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  • FIRST POST
    • bazster
    • By bazster 7th Feb 14, 10:05 AM
    • 7,326Posts
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    bazster
    DVLA, PPC's and the KADOE contract
    • #1
    • 7th Feb 14, 10:05 AM
    DVLA, PPC's and the KADOE contract 7th Feb 14 at 10:05 AM
    OK, OK, in response to public demand here's a thread on the subject.

    In order to obtain access to the electronic link, a PPC has to sign a contract with the DVLA, known as the "KADOE contract".

    KADOE Contract

    This is potentially very useful as a stick with which to beat the DVLA. Because it's a contract between the PPC and the DVLA, it does not involve BPA Ltd and the DVLA cannot hide behind the skirts of BPA Ltd if someone complains to the DVLA that a PPC has breached the KADOE contract.

    The context in which I was asked to start a thread on this was debt collection. The KADOE contract states the following (Clause C3.1):

    The Customer [i.e. the PPC] shall abide by the OFT Debt Collection Guidance whenever it seeks to recover payment of unpaid Parking Charges from any person.

    So, even though the OFT Debt Collection Guidance (DCG) ostensibly applies only to debts arising from regulated consumer credit agreements, the KADOE contract means it also applies to PPC's. Accordingly every time a PPC, or its debt collector, writes a letter that breaches the DCG (which they mostly do), a complaint should be made to DVLA that the PPC has breached the KADOE contract.

    OFT Debt Collection Guidelines
    OFT Debt Collection Letters Guidance

    But there is even better stuff in the KADOE contract. Section B2 reads inter alia as follows:

    B2. Purpose For Which Data Is Provided

    B2.1. The DVLA shall provide each requested item of Data to the Customer
    via the KADOE Service for the Reasonable Cause of enabling the
    Customer to:
    a) seek recovery of unpaid Parking Charges in accordance with the
    Accredited Trade Association Code of Practice, and using the
    procedure in Schedule 4 to the Protection of Freedoms Act 2012
    (where the vehicle was parked on private land in England or Wales on
    a particular date); and
    b) otherwise seek recovery from a driver of unpaid Parking Charges in
    accordance with the Accredited Trade Association Code of Practice
    (where the vehicle was parked on private land in Scotland or Northern
    Ireland by that driver on a particular date, or where the Customer has
    chosen not to pursue, or is not in a position to pursue the vehicle
    keeper by utilising conditions in Schedule 4 of the Protection of
    Freedoms Act 2012).

    B2.2. The Customer shall use each item of the Data only for the Reasonable
    Cause for which it was provided.


    Which basically means that, where a PPC fails to adhere to the BPA Ltd CoP, or where it alleges keeper liability without complying with PoFA Schedule 4, it is in breach of contract with DVLA.

    So, complaint should be made to DVLA stating that the complaint is specifically about the PPC breaching the KADOE contract. When the DVLA replies stating that it is not the DVLA's function to police PPCs and the complaint has been forwarded to BPA Ltd, a further complaint should be submitted emphasising that the original complaint had nothing to do with BPA Ltd, and it did not ask the DVLA to police or regulate PPCs. Rather, it informed DVLA of a breach of the KADOE contract to which DVLA is a party, and you want to know what DVLA is going to do about it.

    Further brush-offs or prevarication from DVLA should be the subject of complaint to your MP, and to the ICO on the grounds that "Reasonable Cause" as defined in the KADOE contract implies compliance with the BPA Ltd CoP and, where appropriate, PoFA Schedule 4. And where there is not compliance, there is no "Reasonable Cause" and the DVLA is releasing data in breach of the DPA.

    The ICO loves to brush-off such complaints saying that membership of an ATA is sufficient to show reasonable cause. The KADOE contract says otherwise.

