Advice would be gratefully received.

RW123

Thank you all so much for your help with this, it really is appreciated.

Below is the first draft of my POPLA appeal. I'm not sure whether I've done right in mentioning the fact that I have a blue badge? I think I have put everything in relating to my case but please feel free to let me know of any amendments you think necessary.

Dear POPLA adjudicator,

POPLA appeal re UKPC charge (POPLA code xxxxxxxxxx)

I write to appeal the parking charge issued by Minster Baywatch. I am not liable for the parking charge for several reasons, not least that to uphold it would constitute disability discrimination. In addition, the vehicle was not improperly parked and the parking 'charge' notice was nothing but a penalty and exceeded the appropriate amount.

SUMMARY OF MY LEGAL RIGHT TO USE THE DISABLED PARKING BAY
The situation is that I am an employee of the Hospital Trust, based at the hospital and am in possession of a valid employee Trust permit to park, which was clearly displayed on the windscreen of the car. This permit negates the need to pay for parking.

I am 58 years old, I walk with the aid of a walking stick and am unable to walk any distance due to chronic lower back injury and chronic arthritis in my feet and knees. I have a genuine long-term chronic mobility problem and am in possession of a Blue Badge. I appealed against the Parking Charge, however Minster Baywatch have rejected it and in doing so they have breached UK disability law. This 'charge' cannot be upheld by POPLA as it breaches the applicable primary law.


BREACH OF STATUTE, NAMELY THE EQUALITY ACT 2010 AND THE EHRC 'CODE OF PRACTICE ON SERVICES, PUBLIC FUNCTIONS AND ASSOCIATIONS' (Chapter 5 Indirect Discrimination) WHICH BECAME LAW ON 6TH APRIL 2011

The Operator and Hospital are service-providers who are relying on unenforceable terms which purport to create an inflexible contractual term 'requiring' disabled people to display a Council (on-street only) Blue Badge in order to use a disabled bay. In fact, the Blue Badge scheme does not even lawfully apply in private car parks - as is shown in the Blue Badge booklet and on the Government website. Companies such as Minster Baywatch might choose to mention the Badge on their signs but they cannot legally rely on it in isolation as the only indicator of disability need.

Although I am in possession of a Blue Badge (which apparently was not visible to Minster Baywatch operatives at the time they visited the hospital site), the EA takes precedence over any 'contractual' terms and a blanket term to display a Blue Badge is specifically an 'unenforceable term' as defined in the EA. It is an example of a blanket policy which seeks to limit the provision of the disabled bays to 'badge-display only' and thereby causes disadvantage to people who have certain protected characteristics.

''EQUALITY ACT 2010
142(1) Unenforceable terms
A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

29 Provision of services
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a)as to the terms on which A provides the service to B;
(b)by terminating the provision of the service to B;
by subjecting B to any other detriment.

(3) A service-provider must not, in relation to the provision of the service, harass—
(a) a person requiring the service, or
(b) a person to whom the service-provider provides the service.

(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—
(a)as to the terms on which A provides the service to B; ''

Any term that Minster Baywatch may have on their signs to the effect 'Blue Badges only' is null and void if the effect is to deny a disabled person the statutory right to use a reasonable adjustment without penalty. This term unlawfully limits the disabled bay provision and UKPC have subjected me to 'detriment' and harassment.

The unenforceable term requiring all disabled people in those bays to show a Blue Badge may be the result of an ill-conceived attempt to ostensibly comply with the EA in order to convince the Hospital that Minster Baywatch follow it. Indeed, it appears to be based on private parking industry-wide misconceptions about disability law. But as it specifically says in the EA, ignorance of disability law and lack of intention to discriminate is no defence for breach.
This parking charge issued as a result of an unenforceable term has created indirect disability discrimination and as such, it is a breach of the EA. It is also a breach of the statutory EHRC 'Code of Practice on Services, Public Functions and Associations' (Chapter 5 Indirect Discrimination) which became law on 6 April 2011:

''5.4 What does the Act say?
Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.''

POPLA assessors have completely missed this legal requirement before and I would specifically cite the disabled driver's appeal in the case of Excel v Greenwood which was rejected by POPLA but won by the motorist in court. On 10th April 2013, a POPLA assessor, Shona Watson, erroneously decided in that case, that an Operator's terms & conditions to display a Blue Badge could circumvent the Equality Act 2010. Mr Greenwood subsequently faced Excel in Court on 4th October 2013, and in 3QT60496 the judge decided that the Operator had a legal duty to make a 'reasonable adjustment' for a genuine disabled person.

