Help needed with POPLA appeal!

Pinacolada_2

Don't worry - just seen it in the BPA code of practice.

Pinacolada_2

I'm struggling with how to word the part of my appeal where I want to say that I did not enter into a contract with Ethical. I bought a permit and the signs are all over the car park so did I enter a contract? Plus I didn't ask to be provided with a copy in my appeal. What can I use to say that no contract was entered and that I am at worst, guilty of civil trespass? Thanks

Coupon-mad

Pinacolada wrote: »

I'm struggling with how to word the part of my appeal where I want to say that I did not enter into a contract with Ethical. I bought a permit and the signs are all over the car park so I clearly did enter a contract, plus I didn't ask to be provided with a copy in my appeal. What can I use to say that no contract was entered and that I am at worst, guilty of civil trespass? Thanks

You could use the paragraph with the law about Unfair Contracts that I put here under the heading 'NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS':

https://forums.moneysavingexpert.com/discussion/comment/62187053#Comment_62187053

or put the 'no contract' point together with the no genuine pre-estimate of loss' point as in this heading 'NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS':

https://forums.moneysavingexpert.com/discussion/4695227

You paid for a ticket and so there was no loss. Do not suggest that you trespassed, do not make any admissions (and anyway you didn't!).

You did NOT 'clearly enter a contract' just because there were signs up!

HTH

Pinacolada_2

Hi, I've been searching the threads and can't for the life of me find the one I read with the section on clinical anxiety and the Equality Act 2010! Do you have a link? Thanks!

bazster

The point about the Equality Act 2010 is that it is broad!

https://www.gov.uk/definition-of-disability-under-equality-act-2010

You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

What ‘substantial’ and ‘long-term’ mean:

‘substantial’ is more than minor or trivial - eg it takes much longer than it usually would to complete a daily task like getting dressed
‘long-term’ means 12 months or more - eg a breathing condition that develops as a result of a lung infection

No reason why clinical anxiety shouldn't qualify, it all depends whether it is "substantial" and "long-term", which it certainly can be - my OH was treated for it for 6 years (wrongly as it happened, eventually turned out she actually had a treatable neurological condition and the anxiety medication had made the symptoms much worse).

Pinacolada_2

bazster wrote: »

The point about the Equality Act 2010 is that it is broad!

https://www.gov.uk/definition-of-disability-under-equality-act-2010

You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

What ‘substantial’ and ‘long-term’ mean:

‘substantial’ is more than minor or trivial - eg it takes much longer than it usually would to complete a daily task like getting dressed
‘long-term’ means 12 months or more - eg a breathing condition that develops as a result of a lung infection

No reason why clinical anxiety shouldn't qualify, it all depends whether it is "substantial" and "long-term", which it certainly can be - my OH was treated for it for 6 years (wrongly as it happened, eventually turned out she actually had a treatable neurological condition and the anxiety medication had made the symptoms much worse).

I also have Obsessive Compulsive Disorder which qualifies as 'substantial' as it can take me hours to complete simple tasks such as washing myself and dressing myself in the morning. It is also long-term as I have had this condition for over 10 years. Shall I use my OCD as well as the clinical anxiety in my point about the Equality Act?

Pinacolada_2

This is my draft appeal - any input would be greatly appreciated! I'm not sure why there is a lack of spacing between words and the font is all messed up!


Dear POPLAadjudicator,

POPLA appeal re: Ethical Parking Management ticket number 0000905810POPLAcode2361683603

This is my appeal as I am the driver of this car (already admitted) but I amnot legally liable for the parking charge. In addition, the vehicle was notimproperly parked. As such, the parking 'charge' notice (ticket) also exceededthe appropriate amount.

SUMMARY OF INCIDENT: HARASSMENT OF AN EQUALITY ACT PROTECTED APPELLANT
I parked in the car park of the xxxxxxx campus of the xxxxxxxxx and displayed my scratch card parking permit on the dashboard. Itwas a very windy day, with strong winds coming from the sea. I shut the cardoor and left to enter the university building, satisfied that I had paid anddisplayed a valid scratch card parking ticket.

I washorrified to return to my car and find a ticket stuck to the windscreen. It wouldappear that the wind had blown the ticket from where I had placed it on thedashboard, and it had fallen. However, the ticket was still clearly visiblewhen looking through the window of the driver’s side.

