UKCPS Parking Charge Notice

Coupon-mad

I would be more pushy re getting the POPLA code in the first response as they normally reply and ask for further evidence and that a POPLA code will be given 'at the appropriate time'.

I would add:

''Do not send your template response saying you will make POPLA available 'at the appropriate time' or I will report UKCPS to the BPA and DVLA AOS compliance teams for persistent breach of the BPA Code of Practice.

For the avoidance of doubt, UKCPS, be advised that THIS, NOW is the appropriate time to either cancel the fake PCN or send me a POPLA code.''

Circus4

Thank you. I will do exactly as you say.

Circus4

Hi,

In response to the advice above, I posted the following soft appeal on 12 July:

In reference to the speculative invoice received 01 July 2013, dated 28 June 2013, the keeper denies all liability to your company as it is an unlawful punitive charge, thus a penalty!

Further, as you have failed to reply to the challenge of 06 June 2013, as you are required to do by the British Parking Association Code of Practice Version 2, dated March 2013, the challenge is deemed accepted and the keeper considers the matter closed.

The keeper has nothing further to add, and will not respond to any correspondence from your company unless it contains the POPLA code, furthermore the keeper is fully aware that you must pay £27+Vat for this, so don't forget!
In addition, do not send your template response saying you will make POPLA available 'at the appropriate time' or the keeper will report UKCPS to the BPA and DVLA AOS compliance teams for persistent breach of the BPA Code of Practice.

For the avoidance of doubt, UKCPS, be advised that THIS, NOW is the appropriate time to either cancel the fake PCN or send me a POPLA code. Bearing in mind the unanswered challenge detailed above, you actually only have the one option.

Today UKCPS have replied with the following:

Thank you for your appeal regarding the above parking notice charge.
The location where the vehicle was parked is private land for use of permit holders and or Pay and Display use only.
All vehicles must be displaying a valid parking permit or Pay and Display ticket clearly in the windscreen so the
warden can check that it is in date and valid. Prior to leaving the vehicle it is the responsibility of the motorist to
ensure the Permit or Ticket is clearly on display and not dislodged. By parking the vehicle without clearly displaying
a permit or Pay and Display ticket the driver contractually agrees to pay a parking charge of £100 (reduced to £60
for early settlement if paid with 14 days of original ticket issue), which remains unpaid. Whilst we sympathise with
your situation, you were correctly issued with a parking charge. The charge will remain on hold for a further 14 days
from the date of this letter.
We note that you consider the charge punitive. It isw in fact the same or lower than all the other members of the BPA.
Please respond with any further evidence you may of your right to park at this location.
UKCPS can only address the factual issues of where and how you parked. We will not enter into discussions about
the legality of parking on private land or of the landowners right to impose parking conditions on their property. We
have considered everything stated in your correspondence but it does not contain grounds to uphold your appeal. If
you wish to make further representation, with additional evidence, please provide this within seven days of this letter.
Second appeals must contain additional reasons not contained within your initial representation which you wish us to
consider. You may also appeal to an independent assessor through POPLA (Parking on Private Land Appeals)
details of which will be sent at the appropriate time if requested.

My question:

What happens now? They didn't provide the POPLA code as requested.

Thanks for your advice.

Guys_Dad

Dear PPC,


Without Predudice

I see that you need a simpler appeal. It is my belief that your signs are not compliant with the BPA COP. You believe they are. I need POPLA to adjudicate on that point and any others I can dig up in the meantime.

Send me the POPLA Code.

Yours

Coupon-mad

Come on, you did say you were reading lots of threads, in the holidays the forum is not as full of regulars and so we can't spoon feed everyone through the same old same old letters every time! That's the standard response I was talking about earlier, dare I say 'told you so'. A template response.

Did you not read some UKCPS threads on here and on pepipoo while you were waiting and see that exact letter before?

Try Googling 'UKCPS address the factual issues' to see 'your' letter. There's even one on the forum like yours right now and yet you typed the entire template letter out!

https://forums.moneysavingexpert.com/discussion/4684895

You seem surprised they didn't send you a POPLA code even though I warned you they might not yet. Obviously you carry on asking for it and challenging the fake PCN further because POPLA is where you will win, if you start reading threads about 'POPLA strong appeals' of course!

If after your next response they don't send a POPLA code then report them to the DVLA and BPA for non-compliance in that they have refused a POPLA code despite a challenge on various issues including the allegation the 'charge' is punitive. The email addy of the DVLA is on various UKCPS threads, you really would be best reading some so that you are more prepared and so you don't carry on thinking the rubbish responses you are getting are unusual when they are not.

Often at the moment you may not get a response on this forum as it's holiday time, hence why you really are best reading relevant other stuff in advance.

Circus4

Got the POPLA code at 3rd request. Now trying to put everything together for the POPLA appeal.

Coupon-mad

Circus4 wrote: »

Got the POPLA code at 3rd request. Now trying to put everything together for the POPLA appeal.

