Care Parking - Not using POFA (!) - Do I need to bother about POPLA?

katerinababa

Hey there Anhunedd..I'm closely following your case, as it seems to mirror mine.


I too had my initial appeal to CP refused, and they wouldn't issue a POPLA code as it was more that 28 days since the ticket was issued, whereas I appealed following receipt of the NTK.


I also received a letter from Roxburghe last week, and following a chase up email to BPA, CP are sending a POPLA code.


I have told Roxburghe about this email, and requested that they cease all collection activities.


I'll keep checking back to see how you get on.

Dee140157

So time now to draft POPLA appeal and put it here for checking, so off to post 3 of the newbie thread and do your worst!

In the meanwhile, well BPA seem to be making some monumental mistakes of late, so let's treat them with the contempt they deserve.

Anhunedd

Right - appeal to POPLA done, and it's a doozy (nearly 4000 words!). It's a combination of the usual stuff, a bit more on Care Parking's lack of compliance with the requirements of POFA, and a chunk about the specifics of my case where they added compliant signage after the alleged infringement. Pictures are missing, and dates and details are removed, but you should get the idea. Here we go...

---

Dear Sir/Madam

I was the registered keeper of <Registration> at the time Care Parking applied to DVLA for the keeper details in connection with a PCN allegedly issued to that vehicle on <Date>. As the keeper, I then received a Formal Demand from Care Parking dated <Date>. I appealed this demand on a number of points, in a letter dated <Date>, which was acknowledged by Care Parking on <Date>. That appeal was rejected by a letter dated <Date>, but not delivered to me until <Date>.

Care Parking did not refer to POPLA, or issue a POPLA verification code with this rejected appeal, and it took a number of complaints to the BPA who forced them to issue one on <Date>.

I have no form to complete, as Care Parking did not issue one, so I hope this letter is sufficient.

I therefore wish to appeal the Care Parking PCN on these points:

1. Care Parking have not followed the requirements of Schedule 4 of POFA 2012 and therefore as keeper, I have no liability to any charge.
2. Care Parking have provided no evidence of the alleged original infringement.
3. Care Parking have no standing or authority from the landowner.
4. No compliant signage existed at the site at the time of the alleged infringement.
5. No contract has been formed with the driver and any alleged contract contains terms which would be unfair and unreasonable.
6. The charge is not a genuine pre-estimate of loss.
7. Unlawful Penalty Charge.
8. Failure to comply with the request for a POPLA code.

1. No liability as keeper

Under the provisions of Schedule 4 of the Protection of Freedoms Act 2012 (POFA), a parking operator can gain the right to recover unpaid charges from keepers only if particular conditions have been met.

I enclose a copy of the Formal Demand I received from Care Parking. It does not mention POFA, nor does it mention keeper liability at all. The key demand is this:

“Failure to provide Owner/Driver details or payment of the full amount of £100.00 within 28 days of this notice will result in an increase to £150.00 plus further administration costs. This letter will form part of our case against the driver of the vehicle.”

The whole demand does not comply with the mandatory requirements set out in Paragraph 8 of the act in the following ways:

Paragraph 8(2)(a) indicates that a “period of parking to which the notice relates” must be specified. There is only a single time (<Time>) noted at the top of the demand, which is not a period of time. This also suggests that the operator does not comply with the BPA requirements on suitable grace periods (Section 13 of the BPA Code of Practice).

Paragraph 8(2)(c) indicates that the information originally given to the driver must be repeated – specifically that specified in paragraph 7(2)(b),(c) and (f). This information must describe the parking charges and “the circumstances in which the requirement arose (including the means by which it was brought to the attention of drivers) and other facts that make those charges payable”. There is no such information in the demand, merely an alleged contravention of “no ticket”.