    The DVLA can terminate any KADOE contract by giving 28 days' notice. It can also terminate it in case of material breach - and three breaches of any kind are deemed to constitute a material breach. Well most PPCs breach it routinely and have done so hundreds, if not thousands, of times.
    Je suis Charlie.
Page 1
    • bod1467
    • By bod1467 7th Feb 14, 10:09 AM
    • 14,797 Posts
    • 13,463 Thanks
    bod1467
    • #2
    • 7th Feb 14, 10:09 AM
    • #2
    • 7th Feb 14, 10:09 AM
    DVLA will be very shy of trying to kill their revenue stream (PPC requests). That's why previous complaints have fallen on deaf ears. This approach may be more effective.
    • Anhunedd
    • By Anhunedd 7th Feb 14, 10:17 AM
    • 27 Posts
    • 26 Thanks
    Anhunedd
    • #3
    • 7th Feb 14, 10:17 AM
    • #3
    • 7th Feb 14, 10:17 AM
    Just to say I'm up for this. My case - ****://forums.moneysavingexpert.com/showthread.php?t=4880703 - has just had the DVLA mess up their release to information to me, so I'm going to pursue a formal complaint to them anyway.

    This stuff just strengthens it - the PPC in my case has completely ignored POFA, so I can now quote the KADOE contract too.

    Thanks!
    • HO87
    • By HO87 7th Feb 14, 10:27 AM
    • 4,192 Posts
    • 7,514 Thanks
    HO87
    • #4
    • 7th Feb 14, 10:27 AM
    • #4
    • 7th Feb 14, 10:27 AM
    So, as I see it then, two complaints. One to the DVLA alleging a breach of KADOE (e.g. by virtue of a breach of both the BPA AOS CoP and, say, failing to abide by the DCG's) and the second complaint to the BPA alleging a breach of their CoP and a breach of the Operator's KADOE contract. Works for me.
    My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).

    For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com
  • Welsh Exile
    • #5
    • 7th Feb 14, 2:41 PM
    • #5
    • 7th Feb 14, 2:41 PM
    I think you're right, HO87, something to add to all the debt-collector stage cases where the keeper wants to go on the offensive and to the Letter Before Claim ones as well.
    If I had a signature, this is where it would go.
    • The Slithy Tove
    • By The Slithy Tove 7th Feb 14, 3:52 PM
    • 3,204 Posts
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    The Slithy Tove
    • #6
    • 7th Feb 14, 3:52 PM
    • #6
    • 7th Feb 14, 3:52 PM
    Post Deleted
    Last edited by The Slithy Tove; 07-02-2014 at 4:29 PM.
    • 4consumerrights
    • By 4consumerrights 7th Feb 14, 5:16 PM
    • 1,960 Posts
    • 2,849 Thanks
    4consumerrights
    • #7
    • 7th Feb 14, 5:16 PM
    • #7
    • 7th Feb 14, 5:16 PM
    Breach of the BPA's COP and thereby unlawful access to the DVLA database is currently part of a defence for a live court case - which should be interesting.
    • The Slithy Tove
    • By The Slithy Tove 7th Feb 14, 8:26 PM
    • 3,204 Posts
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    The Slithy Tove
    • #8
    • 7th Feb 14, 8:26 PM
    • #8
    • 7th Feb 14, 8:26 PM
    I would wager that every single fake PCN issued in Scotland or Northern Ireland breaches the contract and is therefore unlawful.
    C2.1. Where the Customer is seeking to recover payment relating to parking on private land in Scotland or Northern Ireland, the Customer shall include in its first written correspondence with the registered keeper of the vehicle:
    a) a statement of the Reasonable Cause under which the subject’s Data was provided to the Customer by the DVLA;
    b) a statement as to whether the Customer’s right to seek payment of the parking charge for unauthorised parking of the vehicle on the land on the relevant date is as owner of the land, on the basis of a contractual right to occupy or to have possession of the land, or acting as agent of the landowner;
    c) an explanation that the Data was provided to the Customer to enable the Customer to identify the driver of the vehicle on the relevant date and to seek payment by the driver of the unpaid parking charges;
    d) details of the complaints procedures by which a Data Subject can notify the DVLA and the Information Commissioner if they believe their datahas been used inappropriately.
    (b) is deliberately obfuscsated by most PPCs, so it's never clear what their actual status is - they seem coy about admitting they are but mere "agents".


    I have never seen an example of (d): how to complain to DVLA.


