Another Parking eye one

Dumbledore13

Coupon-mad wrote: »

Please show us your draft POPLA appeal so we can be sure nothing is missed, and remember the deadline is up, counting 28 days from the date of their rejection letter.

POPLA appeals:

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

HTH

Will put it up later, just a couple more bits to wrap it up.

Dumbledore13

So here's the appeal I've put together.

If anyone has anything to add it'll be good to hear your views. I hope it reads right.

Also, if I have any glaring errors that I've provided as fact, point it out immediately!

I'm still trying to thinking of a final 'signing off' line.




Parking Appeal

Ref. ................

Sir/Madam,

I am appealing against the decision of Parking Eye. I had asked Parking Eye in my letter to them to cancel the 'parking charge' on the grounds that the charge is punitive and therefore a penalty as it did not represent any sort of loss. They then replied to tell me that my appeal was unsuccessful, however I don't believe an appeal was made in the first case, simply a request to cancel the 'charge'.

I have a few points for consideration in my appeal.

The basis of Parking Eye's charge relates to their so called 'loss of earnings', a few of which were briefly outlined to me in their reply. However, it is of my understanding that Parking Eye are employed by the Landowner and as a part of employment, surely they must be paid for their services to the Landowner. Therefore, a 40 minute overstay did not affect their earnings. I am lead to believe from the points Parking Eye outlined that their only source of income is from parking fees and charges, which to anyone, is a bad business plan as if everyone in Prospect Place parked for 2 hours only with no misdemeanours, Parking Eye would earn absolutely nothing. Parking Eye want me to accept that the only way that their staff are paid is by the payment of unenforceable 'parking charges' from unsuspecting drivers who do not know any better.

I do not believe I owe any money to Parking Eye. Parking Eye manage the Prospect Place car park on behalf of the Landowner and so I believe that it is indeed the Landowner who pay Parking Eye and therefore it is the Landowner to whom I owe money for any parking transgressions. The Landowner, by right of ownership, can charge for any losses they have incurred, however the £85 charge quoted from Parking Eye definitely does not reflect loss to them or the Landowner. If anything, I am liable to a charge of £3 for the 40 minutes overstay. I use the term "If anything" due to the fact that Prospect Place offer 2 hours free stay to whoever enters the car park. I would assume this is a move by the Landowner to increase profit for the shops in the vicinity, thus determining that money from parking fees is of no importance compared to the money that can be gained from retail sales. The idea of parking fees is merely to increase traffic in to the shopping centre, to get more customers to come and go. Referring back to the 2 hours of free parking, this is available to anyone, regardless of whether they spend money in the retail park or not. On the day in question, I did spend money in the retail park (please find the receipt enclosed). Though not solely excusing for not having pre-paid for the 40 minutes overstayed, I feel that the Landowner would rather retail sales and therefore believe that this is a very minor infraction and one that is not of note to the Landowner and so the quoted £85 charge from Parking Eye is redundant as it does not reflect loss of earnings, the sole purpose a charge is set to remedy.

The BPA Code of Practice outlines that "If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer". As I have already pointed out, Parking Eye suffered no loss of earnings. In the next paragraph of the Code it states "If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable". The charge for one hour after the 2 free hours at Prospect Place is £3 so how can a charge of 28 times that not be considered punitive or unreasonable?

Furthermore, the 'parking charge' I received from Parking Eye had no reference to VAT on it. Parking Eye deny that this charge of £85 is a penalty and that it is a "Parking Charge Notice, for contractual breach". Now, I will discuss the 'contract' shortly but here I would like to point out that as Parking Eye deny the use of penalties, the parking charge must therefore be an invoice for payment of a service, here being the use of the car park, and as such is liable to VAT, the details of which must be shown to the payee. As there is no mention of VAT on the "Parking Charge Notice" it must be accepted that the amount of VAT owed is zero and therefore falls in to the category of a penalty or fine as outlined by HMRC. This is not compliant with the BPA's Code of Practice which states that a penalty may not be issued. So then we must accept Parking Eye have then issued me with a fine, breaking BPA's Code of Practice. Either that or they have used misleading phrases and improper documents to avoid paying VAT.

Parking Eye have accused me of a contractual breach, the reason to which they have handed me with what we shall now call the penalty. I refute this accusation.

