Advice on New Rules/APCOA still using 2002?

Pammieh

hi
Have been reading this website for years but always too nervous to post messages ... but I need your help.
I have spent the last few days following threads and - I hope - my query hasn't been answered already.

I received a PCN from APCOA. The 'Notice to keeper' is dated 30th October 2013 referring to a notice on the windscreen issued 29th August 2013.

I believe there are mitigating circumstances, but I hoped to get it resolved quickly without explaining everything in a challenge to them. I thought I read on a thread that it was possible for the BPA to intervene and so - perhaps wrongly! - on 31st Oct I briefly emailed them and also DVLA saying that because of the delay between notice and letter, I felt there was no case to answer.

Steve Clark at BPA responded:
Thanks for your e-mail, the contents of which are noted.

May I ask a couple of questions?

· What was the first that you heard of this notice?
· Was something put on the screen of your car or was your first communication the notice you received in the post? If it’s the former, then APCOA are within the required deadline; the latter there might be a potential Code breach.
· Does the notice mention the Protection of Freedoms Act or seek to mention the keeper liability element? If it does there might be a Code breach, if not, they do not have to meet the deadlines in the act. Perhaps you could send us a copy of the notice and we can advise accordingly.
· Have you appealed to APCOA about this matter yet? I would urge you to do so.

I have copied in my colleague Dave into this note as his team will be leading the investigation into this matter.

Kind regards
Steve Clark
Head of Operational Services

Now I'm not sure what to do!
I thought that even if they put a notice on the windscreen they still had to notify the keeper within 56 days to be within the deadline? (It was 62 days)
In the letter there is no mention of the Protection of Freedoms Act and I realise the Regulations it refers to are 2002 not 2012. At this point I got a bit confused but I don't think anyone else has posted this same combination of time delay and Regulations so that's why I'm here.
Do I now go to APCOA and just refute the charge on the time delay? Or do I explain why I feel the charge wasn't justified (Hopefully getting you to check the wording before I send it)
Is it right that - given they are members of BPA - they can choose to use old regulations?

Advice gratefully received.
Many thanks

hoohoo

The BPA are correct and there are two confusing and different regimes.

If the parking company want to go after the registered keeper, they have to follow the deadlines specified by POFA 2012 and are the 56 days you mentioned.

If the parking company only want to go after the driver, then there are different, much looser guidelines.

The parking company have missed the POFA 2012 deadlines, as you specified, but are still legally entitled to go after the driver, just as if POFA 2012 never existed.

However, if they infer POFA 2012 applies, or that they are entitle to pursue the keeper they are in deep doo-doo which is why the BPA are asking you those questions.

Meanwhile for you the course of action is simple.

Appeal to the parking company.
Any grounds will do. How about; I do not beleive your charges are a true pre-estimate of loss.

When they give you your POPLA code, appeal on the grounds that the schedules of POFA 2012 have not been complied with and so keeper liability does not apply. As the operator have given no proof who the driver was, and have not named the driver, then there is no liability.

POPLA have upheld all known appeals on these grounds.

For good measure, also throw in the no contract with landowner and not genuine pre-estimate of loss stuff. The POPLA adjudicators will probably be glad to make a decision for a different reason for a change.

Guys_Dad

I suggest that you re-email Steve Clark, confirm that there was a ticket on your windscreen and ask him to check again with a calendar and POFA with the relevant dates of the NtK and contravention date.

Point out that the date of NtK (30th October) exceeds the 56 days in POFA, particularly as there is an additional 2 days for delivery in the legislation.

Ask him why, as the time clearly exceeds POFA, he feels that the NtK was served within BPA guidelines relating to keeper liability.

MothballsWallet

Guys_Dad wrote: »

Ask him why, as the time clearly exceeds POFA, he feels that the NtK was served within BPA guidelines.

Because the PPC in question is owned by one of his relatives or friends?

Coupon-mad

Meanwhile for you the course of action is simple.

Appeal to the parking company.
Any grounds will do. How about; I do not believe your charges are a true pre-estimate of loss.

When they give you your POPLA code, appeal on the grounds that the schedules of POFA 2012 have not been complied with and so
keeper liability does not apply. As the operator have given no proof who the driver was, and have not named the driver, then there is no liability. POPLA have upheld all known appeals on these grounds.

For good measure, also throw in the no contract with landowner and not genuine pre-estimate of loss stuff. The POPLA adjudicators will probably be glad to make a decision for a different reason for a change.

