Total Parking Solutions - Lincoln County Hospital

Coupon-mad

martmonk wrote: »

Have you tried the Estates/Facilities Manager at the hospital?
They can have it cancelled.

Or contact PALS as advised in the 'successful complaints about PPCs' sticky thread, post #3.

martmonk

Although Folkiedave is right the process to get to the Information Commissioner appeal will take too long as the Trust have 21 days from receiving the request, then an appeal would be raised with them giving them another 21 days before you can refer to the IC (at least that's my understanding). In this instance I'd advise that the FOI request be for two things;

1 - a copy of the contract as advised above.
2 - if for any reason 1 is refused please confirm whether the contract includes a clause enabling TPS to pursue motorists through the courts and the wording of that clause.

[EMAIL="FOI@ulh.nhs.uk"]FOI@ulh.nhs.uk[/EMAIL]

gravymister

Right so I have compiled the following draft from various threads on here, its quite generic, but I think all of it applys in this case. I got an email response from POPLA who agreed for me to send further amendments so thats good.

I have also taken the advice and emailed the complaints department of the hospital and I'm going to contact the estates department tomorrow by phone, as I can't find a relevant email address for them.

Here's the draft:




"APPEAL RE: Total Parking Solutions CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

I am a medical student who was placed at Lincoln County Hospital for 10 weeks between September and November, as a resident of the on site accommodation I was issued a parking permit for the duration of my stay. My ticket was issued as I was 'not displaying a valid permit'. This is incorrect. My permit had fallen from the dash to the passenger side floor. However was still clearly visible, the terms and conditions only state that the permit must be displayed, which it was, my car is not very large, and the permit was clearly still capable of being read from the floor of the vehicle. A colleague who I was with at the time of noticing the parking charge will testify to this. Total Parking Solutions don't question the fact that I have a permit and have stated so in my failed appeal email: "Total Parking Solutions Ltd do not dispute that the appellant was in possession of a valid permit". So the fact I had a permit registered to my vehicle and I had parked in the same location for the previous 5 weeks should negate the fact that my parking permit was not in its usual place, although still perfectly visible and within the terms and conditions. So I'm sure you can understand why I think this parking charge is both invalid and to be honest petty.

I am also contesting it on the following grounds:

1. Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

3. The signage at the car park was not compliant with the British Parking Association standards andt here was no valid contract between the parking company and the driver.

4. The amount demanded is not a Genuine Pre-estimate of loss.

5. No contract with the driver in question

6. The Terms levied were unfair

7.) The terms levied were unreasonable

Here are the detailed appeal points.

1. No right to charge motorists

I note that the parking company has not been engaged by the landowner, but by a lessee or tenant of the land. I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease.

2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory
is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
I also contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


4. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing 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 parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.
The BPA code of practice states:

19.5 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.

19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable.

I require CPP to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

In this case parking was reserved for tenants of hazel house and visitors of chronically ill patients for the hospital. I was a tenant of hazel house and had a valid parking permit as a result.

For this example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
5. No contract with driver

There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

6. Terms levied unfair

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

7. Terms Levied Unreasonable

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law. This concludes my appeal.


Thanks again for all the input!

Coupon-mad

Looks fine to me, send it quickly and make it clear it needs to be matched up with the other initial submission for verification code xxxxxxxxxx which was submitted in error.

gravymister

Coupon-mad wrote: »

Looks fine to me, send it quickly and make it clear it needs to be matched up with the other initial submission for verification code xxxxxxxxxx which was submitted in error.

Done. Thanks for the help! I'll post the outcome on here.

Folkiedave

(I'd still ask for a copy of the contract. It might be useful to see it posted on here too!)

martmonk

Folkiedave wrote: »

(I'd still ask for a copy of the contract. It might be useful to see it posted on here too!)

I sent them what I suggested in post #13.

I'd typed it here so thought I might as well sling it in an email.

gravymister

Hi Guys,
Got my appeal result today and its been allowed. Just wanted to say thanks to everyone who helped me out, it definitely wouldn't of won on my original appeal! I've posted the response for it below. Thanks again!

Reasons for the Assessor’s Determination
The Operator issued parking charge notice arising out of
the presence at Lincoln County hospital, on 17 October 2013, of a vehicle
with registration mark ****** for parking without displaying a valid permit.
It is the Operator’s case that the Appellant’s vehicle was parked without
displaying a valid permit and this was a breach of the terms and conditions of
parking as set out on signage at the site.
The Appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely
that the parking charge amount is not a genuine pre-estimate of loss.
As the Appellant has raised the issue of the charge not being a genuine preestimate
of loss, the onus is on the Operator to prove that it is. The Operator
has not addressed the loss that was caused by the Appellant’s breach of the
terms and conditions of parking.
I have looked at all of the evidence and have decided to allow this appeal
on the basis that the Operator has failed to prove that the parking charge
amount was a genuine pre-estimate of loss.
Accordingly, this appeal must be allowed.

bod1467

Gratz!

Who was the assessor please?

martmonk

Well done.

This reminds me that the FOI request was never fulfilled. I've sent a complaint in that it's been 58 days with no response other than the aknowledgement of the request.