POPLA Decisions

Stebags75

Got an e-mail from POPLA saying NCP has cancelled my parking charge & 'withdrawn your appeal'.

This was over NCP quietly disabling the autopay functionality on their app. I even admitted I was the driver!

Success! Glad I didn't pay the £100

andromeda24

PPC: Horizon Parking Ltd
Location: Tesco Salford Quays 

Main thread: https://forums.moneysavingexpert.com/discussion/6560681/driver-doesnt-want-to-pay-horizon-fine-but-registered-keeper-does/p1

Decision: Unsuccessful

Assessor Name: Jason Cookson-Dean

Assessor summary of operator case

The parking operator has issued a parking charge notice for exceeding the maximum stay period.

Assessor summary of your case

The appellant has raised the following points from their grounds of appeal: • The notice to keeper is not compliant with the Protection of Freedoms Act (PoFA) 2012, as the liability has been transferred one day too early. • The notice to keeper does not have specific wording as set out in PoFA. • The notice to keeper was issued on 3 October and presumed given to keeper on 7 October and the 28 days would start on 8 October. After reviewing the parking operator’s evidence, the appellant expands on their grounds of appeal advising that the PCN is not PoFA compliant, and that the operator has never used PoFA in previous PCN’s. The appellant has provided a part screenshot of the wording on the PCN as evidence to support their appeal. The above evidence will be considered in making my decision.

Assessor supporting rational for decision

The appellant has identified as the keeper of the vehicle on the day of the parking event. As such, I am considering the appellant’s liability for the PCN, as the keeper. For an operator to transfer liability of unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in PoFA must be adhered to. The British Parking Association (BPA) monitors how operators treat motorists and has its own Code of Practice setting out the criteria operators must meet and comply with. In its code of practice section 21.16 it states: “If the keeper does not reply within 28 days, or refuses to give enough details about the driver, under Schedule 4 of POFA you are able to pursue the keeper for the unpaid parking charge.” Paragraph 9 (2) (f) (ii) of PoFA 2102 it states: “(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given”…“the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.” The appellant has provided a copy of the wording on the PCN as evidence. The day the notice was given is the date the PCN was issued. The second working day is the date when the PCN is presumed to be delivered to the keeper. The operator has issued the PCN on Thursday 3 October 2024, PoFA would mean that the 28 day period would begin on Friday 4 October 2024. The operator has stated that it would start on the second working day which would be Monday 7 October 2024. The wording on this PCN allows the keeper more time to respond than PoFA requires. Having viewed the notice to keeper issued to the appellant I am satisfied that the operator has complied with Schedule 4 paragraph 9 of PoFA 2012, and that liability of the parking charge was successfully transferred to the keeper at the time of the event. POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal. The parking operator has provided photos of the signs at the car park which state that there is a maximum 20-minute stay. The signs also say that a PCN of £70 will be issued for not complying. It is the responsibility of the motorist when entering a car park that they make themselves aware of the signs and what the restrictions are. The operator has provided Automatic Number Plate Recognition (ANPR) images of the appellants vehicle arriving at 09:57 and leaving one hour and 12 minutes later. As this exceeds the maximum 20-minute stay, the driver has not followed the terms of the site and the parking operator has issued the PCN. After considering the evidence from both parties, the driver has exceeded the maximum 20-minute stay and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal. Any questions relating to payment of the parking charge should be directed to the operator.

Coupon-mad

"The operator has issued the PCN on Thursday 3 October 2024, PoFA would mean that the 28 day period would begin on Friday 4 October 2024."

No it doesn't.

He has erred in law even though he quoted the law above this error!

EDIT:

After a Formal complaint, POPLA admitted the Assessor got it wrong:

https://forums.moneysavingexpert.com/discussion/comment/81256252/#Comment_81256252

hirersezn

Le_Kirk said:

Well done on your successful outcome. Why did the POPLA assessor keep jumping between PN & PCN?

I am not sure. In my popla appeal i used a previous template and didn’t change the wordings parking charge to penalty notice, so it could be that. I was so sure I was going to lose this.

Bigun28

Just won an appeal against a Smart Parking through POPLA.

No payment machine on site, and signage was very confusing, with some elements taped over.  Couldn't get a good signal on my phone on site to pay, so I paid about a hour later after I left when I could download the app to pay.

