03/2016.
A response was recieved from the Notice to Keeper.
The ticket was issued on!22/03/2016.
The Notice to Keeper (ANPR) was sent in accordance with PoFA.
The charge is based in Contract.

The Operator Made The Following Comments...

1. The XXXXXXXX Car Park is private land which motorists are allowed to enter for the purpose of parking their vehicle, provided that they abide by any clearly displayed conditions of parking

2. There are 28 signs situated at key locations throughout the area: 1 Entrance Sign (750mm x 1500mm) and 27 Information Signs (605mm x 1220mm). Photographs supplied confirm that signs can clearly be observed throughout the car park

3. All signage (copies supplied) at the Abbey Walk Car Park clearly states: “2 Hours Maximum Stay”.

4. Management of the XXXXXXXX Car Park is conducted by ANPR cameras, which record vehicle registration numbers as they enter and leave the car park. Vehicles using the car park are subject to a maximum stay period of 2 hours and any vehicle remaining in the car park for longer than the advertised period is issued a Parking Charge Notice.

5. The ANPR images supplied show that the appellant’s vehicle entered the car park at 10:59 and exited at 13:33 and was therefore parked for 2 hours and 34 minutes in a 2 Hour Max Stay car park.!

6. In their appeal to the IAS, the appellant driver has not stated who was driving the vehicle on the date and time in question. In this case, citing the case of Elliott v Loake 1982, we are relying on the presumption, on the balance of probability, that the appellant, as registered keeper of the vehicle in question, was the driver of the vehicle on the date in question and we support this by the knowledge the appellant has in relation to the circumstances ("events of the day") in relation to this Parking Charge Notice. Furthermore, the appellant does not deny being the driver nor is it stated that they do not know who the driver is.!

7. In their appeal to Vehicle Control Services, the appellant has stated that the PCN is was issued outside of timescales stipulated by Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). It should be noted that we are not seeking to invoke the ‘keeper liability’ provisions of PoFA 2012 and so this point is not relevant, though in any case as the PCN is deemed to be delivered two days after it was posted and it was posted on 22 March 2016, the PCN was in fact delivered within the 14-day timescale stipulated by PoFA 2012..

8.The appellant has stated that the passenger in the vehicle was a 92 year old disabled blue badge holder and that the maximum 2 hours stay does not allow for disabled people will take longer, than a non-disabled visitor, to visit the shops onsite and has cited the provisions of the Equality Act 2010, specifically that “service providers are to take reasonable steps to ensure that disabled people do not find impossible or unreasonably difficult to enjoy the service on the same basis as non-disabled people”.

9. The Terms and Conditions of parking are decided upon by the landowner of this private land. Vehicle Control Services manages the car park on behalf of the landowner, under contract with the said landowner. The Terms and Conditions are displayed throughout the car park. If the driver believed that 2 hours would not be long enough for their visit, they had the option to leave the car park.!

10. The appellant further states that some council run car parks in the area are free for disabled blue badge holders. We must highlight that the Blue Badge Scheme Handbook states, "The blue badge will help you park close to your destination, either as a passenger or driver. However, the badge is intended for on-street parking only. Off-street car parks, such as those provided in local authority, hospital or supermarket car parks are governed by separate rules”.

11. A helpline telephone number is located on all of our signage, for any motorist who has any queries, or who is experiencing difficulty. This was not utilised by the appellant.

12. The appellant became liable for the Parking Charge Notice as their vehicle was parked for longer than the maximum permitted period.

They also uploaded a copy of the PCN, a copy of my appeal letter, photos from the ANPR, extract from the Blue Badge handbook, car park site photo showing the sign at entry, and signage“proofs”
I am formulating my response to this and will post it shortly.

Coupon-mad · 2 June 2016 at 10:06PM

Ignore the idea of continuing with the IAS appeal but quote this to the landowner:

8.The appellant has stated that the passenger in the vehicle was a 92 year old disabled blue badge holder and that the maximum 2 hours stay does not allow for disabled people will take longer, than a non-disabled visitor, to visit the shops onsite and has cited the provisions of the Equality Act 2010, specifically that “service providers are to take reasonable steps to ensure that disabled people do not find impossible or unreasonably difficult to enjoy the service on the same basis as non-disabled people”.

9. The Terms and Conditions of parking are decided upon by the landowner of this private land. Vehicle Control Services manages the car park on behalf of the landowner, under contract with the said landowner. The Terms and Conditions are displayed throughout the car park. If the driver believed that 2 hours would not be long enough for their visit, they had the option to leave the car park.

...and ask them for a copy of the Equality Act 'risk assessment' and/or meeting and/or communications with VCS before the restriction to 2 hours began, whereby the effect on disabled people 'at large' was discussed. They are a site open to the general public so there are legal duties that apply and it appears VCS have failed, if they think the adjustment for a disabled person is 'giving them the option to leave the car park'!

As a disabled person who was an occupant of a car now inflicted with a PCN where POPLA is not offered - so a consumer has no chance of winning an appeal, the IAS being considered to lack independence - you wish to see that the repercussions on disabled people were taken into account when the 2 hours was decided. You wish to remind the landowner of their legal duty to avoid a breach of the Equality Act here, which cannot be absolved by contracting a parking agent and/or painting a few disabled bays.

