offence 23/10 charge notice dated 12/11

HO87

Stroma wrote: »

But if they say that they use popla for these tickets, doesn't that mean they must use pofa 2012 in the first place? I think that each time that the dvla released RK details that doesn't use pofa2012 a complaint should be made to ICO for misuse of data.

A two tier system is shocking, these companies signed up to this, they should either be using all the provisions under pofa, or if they don't subscribe to that in all their dealings, lose the ability to get RK completely.

Sadly, in June this year IIRC, DVLA went back on an earlier decision and announced that whether PPC's used POFA (and thereby were able to pursue either driver or RK) or reverted to the system pre-POFA (and could only pursue the driver) they would release RK data. As far as I am aware the only condition, as such, that governs the use of POPLA is that the PPC concerned is a member of the AOS.

What is worse, in many respects, is that the ICO is sitting mute on the sidelines seemingly entirely happy that courtesy of DVLA RK data disclosures companies are reaping a very rich harvest from the motorist on the grounds of "reasonable cause" (by means of Reg. 27(e)) but whose cases are repeatedly rejected at POPLA as having no legal basis.

It seems to me that these companies cannot have it both ways and at the moment it is DVLA and ICO who are perpetuating this ridiculous situation. Both DVLA and ICO have a duty to protect the public and yet in the face of numerous cases at POPLA where PPC's are simply unable to demonstrate that their charges are GPEOL they hide behind the figleaf of "reasonable cause". This is an utter disgrace and with precious little if any support from TS and the OFT the consumer is being left to fight this battle on their own. At the moment we're doing a better job than the statutory bodies who have a duty to protect us!

white27

I'm lost now ;(
1. Is the 14 day rule apply or not?
2. Is stopping for 3-5 min (not to drop off or pick up any passengers ) simply car breakdown problem is classed "failing to park in designated parking area"?
3. I have moved my vehicle to the carpark as soon I could drive again and paid the parking fee.

(should you wish to dispute the issuing if this Parking Charge Notice, you can do so in writing to the address listed below within 28 days from the 'date given' of this letter. All appeals must be directed to APCOA in the first instance. The Independent Appeal Panel - POPLA, may be engaged as a final avenue of recourse once APCOA's appeals process has been exhausted)

So please let me know what to do next.
Thanks

white27

Also:
General Exemptions to Stopping and Parking rules
The parking rules referred to previously, do not apply under the following circumstances:

- to avoid a collision
- if your vehicle is disabled
- because of the condition of driver or passengers, in the interests of safety
- to deal with a medical emergency
- to obey the directions of a police officer
- to comply with another law.

so in this case
- if your vehicle is disabled

Guys_Dad

Just go ahead as suggested and come back with reply from PPC.

We can then see if they are going down POPLA or not. In the end, the same result will be achieved. Trust your friends on this forum.

Coupon-mad

Guys_Dad wrote: »

Just go ahead as suggested and come back with reply from PPC.

We can then see if they are going down POPLA or not. In the end, the same result will be achieved. Trust your friends on this forum.

Exactly this. A motorist cannot be expected to guess whether a PPC has sent a POFA version or not so send the appeal anyway, the whole point is either to get a cancellation or a POPLA code.

white27

Tallone wrote: »

After receiving a PCN from APCOA regarding a contravention at Luton airport I wrote back with the following after recieving help from Coupon - mad to whom I am now indebted

14th Sept 2013

Apcoa Parking
PO Box 1010
Middlesex
UB8 9NT

Dear Sir or Madam,

Ticket number: LM100
Vehicle registration number:

The unlawful issue of a ‘Notice to Keeper’ (BPA AOS Code of Practice B.22)

I am the registered keeper of a Land Rover motor vehicle registration number

I refer to recent PCN dated 27/8/2013.

I assume your “Parking Charge Notice” and the first line being “Notice is hereby served to the registered keeper” that this is a “Notice to Keeper” and along with other references drawn from the Protection of Freedoms Act (PoFA) it is clear that APCOA is dealing with its claim in accordance with the requirements of Schedule 4 of POFA.

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Ltd AOS Code of Practice (version 2) supports the need for strict compliance (para 21.5 refers).

APCOA has however failed to comply with the statutory requirements as follows;

Firstly, in regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst your ‘Notice to Keeper’ has indicated that you require a payment to be made to APCOA, there is no specific identification of the “Creditor”, who may, in law, be APCOA or London Luton Airport or, some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

Secondly, in addition to APCOA’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

Thirdly, the most serious failure and that which has given me cause to submit a formal complaint to the DVLA.

You have failed to comply with paragraph 9.4 of Schedule 4 of the Act in that you failed to give the Notice to Keeper to me within the “relevant period”.

The alleged infringement occurred on the 10th August 2013 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated 27th August 2013 which is 17 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.

Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted” which in this case would be the 29th August 2013.

Your company would have been well aware of these facts when it took the decision to send out the Notice to Keeper under PoFA. You have misrepresented the legal position in the full knowledge that there can be no keeper liability.