Smart Parking raised a ticket against me for not paying in time, then rejected my appeal.  I took it to POPLA, and when Smart Parking put their side of the story, they included a load of photos of signage and payment machines that were not from the car park I was at.  They also said that there were payment terminals there, but there were only around 40 cars in the car park and definitely no payment terminals.

When I looked closely at the photos, there were also 3 different car park location numbers across the photos, one of which showed a payment terminal and car park location number outside of a shop, but there were no shops at the car park I used.  The one that was supposedly from the car park I used was just a straight shot of the sign, but it looked like the location number had been Photoshopped onto the picture of the sign.

I raised all this back to POPLA and they agreed that the photos did not match the car park that I was at, and upheld my appeal.

Coupon-mad

"The one that was supposedly from the car park I used was just a straight shot of the sign, but it looked like the location number had been Photoshopped onto the picture of the sign."

Wow!! Show that image here please.

I want that as evidence for the Government.

Switcher_Sam

This isn't a POPLA decision, but I'm posting as per the advice from @Coupon-mad in the thread "Horizon 28 days error POPLA Appeal 2025".

(Thanks to @LukasBB (and @sdg213) for recent Horizon posts that I cribbed. Also thanks to @andromeda24 and I'm very sorry for your experience with a POPLA adjudicator who had trouble counting to 26, let alone 29. Plus @LDast for the post about multiple Lidls - there are Multiple Tescos in our town, so I used that too..

(Complete newbie until a local Tesco sneakily reduced maximum stay. Why Tesco want to lose my custom for life, my 4 mobile phone contracts and insurance is beyond me but hey-ho. My eyes have been opened about this PPC scamming business..)

If it be useful to anyone else, I submitted this to POPLA on Saturday evening and I got the withdrawal eMail on Monday morning..

POPLA ref: XXXXXXXXXX

Horizon PCN ref: HPXXXXXXX

Vehicle registration: XXXX XXX

I am the registered keeper of the vehicle with VRM XXXX XXX, and I am appealing the Parking Charge Notice (PCN) HPXXXXXXX issued by Horizon. I was not the driver at the time of the alleged contravention. As the registered keeper, I am under no legal obligation to identify the driver and I decline to do so.

I dispute the Parking Charge Notice (PCN) on the following four grounds:

(1) Failure to adhere to multiple requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA 2012; hereafter abbreviated to PoFA)

(2) Horizon has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

(3) Inadequate signage leading to

• failure to adhere to PoFA;

• breach of the British Parking Association (BPA) Code of Practice (BPA/IPC private parking sector single Code of Practice 27th June 2024, in force from 1st October 2024, hereafter abbreviated to BPA/IPC code);

• breach of Consumer Rights Act 2015 (fairness test for terms & notices).

(4) No evidence of landholder authority

1. Failure to adhere to multiple requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA)

Horizon’s Notice to Keeper (NtK) fails to comply with PoFA, which prevents them from transferring liability from the driver to me, the registered keeper. PoFA was introduced to allow parking operators to hold keepers liable when the driver is not known, but only if the operator follows the Act’s strict statutory requirements. In this case, Horizon’s non-compliance with key PoFA requirements invalidates their claim to hold me, as the keeper, liable.

1a) Failure to comply with PoFA 9(2)(f)

The Notice to Keeper in this case states: “..the period of 28 days from the second working day after the date of this Parking Charge,..”. However, PoFA stipulates (at paragraph 9 subparagraph (2) (f)) that this period must be given from: “the period of 28 days beginning with the day after that on which the notice is given”.

In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: “A notice sent by post is to be presumed…to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted”. The wording used by Horizon in this case, sets the 28 day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after.

This attempt to reduce the timescale by one day means that Horizon is not compliant with PoFA Schedule 4, and it is not enough for them to comply with other parts of the Act. PoFA requires full compliance for the transfer of liability to be valid: partial or substantial compliance is not sufficient, as established in several POPLA decisions and persuasive appeals in the courts.

