Mr McDonald

martmonk

Guys_Dad wrote: »

Then the comment about the RFL would apply as a reason to get an exemption from the Trust and an instruction to the staff that if a motorist who hadn't pre-registered came in showing either a blue badge or a relevant RFL, then the PPC should be instructed to cancel the ticket.

I will make this point to them. I think they will apply it as you suggest. They are being pretty open with me and like I say I am meeting them tomorrow evening.

The issue at the heart of what I'm doing though still applies, whether exempt under EA 2010 or not, and that is that the majority of victims in this Trusts car parks won't know to appeal, produce RFL etc.

I doubt I'll get PE off the sites but I can continue to try as long as there is an open dialogue with the Trust.

Coupon-mad

I read their response and, the penalty word aside, I think they are missing the point.

They said:

''Of course, there are other groups which are protected under the Equality Act and, as you mention, pregnant and breastfeeding women and the elderly fall within these categories. Such persons can apply for concessionary free parking..''

But it was never about FREE parking. Breastfeeding and pregnant women, and the elderly, have no 'claim' to free parking under the Equality Act and you were never pushing for that! Their response makes them look silly.

It's about the blanket policy of an arbitrary time limit, causing indirect discrimination. I know YOU and most regulars here know this, martmonk!

IT IS A QUESTION OF THE EXTRA TIME SUCH A PERSON NEEDS TO DO THE SAME THING (e.g. ATTEND AN APPOINTMENT) AS AN ABLE-BODIED PERSON WOULD NEED. Simple as that.

These links should help, this is the statutory guidance to the LAW they HAVE to abide by, as service providers:

http://www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice-and-technical-guidance/

Click on 'Equality Act Codes of Practice' then the 'Services, Public Functions and Associations Statutory Code of Practice' and also 'Technical Guidance on the Public Sector Equality Duty - England'.

No need to read it all - but they should have done in 2010/11 and reviewed it regularly since!

And this is all about the single subject of 'Indirect Discrimination' (see below) and they need to understand that additional time to get around for visits and appointments would be a 'reasonable adjustment' for ANYONE with protected characteristics which give rise to that need. So, not just those with a Blue badge!

Ask for a copy of their most recent 'Compliance Report - Public Sector Equality Duty' which they should produce, like this one from Leeds Teaching Hospitals:

http://www.leedsth.nhs.uk/about-us/equality-diversity/public-sector-equality-duty-compliance-report/

The other thing to say is that the EA Guidance makes it clear that the onus is on anticipatory duties. It is NOT sufficient to say that 'each application will be dealt with by the appropriate ward manager on a case by case basis.' That cannot work! But then they were talking at cross purposes, about paying for parking or not.



Indirect discrimination:


The use of an apparently neutral practice, provision or criterion which puts

people with a particular protected characteristic at a disadvantage compared

with others who do not share that characteristic, and applying the practice,

provision or criterion cannot be objectively justified. This is explained in

Chapter 4 of the Employment Code and Chapter 5 of the Services Code.

Coupon-mad

In the 'Services, Public Functions and Associations Statutory Code of Practice' which became LAW in April 2011,
the closest example given to demonstrate indirect discrimination caused by arbitrary time limits is this one:



5.39

If the service provider plans to make reasonable adjustments for disabled

persons and makes those adjustments, then it will not have to change

the practice for non-disabled persons, but will simply adjust the practice

appropriately.


Example:


A stately home has guided tours of grounds which depart at 30minute

intervals. The guides are told to follow a strict timetable and to complete

the tours within 45 minutes. Disabled people with mobility impairments

are put at a disadvantage by this practice. When challenged by a group of

disabled persons, the park management realise:

• that the practice is indirectly discriminating against such disabled persons

and that they need to consider whether there is any justification for the

practice;

• that making reasonable adjustments by permitting one group more time

would be incompatible with the policy, as groups following on the slower

group would be held up;

• they could achieve the same level of profit from guided tours by removing

the strict timetable and permitting tours to overlap; and

• the indirectly discriminatory effect on persons with a mobility

impairment is unnecessary because they can achieve their business aim

of profit by adopting other means of achieving tour group volumes.




Now, in that example the answer was to remove the time limit completely but I don't think that is what we are suggesting. We are saying that people with 'protected characteristics' (which will be MANY of a Hospital's visitors!) need a reasonable adjustment of time in excess of that allowed for able-bodied visitors, before any 'Parking Charge (penalty in their words) can kick in.

