Mr McDonald

Coupon-mad

Well done on being so tirelessly proactive.

They have misunderstood the point about 'needing more time' and assumed you meant because certain people might need longer/overrunning appointments. But it's not necessarily just that.

Technically they are right that the words 'reasonable adjustments' relates in the EA specifically to disabled people. But they are wrong to assume that this only means Blue-Badge holding disabled people of course. The EA is clear on the definition of disability and it doesn't include the words 'having a Blue badge' and nor is it only people with mobility problems. People with cancer, mental health issues, OCD, agoraphobia, LOTS of conditions lasting 12 months or more could give rise to a genuine need for the use of a bay near the building, and to take longer to get to and from the appointment.

It's not the length of the appointment. It's the time taken to get to and from it and leave the car park, if a person with severe, diagnosed OCD is considered as an example. This person might take 25 minutes to even get in the door of the Hospital with their carer, and the same time to get back to the car. Not because of mobility issues, but because of their OCD (maybe they have to walk though doorways 20 times and count to 200 before standing up from a chair or something, then insist on washing their hands five times! This is an extreme example but one which demonstrates where a reasonable adjustment os time (and NO parking charge for an 'overstay'!) should be allowed.

And whilst the actual words 'reasonable adjustments' only relates to disabled people (like the person with OCD) there is still a similar duty not to discriminate against people with other protected characteristics (like pregant ladies, breastfeeding mothers). Hence why it's easier to talk about 'reasonable adjustments' even when discussing their needs.

Disciminating a lady because she took 20 minutes following her appointment, to breastfeed her baby, is illegal. What would the Trust do to avoid that person getting a fake PCN - or at least to inform her that it can be cancelled immediately? Parking Eye will probably not cancel it if she wrote 'I was feeding my baby' and how would she know to even mention that fact in her appeal? She might write 'I am sorry I overstayed because I had an appointment and I had my baby with me'.

martmonk

CM - thanks once again for a full and 'laymans terms' explanation.

I think they are taking the discussion seriously, and have recognised to some degree the cross purposes to which we earlier eluded.

They have suggested some policy review and changes which is welcome but I think I'm going to get into a circular argument with them on the subject if I continue it.

They are saying that the ability to 'top up' your parking before departure, along with the exemptions available (although these are not 'advertised' and should be and is the main point I'll make in response I think) is enough to satisfy the concerns raised.

Coupon-mad

martmonk wrote: »

CM - thanks once again for a full and 'laymans terms' explanation.

I think they are taking the discussion seriously, and have recognised to some degree the cross purposes to which we earlier eluded.

They have suggested some policy review and changes which is welcome but I think I'm going to get into a circular argument with them on the subject if I continue it.

They are saying that the ability to 'top up' your parking before departure, along with the exemptions available (although these are not 'advertised' and should be and is the main point I'll make in response I think) is enough to satisfy the concerns raised.

I agree, that seems reasonable as long as people know they can top up. PE won't like it!!

nigelbb

Using Pay & Display is singularly unsuitable for use in a hospital car park for both visitors and patients as neither group can guarantee exactly when they will leave.

The only fair option is to allow a 'top-up' so if the stay is longer than expected because appointments are running late etc then the motorist can still pay. It should even be possible as with the London Congestion Charge for the motorist to pay after they have returned home with a small surcharge if they pay more than 24 hours later.

martmonk

nigelbb wrote: »

Using Pay & Display is singularly unsuitable for use in a hospital car park for both visitors and patients as neither group can guarantee exactly when they will leave.

The only fair option is to allow a 'top-up' so if the stay is longer than expected because appointments are running late etc then the motorist can still pay. It should even be possible as with the London Congestion Charge for the motorist to pay after they have returned home with a small surcharge if they pay more than 24 hours later.

The top up is in place at these sites already and therefore is available

martmonk

as promised this morning here's the email I've constructed and sent this lunchtime;

I wanted to drop you this email to thank you for taking the time to meet with me last evening.

It was confirmed to me that the Trust is taking seriously the issues surrounding Parking Eye and I am pleased that review and potential changes are being considered.

I would however say that, Equality Act discussion aside (I will digest your latest email on the subject asap), there are in my opinion still some issues surrounding the employment of Parking Eye by the trust that need to be understood.

Most of these we discussed but there were a couple that I didn’t think xxxxx and yourself fully accepted and understood. The first is the Principal/Agent relationship in that as a company allowed to issue parking charge notices to car park users of the Trust Parking Eye are acting for and on behalf of it, the contract between PE and the Trust provides the principal/agent status. This isn’t just my opinion, it is in fact law– ‘An agent who acts within the scope of authority conferred by her principal binds the principal in the obligations she creates against third parties.’

Secondly in regard to the level of the charge notices issued, Parking Eye have advised you that this is an industry standard (and why wouldn’t they, we agree that they make their money from these notices). However as I explained any ‘charge’ levied by Parking Eye is for alleged breach of contract (they have publically stated this), therefore the remedy can only be a pre-estimate of the loss incurred by that breach.