The Operator's case was lost in court, showing that POPLA was wrong to allow t&cs over disability law - and my case is the same as Excel v Greenwood.


OTHER POINTS OF APPEAL AGAINST THIS CHARGE

UNCLEAR AND NON-COMPLIANT SIGNAGE
It is a specific requirement of the BPA Code of Practice paragraph B(18.9) that there must be very clear terms & conditions signage at a height where a disabled driver could have read them when actually parking in a disabled bay - indeed without even needing to get out of the car.

But in fact no such signs with full terms are visible at these disabled bays, only the discriminatory/misleading 'Blue Badge only' sign. I say that the signs in that car park do not comply with the BPA Code of Practice requirements 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).

CONTRACT WITH LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO STATUS TO OFFER PARKING OR ENFORCE TICKETS
Minster Baywatch do not own this car park and are acting merely as agents for the Hospital. Minster Baywatch has not provided me with any evidence that it is lawfully entitled to offer parking spaces, allege breach of contract or enforce parking charges (as evidenced in the Higher Court findings in VCS v HMRC 2012). Minster Baywatch has no proprietary interest or assignment of title of the land in question.

I require Minster Baywatch to provide a full copy of the contemporaneous, signed & dated contract with the landowner (not just a signed slip of paper from someone at the Hospital) because even if one exists, I say it does not specifically enable Minster Baywatch to pursue parking charges in the courts. This would not be compliant with the requirements set out in the BPA Code of Practice.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Minster Baywatch are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.

Minster Baywatch have not shown a breakdown of their alleged 'loss' - which cannot include their operational day-to-day running costs. No claim for loss for a 'breach of terms' can possibly apply to a disabled driver needing and using a 'reasonable adjustment' provision which is directly already provided by the Hospital. Since the car clearly displayed an employee permit to park issued by the Trust, there can have been no loss arising from this incident and the only elements of a contract I agreed to were between myself and the Hospital alone. This parking space cannot somehow have been offered again - on more restrictive limited and discriminatory terms - by a mere agent, Minster Baywatch.

UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket. This was the case in several compelling and comparable Court decisions such as UKCPS v Murphy April 2012 (a case involving a disabled bay and no Blue Badge, where the 'Parking Charge' was found to be a penalty). Also Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011).

The BPA Ltd (seeking advice on behalf of all AOS members, including Minster Baywatch) was warned about such charges being unenforceable by the Office of Fair Trading in 2013. The information that the Office of Fair Trading gave to the BPA Ltd on parking charges expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. If a parking charge is imposed for {breach} under a contract, in order for it to be recoverable as liquidated damages, the court will need to be satisfied of a number of matters, including that it represents a genuine pre-estimate of the loss incurred and that it meets the requirements of applicable consumer protection legislation, for example the Unfair Terms in Consumer Contracts Regulations 1999. The OFT also expressed the view that the court will also need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings.

This transparently punitive charge by Minster Baywatch is therefore unenforceable.

SUMMARY AND CONCLUSION
I ask that this appeal be allowed and respectfully request POPLA consider the disability protection aspects of the EA in all future cases whether or not the appellant knows to raise it as an issue, as I have done here. A disabled person does not have to raise the Equality Act by name to be protected by its provisions and POPLA has stated that it will consider all applicable laws when making their decisions.

The EA and the EHRC Code of Practice I have referred to is statutory disability legislation which renders any parking contract term null and void if the effect is to deny a protected motorist or passenger their rights (whether it be the right to use a disabled bay unharassed or the right to be allowed an extension on any arbitrary time limit for their visit).

POPLA must surely now order the Operator to cancel this fake PCN. I firmly believe that failure to do so could even leave POPLA exposed to a claim for disability discrimination because POPLA are also a service provider (with the same legal duties under the EA) and the Act is unequivocal.

Signed:

Dated:

I will also write and complain to Steve Clarke of the BPA, as suggested earlier.

Thanks again for your help.

Umkomaas

You seem to have covered all the usual winning appeal points.

It would, for presentational purposes and for the POPLA adjudicator to quickly home in on the most potent of appeal points (no GPEOL), to have a numbered bullet point list of appeal point headers at the start of your appeal, with corresponding numbered headers against each appeal paragraph with each header emboldened - looks a much more professional and businesslike layout.