And as well as disabled people (Blue Badge or not) they need to remember their pregnant ladies and elderly, and breastfeeding women who may need longer.

You can tell them that some Supermarkets have started to address this with a clear note on the CS desk, and entrance, to say 'if you have a disability and need longer than the 3 hour time limit for parking in our car park, please see one of our staff...' That's rare but I have seen threads about The Range doing this in some stores...

...also you can demonstrate that Parking Eye know there is an issue here but have addressed it ONLY at some car parks and ONLY for Blue Badge holders, but it's a start and proves PE know about the Duty they are failing on:

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

That leaflet at the bottom, shows that PE (and Aldi) know full well they should be 'allowing more time' under the EA. In the case of a Hospital it's even more important that they get this parking time allowance right, to be adjusted in advance, to suit people with protected characteristics.

That may well mean telling people up front, when they get their appointment card through - and/or on notices in the car park and inside, in the waiting area and in the baby changing area and in the toilets maybe!! - to give their car reg in to be added to the 'exempt from PCNs' list if they are going to need more time, e.g. if a lady with a baby has finished her appointment but is prevented from leaving in time because her baby needs feeding.

It should also be extended to communicating to patients & visitors up front in their appointment card or other paperwork, and on the website and in the Hospital waiting room, that if they do get a PCN in the post and feel it was unjustified they need to raise it with {named Team Manager/their Equality Act Compliance Manager} who can consider any Equality Act implications, etc.

The Hospital and their agents PE CANNOT lawfully tell someone after they get a fake PCN 'tough...you didn't register your need in time'!

There must be a policy which enables late adjustments to be made if the person has a protected characteristic and has slipped through the net - this being the 'net' that we are telling them they need to spread wider than they currently do! In this respect, adduce Excel v Greenwood case number 3QT60496 4th Oct 2013 https://forums.moneysavingexpert.com/discussion/4784284 where the judge said {paraphrasing} there should have been a reasonable adjustment as soon as they 'knew or should have known' that Mr Greenwood had protected characteristics...and apparently the judge also commented that he could have counter-claimed against Excel. It wasn't about the Blue Badge as a be-all and end-all.

Policy changes such as those I have suggested would be 'reasonable adjustments' in my view. It's up to the Hospital to decide on a policy which is workable and avoid indirect discrimination. They CANNOT let people get these PCNs and just pay them as they think they have no choice, because that's unlawful and harassment.

martmonk

Brilliant, thanks. Will put that together for them this morning and discuss it face to face this evening.

martmonk

Business rates a non-issue...(?)

The rateable value of any hereditament (legal name for property) is defined as:

“The rateable value of a non-domestic hereditament none of which consists of domestic property and none of which is exempt from local non-domestic rating shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year on these three assumptions:(a) the first assumption is that the tenancy begins on the day by reference to which the determination is to be made;(b) the second assumption is that immediately before the tenancy begins the hereditament is in a state of reasonable repair, but excluding from this assumption any repairs which a reasonable landlord would consider uneconomic;(c) the third assumption is that the tenant undertakes to pay all usual tenant's rates and taxes and to bear the cost of the repairs and insurance and the other expenses (if any) necessary to maintain the hereditament in a state to command the rent mentioned above."

As you can see from the definition above, we don't have regard to the profit generated by the property, this aspect is dealt with by taxation, the more profit they make, the more tax they will pay, this is dealt with by HMRC. If Parking Eye are a public limited company you will be able to view their accounts on line and see from that how much VAT and Corporation tax they pay.
I hope this answers your questions, but feel free to contact me if you have anything further I can help you with
Kind regards

martmonk

with thanks to CM I sent this at lunchtime;

I promised a fuller response to this yesterday and therefore please see below.

On reading your email again I think the point is being missed.

You have said:
''Of course, there are other groups which are protected under the Equality Act and, as you mention, pregnant and breastfeeding women and the elderly fall within these categories. Such persons can apply for concessionary free parking..''

My queries and concerns have never been about free parking. Breastfeeding and pregnant women, and the elderly, etc have no 'claim' to free parking under the Equality Act. It's about the blanket policy of an arbitrary time limit, causing indirect discrimination. It’s about the question of the extra time such a person needs to do the same thing (for example attend an appointment) as an able-bodied person would need.

This is the statutory guidance to the law Parking Eye (and the Trust) have to abide by, as service providers:

http://www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice-and-technical-guidance/

Click on 'Equality Act Codes of Practice' then the 'Services, Public Functions and Associations Statutory Code of Practice' and also 'Technical Guidance on the Public Sector Equality Duty - England'.

