Fake PCN For Parking In Visitor Space (IPC Company) (UPDATE: IAS Appeal Rejected)

Daps · 6 July 2014 at 5:39PM

Hi there all,

As keeper of a vehicle, I have received a NTK (or Reminder Notice) from a company called LinkParking (an IPC accredited company.)

The driver was parked in a space clearly marked 'visitor', which to me clearly overrides any other signs present. How on earth can it be a reasonable requirement for a visitor to have to obtain a permit before parking in a visitor space when visiting friends? Ridiculous.

Anyway, as keeper, I am about to email the company with the appeal template letter on the newbies thread (I'm within the 28 days to do this) but expecting a rejection, I was wondering if you could help me with the upcoming appeal to the IAS. Unfortunately, the driver did not photograph the signs at the time, and they have since been changed. I have photographed the current signs, as well as the windscreen ticket (back and front), and NTK (back and front).

There is another thread on here regarding this same outfit, and includes links to their website which at the time (and at the time of these PCNs) was full of errors, typos, and pretty much everything that give the impression that this was not a real company. I'll be happy to use some of that if necessary, but as they have now changed all their signs and their website to come across as more professional, I'm hoping there are still enough errors in their work just based on the PCN and the NTK - I'm sure there will be! But you guys are probably more experienced at finding the faults than I am!

Please find links below to the pictures as mentioned (apologies some are sideways, etc. - I'm not very proficient when it comes to photo editing, etc.!)

http://tinypic.com/m/id7hbq/4 (The sign)
http://tinypic.com/m/id7hbt/4 (PCN front)
http://tinypic.com/m/id7hc0/4 (PCN back)
http://tinypic.com/m/id7hc3/4 (NTK front)
http://tinypic.com/m/id7hc6/4 (NTK back)

If you need any further information or need me to re-take any of these photos, please let me know.

I have one additional query - a friend had also had a PCN and NTK from the same company for the same reason, however he has decided to throw the PCN and NTK in the bin as he is sure that there can be no comeback. I will advise him to try and appeal - but just in case he doesn't - what is the worst that could come of this? There's no way he would actually have to pay, right? Is it just that solicitors may get involved and he'll be sent letters he's legally obligated to reply to? Just trying to figure out worse case scenarios for these things.

Also just wanna say thanks again to all you regulars on here who give up so much of your time to help people out that have had these ridiculous fake PCNs. It's very much appreciated.

Thanks!

Redx · 6 July 2014 at 5:42PM

worst case scenario is an MCOL , so a small claims court claim , same as with any other invoice , the statute on these being 6 years in england and wales , 5 in scotland

Umkomaas · 6 July 2014 at 6:27PM

Your 'Get Out of Jail Card' has been presented to you on a plate in the shape of the Reminder NtK. Two references:

.... parked in breach of the terms .....

and

.... those drivers who break the terms and conditions of parking ......

Gold dust from an IPC AOS, debunking the illusion that somehow you have contractually agreed to something that is not permitted.

So GPEOL definitely will be one of the key cards you play at IAS stage. Meanwhile go ahead with the template initial appeal in the NEWBIES sticky; come back when you've had a response to that, but meantime start preparing for your next stage appeal by further research via post #3 'How to Win at POPLA' (there will be IAS examples signposted there too), also in the NEWBIES sticky

Coupon-mad · 6 July 2014 at 6:40PM

Also check the NTK against the wording of POFA 2012 Schedule 4 paragraph 8, unlikely to be spot-on. The Act is easy to read, bullet points and it's linked in the NEWBIES thread.

Your friend should appeal if he wants to be sure there will be no court claim as a nasty surprise later on. Daft to ignore when IPC members have cheap access to Gladstones Solicitors!

Daps · 15 July 2014 at 7:26PM

Hi there all,

I received a rejection of my soft appeal from the PPC a day after I sent it. The standard of the email was as poor as everything else they do:

"Further to your standard email appealing PCNs issued on the XXXX.

To date we have had no correspondence from you regarding these PCN's.

Firstly we do not accept any charge from you.

Our signs all meet with our ATA and all our sites are audited by them prior to us commencing patrols.

We have clear images of your vehicle parked in front of signs clearly stating the parking restrictions. Despite this you chose to park where you did whilst not complying with these restrictions.