On the date in question I was still recovering from an operation (details of which are provided) and as such fall under the protection of The Equality Act 2010. The Act defines a person with a disability "if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. As I fell under this description on the date in question, I was entitled to "Reasonable adjustments to prevent discrimination". I should have been allowed extra time to complete my shopping and not subjected to a penalty for it. I only saw one disabled space (which was not overtly easy to see) in the car park but it was already in use and so decided to park in a regular space in the centre of the car park. I was also unsure of Parking Eye's view on the 'blue badge scheme' as to whether they followed it or not. Blue badges are not handed out to everyone who qualifies as disabled. An interesting point here is if Parking Eye follow the advice is section 16.4 of the Code, in which it says "You are at risk of a claim under the Equality Act if you do not discourage abuse of the 'disabled' spaces. This means that you need to make sure the spaces are regularly checked to be sure they are not being used by people who do not have a disability". It would be good to see if Parking Eye keep up with this and if there is any proof of it as I did not see any evidence of on-site staff on that day.
Whether they follow the scheme or not, I feel that I have still been discriminated against under the terms of disability set out by The Equality Act 2010 and Parking Eye have failed to follow the BPA's Code of Practice when dealing with disabled people. BPA state in section 18.9 of their Code "so that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle". Although it suggests this should be located by the disable parking bays, it should not be limited to this as not all disabled people can park there. As I could not park in the disabled bays, the only sign that I saw that day in the car park was the ill-placed sign at the entrance. The entrance comes off a busy road and with many other motorists entering the car park behind you, there is no way to read the whole terms and conditions of parking without a) causing a dangerous traffic jam behind you or b) leaving the car to read it, the latter failing in BPA's Code of Practice. I was therefore unaware that I had entered any contract and as such, could not have breached any contract.

On a final note, under section 29.1 of the BPA's Code of Practice, the parking ticket issued must contain certain information. This ticket must include "all the methods by which drivers may challenge the parking ticket, including at least an email and a postal address." No email address is provided on the ticket, thus breaking the Code. Having no email address has meant that I have had to spend money on getting envelopes and stamps. I don't believe that I should be spending money to appeal against Parking Eye's fine.


(final remark about them considering all my arguments)

Regards,

Guys_Dad

Well, it goes down in my book as the longest potentially losing appeal I have read.

For a start, you can only appeal to POPLA after your appeal to then PPC has been turned down. So why on earth would you write " They then replied to tell me that my appeal was unsuccessful, however I don't believe an appeal was made in the first case, simply a request to cancel the 'charge'." ?

It goes from bad to worse. You get tied up in a confused argument over VAT, a thesis on what you believe the landowner would prefer, you admit overstaying for no good reason, you say PE experienced no loss of "earnings" when, manifestly, they have. What they have NOT done is suffered a loss, not just a reduced income.

I also think you may be on shaky ground on the way you have incorporated the Equality Act, but coupon-mad may put me right if I have this wrong.

Why on earth do you not follow the format of every successful POPLA appeal. Concentrate on signage, no genuine pre-estimate of costs and no valid contract that you demand they show?

I appreciate a lot of work has gone into this and that is why it is a shame that, in my view, it will not work.

Please, please read some other appeals - Danny30 has just done a decent one.

However, that is only my view. Others may disagree and you must follow your own instincts. Hopefully some regulars may wish to comment

Dumbledore13

Guys_Dad wrote: »

Well, it goes down in my book as the longest potentially losing appeal I have read.

For a start, you can only appeal to POPLA after your appeal to then PPC has been turned down. So why on earth would you write " They then replied to tell me that my appeal was unsuccessful, however I don't believe an appeal was made in the first case, simply a request to cancel the 'charge'." ?

It goes from bad to worse. You get tied up in a confused argument over VAT, a thesis on what you believe the landowner would prefer, you admit overstaying for no good reason, you say PE experienced no loss of "earnings" when, manifestly, they have. What they have NOT done is suffered a loss, not just a reduced income.

I also think you may be on shaky ground on the way you have incorporated the Equality Act, but coupon-mad may put me right if I have this wrong.

Why on earth do you not follow the format of every successful POPLA appeal. Concentrate on signage, no genuine pre-estimate of costs and no valid contract that you demand they show?

I appreciate a lot of work has gone into this and that is why it is a shame that, in my view, it will not work.

Please, please read some other appeals - Danny30 has just done a decent one.

However, that is only my view. Others may disagree and you must follow your own instincts. Hopefully some regulars may wish to comment

Ah, damn. Thanks for the honesty. Yeah I thought I would get mixed up in places but not that bad aha.

I tried to follow some winning points but also word it different so that it didn't come across as a template.

I'll give it a going over and follow some winners more closely, cheers!

Dumbledore13

Guys_dad read the one from danny30 and it looks good, more to the point. Will follow along those lines.

But help with the equality act bit would be good from anyone. I was encouraged to include it and think it would be helpful towards winning.

Guys_Dad

Dumbledore13 wrote: »

Guys_dad read the one from danny30 and it looks good, more to the point. Will follow along those lines.

But help with the equality act bit would be good from anyone. I was encouraged to include it and think it would be helpful towards winning.

Thanks for taking it the right way. On the disability thing, I give way to coupon-mad and hope she casts her eye over it and comments.

Don't copy Danny's word for word but use it as the basis for yours, with differences where appropriate.

But do wait for others' comments as well. I may very well be wrong in my view. There are no absolutes in this. :beer:

Dumbledore13

Yeah I'm just following the flow of it, obviously changing the details! But it's well written. The first one I did, I followed some points from ones suggested to me on other sites.