F igure 1 – Non-compliant wording on NtK (Horizon PCN ref: HPXXXXXXX)

Reference to Previous POPLA Decisions:

i) Successful POPLA Decision (December 2024):

I would like to draw POPLA’s attention to a recent decision regarding a similar case also involving Horizon Parking (POPLA assessment and decision code 3762434330, decision date 17/12/2024), which was allowed on the basis of the exact same non-compliance with PoFA. The assessor in that case ruled as follows:

“The appellant has presented a technical challenge to the parking operator’s application of PoFA. The parking operator is reliant on the correct application of PoFA in this case as driver liability cannot be established. As such, in respect of the 28-day period given for the PCN to be paid or for the driver’s details to be provided, I must note that Notice to Keeper in this case does state: ‘the period of 28 days from the second working day after the date of this Parking Charge’. However, PoFA stipulates (at paragraph 9 subparagraph (2)(f)) that this period must be given from: ‘the period of 28 days beginning with the day after that on which the notice is given’. In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: ‘A notice sent by post is to be presumed…to have been delivered (and so ‘given’ for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted’. As such, I must uphold the appellant’s grounds in respect of the wording used by the parking operator in this case, as this sets the 28-day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after. Accordingly, I must allow this appeal.”

This case is identical to mine in terms of the non-compliant wording used in the NtK, and I respectfully ask that POPLA consider this previous decision when reviewing my appeal.

ii) Acknowledgment of Error in Unsuccessful POPLA Decision (January 2025)

In another case where an appeal on this same point was initially rejected, the POPLA Complaints Team has since confirmed that the assessor’s judgment was incorrect. While the decision was not reversed, the complaints handler explicitly acknowledged the error, stating:

“I acknowledge that the assessor has incorrectly stated that the given date. I would like to apologise for this error. As PoFA 2012 states that motorists must be given 28 days from the day after the notice is given, you are correct in stating that the 28 days should have begun from [the correct date].”

This acknowledgment highlights the importance of adhering to PoFA requirements and avoiding repeated errors in the interpretation of the legislation. I respectfully request that the assessor for my appeal carefully reviews both the successful December 2024 decision (3762434330) and the Complaints Team acknowledgment to ensure a correct and fair decision is made in this case.

In summary:

• PoFA states that the NtK is presumed 'given' on the second working day after issuance.

• The 28-day period to transfer liability then begins the day after the second working day.

• The NtK incorrectly starts the 28-day period from the second working day itself, which is one day too early.

• As PoFA requires exact compliance, this error invalidates the attempt to transfer liability to the keeper.

• This is comparable to an earlier POPLA decision whereby the case was allowed.

This is a crucial challenge that POPLA should uphold, as it directly affects the legality of the operator’s attempt to hold the keeper liable.

1b) Failure to Specify the Relevant Land (PoFA 9(2)(a))

PoFA 9(2)(a) requires the Notice to Keeper to specify the “relevant land” where the vehicle was parked. This is not just a minor technicality—identifying the precise location of the alleged parking event is fundamental to the validity of the NtK, as it ensures the registered keeper is fully informed of where the alleged contravention took place.

In this case, the NtK only states “Tesco <TOWN> (NNNN)” as the location of the alleged contravention. However, there are three separate Tesco stores in <TOWN>.

This ambiguity fails to meet PoFA’s requirement to specify the relevant land. By not identifying which Tesco store is involved, the NtK leaves me, the registered keeper, in doubt about where the vehicle was allegedly parked. The distinction between these three locations is significant, as they are separate sites with different parking layouts, terms, and conditions.

The requirement in PoFA to specify the relevant land exists to avoid precisely this kind of confusion. An operator cannot reasonably expect a keeper to understand or respond to an NtK that does not even properly identify where the alleged breach occurred. As a result, Horizon’s failure to specify the relevant land is a clear breach of PoFA 9(2)(a), and this alone invalidates their ability to hold me liable as the keeper.

POPLA assessment and decision code 6062824162 (09/01/2025) dealt with this exact scenario stating: “...If there are multiple stores in the area, the operator should be providing the street address so the registered keeper can identify the location of the breach.” Therefore, Horizon’s NtK is invalid for the purposes of transferring liability to me as the registered keeper.

Failure to comply with PoFA was pointed out to the operator in the original appeal but was completely ignored in their response. I cannot be held liable as the keeper because the NtK failed to comply fully with the requirements of the Protection of Freedoms Act 2012 (PoFA).

2. Horizon has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NtK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with PoFA Schedule 4. This is the case due to multiple failings as I have shown in grounds section 1 above. This applies regardless of when the first appeal was made and regardless of whether a purported NtK was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of PoFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Horizon to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the PoFA.