Your vehicle should have displayed a valid permit to meet the restrictions but it wasn't.

Given this fact we are rejecting your appeal.

Furthermore we will not be drawn into protracted correspondence regarding this.

If you wish to view the images of your vehicle then visit XXX

If you believe this decision is incorrect, you are entitled to appeal to the Independent Appeals Service (IAS). In order to appeal the IAS will need your parking charge number, your vehicle registration and the date the charge was originally issued. Appeals must be submitted to the IAS within 21 days of the date of this letter. For further information please visit XXXXX

Yours sincerely"

I am still within the 21 days I have to appeal to the IAS, which I fully intend to do. I have adapted some of the POPLA appeals and came up with the following rebuttal - if anyone could offer any advice on things I need to add, take away or change on this, then that would be massively appreciated. (Note that in one section I have referred to judgments made by POPLA assessors on the same grounds, since there doesn't seem to be a set of IAS decisions posted on here for us to look into and adapt. I've made clear that it deals with the same issues at stake here, though if you think the appeal works better without it, I'll take it out. It's in blue text, for easy reference.)

=/=/=/=/=/=/=

Dear IAS Assesor,

Re: LinkParking PCN:
Vehicle Reg:

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Contradictory Signage
4) No Keeper Liability
5) No Contract

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on the Parking Charge Notice Reminder (which is described as exactly that, NOT an invoice for an agreed fee) they state that the charge is for being "in breach of the terms" and of having "(broken)” the terms and conditions of parking.

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

The Office of Fair Trading has stated that ‘a parking charge is not automatically recoverable simply because it is stated to be a parking charge.' In a document relating to bank charges the OFT stated the following about disguised penalties: "The analysis in this statement is in terms of explicit, transparent default fees. Attempts to restructure accounts in order to present events of default spuriously as additional services for which a charge may be made should be viewed as disguised penalties and equally open to challenge where grounds of unfairness exist. (For example, a charge for 'agreeing to' or 'allowing' a customer to exceed his credit limit is no different from a charge for the customer's 'default' in exceeding his credit limit.) The UTCCRs are concerned with the intention and effects of terms, not just their mechanism."

I cite the OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations 1999. This is also available on the OFT website as oft311.pdf.

“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.

“The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.

Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’

Therefore according to the OFT guidelines, car park contracts specifying excessively high charges as “core” prices for services delivered (rather than being linked to a breach of contract) would still fall foul of the Regulations on the basis that they have the same effect as an unfair penalty clause.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

The amount of £100 demanded is punitive and unreasonable, and shows no regard for the legitimate interests of visitors such as this driver, who had been invited to park by a resident with more standing than this operator. It is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without clearly displaying a valid permit”. The IPC Code of Practice states that “if the motorist uses the land other than in accordance with the terms and conditions then they agree to pay a fixed fee by way of damages to the operator. This is based on a genuine pre-estimate of loss that flows from the breach of contract by acting otherwise than in accordance with the terms of the agreement the motorist entered into when deciding to park.” £100 is not a genuine pre-estimate of loss.

The Office of Fair Trading has stated that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged), and the car park is free. I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs such as staff salaries, equipment, uniforms, etc. cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer the Operator to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator may attempt to state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

In a successful appeal against an Operator from another ATA, regarding this very issue, the assessor stated the following:

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld “parking charge” appeal, the assessor did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide the IAS with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the IPC code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) It has recently been ruled that a witness statement is 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then IAS should rule this evidence invalid.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to the IAS as requested sent with sufficient time for consideration and rebuttal.

3) Contradictory Signage

The car parking spaces in question are clearly marked ‘Visitor’. Irrespective of any other signs placed in the vicinity by the Operator, the signage on the spaces themselves creates a clear impression that the spaces are to be used for people visiting friends or family in the flats in question, as was the case in this instance. It cannot be reasonably assumed that a person visiting someone in a flat would require a permit to be able to do so. If the permit is to be obtained from the occupant of the flat, the car will still be parked in the space without displaying a valid permit while the driver goes up to the occupant’s flat to obtain the permit – and therefore during this act the car will, I assume, be entering the contract with the Operator to pay £60 or £100 as it will be parked without displaying a valid permit for this time period. This is evidently unreasonable.