This does not describe by which means the requirement to display such a ticket was brought to the attention of the driver. It must also clearly state the total amount of unpaid parking charges, which again, is absent – note that there is no clear statement to the unpaid charges on the demand at all, merely the charges that are being demanded from the keeper if they fail to notify Care Parking of the driver details. Even this is not clear – the extract above says the demand actually forms “part of the case against the driver of the vehicle”, which would have nothing to do with the keeper.

Paragraph 8(2)(e) says the notice must “state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper” either “to pay the unpaid parking charges” or “notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver”. The demand makes no such statement, instead making a direct statement that failure to notify Care Parking of the details, or failing to pay a £100 fee will result in increased costs of £150.

Paragraph 8(2)(f) says the notice must warn the keeper that if driver details have not been supplied, or the original unpaid charges have not been paid, then the operator has “the right to recover from the keeper so much of that amount as remains unpaid”. This is again absent – as noted above, the demand does not mention any unpaid charges, merely that I have to pay £100 or name the driver, and if that I do not do so in 28 days, that £100 will be raised to £150. This also violates paragraph 4(5) of the schedule which clearly restricts the maximum sum which may be recovered from the keeper to the amount of the original unpaid charges. Threatening an increase in that sum for failure to notify the operator of the driver details is a gross violation of that.

Paragraph 8(2)(g) says the notice must “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available”. Firstly, the demand offers no discount, which is violation of Section 19.7 of the BPA Code of Practice, which indicates the operator must offer a reduced payment to reflect reduced costs and this reduction must be at least 40% of the charge. Secondly, although the demand indicates the process to appeal to Care Parking, it does not include any information on the arrangements for independent appeal to POPLA, which is in violation of Section 22.2 of the BPA Code of Practice.

Paragraph 8(2)(h) states the notice must “identify the creditor”. Whereas the demand requires payment must be made to Care Parking, there is no specific indication of the creditor, who may, in law, be Care Parking or some other party such as the landowner. POFA requires that the creditor must not merely be named, but identified. To identify a creditor, a parking operator must do more than name them – the keeper is entitled to know the identity of the party who they are alleged to have been legally contracted. This failure to specifically identify the creditor indicates that Care Parking have failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

In summary, the Formal Demand that I was sent by Care Parking amounts to nothing more than a speculative invoice against me for £100 if I do not name the driver, coupled with threats to raise that to £150 if I don’t do so within 28 days. It does not in any way comply with the strict requirements set out in Section 4 of POFA 2012, and on that basis alone, I have no case to answer – Care Parking only have the right to pursue their PCN against the driver.

Nonetheless, I presume they will dispute this fact – they did so in their rejection of my original appeal, so I will continue with my points.

2. No evidence of the original infringement

Even though I requested printed copies of any and all evidence on the incident in my original appeal letter, as per my rights under Section 7 of the Data Protection Act 1998, Care Parking have not supplied any such evidence. They have also not provided any details of the original infringement and charges as required by Paragraph 8 (2)(c) of POFA as already outlined above.

I request that you require Care Parking to provide strict proof that any original infringement occurred, including clear evidence that my vehicle was located on the specified site at the time of original parking charge notice being issued to the driver and that the notice was indeed issued correctly to the driver. I have investigated the site using Google Streetview, and it is clear that there are parking locations outside of the control of the operator in the vicinity, so it will be essential such evidence proves the vehicle was located on a site under their control at the time they claim and indeed did not display a valid ticket.

In addition, I request that they prove a material breach of the parking regulations they seek to enforce has occurred, namely that a reasonable grace period was observed as defined by Section 13 of the BPA Code of Practice, and therefore by extension, strict proof that the vehicle was on that site for at least a reasonable period of time. I call this into question as the Formal Demand only lists a single time, which would represent at maximum a single minute of breach, which would be unreasonably short under this Code of Practice.

3. No standing or authority from the landowner

Care Parking has no title in this land and has not demonstrated any BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right, even though I requested evidence of such a contract in my original appeal.