    Since PPCs tend not to know the difference between England and Scotland, it's no surprise their fake PCNs are the same for all, and thus fall foul of these clauses.


    I wonder why these only apply to Scotland & NI anyway. I'd have thought English and Welsh charge recipients ought to have the same safeguards.
    • bod1467
    • By bod1467 7th Feb 14, 8:32 PM
    • 14,797 Posts
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    bod1467
    • #9
    • 7th Feb 14, 8:32 PM
    • #9
    • 7th Feb 14, 8:32 PM
    Probably because POFA includes separate requirements? (Yes, I know some PPCs don't follow POFA but the DVLA contract will be setup according to POFA).
    • bazster
    • By bazster 7th Feb 14, 8:36 PM
    • 7,326 Posts
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    bazster
    Very good point TST, I don't see that POFA is a reason why these same clauses should not operate in England/Wales, so why don't they?
    Je suis Charlie.
    • Nodding Donkey
    • By Nodding Donkey 7th Feb 14, 8:46 PM
    • 2,431 Posts
    • 2,052 Thanks
    Nodding Donkey
    So if KADOE says:


    B2.1. The DVLA shall provide each requested item of Data to the Customer
    via the KADOE Service for the Reasonable Cause of enabling the
    Customer to:
    a) seek recovery of unpaid Parking Charges in accordance with the
    Accredited Trade Association Code of Practice
    , and using the
    procedure in Schedule 4 to the Protection of Freedoms Act 2012
    (where the vehicle was parked on private land in England or Wales on
    a particular date); and


    and the BPA code says:



    19.5 If the parking charge that the driver is being asked to
    pay is for a breach of contract or act of trespass, this
    charge must be based on the genuine pre-estimate of
    loss that you suffer. We would not expect this amount
    to be more than £100. If the charge is more than this,
    operators must be able to justify the amount in advance.



    And the PPC loses at POPLA on the basis of gpeol then a complaint could be made to the DVLA that the PPC had breached the KADOE contract?
  • Welsh Exile
    So if KADOE says:


    B2.1. The DVLA shall provide each requested item of Data to the Customer
    via the KADOE Service for the Reasonable Cause of enabling the
    Customer to:
    a) seek recovery of unpaid Parking Charges in accordance with the
    Accredited Trade Association Code of Practice
    , and using the
    procedure in Schedule 4 to the Protection of Freedoms Act 2012
    (where the vehicle was parked on private land in England or Wales on
    a particular date); and


    and the BPA code says:



    19.5 If the parking charge that the driver is being asked to
    pay is for a breach of contract or act of trespass, this
    charge must be based on the genuine pre-estimate of
    loss that you suffer. We would not expect this amount
    to be more than £100. If the charge is more than this,
    operators must be able to justify the amount in advance.



    And the PPC loses at POPLA on the basis of gpeol then a complaint could be made to the DVLA that the PPC had breached the KADOE contract?
    Originally posted by Nodding Donkey
    Yes! - your logic is impeccable.
    Of course, we know that every PPC claim breaches that contract but having POPLA, the fig leaf set up by the BPA which is a trade association for the PPCs, say so would be quite hard for the DVLA to ignore. A second level of irony is that PPCs might find out that actually breaching a real contract has consequences.
    If I had a signature, this is where it would go.
    • Nodding Donkey
    • By Nodding Donkey 7th Feb 14, 10:16 PM
    • 2,431 Posts
    • 2,052 Thanks
    Nodding Donkey
    Yes! - your logic is impeccable.
    Originally posted by Welsh Exile
    What's worrying me is that after only a few days of reading this forum I am (almost) starting to look forward to getting a ticket
    • bazster
    • By bazster 7th Feb 14, 10:50 PM
    • 7,326 Posts
    • 9,448 Thanks
    bazster
    And the PPC loses at POPLA on the basis of gpeol then a complaint could be made to the DVLA that the PPC had breached the KADOE contract?
    Originally posted by Nodding Donkey
    Yes, with knobs on. Hence my comment that most (all?) PPC's breach the KADOE contract routinely.
    Je suis Charlie.
    • IanMSpencer
    • By IanMSpencer 8th Feb 14, 1:29 AM
    • 985 Posts
    • 803 Thanks
    IanMSpencer
    Yes, with knobs on. Hence my comment that most (all?) PPC's breach the KADOE contract routinely.
    Originally posted by bazster
    The thing that bugs me is that there is now ample evidence that the issuers of these tickets are well aware that the information they are sending out is based on several falsehoods, the easiest one to show perhaps is that they know they cannot justify the charges as damages (especially if they went to the appeals seminar). To seek financial gain from a falsehood is fraud - Fraud Act 2002 where it is the attempt, not the ability to succeed. Surely the time has come for a criminal action against these people?
    • bazster
    • By bazster 8th Feb 14, 7:55 AM
    • 7,326 Posts
    • 9,448 Thanks
    bazster
    On the subject of the law, there is also the question of the definition of "parking charge" in POFA 2012 Schedule 4:

    “parking charge”—
    (a)in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and
    (b)in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages


    So, it covers damages arising from trespass, and it covers parking fees and charges, but what about damages arising from breach of contract? Missing!

    This is further emphasised if you read the definition of "relevant obligation":

    “relevant obligation” means—
    (a)an obligation arising under the terms of a relevant contract;


    Well, damages don't arise under the terms of a contract, they arise as a result of breaching those terms.

    So, damages arising from breach of contract = no keeper liability (and a clear breach of the KADOE contract to boot).
    Je suis Charlie.
    • bargepole
    • By bargepole 8th Feb 14, 10:39 AM
    • 2,064 Posts
    • 5,871 Thanks
    bargepole
    The DVLA are well aware, through numerous complaints and reams of evidence presented to them, that most if not all PPCs are breaching the BPA Ltd CoP and their KADOE contracts on a daily basis.

    They choose to hide behind the AOS scheme, and Regulation 27 "reasonable cause" as it suits their purposes, not to mention the fact that PE are currently making around 800,000 KADOE requests annually, which at £2.50 at pop results in a £2m contribution to the DVLA budget.

    If we go back a few years, a similar situation existed regarding private clamping. Despite mounting evidence of malpractice, the government and other authorities tried to regulate clamping through SIA licences and membership of the BPA, trotting out the mantra of landowners having the right to protect their land whenever they were challenged. The previous government even held a public consultation on the issue, giving a range of options which did not include banning clamping. Despite that, the majority of respondents to the consultation paper said that a total ban was the best option.

    Then, they had their "Betty moment" when Ms Boothroyd was clamped, and the tide turned in the opposite direction. The incoming Coalition were set on a course of banning clamping, and no amount of lobbying by Patrick Troy, private landowners and other interested parties could sway them, resulting in the enactment of the clauses in PoFA 2012.

    It will take a lot more complaints and evidence to be presented to the DVLA, the DfT and MPs, but the greed of most of the PPCs could yet see a U turn in official thinking.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 27. Lost 9.
    • bazster
    • By bazster 8th Feb 14, 12:11 PM
    • 7,326 Posts
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    bazster
    I quite agree and certainly didn't intend to suggest that one complaint would shock them into action, it's a numbers game. And people really need to escalate DVLA brush-offs to their MP. There's an election not far off!
    Je suis Charlie.
    • Coupon-mad
    • By Coupon-mad 10th Feb 14, 12:53 PM
    • 49,944 Posts
    • 63,353 Thanks
    Coupon-mad
    I will add a link to this very useful summary thread to the NEWBIES sticky under 'debt collection' although it is also relevant for any case where pretty much any POPLA appeal is upheld (since they usually win on no GPEOL, no contract or no clear signage).
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

  • Dog Meadow
    Coupon-Mad or anyone else - is there a letter that we mere mortals can copy and paste and send to the DVLA to up the pressure?

    I am so chuffed to have won the appeal and I feel ParkingEye are pirates that consume not only money, but such a lot of unnecessary time.
    I really begrudged going through that whole process and it was such a vile intrusion into my life, based upon what exactly..? There is so much more important stuff in life and PE robbed me of quite a lot of it, for 5 months!

    So I'd love to help contribute to DVLA making changes on these legislations, or whatever it is.
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