ParkingEye charge

BASFORDLAD

Guys_Dad wrote: »

Thanks for that. At least you have an open mind on it and are keeping it under review. It worries me that if there is a push on, those who ignore and receive genuine court papers may cave in as for many, particularly older people, the threat of a real court appearance is a terrifying thing.

Indeed.

I think we will know in the next 6 months prehaps

Stroma

polyplastic wrote: »

Incidentally, OPC fail to comply with POFA as well with their standard documentation. As a result of an action I took on behalf of a client they have had a visit from their local trading Standards department.

So, a good tip, don't just rubbish POFA, look at it, learn it, understand it. They are legally obliged to comply with the conditions in Schedule 4 before they can sue the registered keeper. Each of those conditions have many other conditions within them which they have to comply with. Fail to comply with any and they can't sue the registered keeper. Isn't that worth knowing if they ask you to name the driver?

If they send you the notice to keeper in more than 14 days (where they have not issued a notice to driver (e.g when using ANPR) after the alleged infringement they can't touch the registered keeper. I have a client using the benefit of that provision in the Act.

You see Stroma before you condemn just pause for a moment and think that perhaps there is more going on than you may think.

.....and there's more but I will hold my counsel on that

Polyplastic.

I condemned because you actually singled out the advice I gave, which was an opinion as I stated! More than that though, you also accused me of personally abusing you on the thread, care to withdraw that now ?

And I do understand schedule 4 and the fact that a lot of ppcs actually don't comply with pofa 2012, the problem is trying to advise someone of this is pretty difficult when they know basically nothing of the legislation around it. Pofa 2012 is meaningless in almost all cases as it never goes to court, and basically it's just words on a ticket trying officiate their penalty charges.

I await your withdrawal

Coupon-mad

polyplastic wrote: »

Incidentally, OPC fail to comply with POFA as well with their standard documentation. As a result of an action I took on behalf of a client they have had a visit from their local trading Standards department.

So, a good tip, don't just rubbish POFA, look at it, learn it, understand it. They are legally obliged to comply with the conditions in Schedule 4 before they can sue the registered keeper. Each of those conditions have many other conditions within them which they have to comply with. Fail to comply with any and they can't sue the registered keeper. Isn't that worth knowing if they ask you to name the driver?

If they send you the notice to keeper in more than 14 days (where they have not issued a notice to driver (e.g when using ANPR) after the alleged infringement they can't touch the registered keeper. I have a client using the benefit of that provision in the Act.

You see Stroma before you condemn just pause for a moment and think that perhaps there is more going on than you may think.

.....and there's more but I will hold my counsel on that

Polyplastic.

I would like to know more! :cool:

polyplastic

Some matters I am involved with are matters subject to client confidentialty so I cannot at this stage mention the details. One issue I will mention, and upon which members may wish to add their voice, is the following.

POFA makes it clear that PPCs cannot apply for registered keeper data
1. In less than 28 days after the alleged infringement when a notice to driver (parking ticket) has been issued
2. Where no notice to driver has been issued e.g use of ANPR the application must be made within 14 days after the alleged infringement.

If they fail to comply with these statutory rules, and the DVLA releases that data, then that is a breach of the DPA. I raised this with the DVLA and simply got their standard response "We take the protection of data seriously....etc" but which did not answer my question.

I have discovered a letter from the Sec of State advising that in identical situations with Local Authority applications the Sec of State admits that to releas data at the wrong time would be a breach of the DPA. Accordingly preventative measurers were put in place for Local Authorities. Basically applications are checked to make sure that they are not submitted at the wrong time. It flows from this that the same system must be in place for PPCs, now they have statutory time limits rather than the unfettered access they have at present.