I don't know much about these things and being the first time I've had to write one, I'll take any help. I can't be paying some ridiculous 85 quid fine!

Umkomaas

Actually, whilst perhaps not for this appeal, the somewhat naive assumption that if a landowner 'employs' a car park manager then surely they should pay for that service and surely not rely on their very own customers (to be penalised) so that the landowner avoids paying for the service they have contracted?

I rather think this to be quite a clever question - it just needs the right platform as to when and where to raise it.

Coupon-mad

Hiya, we will get there with a good POPLA appeal asap!

Get rid of any point about VAT because POPLA have already said in other decisions (effectively) that VAT is not their remit in any form or in any appeal point.

And change this:

Dumbledore13 wrote: »

On the date in question I was still recovering from an operation (details of which are provided) and as such fall under the protection of The Equality Act 2010. The Act defines a person with a disability "if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. As I fell under this description on the date in question, I was entitled to "Reasonable adjustments to prevent discrimination". I should have been allowed extra time to complete my shopping and not subjected to a penalty for it. I only saw one disabled space (which was not overtly easy to see) in the car park but it was already in use and so decided to park in a regular space in the centre of the car park. I was also unsure of Parking Eye's view on the 'blue badge scheme' as to whether they followed it or not. Blue badges are not handed out to everyone who qualifies as disabled. An interesting point here is if Parking Eye follow the advice is section 16.4 of the Code, in which it says "You are at risk of a claim under the Equality Act if you do not discourage abuse of the 'disabled' spaces. This means that you need to make sure the spaces are regularly checked to be sure they are not being used by people who do not have a disability". It would be good to see if Parking Eye keep up with this and if there is any proof of it as I did not see any evidence of on-site staff on that day.
Whether they follow the scheme or not, I feel that I have still been discriminated against under the terms of disability set out by The Equality Act 2010 and Parking Eye have failed to follow the BPA's Code of Practice when dealing with disabled people...

...to summat like this (it doesn't matter which parking space you chose), and include headings to make it easier to see each point:



BREACH OF EQUALITY ACT 2010, NO 'REASONABLE ADJUSTMENT' OF TIME

Firstly, POPLA please note this is a legal point which renders Parking Eye's contract terms legally unenforceable; this is not mitigation. This section of my appeal also makes the point that Parking Eye know about this particular issue already and cannot lawfully 'pick and choose' at which sites they bother with disability law, or not.

At the time of the parking incident, the driver was was recovering from surgery relating to a long-term medical condition which continued to affect their day-to-day living. As such, under the Equality Act 2010 (EA) the driver met the 'definition of disability' and was entitled to longer to park and shop than able-bodied visitors. The operation was on the driver's back; a recent surgery and an ongoing and painful issue at the time, so there was undoubtedly a 'mobility need' for extra parking/shopping time. The Operator and its client have failed in their legal duty under the EA's 'reasonable adjustment' provisions to put in place a (proactive, not reactive) system to offer up front, extra time allowances at the time of parking, to account for customers with such needs.

Parking Eye and their client have a legal duty to comply with the EA and make 'reasonable adjustments' for customers with protected characteristics such as the driver on this occasion (with no Blue Badge needed in law, not on private land). Quite simply, an arbitrary time limit with no extension for those who need it by virtue of their 'protected characteristics' is discriminatory. Parking Eye cannot circumvent the EA. And Parking Eye are aware of this fact because in some car parks they allow double time for customers who register at the store customer service desk. This leaflet from Parking Eye at Leyland Aldi proves that Parking Eye do sometimes consider disability law but only at some car park sites:

http://forums.pepipoo.com/index.php?showtopic=77891

So Parking Eye have breached the EA at this particular car park site, on this occasion; they have no cause of action and no enforceable contract whatsoever. The EA makes it clear that contractual terms which breach the Act (i.e. in this case, fail to make reasonable adjustments) are a nullity:

EQUALITY ACT 2010
Unenforceable terms
142(1) A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

**********




...and re the other points with headings, this example is how I usually set them out:

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

That example is full of legal case law which is relevant. Depends if you like that sort of thing! If not look at other examples as already linked earlier for you.

Or try a version like this one which cites the statutory 2011 Code of Practice for Service Providers (landowners, shops, PPCs et al) on the Equality Act 2010:

https://forums.moneysavingexpert.com/discussion/comment/63340389#Comment_63340389

DO PLEASE NOTE that the POPLA online appeals box will cut short a long appeal without warning and doesn't work with some browsers. So either send the appeal by post instead if you have a POPLA form (staple it firmly together and put the 10 digit code as a header on every single page). Or submit it online as a PDF attachment within the box where you will just put a line or two of introduction and the attachment and say 'POPLA please tell me if this PDF appeal is not readable and I will re-send it'. And tick 3 out of 4 appeal grounds boxes (all except the stolen car one).

Umkomaas

OP - C-M's advice on the Equality Act 2010 is as sound as you could possibly get anywhere, including (in my view) from any solicitor. Do follow it.