This is something that the Trust should be fully aware and familiar with (since 2010/11).

The single subject of 'Indirect Discrimination' is what I’ve been pointing out. Additional time to get around for visits and appointments would be a 'reasonable adjustment' for anyone with protected characteristics which give rise to that need. So, not just those with a Blue badge.

The Trust should also note that EA Guidance makes it clear that the onus is on anticipatoryduties. It is not sufficient to say that 'each application will be dealt with by the appropriate ward manager on a case by case basis.' I hope that this was due to the cross purposes to which we may have been talking - about paying for parking or not.

For clarity; Indirect discrimination:

The use of an apparently neutral practice, provision or criterion which puts people with a particular protected characteristic at a disadvantage compared with others who do not share that characteristic, and applying the practice, provision or criterion cannot be objectively justified. This is explained inChapter 4 of the Employment Code and Chapter 5 of the Services Code.

What I am are saying is that people with 'protected characteristics' (which will be many of a Hospital's visitors) need a reasonable adjustment of time in excess of that allowed for able-bodied visitors, before any 'Parking Charge' (penalty in your words) can kick in. Parking Eye (and therefore the Trust) are not providing that.

Some supermarkets have started to address this with a clear note on the customer service desk, and entrance, to say 'if you have a disability and need longer than the xx hour time limit for parking in our car park, please see one of our staff...'. In fact one such example is Parking Eye themselves (see attached Aldi notice) which demonstrates that Parking Eye already know there is an issue here.

That leaflet shows that PE (and Aldi) know full well they should be 'allowing more time' under the EA. In the case of the Trust it's even more important that the parking time allowance is right, adjusted in advance, to suit people with protected characteristics.

Some ideas on how this might be achieved would be telling people (such as in the leaflet I received) when they get their appointment through, on notices in the car park and inside buildings, in the waiting areas, baby changing areas and toilets etc, to give their car registration in to be added to the 'exempt from PCNs' list if they are going to need more time. For example if a lady with a baby has finished her appointment but is prevented from leaving in time because her baby needs feeding.

It could and should also be advised up front, on the website and in the Hospital waiting rooms, that if they do get a parking charge in the post and feel it was unjustified they need to raise it with XYZ who can consider any Equality Act implications, etc.

The Trust and their agents (Parking Eye) cannot lawfully tell someone after they get a parking charge notice 'tough...you didn't register your need in time'! I should say that I have no evidence that the Trust is doing anything other than helping those who contact it for help – I can’t say the same for Parking Eye’s appeals procedure which appears to be automated rejections – hence my FOI request on the subject.

There must be a policy which enables late adjustments to be made if the person has a protected characteristic and has slipped through the net - this being the 'net' that I am saying needs to be spread wider than it currently is (i.e. only blue badge holders).

Policy changes such as those I have suggested would be 'reasonable adjustments' in my view. It's up to the Trust to decide on a policy which is workable and avoids indirect discrimination. The Trust cannot let people get these parking charge notices and just pay them as they think they have no choice, because that is in my view unlawful and harassment. It's also this that is at the heart of these discussions - I believe that the majority of recipients will be unaware/unable of how to effectively challenge and genuinely believe that the do not have a choice.

As I think we have established the content of this and the preceding emails yesterday concern the issues around EA compliance. That however doesn’t address the other issues I have raised in terms of appeals procedure, authority, pre-estimate of losses etc.

I hope that the above clarifies further.

Best Regards

I'll post below the response just received

martmonk

This just in - I'm out of my depth now(!) and meeting them in an hour.

Thanks you for your latest enquiry,

I would respond as follows :-


In terms of the equalities issues raised, you appear to be arguing that:

1) It is unreasonable to expect Blue Badge holders to register their vehicle.

I think I have already answered this point sufficiently and don’t think there is much that can be added. I am happy if it’s easier to talk through in person, to explain how Parking Eye works and the fact that registration is needed in order to prevent Blue Badge holders getting parking notices which they keep having to appeal.

2) You state that the scheme for registering is irrelevant as far as the Equality Act is concerned.

I would suggest to you that the Equality Act does not require public bodies to come to any particular conclusion about the way in which they will act. What it requires is that public bodies give due regard to equalities issues . Therefore, it is open to the Trust to decide how it will act on its equalities obligations and how it will make reasonable adjustments. The Trust is perfectly entitled to (indeed it should) take practical considerations around how the Parking Eye system operates into account when devising a scheme for those with protected characteristics. I believe I have already explained why registering is necessary, from a practical point of view.