Include the tricks about the lack of POPLA code in the introduction of your POPLA appeal. And email a complaint about the PPC to these email recipients, as this repeated behaviour needs sanctions:

https://forums.moneysavingexpert.com/discussion/comment/62837083#Comment_62837083

Check what is wrong with their letters and timeline, here:

http://www.parkingcowboys.co.uk/keeper-liability/

...and compare their signs with the BPA Code of Practice applicable to your case (the March 2013 version). Read the Code and the Appendices, spot the errors!

And then write a POPLA appeal having looked at these links; you can show us your draft here quite safely as the PPC will see it soon enough:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

And don't try to fit a POPLA long appeal wording into the online POPLA appeals box, as it won't fit, causes an error and cuts the wording off! Either attach it as a PDF along with your photo evidence or post it stapled to a POPLA appeals form, with the 10 digit code on every single page. Tick 3 out of 4 boxes (just not the stolen car one).

Circus4

Ok, here's my draft appeal to POPLA. I think I've covered most things. Obviously, I cannot attach the attachments to this forum but I hope you get the picture. Before submitting, I will combine it all into one PDF. Copy + Paste is a wonderful thing! All comments are welcome.

The Keeper believes PCN XXXXXX is unenforceable as issued for the reasons stated below:

1. Unclear Signage
a. British Parking Association (BPA) Code of Practice Version 2, March 2013, Para 18.2 states:
“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use”.
There are no signs at the entrance to the XXXXXX XXXXX XXXXX car park (Attachment 01). UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXX is unenforceable.

b. PCN XXXXXX has clearly been issued because the car was parked "Without a valid permit or authority". The UKCPS sign (Attachment 02.) refers to “Leaving/Walking off site”. There is a box for this on the PCN (Attachment 03). It has not been ticked.
The PCN has not been completed correctly. UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXXX is unenforceable.

2. Failure of UKCPS to Adhere to Process
a. BPA Code of Practice Version 2, March 2013, Para 22.8 states:
“You must acknowledge or reply to the challenge within 14 days of receiving it. If at first you only acknowledge the challenge, you must accept or reject the challenge in writing within 35 days of receiving it. We may require you to show that you are keeping to these targets”.
PCN XXXXXXX Part 2 clearly states;
“All appeals / complaints and queries must be by writing or Email”.
The Keeper filed the first appeal (Attachment 04), dated XX XXXX 2013, in accordance with instructions given within the PCN. The appeal was neither acknowledged nor replied to within the 35 days specified. UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXX is unenforceable.

b. Despite the above appeal, a Notice to Keeper (Attachment 05), dated XX XXXX 2013 was received 02 July 2013.
In contravention of a. above, other than the PCN, this was the first communication The Keeper received from UKCPS. UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXXX is unenforceable.

c. BPA Code of Practice Version 2, March 2013, Para 22.12 states:
“If you reject a challenge you must:
• tell the driver how to make an appeal to POPLA. This includes providing a template ‘notice of appeal’ form, or a link to the appropriate website for lodging an appeal
• give the driver a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge”.
The Keeper waited the full 35 days from date of first appeal for any kind of reply, a second appeal (Attachment 06), dated XX XXXX 2013 was made. This requested the POPLA code. The UKCPS reply of 26 July 2013 (Attachment 07), did not contain the requested code, instructions of how to appeal to POPLA, template “notice of appeal” form or link to the appropriate web site. UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXX is unenforceable.

d. The UKCPS reply of XX XXXX 2013 (Attachment 07) refers to “Permit Holders and Pay and Display”. As can be seen at Attachment 02, UKCPS signs do not refer to “Permit Holders” and that the car park is not a “Pay and Display” facility.
The Keeper submits that, if UKCPS are to be believed, it would not be possible for anyone, public and patients alike, to use this car park without receiving a Parking Charge Notice.

e. The Keeper made a third appeal (Attachment 08), dated XX XXXX 2013. Again the POPLA code was requested.
This time, the UKCPS reply of 20 August 2013 (Attachment 09) contained the requested code. However, it did not contain the required template. UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXX is unenforceable.

f. Schedule 4 paragraph 7 of the Protection of Freedoms Act 2012 stipulates the mandatory set of information that must be included on the Parking Charge Notice. If all of this information is not present 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.
PCN XXXXXX does not comply with this requirement in that it does not state the period of time for which the vehicle was parked. It merely states the time the PCN was issued. Further, The parking charge notice is not compliant with paragraph 9 (2)(h) in that it does not identify the creditor. The operator is required to specifically "identify" the creditor. This would require words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper. UKCPS are in contravention of Schedule 4 of the Protection of Freedoms Act 2012. Therefore PCN XXXXXX is unenforceable.