On this subject I mentioned POPLA appeals where the appellant had raised this issue of pre-estimate of loss and stated that every appeal made on these grounds was being upheld, here is a recent example;

10 October 2013

XXXXXXXXX (Appellant) -v- ParkingEye Ltd (Operator)

The Operator issued parking charge notice number XXXXXXXX arising out of the presence at XXXXXXXX, XXXXXX, XXXXXX, on 11 June 2013, of a vehicle with registration mark XXXXXXXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

The Operator issued a parking charge notice (‘PCN’) for being “parked in a no parking area” and for having “abused patron parking”. The Operator submits that a parking charge is now due in accordance with the clearly advertised terms of parking which stated “Strictly no parking on grass verges”. The Operator has produced photos of the Appellant’s vehicle and site signage in support of its case.

The Appellant disputes that the PCN was properly issued. Amongst other grounds, it is the Appellant’s case that the £100 parking charge is unenforceable because the Operator has been unable to justify it as a genuine pre-estimate of loss.

The signage produced in evidence by the Operator states that a PCN would be issued for “failure to comply” with the parking conditions. This wording appears to indicate that the parking charge represents damages for a breach of the parking contract.

Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The Operator submitted that the charge is “a genuine pre-estimate as we incur significant costs in managing this car park to ensure motorists comply with the stated terms and conditions and to follow up any breaches of these.” The Operator gave examples of such costs, including the cost of erecting site signage and the cost of membership of the Driver and Vehicle Licensing Authority.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. However, some of the costs referred to do not represent a loss resulting from the alleged breach. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same.

Consequently, I do not have the evidence before me to refute the Appellant’s submission that the parking charge is unenforceable.

I must allow the appeal on this ground. Accordingly, it does not fall for me to decide any remaining issues.

Matthew Shaw
Assessor

Now, as I hope was clear last night I’m not in favour of you opening up your car parks for widespread abuse and I’m not suggesting that the parker in this case had any right to park on the grass verge. But what they do have is the right to challenge the remedy being sought for the alleged contravention.

As these charges must be a pre-estimate of loss I cannot understand how there can be ‘an industry standard’, other than to say that it’s‘sales patter’ from Parking Eye, designed to convince clients such as yourselves that it’s ‘normal’.

May I again thank you for taking the time and I can only think that such an open approach will be a good thing going forward. Incidentally whilst leaving I was waiting to sign out behind a group of pensioners, and I overheard some key words in what they were discussing which led me to believe they had just completed a meeting with the Patient Experience team and the subject had been parking. I therefore wondered if that was a patient group that I might find further information on? If there is a consultation going on outside of our discussions, I'd very much like to be a part of it.

Finally I thought it prudent to summarise where we are at in relation to the various correspondence and requests I have made so that we both know what, if anything is outstanding.

1) EA2010 – I have your latest email which I will review
2) Pre-estimate of Loss – I think I’ve outlined my thoughts above and although I appreciate you’ve tried to answer by passing on what you have been told by Parking Eye, I do not believe that this issue has been properly addressed given the information above.
3) My question above about ‘Patient Group’.
4) FOI request 1994 which we have not yet discussed, either by email or face to face but may do depending on the response.
5) Email to CEO – some questions on that which are outstanding,
a. Whether PE have the right to pursue through the courts – covered by the FOI’s 1938 and 1968. As you know I dispute the ‘commercially confidential’ response to 1938 and in any case 1968 asks for just that specific clause and cannot therefore be commercially confidential.
b. FOI 1981 which is in relation to the appeals process we discussed briefly last night.
c. Whether minutes of board meetings (or others) in which Parking Eye was discussed, are available, or whether an FOI is required to obtain them.

Once again thank you for meeting me and the openness that was shown.

Best Regards

martmonk

just a quick update to say I've been provided with a couple of FOI responses this afternoon.

One on the 'show me the clause' - and they have and it states;


2.1 The authority appoints the contractor to provide the services:

• 2.1.6 as agent, to pursue the outstanding Parking Charges by any method up to and including by way of legal procedings to recover these sums due from motorists for unauthorised parking.

However one of the others provided a redacted copy of the contract. In that contract there is no 2.1.6 !!!!

I've immediately asked for an explanation.

martmonk

On the VAT FOI I have appealled the response.

The questions was;
is the Trust paying Parking Eye (and therefore being invoiced) the VAT due on the charges that Parking Eye have levied?

The answer was that the trust paid VAT on the contract price (which they've previously stated was cost neutral to the trust so what VAT?). Then went on to say exact commercial agreements are exempt under section 43 blah blah.

I've sent appeal straight off simply saying how can a yes/no answer be commercially sensitive.

martmonk

Having read the contract more fully there is also this clause;

39 Relationship of the parties

39.1 The Contractor shall not incur any liabilities on behalf of the Authority or, as the case may be, any Beneficiary: or, make any representations or give any warranty on behalf of the Authority or, as the case may be, any Beneficiary: or, enter into any contract or obligation on behalf of the authority or, as the case may be, any beneficiary.
(my bold)

To me that says they cannot enter a contract with a motorist therefore there are no terms and conditions to 'breach' in the first place?

If that interpretation is right, and if the clause above (2.1.6) actually is contained in the contract now (I'll be asking under FOI when it was added) which takes precedence?

I would assume any authority to pursue through 'any method' is negated by the fact that they can't form a contract to begin with?

Coupon-mad

Sounds a good point to me, although I am not legally trained of course.