Sections 7.1 and 7.2 of the BPA Code of Practice dictate some of the required contract wording. I put Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Without this, Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied showing that Care Parking are entitled to pursue these charges in their own right in the courts as outlined specifically in Section 7.2 (f) of the Code of Practice.

I request you require Care Parking to provide a full copy of the contemporaneous, signed & dated (un-redacted) contract with the landowner. Otherwise, any contract is not compliant with those requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for any sum for any alleged contravention in this car park. This is especially relevant in this case, as the site appears to be managed by Workman who have sub-contracted parking management to Care Parking.

In order to comply with this it will not be sufficient for Care Parking merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with Section 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4. No compliant signage

I was not able to attend the site personally, but a colleague in Chester was able to provide me with a photograph of the entrance to the car park, taken on <Date>:

<Picture>

Here is a close-up of the entrance sign:

<Picture>

This sign does not conform to Appendix B of the BPA Code of Practice by (a) not including the AOS roundel; (b) not including the notice that terms and conditions apply and where to find them; (c) not using a clear and sufficiently contrasting font – in fact, it is almost as if they have intentionally used thin lettering for the sign; and (d) not even mentioning the car park operator (Care Parking), but instead displaying the logo of the company who manage the building next to it - Workman. There is also no evidence of any lighting that would make the sign easily visible on approach at night time, which would have been the case at <Time>, and that sign is on the passenger’s side, not the driver’s side – I can see easily why any driver would not know that this was a pay and display car park on entry.

There was also no evidence of any other signs which would indicate the contractual terms which Care Parking referred to as placed at regular intervals around the car park in their response to my original appeal. Although I do not have photographs “around the car park”, I can provide this Google Streetview picture of the site which appears to show no signs at all – this picture is to the left of the one shown above – the brick building is the same in each photograph.

<Picture>

I challenged Care Parking on this matter and they actually returned the following photograph by email on <Date> to show their signage was compliant:

<Picture>

The most important point to note in this photograph is that a new sign has been added to the pole on the left since my colleague’s photograph seven days earlier, to which they made no reference at all. Care Parking have installed signage that may well be compliant, but AFTER the original incident to which this charge refers. They are in effect fabricating evidence to use against the driver, and by proxy, myself.

They have provided no evidence of any other signage around the site which details the contractual terms that the driver is alleged to have breached. However, even if they did so, in light of the evidence above, I would seriously doubt they were present at the time of the alleged breach anyway.

I request you require Care Parking not only to provide strict proof that all their signage was compliant with the BPA Code of Practice (Section 18 and Appendix in respect to wording, position and clarity; that the signage was clearly readable at night-time both by the driver on entry to the site safely, and by the driver on leaving the site on foot; and, most importantly, strict proof that all that signage was present on the date of the original alleged infringement, as I have provided evidence that shows this is not the case.

Note that I have made a separate complaint about this matter to the BPA as I view it as a very serious breach of their code of practice, but I have yet to hear back on the matter.

5. No Contract / Unfair terms

The points above should have established that there has been no contract established between Care Parking and the driver, and certainly none with myself as the keeper. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms etc. were not satisfied.

Care Parking’s response to my original appeal kept referring to a breach of contractual terms, yet they have provided no indication of those terms at any point. I asked in a subsequent letter for clarification as to whether they are claiming damages against me for a breach of contract, trespass or contractual fee, but they ignored that letter and made no response to it.
The use of the term “contractual warning signs” repeatedly in their response to my appeal seems to imply either a breach of contract or a contractual fee.

I requested that if this was a contractual fee, then a VAT invoice would have to be supplied and an explanation of the daily rate for parking and service provided for this fee provided. As they did not do so, this would present evidence that this was either not a contractual fee, or not a genuine offer to park for a fee and was merely a penalty which is not recoverable under contract law.

Alternatively, I can only assume that Care Parking assumes that a contract was somehow formed between themselves and the driver and are claiming that this contract was breached and they are now seeking damages.