In addition, if several people in several vehicles are visiting the same occupants at the same time only one will be able to obtain a permit and therefore the drivers would need to decide which ones are agreeing to the £60 or £100 charge with the operator. Again, clearly, this is unreasonable and not in line with the code of practice. It is clear that the operator has overstepped their agreement by including spaces clearly marked ‘Visitor’ in their patrols.

In this case specifically, the flat occupant that the driver of the vehicle was visiting has never received a permit for visitor parking from his or her landlord. The occupant received their permit for their particular parking space, but no permits for friends and family that intend to visit them.

Furthermore, the Operator’s own signage in the vicinity does not provide details on how a permit can be obtained. It states in the IPC Code of Practice that “you must put up sufficient signage to make it clear what the terms and conditions for parking on the land are”. By all reasonable standards this should include details of how these conditions can be met, in this instance, details on how to obtain a valid permit. Without this, the “contract” that the Operator states is in force cannot be enforceable.

The signage also appears to be generic signage usable at a variety of sites, rather than being tailored to this specific site, as it states that one of the conditions of parking that is permitted is “vehicles fully displaying a valid pay-and-display ticket”. There are no pay-and-display machines in the vicinity, and therefore it is impossible to meet this condition of the parking.

4) No Keeper Liability

a) The Reminder Notice (or Notice To Keeper (NTK)) does not comply with the Protection Of Freedoms Act 2012.

i) There are omissions of the statutory wording required under paragraph 8 of POFA2012, Schedule 4. The NTK does not invite the keeper to pass the Notice on to the driver, as required in 8(2)(e)(ii).
ii) The NTK does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full, as required by 8(2)(b).
iii) The NTK does not state the period of parking to which the notice relates, as required by 8(2)(a)
iv) The NTK does not state that the ‘creditor’ does not know the name or address of the driver, as required by 8(2)(e)
v) The NTK does not provide a specific indication as to who ‘the Creditor’ is, as required by 8(2)(h) – it does state that a payment is required to LinkParking however there is no specific identification of the creditor who may, in law, be LinkParking or some other party.

b) The NTK did not include any photographic evidence that the vehicle was parked there at all. I require photographic evidence and put the operator to strict proof on this point.

Where an Act states that a Notice 'must' include certain prescribed words, any omission renders the document a nullity. Therefore, keeper liability has not been established.

5) No Contract

There was no contract between the driver and LinkParking. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. The signs were insufficiently clear and visible to the driver. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. And even if there was a contract, which has yet to be proven, then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.

In addition, The IPC code of practice Schedule 1 states that text from ‘Group A’ which is stated to include ‘Permit Holders Only’ should be double the size of ‘Group B’ text which includes ‘Private Land’. However, the signage in place has the word ‘Warning’ in the largest and most prominent text (note that the word ‘Warning’ is not included in Group A (or Group B for that matter) in the IPC’s required wording for signage, and then ‘Private Land’ is the next most prominent. In order to comply with the signage requirements, the words ‘Permit Holders Only’ should be in the largest text, with ‘Private Land’ or any other selection from Group B at least 50% the size of the above.

In addition, as previously mentioned, the Operator’s signage contradicted other signage present at the car park, and did not outline the terms and conditions and what the driver was required to do in order to comply with the terms; specifically in this instance the signs did not offer information on how a permit could be obtained.

If LinkParking are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.

Coupon-mad · 15 July 2014 at 9:37PM

Have to say that reads as a great IAS appeal, well researched etc. Nice! I predict a win!

We've never yet bothered to start an 'IAS decisions' thread (sorry) because at the moment we still win them all, exactly like the POPLA ones! I have not seen one lost yet and you will be amazed - the IAS might well reply to your appeal the same day with the decision!

This bit in the stroppy rejection email:

''We have clear images of your vehicle parked in front of signs clearly stating the parking restrictions. Despite this you chose to park where you did whilst not complying with these restrictions. Your vehicle should have displayed a valid permit to meet the restrictions but it wasn't.''

...gives away the fact the PPC's charge is in fact designed to deter breach and so not only must they show a GPEOL, but also (despite what their CoP says) the IPC don't actually allow their members to follow that business model AFAIK! IPC members are supposed to run a 'contractual fee' model allowing people to park anywhere, any old how, in exchange for a fee (not that it could work in a disabled bay situation but I have yet to see one of those!).