Do this as suggested by hoohoo as it sounds like this ticket isn't issued under POFA. So there really is no registered keeper liability. Obviously in all appeals you MUST write as the registered keeper; not implying at all who the driver was.

It does exceed the 56 days but if APCOA aren't citing POFA 2012 on their fake PCN then POFA 2012 doesn't apply. So you aren't liable as keeper!

We do know about the unfairness and ridiculous current situation of the 2 tier system of fake PCNs. Some POFA, some not:

http://forums.pepipoo.com/index.php?showtopic=79059

Discussed a lot but the DVLA are adamant they are allowing it. How on earth an ordinary driver or keeper is supposed to know what's what is beyond me! :mad:

Stroma

Personally I would take the issue to ICO on this, I am sure they are breaching dpa on this matter

GermanKeeper

Guys_Dad wrote: »

I suggest that you re-email Steve Clark, confirm that there was a ticket on your windscreen and ask him to check again with a calendar and POFA with the relevant dates of the NtK and contravention date.

If the keeper does not remember, who the driver was on that day, then of course he does not know whether there was a ticket on the windscreen.

Nethertheless one should ask him tho check the calendar, since in both cases the NtK was out of time.

Pammieh

Hi All
Thank you so much for all your prompt and helpful responses. Don’t know why I was worried - you’ve been great (and thrilled you ‘thanked’ me MbW!)

I’m sorry Stroma, I don’t know what ICO and dpa mean.

So I will send the following, not giving details about why I think it was unfair, just getting to the stage of a POPLA appeal when I go for the time limit on 2012 regs?

‘Dear Sir / Madam


Re: Parking Charge Notice ******** issued to vehicle registration ****** on **/**/2013.

As the registered keeper of this vehicle, I received a notice relating to this incident on 31st October (letter dated 30th October) some 63 days after the event.
I understand that this means that I have no legal responsibility to settle your request.
In addition, I do not believe that the amount you have requested is a true pre-estimate of your loss and these charges are unjustifiable and unenforceable.

Please cancel this charge in writing or alternatively provide me with a POPLA verification code within 35 days (version 3 of BPA Code of Practice) so that I can refer this matter to them.

As the keeper of this vehicle, I have nothing further to add and, if you should choose to reject my appeal, I will not respond to any other correspondence I receive from you, unless it contains the POPLA code as requested.
Regards’

Hopefully that looks about right – any comments gratefully received.

Ps I’ve just read Hovite’s post on ‘How busy are we?’ I’m really sorry, I did try to do my homework thoroughly. I read on one post though to look at the most recent threads, and they all seemed to mention 2012 regs not 2002 so I genuinely thought I was special. Also on another post it mentioned to start a new thread as each case may be different? Sorry again - Thanks to everyone for their help.

HO87

Hi Pammieh

ICO = Information Commissioners Office
DPA = Data Protection Act

It seems that APCOA have started to produce some windscreen tickets and Notice to Keepers that specify that they are not issued under the terms of POFA 2012. It would be worthwhile checking whether the ones you have don't include this statement. This needed change your approach but it would be useful to know before you go too much further.

Your letter draft is fine and should elicit a POPLA code. However, do not confine any POPLA appeal you make to compliance or otherwise to POFA deadlines. You should cover as many bases as possible specifically that APCOA's charge does not represent a genuine pre-estimate of loss. There are plenty of model POPLA appeal drafts for you to use if you look at success stories.

Pammieh

Thanks H087

I was hoping they might capitulate on that letter alone (given they will realise I'm not going to roll-over) and save themselves the cost of the POPLA.
When it comes to that appeal I will explain all the details (though am I correct in that they don't have to take mitigating circumstances into account?); no ramp up to concourse (only lift) with claustrophobic passenger; neither driver nor passenger able to carry luggage very far; car stopped at 'drop off' point so not in anyone's way (it wasn't rush hour); time 'first noticed' by attendant 1 minute before time PCN issued (the driver sat in the car whilst the photo was taken).

I will send my draft and see what happens - thanks again
Pammieh

Guys_Dad

GermanKeeper wrote: »

If the keeper does not remember, who the driver was on that day, then of course he does not know whether there was a ticket on the windscreen.

Nethertheless one should ask him tho check the calendar, since in both cases the NtK was out of time.

Keeper was prepared to accept PPCs word that a ticket was on the screen as didn't want to get in pointless argument on that as PPC missed even that timescale as you rightly confirm.