If so, the charge they are attempting to levy on the driver, and, by extension, myself, is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). 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."

In addition, the charge they are attempting to levy is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 (UCT) 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.”
I contend that is wholly unreasonable to rely on signage (assuming that signage even existed) in an attempt to profit by charging a disproportionate sum to any actual loss caused. Contrary to the requirement of good faith, this charge would cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer (the driver or keeper) which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCR and UCT Acts’ evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts.

6. The charge is not a genuine pre-estimate of loss

The maximum charge that can be attributed to the alleged infringement would be any minimum parking charge applicable at that time for the one minute the offence is meant to have taken place for. I have not been supplied any indication of this original charge, but assume it will not be the £100 Care Parking is trying to levy as their loss.

Care Parking cannot lawfully include the operational day-to-day running costs in any “loss” claimed, as those costs would have been incurred whether any breaches of the alleged contract occurred or not. This would include, but not be limited to, signage (if any) and equipment costs to manage the site; wage and vehicle costs associated with providing a mobile patrol service; HQ management costs; or fixed administration costs and consumables. They also cannot include any costs incurred in dealing with complaints and appeals processes.

The charge they are trying to levy is speculative and punitive, and therefore void and unenforceable against me. The charge is arbitrary and in no way proportionate to any alleged breach of contract. This is all the more so for the additional charges which Care Parking state accrue after 28 days of non-payment. The mere fact they imply an early payment discount was originally offered to the driver before trying to invoice me £100 for not telling them who the driver was reinforces the fact that it is unreasonable to begin with.

7. Unlawful Penalty Charge

Since there is no legal basis for Care Parking to demand money from me as the keeper; plus the alleged breach of contract has no genuinely pre-estimated or enforceable loss it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge from me by trying to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

Care Parking has issued me with a “Formal Demand” in an effort to appear to be a legal demand from debt collectors and used the wording “Parking Charge Notice” with the abbreviation PCN in an attempt to be confused with an official parking fine similar to the “Penalty Charge Notice”, also abbreviated PCN, as used by the Police and Statutory Authorities. This is specifically highlighted as misrepresentation of authority in section 14.3 of the BPA Code of Practice.

8. Failure to reply to the request for a POPLA code

Section 22.12 of the BPA Code of Practice was completely ignored by Care Parking in that it issued a rejection of my appeal without any indication of my right to appeal to POPLA independently. When challenged on that fact by letter, Care Parking ignored that letter and my request for a POPLA verification code.

I had to complain to the BPA directly about this breach, and they said Care Parking had informed them I had appealed outside of the 28-day window for such an appeal to the operator, and therefore no code would be issued. It was only when I again showed evidence that I had appealed within the time frame that the BPA forced Care Parking to issue me with a POPLA verification code. Even then, they did not issue me with any documentation, such as a template “notice of appeal” form, as required in the Code of Practice.

Care Parking has shown total disregard to the BPA Code of Practice and my right to an appeals process which is referred to within POFA 2012.

Summary

Care Parking have not established any legal basis for a charge against me as the keeper of the vehicle. Notwithstanding this, the charge they are attempting to enforce in a punitive one for an alleged infringement they have provided no evidence to me of even taking place at the time and place stated, even when requested in writing. They have shown no evidence they are even entitled to enforce such charges on land they do no own, and have breached their regulatory body’s Code of Practice on a number of points, most seriously by claiming signage was in place that was added after the alleged infringement.

I respectfully request therefore that my appeal is upheld and the charge dismissed. I also suggest that you report back on the breaches of the code highlighted in this case to the BPA for further consideration and sanction of the operator concerned.

Yours faithfully,

Coupon-mad

That will flummox them and you will win!

Anhunedd

I added a bit to the No GPEOL section about the Beavis case and how it is irrelevant to preempt any attempt to use that, and it's gone off to POPLA.

Now I wait.