This exact finding was made in 6061796103 (against ParkingEye) in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

3. Inadequate signage…

4. No evidence of Landowner Authority...

Notes

• Time and location stamped photographs in section 3 of this document were taken using the App “Timestamp Camera” (Brian Di).

Switcher_Sam

30th January 2025

End of document

1122abc

POPLA informed me that Horizon has withdrawn my appeal! Thanks to @Coupon-mad @Gr1pr @Fruitcake and the rest of the board for advice. Horizon replied to POPLA appeal with their response to my appeal but withdrew it after the comments stage.

Below is my appeal (wording taken largely from the Newbies thread)

14 January 2025
POPLA Reference Number XXX
Re: Appeal Against Horizon PCN XXX
Dear Sir/Madam,
I am the registered keeper of the vehicle in question, and I am writing to formally challenge the Penalty Charge Notice (PCN) issued by Horizon Parking.
I dispute the PCN on the following grounds:
1.        The PCN Does Not Meet the Wording Requirements of the Protection of Freedoms Act (PoFA)
The Notice to Keeper (NTK) fails to comply with the requirements set out in the Protection of Freedoms Act (PoFA). Specifically, the wording used regarding the 28-day period does not align with the prescribed wording in PoFA, leading to an invalid charge.
 
2.        Previous POPLA Decision Supports My Appeal
This appeal is consistent with a recent POPLA decision, dated 17/12/2024 (POPLA code: 3762434330), where the case was allowed due to similar issues with the parking operator’s application of PoFA. The appellant in that case successfully challenged the PCN on the grounds that the 28-day period, which begins after the notice is given, was incorrectly stated to start from the presumed date of issue, instead of the day after the notice is given, as per PoFA’s requirements. The decision noted that the parking operator relied on an incorrect interpretation of PoFA and upheld the appellant’s grounds for appeal.
I have copied the POPLA rationale below:
 
‘I am allowing this appeal, with my reasoning outlined below: In this case the appellant has presented a technical challenge to the parking operator’s application of PoFA. The parking operator is reliant on the correct application of PoFA in this case as driver liability cannot be established. As such, in respect of the 28 day period given for the PCN to be paid or for the driver’s details to be provided, I must note that Notice to Keeper in this case does state: “the period of 28 days from the second working day after the date of this Parking Charge”. However, PoFA stipulates (at paragraph 9 subparagraph (2) (f)) that this period must be given from: “the period of 28 days beginning with the day after that on which the notice is given”. In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: “A notice sent by post is to be presumed…to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted”. As such, I must uphold the appellant’s grounds in respect of the wording used by the parking operator in this case, as this sets the 28 day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after. Accordingly, I must allow this appeal.’
 
 
3.        Incorrect Start Date for the 28-Day Period
 
The wording used in the NTK sets the 28-day period from the presumed date of issue, which is contrary to PoFA’s requirements. PoFA specifies that the period should begin from the day after the notice is given, not the presumed date of issue. This incorrect start date further invalidates the PCN.
 
4.        The Operator Has Not Shown That the Individual Who It Is Pursuing Is in Fact the Driver Who May Have Been Potentially Liable for the Charge
 
As the vehicle's keeper, I have the right to withhold the driver's identity without being lawfully liable, provided the operator is not complying with Schedule 4 of PoFA. This applies regardless of when the first appeal was made or whether a ‘NTK’ was served, as only Schedule 4 of PoFA or evidence of the driver can establish keeper liability. The burden of proof lies with the operator to demonstrate that I, as an individual, have not complied with the terms on the land and am personally liable for the parking charge. Horizon is unable to do so.
Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:
Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.
This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''
 
Given the points above and the clear legal precedent established in the previous POPLA case dated 17 December 2024, I respectfully request that this charge be cancelled.
Should you require any further information, please feel free to contact me.
Thank you for your consideration.

doubleoseven

Tesco / Horizon alleged overstay, appeal overturned at POPLA using "Horizon 28 days error POPLA Appeal 2025" template. 

POPLA appeal sent Sunday evening, appeal withdrawn first thing Monday morning. 

https://forums.moneysavingexpert.com/discussion/6587313/horizon-tesco-january-2025-28-days-error-popla-appeal/p1

Thanks to all for advice and support. 

Coupon-mad

Horizon cases are falling like swatted flies!