If no discussions took place about the 2 hours limit and the need for 'reasonable adjustments' to that policy for disabled visitors, you require their explanation as to why not. Remind them (the landowner) of their clear statutory obligations (legal duties upon the parking firm AND the landowner, as 'service providers' because the car park facility is open to the public at large).

And under the circumstances - because this has now become harassment of a disabled person which is also illegal - you look forward to hearing that, as principal, they - the landowners - have called their dogs off.

Enclose a copy of your Blue badge and re-state that this is not an appeal, this is a formal complaint under the Equality Act 2010 for specific and apparently inherent failure to make reasonable adjustments to an arbitrary time limit, to make the site accessible to the disabled population at large. A failure is unlawful, under the 'indirect discrimination' (and harassment) sections of the EA and there is no requirement to 'know' in advance about an individual's disability.

'Indirect discrimination' is a criminal offence against the section of society deemed 'protected' due to disability needs. In this case, the needs are/were not simply addressed by physical features such as disabled bays alone. Plans and discussions need to be made in advance, in anticipation of the needs of people who might take longer to go about the same daily living activities. If they write to confirm they are cancelling this PCN you also need to know what steps they are now taking, with VCS, to ensure this never happens again to any other disabled visitor and what reasonable adjustment policy has been put in place.

Finish by stating that you will be referring their reply to the EHRC if the adjustment offered is deemed inadequate and remains in breach.

Retired_Grumpy · 2 June 2016 at 10:34PM

Awwwwwww! Coupon-mad! I've just spent all day addressing each of their points! I was just about to post it on here, but you beat me to it!

Just joking - Many thanks for your fabulous reply, I guess I'll need to fork out £3 to get a Title Register and find the Landowner details - no problem.

Sorry to harp on, I know you think I should just not respond to the VCS documents on the IAS site - it will just go straight to the assessor without my comments. My concern is, if it ends up in court would it look better for me to have uploaded something rather than nothing? I had intended to include the following wording in my response to them:

"The PPC, VCS, have admitted above that their terms and conditions, decided upon by the landowner, do not allow disabled customers additional parking time to complete their shopping, and that if 2 hours was not long enough they should leave the car park, presumably part-way through their shopping?
Not only is this downright insulting to disabled people, but failing to make a “Reasonable Adjustment” by allowing disabled customers extra time to shop is a breach of the Equality Act 2010. Therefore any implied “Contract” is expressly unenforceable. I will be taking further advice on this actionable statement, and irrespective of the outcome of this appeal, I do not rule out the possibility of taking action against the Landowner and the PPC."

I worked hard on that (sheepish grin!)

Coupon-mad · 2 June 2016 at 10:55PM

Sorry to harp on, I know you think I should just not respond to the VCS documents on the IAS site - it will just go straight to the assessor without my comments.

It won't go anywhere near an Assessor (if you decide not to continue due to the fact that IAS is not seen to be independent, in many people's eyes, due to the daft decisions posted here and blogged about by the Parking Prankster). If you do not 'appeal' there will be no decision.

My concern is, if it ends up in court would it look better for me to have uploaded something rather than nothing? I had intended to include the following wording in my response to them:

"The PPC, VCS, have admitted above that their terms and conditions, decided upon by the landowner, do not allow disabled customers additional parking time to complete their shopping, and that if 2 hours was not long enough they should leave the car park, presumably part-way through their shopping?
Not only is this downright insulting to disabled people, but failing to make a “Reasonable Adjustment” by allowing disabled customers extra time to shop is a breach of the Equality Act 2010. Therefore any implied “Contract” is expressly unenforceable. I will be taking further advice on this actionable statement, and irrespective of the outcome of this appeal, I do not rule out the possibility of taking action against the Landowner and the PPC."

I worked hard on that (sheepish grin!)

You can try but we know you will get a rejection/lost appeal and the comment: 'The IAS cannot consider mitigating circumstances' even though this is law, not mitigation!

As long as you do so knowing if you are rejected it means nothing, then there is no harm in it. You never know, maybe you will show us we are wrong and the IAS will consider the Equality Act after all...

To make a real attempt to win it you would have to read the 'Indirect Discrimination' and 'reasonable adjustments' sections of the EA and also read the 'EA statutory code of practice for service providers' and quote significantly from these. The latter has an example of a time limit that should have been adjusted to avoid indirect discrimination...search the EA CoP for Service Providers, for the word 'tours':

https://www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice

HTH

Retired_Grumpy · 5 June 2016 at 8:42PM

Coupon-mad, thank you, :T I fully expect a rejection from IAS, but it will, hopefully, be another nail in their coffin! As you say, maybe we will be proved wrong and they do consider a matter of law, lets see what happens, I'm ready to upload my "appeal", and am just composing a letter to the landowner, well, basically copying your reply above to be honest!

Guys Dad, Henrik777 and Northlakes, thank you for your help and guidance, lets see what happens next. Any response from IAS or the landowner, I will update here.

IAS Appeal - help needed please

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