3) As a reasonable adjustment for persons with protected characteristics under the Equality Act, the Trust should allow short overstays by such persons without their being fined. I think the point you are making is confused and in respect of Blue Badge holders it makes no sense. However, one aspect of your argument may be cogent is that there could be groups (protected under the Equality Act) which do not need to be entitled to free parking, under the blue badge scheme, but which should be allowed to overstay if the particular characteristics of that group meant that they were more likely to have long / over-running appointments. I believe we do cater for such events using the exemptions approach, or the ability for these groups of people to top up on departure. This applies to all visitors irrespective of any perceived disability with the discretion of local managers.

With regard to the points

a) As I have noted and advised previously, the Trust provides free parking for Blue Badge holders, so the issue of overstays does not arise for them;
b) For disabled persons who do not have a Blue Badge, they can apply under the concessionary free parking scheme to be considered for free parking;
c) For persons with other protected characteristics, although the reasonable adjustments aspects of the Equality Act do not apply to them (they apply to disabled persons) the Trust does have the obligation to have due regard to equalities issues and this is met by such persons being able to apply under the concessionary parking scheme- as referred to in my previous e-mail
d) It would be complicated to have a system whereby members of some groups (with protected characteristics under the Equality Act) were allowed to overstay and would not receive a penalty notice, as how would the Trust know which cars belonged to such persons? Where an individual is in a position of having overstayed because of a characteristic which is due to their being a member of a protected group under the Equalities Act, it is always open to them to appeal a penalty notice, explaining the reasons for the overstay, and each appeal will be determined on a case by case basis.
e) Having said this, I would suggest that the Trust will consider whether a system can be put in place for such people so that if they overstayed (for reasons connected with a protected characteristic) they would not be sent a penalty notice. It may be that this is not possible/ feasible, but I can look at this issue and thereby at least your point has been considered by the Trust to explore whether it would be possible and practicable to put a system in place to cover this.


I hope the above is helpful

Best wishes

martmonk

martmonk wrote: »

c) For persons with other protected characteristics, although the reasonable adjustments aspects of the Equality Act do not apply to them (they apply to disabled persons)

that sentence stood out for me, and of course the continued 'fine' and 'penalty' references - any views on all of it and this inparticular

martmonk

I met the trust last night - Director of Estates and the Communications Manager.

Some interesting discussions and statements. What was obvious is that the Trust have issues with PE - and not just me! Nothing explicit, just reading between the lines that the headaches being caused since going live are a problem.

There was continued use of 'fine' and 'penalty' which they seemed to think - no matter how I well explained otherwise- was simply semantics.

They refused to accept that PE were acting as and on behalf of the Trust!!!! Saying that they have a contract with PE but that doesn't make PE the trust. I explained that as legal entities she was right but in contract law terms she was wrong.

The £70 (£40 if paid etc) was 'industry standard' across hospital sites!!!!!!!!

They are looking at measures to reduce the number of charge notices issued such as a blanket charge for parking - so for example £2 for 24 hours. At the moment it's £1.20 for 1st hour, 60p per 30 mins thereafter and £4 for 24. I suspect PE will be less than happy at the suggestion of a flat (low) fee for 24 hours. I welcomed the suggestion as it would at least in theory reduce the number of charges issued although there would certainly be kickback from those who only attend for less than 1 and 1/2 hours currently.

I have been impressed with the openess and honesty displayed throughout - even if we here believe they've made a monumental mistake they are at least constantly reviewing and actively engaging in dialogue.

I will be sending an email through later today and I'll post the contents of it. In the meantime any comments on the latest correspondence in regard to the EA issues (post #78) would be welcome. They admitted that these responses were being provided by AN Other (legal) so as I stated in that post I think I'm at the limit of my scope on the subject after just a few weeks of reading and basically stealing everything written by CM.

Umkomaas

Kudos MM for your perseverance in taking this to the 'front'. I think you've made a great job of it.

It was never going to result in PE being given their immediate marching orders to the (car park) exit, but a £2 flat fee for 24 hours will point them firmly in that direction - they'd hardly be able to produce a ticket on that basis, other than for someone parking there and going on holiday - and then £40 for a fortnight's parking would be a good deal.

More power to your elbow, mate :T