I raised this with the Information Commissioner. First reply was that it was not a breach of the DPA. Second response was that it was, but they were happy with the DVLA systems. At the third time of asking the Information Commissioner agrees that it is an issue and that the DVLA must put in place preventative measures. That is to say, their current practices are not good enough and they must do more. Logically they should treat PPCs the same as Local Authorities and check that each application complies with POFA. At the same time they could check that the PPC has complied with the COP, signage requirements etc etc.

Look here ( http://www.whatdotheyknow.com/request/unlawful_release_of_data)
to see what has taken place and in particular read the letter from the Sec of State's Office at the start of the thread. Then scroll down past the DVLA replies to the email I received from the Information Commissioner.

It would assist if members also wrote to the DVLA giving it the internet link and enquiring as to just what preventative measures the DVLA has or will be putting in place and suggesting that they should apply the April 2010 guidance for Local Authorities to PPCs

Now if the PPCs had to validate each application for registered keeper data wouldn't that be useful?

Of course if you get a Notice to Keeper from a PPC it may be worth checking with the DVLA the date upon which the PPC sought your data. If they didn't apply in accordance with POFA you can ignore the notice to keeper. Perhaps even submit a complaint to the DVLA that it has breached the DPA, using the April 2010 letter as evidence to support that allegation.

Polyplastic

Guys_Dad

I do like informative, informed advice such as the stuff you are supplying. I hope you remain active on here.

May I just clarify one point from your previous post. ( I used to be the DPA Officer for a large organisation for a number of years, so I have seen the power of the old Data Processing Registrar grow until it is as now under the Information Commissioner).

You are not saying that, if a PPC has obtained a RK's details outside the timescales mentioned above that this would get the case thrown out of court are you?

I can see the point of numerous requests fro information going into the DVLA and perhaps a PPC getting a temporary ban, but it's not like evidence gathered illegally and non-admissable, is it?

Thanks.

polyplastic

You are not saying that, if a PPC has obtained a RK's details outside the timescales mentioned above that this would get the case thrown out of court are you?

Yes. Para 4(2)(a) Says that the right to recover unpaid parking charges from the keeper of the vehicle only arises if the conditions are met. This imposes a strict obligation on the PPC to comply with all of the conditions. Para 11 is the one which sets out the time periods and which it defines as the "relevant period" for obtaining registered keeper data. The act does not say that they must "broadly" meet the conditions, or "generally" meet with the conditions but that they do actually meet the conditions. It is a strict obligation. Any failure and they do not pass that strict test.

They can of course sue the driver as that falls outside of the POFA, but first they have to find the driver. If you, as the registered keeper, know that they obtained your data outside of the strict statutory timescales then why respond to their Notice to Keeper?

Also if they serve the Notice to keeper more than 14 days after the alleged infringement (if they have not served a notice to driver), they can't touch the registered keeper. If they serve the Notice to keeper less than 28 days after serving a notice to driver they will also have failed to "meet the conditions". I have a client (Registered Keeper) who received the Notice to Keeper on the 16th day (where the PPC used ANPR.) oops!

So, its not about evidence obtained illegally and non admissible, as you put it, its about a failure to meet the conditions in Schedule 4. If that applies to you then bang an appeal off to POPLA. Let the PPC know it has failed to meet the conditions. That is free and saves you waiting for the court summons.

So, if you get a Notice to Keeper write to the DVLA and ask it the date on which the PPC requested your data. This is probably more relevant where a notice to driver has been issued. Insist that the DVLA replies within 14 days so that you are within your 28 days to appeal. Tell the DVLA if it fails to meet that deadline and you suffer as a consequences then you reserve the right to take issue with it. (Bang in a complaint).

That's the first stage. If the PPC has requested your data outside of the statutory time limits, and the DVLA has released it, you may then wish to complain to the DVLA for releasing your data unlawfully. Where the PPC is not entitled to ask for data (outside the strict time limits) because it is contrary to the law, then any release of data is also unlawful. The DPA requires the DVLA to process your data lawfully and if its release is unlawful then so is the processing.