So, to your first point you could add this bit in red below:

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on the Parking Charge Notice Reminder (which is described as exactly that, NOT an invoice for an agreed fee) they state that the charge is for being "in breach of the terms" and of having "(broken)” the terms and conditions of parking.
In addition, when they responded to my email appeal, this firm again demonstrated that the predominant purpose of the charge is in fact as a deterrent to stop people from 'not complying' because they said: ''Despite this you chose to park where you did whilst not complying with these restrictions. Your vehicle should have displayed a valid permit to meet the restrictions but it wasn't.''

And I would remove the bit in blue as the IAS won't care about POPLA.

And you could add here:

In this case specifically, the flat occupant that the driver of the vehicle was visiting has never received a permit for visitor parking and is certain that this Operator has never made such a permit available nor communicated how these could be obtained, nor even that a visitor needs one. The occupant received their permit for their particular parking space, but no permits for friends and family that intend to visit them. As such, not to issue any visitors permits to this resident is a failure on the part of this Operator and they would need to prove otherwise. The alleged contract is frustrated by the omissions of the Operator unless they can show they did send a visitor's permit to every resident. I put them to strict proof to the IAS Assessor of this, including showing they have continued to proactively send visitors permits to all new residents, with documentary evidence of when/how this was achieved and whether a receipt or any set agreement about visitors permits, was ever signed for by each current resident.

Daps · 31 July 2014 at 10:16AM

Thanks for the help Coupon, I made the adjustments to the appeal that you suggested. However, the IAS have come back and rejected my appeal! The email from them is insanely unprofessionally written and I doubt for one second that an actual impartial independent review took place. The same snotty attitude and lack of legal understanding is such that this decision could easily have been written by LinkParking themselves!

It doesn't state the name of the adjudicator, and the rebuttals are brief, ridiculous, and flat out avoid the vast majority of points that were raised. Point 2 is the funniest - the onus is on the motorist to prove that no contract exists between the landowner and the operator?!

Is this the first example you guys have seen of a legal arguments appeal failing at appeal stage? If so, I worry that this may become a trend with the IAS.

I guess the plan of attack now is just to wait and see if they take me to court and beat them there if necessary? Obviously paying these unfair charges is not an option!

But if there's anything else you think I should do, any advice would be much appreciated!

Here is the email in full:

"The Independent Appeals Service (IAS) has received a decision from the Independent Adjudicator regarding your recent appeal. Please see below for the full details.

Parking Charge Number (PCN): XXX
Vehicle Registration: XXX
Date Issued: XXX

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

"The Appellant raises a number of well rehearsed arguments, all of which are without merit.
1 - Genuine pre-estimate does not apply. This is a pre agreed term of a contract which applies in the event of an act or omission. The Appellant accepts the omission in this case, namely failing to display a valid permit or ticket.
2 - No contract with the landowner. The Appellant has claimed the Operator is not the landowner or has no contract with the same, but they have provided no evidence in support. The Operator has confirmed they do have a contract and have also failed to provide any evidence in support of their contention. The onus is on the Appellant to prove their claim and on a balance of probability there is no reason to believe one account over the other. Consequently this ground fails.
3 - Contradictory signage. The signage is perfectly clear and understandable I do not feel the need to say anything further on this point.
4 - No keeper liability. The Appellant provides no evidence in support of his contention that the procedures under PoFa were not followed.
5 - No contract between the driver and the Operator. By parking on land managed by the Operator the driver entered into a contract to agree to the terms set out in the signs displayed.
"
As your appeal has been dismissed, the Independent Adjudicator has found, upon the evidence provided, that the parking charge was lawfully incurred.

As this appeal has not been resolved in your favour, the IAS is unable to intervene further in this matter.

The Operator must now allow you 14 days to make payment before they commence any action to enforce the charge.

Should you continue to contest the charge then you should consider obtaining independent legal advice.

Yours sincerely

The Independent Appeals Service"

Guys_Dad · 31 July 2014 at 10:35AM

OK

Dissecting the rejection, I see the following.

1. No Contract.

This is trickier under IPC/IAS. Reading the IPC AOS, it states

1. Establishing Yourself as the ‘Creditor’.
2.1 If you operate parking management activities on land which is not owned by you then you must supply us with written authority from the land owner sufficient to establish you as ‘the creditor’ within the meaning of the Protection of Freedoms Act 2012(where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such an agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use keeper liability provisions.