That is an aggravating feature which the DVLA must take into account in determining what sanction to issue to your company.

I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.

If however, you reject this challenge, then, in accordance with the BPA Ltd AOS Code of Practice (version 2) 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.

I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you. No further correspondence will be entered into.

Yours sincerely

[FONT=&quot]A[/FONT]

Apcoa have now written back with


Dear Fred Bloggs

Thankyou for your letter regarding the issue of the above Parking Charge Notice. We have considered fully your explanation of the circumstances and, on this occasion, cancelled the notice. Therefore no further action is required as the case is now considered closed.

Please be advised that there is 30minutes free parking in the mid term car park also, which is ideal for dropping off and picking up passengers. In future do bear in mind that you can make use of the free parking in the Mid Term Car Park also, and it is far more affordable.

So, all the people saying "Fight it" are correct. Thankyou everyone.

I have found similar problem, should I use this as a template and send it?
Thanks

Guys_Dad

Certainly use it but make sure that you only use the relevant bits, change the dates etc.

A reasonable likeness is to be preferred to a carbon copy.

HO87

Hi white27

Our discussion may have misled you slightly so before we go any further in the letter from APCOA is there any explicit reference to making an appeal to POPLA?

If so, then your appeal to APCOA need only be short and sweet. We are aiming at a swift rejection from APCOA and then appeal more substantially to POPLA. Try this wording for size - it is important that you do not disclose nor even hint at who was driving:

Dear Sirs

Re PCN NO. XZXZXZXZXZ

I refer to the above notice received by me on 13 November 2013.

For the avoidance of doubt I am the owner of the vehicle concerned.

The claim is denied and the issue of the pcn is therefore appealed on the following grounds:

1. At the time it is alleged the vehicle was stationary it had in fact broken down and as such was not parked. As a consequence no contract was formed and there can be no basis for the issue of your PCN.

2. Your claim for £100 is unreasonable, cannot be justified and represents a penalty.

If you reject this appeal please supply a POPLA code by return so that I might immediately refer matters for their consideration.

If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act (if applicable), or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

Yours faithfully,

Guys_Dad

HO87 wrote: »

Hi white27

Our discussion may have misled you slightly so before we go any further in the letter from APCOA is there any explicit reference to making an appeal to POPLA?

If so, then your appeal to APCOA need only be short and sweet. We are aiming at a swift rejection from APCOA and then appeal more substantially to POPLA. Try this wording for size - it is important that you do not disclose nor even hint at who was driving:

I think that the appeal should include the out of time point as well and suggest you include it as per letter you found. It could be cancelled on your appeal and matter done and dusted. If not, then you would have POPLA to fall back on

white27

this is the final form that I want to send:


Apcoa Parking
PO Box 1010
Middlesex
UB8 9NT

Dear Sir or Madam,

Charge Notice number: LM10
Vehicle registration number: XXXXXXX
The unlawful issue of a ‘Notice to Keeper’ (BPA AOS Code of Practice B.22)

For the avoidance of doubt I am the registered keeper of a (make and model) motor vehicle registration number XXXXXXX

I refer to recent PCN dated 12/11/2013.

I assume your “Parking Charge Notice” and the first line being “Notice is hereby served to the registered keeper” that this is a “Notice to Keeper” and along with other references drawn from the Protection of Freedoms Act (PoFA) it is clear that APCOA is dealing with its claim in accordance with the requirements of Schedule 4 of POFA.

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Ltd AOS Code of Practice (version 2) supports the need for strict compliance (para 21.5 refers).

APCOA has however failed to comply with the statutory requirements as follows;

1. In regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst your ‘Notice to Keeper’ has indicated that you require a payment to be made to APCOA, there is no specific identification of the “Creditor”, who may, in law, be APCOA or London Luton Airport or, some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.
He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

2. In addition to APCOA’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.


3. the most serious failure and that which has given me cause to submit a formal complaint to the DVLA.

You have failed to comply with paragraph 9.4 of Schedule 4 of the Act in that you failed to give the Notice to Keeper to me within the “relevant period”.

The alleged infringement occurred on the 23rd October 2013 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated 12th November 2013 which is 20 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.

Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted” which in this case would be the 6th November 2013.

Your company would have been well aware of these facts when it took the decision to send out the Notice to Keeper under PoFA. You have misrepresented the legal position in the full knowledge that there can be no keeper liability.

That is an aggravating feature which the DVLA must take into account in determining what sanction to issue to your company.

4. At the time it is alleged the vehicle was stationary it had in fact broken down and as such was not parked. As a consequence no contract was formed and there can be no basis for the issue of your PCN.

5. Your claim for £80 is unreasonable, cannot be justified and represents a penalty.

I therefore expect you to immediately cancel the ‘parking charge’ and inform me, in writing that you have done so.

If however, you reject this challenge, then, in accordance with the BPA Ltd AOS Code of Practice (version 2) 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.

If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act (if applicable), or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you. No further correspondence will be entered into.



Yours sincerely

OWNER


??? is this ok ???