If you wish to make a claim you refer the DVLA to that letter of April 2010, in my link, and which says quite clearly that the release of data, requested at the wrong time, is a breach of the DPA. Even the Secretary of State would agree with your complaint.

On top of that, following my representations, the Information Commissioner has now advised the DVLA that it must take action to "prevent" the release of data outside of the POFA timescales. The IC did not say that it must take issue with a PPC which gets data outside of the statutory time limits (i.e after the horse has bolted) but must "prevent" the release in the first place. Read the IC email I have posted on that link above. So, the IC would be on your side if you complain. Having been required by the IC to "prevent", if the DVLA does nothing ...well....OOps again.

Having said that I expect the DVLA to respond to my FOI request that "We protect the data of individuals and have robust procedures in place etc etc etc". In other words, the standard response which means that they will have done nothing. The correct answer for the DVLA, in the light of the April 2010 letter, is "We now check each application for data...."

The truth is, I suspect, that the authors of the POFA who introduced these statutory time limits did not appreciate just what it would mean to the DVLA. Too late I am afraid.

Imagine, applications for registered keeper data only being dealt with after thay have been checked that they comply with POFA. Will a PPC meet the 14 day deadline to serve a Notice to Keeper where they use ANPR? Doubt it.

Will it create jobs at the DVLA? Probably. Unemployment in South Wales drops. Hurrah, mind you the Government will take the credit..Booo

Will the cost for such data go up? Yes

Unfettered access via EDI - A thing of the past? It should be

Will that make PPCs more circumspect in seeking data, only for those stunningly obvious cases? I would imagine so.

The DVLA moves by inches at a time but only when it knows that there is a groundswell of opinion. So, boys and girls make the DVLA aware that there is a groundswell of opinion acting as one concerted body. Write and enquire as to what it is doing to prevent the release of data requested outside of the statutory timescales? Write and ask when your data was requested if you get a notice to keeper. Keep the pressure on for the DVLA to "prevent" data being released contrary to POFA

I know that some folk consider that the POFA is meaningless legislation. However, this thread originated from someone being sued by a PPC as the registered keeper. Do nothing when you get the Notice to Keeper and the PPC can sue you. So, as registered keepers the POFA is not meaningless. It can come to our aid if we just take the time to understand how it works rather than kicking it into the rubbish bin. Because the general advice is to do nothing there may be increasing numbers of registered keepers being sued rather than drivers. You may just be playing into the PPCs hands if you do nothing. So, have your defence ready. If the intervention of the IC with the DVLA means that those parking companies using ANPR cannot get your details because it will take longer than the POFA stipulates, then perhaps ANPR gets dumped.

The ball is in your court, be proactive.

Polyplastic

polyplastic

I was asked to prepare this and which is on another website. Keep it handy it may come in useful for checking that a PPC has met the conditions I mentioned in my last post
I AM THE REGISTERED KEEPER AND NOT THEDRIVER WHO PARKED THE CAR – CAN A PRIVATE PARKING COMPANY (PPC) MAKE ME PAY APARKING CHARGE I HAVE NOT INCURRED?

Short answer

No, if you give that PPC the name and address of the driver of your car who allegedly parked it in a private car park contrary to the car park’s terms and conditions. The PPC must have served a notice on you asking you to provide that information.

Long answer

If you do not wish to provide the name and address of the driver (and there is no legal obligation to do so), the PPC must have complied with all of the following procedural steps in order to be able to recover the parking charge from you. This checklist should be used at every step of the process, especially at the notice to keeper stage. If the Keeper knows that the PPC has failed to follow the route prescribed by POFA then he knows that he can decline to give the drivers details with impunity. He should advise the PPC just where it has failed to comply with POFA, but only by appealing to POPLA on the 28th Day or after the end of the period for service of the notice to keeper. If he advises the PPC too early then the PPC can re-serve the notice to keeper which is compliant with the Act.