Now that seems to indicate that the IPC have had sight of the contract or similar and that it is a precondition of being a member of the IPC. You could ask that they produce this to the IAS, but I think this point is very, very weak for appeals to IPC members.

However, appellants should refer to the above and ask the IAS to confirm the existence of such authority and failure to supply would indicate that the PPC has limited authority to impose charges.

Guys_Dad · 31 July 2014 at 10:56AM

Daps :

The images are ok for the general conveyance of information to us, but would you please look at page 18 here. http://media.wix.com/ugd/bd9e08_a2dad1a02f8ea46a76b78ba0982af9a3.pdf

Did the NtK actually comply with all of the terms in the IPC AOS/POFA?

If not, can you highlight where it failed. This could help you and may be of help to regulars should they need to advise any other cases.

Also, have you checked with whoever was being visited exactly what visitor permits and system they have in place. If this was a block of flats, then the management company should be approached.

I also noticed that the sign mentioned Pay and Display. In what circumstances can one pay and display? Are there P&D machines present and does the entry sign say P&D car park anywhere?

Daps · 31 July 2014 at 11:19AM

Guys Dad,
The NTK failed to comply on some slight wording issues. I can’t access the Code of Practice at the moment but I think it was pretty much the same as the way in which it didn’t apply with POFA 2012 (I think the Code of Practice is written to match POFA 2012 on these requirements, as far as I remember):

i) There are omissions of the statutory wording required under paragraph 8 of POFA2012, Schedule 4. The NTK does not invite the keeper to pass the Notice on to the driver, as required in 8(2)(e)(ii).
ii) The NTK does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full, as required by 8(2)(b).
iii) The NTK does not state the period of parking to which the notice relates, as required by 8(2)(a)
iv) The NTK does not state that the ‘creditor’ does not know the name or address of the driver, as required by 8(2)(e)
v) The NTK does not provide a specific indication as to who ‘the Creditor’ is, as required by 8(2)(h) – it does state that a payment is required to LinkParking however there is no specific identification of the creditor who may, in law, be LinkParking or some other party.
b) The NTK did not include any photographic evidence that the vehicle was parked there at all. I require photographic evidence and put the operator to strict proof on this point.

The property is a block of flats. The occupants that were being visited did not know anything about a permit scheme for visitors, and were never sent any visitor permits. They were sent only their own permit for their own private parking space. When the driver asked them about any permit requirements for the visitor spaces they pretty much said “we haven’t been sent any visitor permits, I don’t think you need a permit for the visitor spaces – but it’s only a private company that can ticket you anyway so you can just ignore the tickets if you get any”. They have recently moved out of the property (following a dispute with the landowner!) so the landowner/management company will not be able to assist on this.

The signs are generic – this company seem to be all over the city and have the exact same signs whether there’s a permit scheme, a pay and display scheme, or any other type of ‘restriction’. In these block of flats there are no pay and display facilities.

Daps · 4 August 2014 at 1:37PM

Given that the IAS has proved itself to be a complete and utter joke, I am writing to the DVLA to request that they cease releasing registered keeper information to IPC members until the IPC demonstrate that their appeals process has been rectified and is fair and independent.

Below is the text of the email I have written up. I was going to email it to the chief exec of the DVLA, however do any of you know any better contacts at the DVLA to email it to?

Thanks

=/=/=/

Dear DVLA,

Official complaint regarding the release of my information to a Private Parking Company.

I am writing to complain about the fact that you have released my details as registered keeper of a vehicle to an unscrupulous private parking company (PPC) who have acted in a threatening and unprofessional manner, issued me with unfair parking charges and failed to deal with my appeal appropriately.

The name of the firm is Link Parking, and they are a member of the Independent Parking Committee (IPC). I am sure that part of the requirement for Accredited Trade Association status to be granted to a group of PPCs is that they have a fair, robust, transparent and independent appeals service in place for motorists to challenge unfair parking charges. I am writing to provide evidence that the appeals process that the IPC have in place, the Independent Appeals Service (IAS), is not fair, robust, transparent or independent, and that you should immediately cease your practice of releasing registered keeper information to members of the IPC until they can provide evidence to you that they have rectified their appeals process.