Ethical Parking Management sent me photographs of my car at the time of theticket being issued. Please see the attached photographs. Ethical only sent mephotographs of the windscreen and the passenger’s side of the car. I believethis is because the parking ticket was clearly visible through the driver’sside window. I could clearly see the date on the ticket when I looked in thewindow upon finding the parking charge notice.

I immediately appealed to Ethical Parking Management and sent a photograph ofmy valid parking ticket. I expected Ethical to repeal the parking chargenotice, as I had correctly paid and displayed, and the ticket officer wouldhave experienced how strong the wind was that day. In fact they ignored thedetails of the appeal, not considering my points properly or fairly. They putpressure on me to just pay up within 14 days or face the threat of an increasedcharge, and court action. They also discouraged me from appealing to POPLA bythreatening that by applying to POPLA (a service which is free to motorists inthe interest of public justice) I would incur further costs if unsuccessful.

The POPLA adjudicator should also be informed that I have suffered withclinical anxiety, Obsessive Compulsive Disorder and clinical depression for thelast 15 years. My Obsessive Compulsive Disorder has a massive and debilitatingimpact on my daily life and my ability to perform basic tasks such as washingand dressing myself. The Equality Act 2010 states that you are considereddisabled if you have a physical ormental impairment that has a ‘substantial’ and ‘long-term’ negative effecton your ability to do normal daily activities. The nature of mydisability means that my condition is directly worsened as a result of thestress and anxiety inflicted on me by Ethical Parking Management’s threats oflarge, unjustified fines and court action. If Ethical Parking Management doesnot cancel my parking charge notice - whatever the POPLA decision - they willalso be in breach of the Equality Act 2010 (the Act) because my long-term debilitatingcondition means I am a protected person under the Act. It is unlawful to harassa disabled person and any alleged contractual terms & conditions arerendered null and void, if the effect is to breach disability legislation byharassment.

Ethical must cease and desist with this harassment now that they know about myprotected condition and it is my belief that POPLA cannot uphold this 'charge'under these circumstances as it would be enabling direct discrimination.


OTHER POINTS AGAINST AND IN RELATION TO THIS CHARGE
In case the adjudicator requires more information as to why this parking chargeshould not be paid - I have researched the matter and would like to point outthe following:

UNCLEAR AND NON-COMPLIANT SIGNAGE
Due to their bright colours, distracting pictograms and the barely legible sizeof the small print, the signs in this car park are very hard to read andunderstand. There was no mention on the signage that parking tickets must beaffixed to the dashboard in order to be considered correctly displayed.

I contendthat the signs and any core parking terms Ethical Parking Management arerelying upon were too small for any driver to see, read or understand whendriving into the car park. I request that POPLA should check the Operator'sevidence and signage map/photos on this point and compare the signs to the BPACode of Practice requirements. I contend that the signs and machines in thatcar park (wording, position, clarity) do not comply and fail to properlywarn/inform the driver of the terms and any consequences for breach, as in thecase of Excel Parking Services Ltd v Martin Cutts, 2011.


CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICEAND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
Ethical Parking Management do not own this car park and are acting merely asagents for the owner or legal occupier. In their Notice and in the rejectionletters, Ethical Parking Management have not provided me with any evidence thatit is lawfully entitled to demand money from a driver or keeper, since they donot own nor have any interest or assignment of title of the land in question.

I amnot liable as Ethical Parking Management do not have proprietorship in the landand have not demonstrated to me that they are contracted to charge for the land.The Operator is a member of the British ParkingAssociation, and the BPA Code of Practice states, in section 7.1, that theOperator must have written authority from the landowner to recover parkingcharges, including pursuing through court action. The Appellant puts theOperator to strict proof that they have the necessary authorisation at thelocation.

“7.1 If you do notown the land on which you are carrying out parking management, you must havethe written authorisation of the landowner (or their appointed agent) beforeyou can start operating on the land in question. The authorisation must giveyou the authority to carry out all the aspects of the management andenforcement of the site that you are responsible for. In particular, it mustsay that the landowner requires you to keep to the Code of Practice, and thatyou have the authority to pursue outstanding parking charges, through thecourts if necessary.”

I do notbelieve that the Operator has the necessary legal capacity to enter into acontract with a driver of a vehicle parking in the car park, or indeed thelegal standing to allege a breach of contract (as evidenced in the Higher Courtfindings in VCS v HMRC 2012).