1. The vehicle must not have been stolen at the time that the Parking Charges were incurred. You must provide the PPC with evidence that it had been stolen.

2. From the date you receive what is called a Notice to Keeper no action may be taken against you until at least 28 days have elapsed. (During that time you can either pay the charge, appeal or provide the name and address of the driver)

3. No more may be recovered from you than is specified in the Notice to Keeper (less any payments made towards the unpaid Parking Charges)

4. The creditor (person entitled to recover the parking charge) must have a contractual right to recover the parking charge from the driver and must be unaware of the name and current address of that driver.

5. Either

5.1 The driver received what the Protection of Freedoms Act 2012 calls a “notice to driver” (parking ticket) ,at the time the vehicle was stationary in the car park, followed by the “notice to keeper” both of which must comply with the requirements of the Protection of Freedoms Act 2012 (see below); or

5.2 Where a notice to driver was not served e.g because of the use of ANPR, then just a notice to keeper has been served on you

6. The Creditor or its agent must have made application to the DVLA for your name and address either

6.1 NOT EARLIER than 28 days after the vehicle was parked (where a “notice to driver” was issued); or

6.2 NOT LATER than 14 days after the vehicle was parked (where a notice to driver was not issued)

7. Any requirements of any Regulations made under paragraph 12 of Schedule 4 of the Protection of Freedoms Act 2012 have been met (as to display of notices in the car park) No such Regulations have been made as at March 2013

8. Subject to Schedule 4 of the Protection of Freedoms Act 2012 where the vehicle was hired and the hire agreement includes an obligation on the hirer to pay all parking charges, if the hire company provides evidence of that liability to the Creditor within 28 days of the service of the Notice to Keeper, together withthe name and address of the driver, then the hire company shall not be liable for the parking charges


What information a valid Parking Ticket must include

• which car the ticket relates to
• what land the car was parked on
• the period the car was parked
• when and how the parking rules were broken
• What the parking charges are for the infringement of the rules, and of the maximum additional costs they may seek to recover, and the date by which those parking charges should be paid
• any discounts for paying within 14 days – which should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice (applies to BPA Members only)
• how to pay and to whom (this must be the person legally entitled to the money and identified as the “Creditor”)
• the date the time the notice was issued
• how appeals and complaints can be dealt with – for parking companies who are members of the B PA.

If the ticket was issued to the driver it may also say that the PPC may ask for details of the registered keeper of the car from the DVLA. NOTE that the PPC cannot ask for registered keeper details until 28 days have elapsed since the issue of the Parking Ticket i.e. after the period within which the driver is required to pay or appeal the parking charge


Paragraph 7 of Schedule 4 makes it clear that it is mandatory for all of the above information to be in a Notice to driver. If it is not included then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

What informationa valid Notice to Keeper must include

• Which car the ticket relates to
• What land the car was parked on
• The period the car was parked
• Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when
• Specify the outstanding amount of the parking charge and of the maximum additional costs they may seek to recover, and of the dispute resolution arrangements
• Invite the registered keeper to pay the outstanding parking charge or, if he was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver
• Identify the “creditor” who is legally entitled to recover the parking charge
• Warn the driver that if the parking charges remains outstanding after 28 days or the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.

• Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)

• Date of the notice

Paragraphs 8 and 9 make it clear that it is mandatory for all of the above information to be in a Notice to Keeper. If it is not included then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.


Service ofNotice to Keeper


A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either

1. (Wherea notice to driver (parking ticket) has been served) Not earlier than 28days after, nor more than 56 days after, the service of that notice to driver;or

2. (Whereno notice to driver has been served (e.g ANPR is used)) Not later than 14days after the vehicle was parked

With the relevant period being counted from the day after that on which the car was parked


A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose“working day” means any day other than a Saturday, Sunday or a public holidayin England and Wales.