HTH

Coupon-mad

That looks fine - a winner. I would just remove 'as evidenced in the Higher Court findings in VCS v HMRC 2012)' because that case went to appeal and doesn't really help the argument and isn't needed.

RW123

Thanks to the above posters for their sound advice. I'm going to tweak the letter around as suggested before heading over to the POPLA appeal site to copy and paste the info.

I Emailed Steve Clark as advised last night and had a reply first thing this morning. They've logged my complaint, given me a reference number and have asked for a copy of my rejection letter showing the POPLA Code.

I've posted another link to this board on the Trust Chatterbox site as people are still complaining on there but paying their parking fines as quickly as they can.

I'll post updates here and let you know what happens with my appeal. Please keep your fingers X'd for me!

Coupon-mad

RW123 wrote: »

I've posted another link to this board on the Trust Chatterbox site as people are still complaining on there but paying their parking fines as quickly as they can.

OMG. They can't be that dim they think these are 'fines'? Sorry to those coming over here from that site but come on, wise up, for the sake of a Google search!

RW123

Coupon-mad wrote: »

OMG. They can't be that dim they think these are 'fines'? Sorry to those coming over here from that site but come on, wise up, for the sake of a Google search!

According to those that have posted they're paying their "fines" because they're worried their appeal will fail and they'll have to pay the full £50.

I put my POPLA appeal in today. If it fails, so be it but at least I tried.

RW123

Umkomaas wrote: »

You seem to have covered all the usual winning appeal points.

It would, for presentational purposes and for the POPLA adjudicator to quickly home in on the most potent of appeal points (no GPEOL), to have a numbered bullet point list of appeal point headers at the start of your appeal, with corresponding numbered headers against each appeal paragraph with each header emboldened - looks a much more professional and businesslike layout.

HTH

Bye the way, it's pointless tweaking the layout via bold font and / or tabulated points. The POPLA website removes all the formatting, as I found out this morning.

Umkomaas

RW123 wrote: »

Bye the way, it's pointless tweaking the layout via bold font and / or tabulated points. The POPLA website removes all the formatting, as I found out this morning.

Really? If the formatting is in fact lost, then lengthy (aka War & Peace) appeals will be a beggar of a job to wade through.

Pity the poor POPLA adjudicator

RW123

Sorry to go on about this, but I've had another thought regarding my POPLA appeal.

I wasn't sure whether to send them a scanned copy of my blue badge, as part of my appeal is that there is no necessity to be a blue badge holder, but I had another thought this afternoon as I was leaving work.

The disabled bays where I park every day are marked by just plain white lines (albeit the bays are wide), the only way you would know they are for blue badge holders is if you look up and see the signs on the wall. However, in the rest of the hospital the disabled bays are outlined in yellow with the 'wheelchair' sign marked on the ground and yellow criss-crosses between each bay. Propped against the wall where I park are the barriers that the hospital use to block off one of the disabled bays when they store machinery in it.

Do you think it's worth me submitting photographs of the different bays on the site? (plus a copy of my blue badge also).

Again, thank you so much for all your help and advice with this.

Redx

actually, the blue badge has no relevance on a private car park

the trust have to obey the EA2010 and provide parking spaces for people that qualify under the EA2010 , this may include blue badge holders but many other types of people qualify under the act

so the fact remains that ANY protected person under the EA2010 can use a marked bay provided specifically for them and that must not be discriminated by the use of a blue badge

made up rules do not trump the law, and the EA2010 makes no provision for a blue badge nor is it the sole proof of being protected under the act, a pregnant woman may be protected under the act but may not own or qualify for the BB

the problem here is that it is perceived to be a space for a BB holder and is usually reinforced by having a wheelchair sign, not all BB holders (including me) own or use a wheelchair , many people do not qualify for a BB but can still use those spaces regardless of any silly BB "rules" if they qualify under the EA2010

popla NEVER consider the BB or the EA2010 in any of the appeals thus far , which I believe means they break the EA2010 regularly , so using any form of mitigation or proof is a fruitless excercise at the moment even though they should apply the law

if you are protected by the EA2010 , like I am, you can park in those designated bays regardless, even if you are NOT a BB holder , and even if you fail to display the BB , BY LAW