I would require POPLA to please check whether Ethical Parking Management haveprovided a full copy of the actual contemporaneous, signed & dated contractwith the landowner/occupier (not just a signed slip of paper saying it exists)and check that it specifically enables this Operator to pursue parking chargesin their own name and through the court system. I say that any contract is notcompliant with the requirements set out in the BPA Code of Practice.


NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS
There is no contract between Ethical Parking Management and myself but even ifthere was a contract then it is unfair as defined in the Unfair Terms inConsumer Contracts Regulations 1999:

Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shallbe regarded as unfair if, contrary to the requirement of good faith, it causesa significant imbalance in the parties' rights and obligations arising underthe contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individuallynegotiated where it has been drafted in advance and the consumer has thereforenot been able to influence the substance of the term.''

It is unfair for Ethical Parking Management to fine me for allegedly notdisplaying the ticket correctly, when the ticket was clearly visible throughthe driver’s side window. There were no instructions on the signage stating thatparking tickets must be affixed to the dashboard in order to be correctlydisplayed. This would seem to me to be a clear breach of the ConsumerProtection from Unfair Trading Regulations 2008.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no contract between the driver andEthical Parking Management. As a consequence the requirements for forming acontract such as a meeting of minds, agreement, and certainty of terms were notsatisfied.

As there was no contract, then at most I wasguilty of a civil trespass. This is stated in the BPA Code of Practice: “Adriver who uses your private car park with your permission does so under alicence or contract with you. If they park without your permission this will usually be an act of trespass. In allcases, the driver’s use of your land will be governed by your terms andconditions, which the driver should be made aware of from the start. You mustuse signs to make it easy for them to find out what your terms and conditionsare."

If I am guilty of a civil trespass, I may be liable to damages. Giventhat no ‘damage’ was done to the road, that the road was not blocked when thedriver stopped or when the driver left, and that there were plenty of otherfree spaces for other drivers to park in (therefore the driver did not withholda space from another paying member of the public) there was in fact no loss atall.I argue that theparking charge does not reflect the operator’s loss, and so is not enforceable.

EthicalParking Management are clearly attempting to enforce this charge underparagraph B 19.5 of the BPA Code of Practice as they suggest my emergencyconstituted a breach of contract. As such, they must be required to validatethis argument by providing POPLA with a detailed financial appraisal whichevidences the genuine pre-estimated amount of loss or damages in thisparticular car park for this particular 'contravention'.

Since I paid and displayed and no damage was caused, there can have been noloss arising from this incident. Neither can Ethical Parking Managementlawfully include their operational day-to-day running costs in any 'loss'claimed. I contend there can be no loss shown whatsoever; no pre-estimate(prior to starting to 'charge for breaches' at this site) has been prepared orconsidered in advance.

The Operator states, in their letter of rejection, that the parkingcharge represents a contractual breach. Under established contract law, a partycan only claim for their actual, or pre-estimated losses arising directly froma breach of contract. The Operator has not supplied any evidence or breakdownof such losses, which, the Appellant submits, would in reality be a vanishinglysmall sum, and nowhere near the amount demanded by the Operator.

The charge Ethical Parking Management is imposing is punitive andtherefore void (i.e. unenforceable). The £80 charge is arbitrary anddisproportionate to any alleged breach of contract or trespass.
UNLAWFUL PENALTYCHARGE
Since there was no demonstrable loss/damage and yet a breach of contract hasbeen alleged, it can only remain a fact that this 'charge' is an attempt atdressing up an unlawful penalty to impersonate a parking ticket. This issimilar to the decisions in several County Court cases such as Excel ParkingServices v Hetherington-Jakeman (2008), also OBServices v Thurlow(review, February 2011), Parking Eye v Smith (Manchester County CourtDecember 2011) and UKCPS v Murphy (April 2012) .

On the basis of all the points I have raised, this 'charge' fails to meet thestandards set out in paragraph 19 of the BPA CoP and also fails to comply withthe CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.

It is unfair and punitive and, as such, I respectfully request that this appealbe allowed.

Guys_Dad

Send it by surface mail as there is every likelihood the POPLA online system will cut the end off and it won't be considered.

You can try, of course, but also send it by post.

see here https://forums.moneysavingexpert.com/discussion/4691167

bazster

It's a good start, but Coupon-mad originally wrote most of that and is the disabilities expert so I'll leave it to her to comment further. I doubt she'll be long, she's quite nearby I think!

Pinacolada_2

Oh, I was planning to send it by email as an attachment, it says you can send it by email on the POPLA form. I don't have time now to send by post