The notice to keeper must be accompanied by any evidence prescribed in Regulations made under paragraph10 of Schedule 4 of the Protection of Freedoms Act 2012. As at March 2013 no such Regulations have been made


If a Notice to Keeper has been issued and the PPC knows who the driver is then the PPC may have improperly obtained the registered keeper details from the DVLA


If the Notice to Keeper is not served within the time limits specified by paragraphs 8(5) or 9(5) of Schedule 4 then there has been a failure to comply with the conditions specified in the Act and the registered keeper cannot be held accountable for the alleged debt of the driver

edward123

There is a lot there to digest. Just this though:

...What information a valid Parking Ticket must include

• which car the ticket relates to
• what land the car was parked on
• the period the car was parked

What does "period" mean there? The time when the car was first parked to the time it was moved away? If so then what of those 'tickets' the vehicle gets from a ppc employee who takes a photo of a parked vehicle at the time he gives it its ticket? No "period" could then be on that ticket(or photo of course) as the vehicle is still there. Or am I just missing something simple here?

trisontana

I notice there is no mention on there of what amount the parking charge should be, especially as both the BPA and the DFT state that it must only be a "genuine preestimate of loss".

I know the BPA puts a figure of up to £100 on that, but in reality no loss is ever going to amount to that.

polyplastic

Take this one a step at a time. Just treat the Notice to driver or Notice to Keeper as a separate issue from the validity of the actual charge. Does the notice include all of the details required by the POFA? Use that check list.

If it does not then the registered keeper cannot be sued end of story. If yes, then move to the next step.

Is the period of time correct? Did you pay for one hour and park for 45 minutes but they claim it was one and a half hours? The notice is correct because they filled in all the blanks, but they lied. Lying is a separate argument to the validity of the notice. With ANPR they can say that between such and such a time and such and such a time you were there. That is the period.

They may claim £100 as a parking charge and to them that is the parking charge but can the parking charge be challenged? Possibly. If you look at what I have posted I said that the Notice must "Specify the outstanding amount of the parking charge".

The photo they take is merely giving evidence that it was parked and not how long it was parked. Its just evidence that you were there.

So, once you are satisifed that they have complied with the requirements for the content of the Notice. You may then start to consider whether anything in that notice can be challenged.

BPA and the DFT state that it must only be a "genuine preestimate of loss".

No they don't. They only say that in relation to claim for damages. Look at paras 19.5 and 19.6 of the COP. These set out two different forms of charges. 19.5 is damages and 19.6 isn't.

So, you have to look at the signage in the car park to be able to work out whether they are claiming damages or not. That is difficult. In the case in this thread Parking Eye say that they are claiming for a breach of contract and that means damages. It's a legal interpretation issue. Recently a case was before POPLA where the appellant defended a damages claim under 19.5. POPLA decided that actually the claim was 19.6 and so was not damages so the apellant's arguments on "reasonable pre-estimate" were irrelevant.

Complicated isn't it?

Look at it this way. You are driving at 60mph in a built up area and caught on the speed camera. 21 days later you get from the Police a Notice of Intended Prosecution. You know you were speeding so you are banged to rights. You give your Solicitor the documents and ask how you can get off with it as the points will mean you lose your licence and you lose your driving job. Your Solicitor firstly considers the validity of the Notice of Intended prosecution. He knows that you must get that within 14 days of the offence. It was served late so you get off on a technicality even though you were speeding.

Get charged with an offence and the charge sheet has to follow a prescribed form. Yes you did commit the offence but the charge sheet did not comply with the rules so you get off on a technicality. It's the same with the notice to driver/keeper from the PPC. You breached the car park rules but the form does not have all the relevant details so you avoid a liability. If the details are right, try another defence.

The law is full of technicalities like this. Take advice from a Solicitor and he can usually spot these nuances straight away. Usually a half hours chat is free. If you can get legal aid (and the Government is cutting that down) its free. If you get the no win no fee its free but then the Government is trying to stop that as well. Just as well there is the Internet

Polyplastic