I received a Parking Charge Notice for £100, and wrote to LinkParking to make them aware that I do not accept the charge and laid out my reasons why the charge was neither fair nor valid. They wrote back to me to say that they would not cancel the charge, and that my recourse was to complain to their independent appeal service. The following is the appeal I wrote to the IAS:

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(My IAS appeal letter, as has already been posted to the thread.)

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As you can see, my reasons for appealing charge were clear, accurate, and based on genuine legal arguments. The following is the response I received from the IAS:

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(The text of the IAS rejection email, already posted in this thread.)

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There are many things clearly wrong with this response to an appeal.

Firstly, there is no name of an adjudicator provided. No information whatsoever is provided about the person that actually looked into this appeal – there is no evidence that this adjudicator is actually independent. For all I know, this response could have been written by absolutely anyone, including someone working for the PPC themselves.

Secondly, the tone of the email is derisory, insulting and unprofessional. Referring to the arguments I have provided as ‘well rehearsed’, as if using legal arguments that have already proved to be valid in court is somehow a bad thing, is not a professional way to begin an appeal.

In point one, as you can see from my appeal letter – I made it perfectly clear and explained in detail why, despite the fact that the PPC have tried to make the charge seem like an agreed contract, it is in fact a disguised breach or penalty, and therefore genuine pre-estimate of loss does apply. The rebuttal from the IAS does not counter my argument at all, simply states that it does not apply and that this is a pre-agreed contract, even though it clearly is not.

On point two the rebuttal states that the onus is on me, the appellant, to prove that no contract exists between the landowner and the PPC. This is one of the worst legal arguments I have ever seen, and clearly evidence of bias and unprofessionalism – as it is impossible to prove a negative in this situation. The burden of proof cannot possibly need to be on the motorist on this issue.

The rebuttal of point 3 is, again, brief, derisory and insulting. I have explained quite clearly how and why the signage is contradictory and not clear – the rebuttal states simply that it is clear and that the adjudicator “(does) not feel the need to say anything further on this point”. This is again clear evidence of bias, unprofessionalism and lack of independence.

The rebuttal to point 4 states that I have not provided any evidence as to why the Notice to Keeper does not comply with POFA 2012 when in fact, as you can clearly see – I have.

As is evidently clear, the IAS’ 300 word insulting, unprofessional and factually incorrect rebuttal to a 3,000+ word argument demonstrates that the appeals service is in fact not independent at all, shows clear examples of bias, takes a tone which is insulting and vindictive towards the motorist, does not provide any evidence whatsoever of transparency by even naming the adjudicator, and does not make any effort to rebut the arguments made. The charge they have issued has no legal standing and is unfair. I have made this clear in my appeal which has now been rejected, and undoubtedly I will now be subject to more of my time being wasted with debt collector letters and the threat of court action.

None of this would have happened had you not released my details to this company.

I am officially complaining that you have released my details to a company which does not employ legitimate business practices and is a member of an ATA which does not have a fair, robust, independent appeals process.

I request that you immediately stop releasing keeper details to members of the IPC, and warn the IPC as to its conduct, and inform them that you will not release any more information to them until they can demonstrate to you that they have rectified their appeals process to make it truly fair and independent.

In addition, it has recently come to light that you charge PPCs only £2.50 per request to issue them with registered keeper information, while each request costs you £2.84. Please immediately stop using taxpayer’s money to subsidise these parking companies. The fee should be set to deter abuse by these disgraceful companies, not to encourage it.

I, like many other motorists that have had trouble with these parking companies, am very disappointed in the DVLA and hope to see it improve its standards considerably. Please take note that I have also been in touch with my MP regarding this as the DVLA is currently complicit in a shameless exploitation of motorists, including the sick and the elderly.

Yours faithfully,

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If there's anything you don't think I should send, please advice. I really do think it's such an absolute disgrace that the IAS sent that appeal rejection. I've seen a similar one on pepipoo as well, similarly brief, vague, untruthful and insulting. At least POPLA will accept genuine legal arguments - the IAS states that it will only accept legal arguments and then denies them all anyway even when they are clearly valid! What an absolute joke.

Fake PCN For Parking In Visitor Space (IPC Company) (UPDATE: IAS Appeal Rejected)

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