g. In accordance with Schedule 4 of the Protection of Freedoms Act 2012, UKCPS may not request vehicle keeper details until after 28 days from issue of the PCN.
PCN XXXXXX, Part 3 states:
“If no payment is made within 14 days, vehicle keeper details will be obtained from the DVLA, a letter requesting full payment of £100.00 will be issued to the registered keeper. Failure to pay within 28 days of the parking charge notice date of issue will result in court action being taken against the driver. Further costs may be incurred including court costs and bailiff costs which will be added to the final sum owed”.
This statement allows no time for the Appeal Process and attempts to frighten or even harass the recipient of the PCN to pay the amount requested without exercising their right of appeal. UKCPS are in contravention of Schedule 4 of the Protection of Freedoms Act 2012. Therefore PCN XXXXXXX is unenforceable.

h. Schedule 4, paragraphs 8 and 9 of the Protection of Freedoms Act 2012, stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present 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.
The Notice to Keeper (Attachment 05) does not comply with these requirements in the following manner:
1. Whilst the Notice to Keeper does specify the outstanding amount of the parking charge it does not specify the maximum additional costs that UKCPS may seek to recover.
2. The Notice to Keeper does not detail the discount for payment within 14 days. The discount should be at least 40% of the full charge under the BPA Code of Practice. The Notice to Keeper states:
“The reduced charge of £60 has not been paid and the amount now due is: £100.
3. The Notice to Keeper also contains the following statement:
“Appeals Procedures. You have had the right to appeal within the 28 day period from the point of issue of the Parking Charge Notice as set out in the issued ticket. Please note that the 28 days have now elapsed”
This paragraph is an attempt to harass The Keeper into paying the parking charge and does not convey the right to appeal to POPLA.
UKCPS are in contravention of Schedule 4 of the Protection of Freedoms Act 2012. Therefore PCN XXXXXX is unenforceable.

i. BPA Code of Practice Version 2, March 2013, Para 22.7 states:
“We consider it a reasonable timescale to allow 28 days from the issue of the parking charge notice (in whatever format you send it) to allow the driver, keeper or hirer to challenge the enforcement action”.
PCN XXXXXX (Attachment 03) clearly limits the appeal time to 7 days. UKCPS are in contravention of the BPA Code of Practice. Therefore PCN XXXXXX is unenforceable.

3. No contract
There was no contract between The Keeper and either UKCPS Ltd or The Newland Health Centre. The Keeper did not see the notices when they parked and at that time had no idea any charge whatsoever was required. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc were not satisfied. Only on returning to the vehicle did we notice your PCN affixed to the windscreen. At that time we looked around and saw your sign.

4. Trespass
If there was no contract, then at most The Keeper was guilty of a civil trespass (though this is neither admitted nor denied). If this was the case, The Keeper would be liable to damages. Given that they did no damage to the car park and furthermore that the car park was not full when they parked and they believe, also when they left (Newland Health Centre operates during normal office hours on a Monday to Friday basis), It is suggested that there was therefore no loss at all, particularly as when the car park is in use during the week by patients visiting the centre, they are not charged for the privilege of parking their vehicles in it during their medical appointments.

5. Punitive/unfair/unreasonable
Without prejudice to the foregoing, even if there was a contract (which is denied):

a. Punitive
The charge that UKCPS are levying is punitive, contravening the Unfair Contract Terms Act 1997 and therefore void (ie unenforceable). The charge of £60 is arbitrary and in no way proportionate to any alleged breach of contract. The Keeper also considers the PCN to be a penalty because UKCPS have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).Nor does it even equate to local council charges (which in any event are a completely different beast). This is all the more so for the additional charge of £40 which UKCPS say accrues after fourteen days of non-payment. This would also apply to their mention of any costs incurred through debt recovery unless it followed a court order.

b. Unfair
The charge UKCPS are levying is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

c. Unreasonable
The charge UKCPS are levying is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

6. Proprietary Interest

a. The Keeper does not believe that the operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give UKCPS any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, UKCPS’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.

b. The Keeper contends that UKCPS are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

c. The Keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to UKCPS. The Keeper expected UKCPS to prove that they are not in breach of section 7.1 of the BPA code.

d. Even if a basic contract is produced and mentions PCNs, 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 UKCPS and the owner/occupier, containing nothing that UKCPS can lawfully use in their own name as a mere agent, that could impact on a third party customer.

This concludes my appeal to POPLA.

Coupon-mad

How refreshing to read a POPLA appeal that you have written yourself and made it your own! Nice!

Did you have anything in there about 'the amount of the charge is not a genuine pre-estimate of loss, which it has to be in a car park where the Operator is alleging some sort of breach. The Operator cannot include general business running costs in their charge breakdown because these would be incurred whether or not the car (or any cars) were in the car park.'

Or summat like that? I skim-read your appeal before signing off and didn't see the 'no loss' part that you always need, except mentioned under 'trespass' (and I don't think this is a case of trespass).

Circus4

Thanks. Yes, I have that under Punitive a. above.