PCN Appeals

bazster

Well done for transcribing all that, must've been tedious.

So you've got two signs which state: "Failure to comply with terms and conditions will result in a parking charge notice being issued".

So it's a slam-dunk, a bog-standard no-GPEOL case.

Quickathri

I've drafted a short letter which a propose sending to PCM regarding the first PCN. Here it is:
Parking Control Management (UK) Ltd
PC Box 1088
Northamton
NN4 4EQ
17 June 2014
　
Dear Sir/Madam

Parking Charge Notice: xxx
As far as I am concerned, I made a valid challenge on xxx to Parking Charge Notice xxx. The clock began to then run for your company to respond. You should have either acknowledged receipt and then, or, provided me with acceptance or else a rejection. The timescales you should adhere to under the British Parking Code of Practice have expired for your company.

On xxx, I received a letter from a company named Newlyn Debt Collection Ltd purportedly concerning the above Parking Charge Notice. For your information, I have written to them and denied the existence of any debt. They have been told to refer the matter back to you and not contact me again. I will not respond to any further communication from them.

On xxx, I delivered a letter by hand to Bluewater Shopping Centre addressed to Ms xxx, Operations Manager. I made clear that I will be holding them and their agents liable for a breach of the Equality Act 2010, if this matter is pursued further.
Yours faithfully

How does that sound?

Redx

I see they are still using BPA signage even though they are in the IPC after reading your post but clearly they no longer conform to the BPA CoP

your last post looks ok to me but let others comment too

ps:- nitpicking here

there is a P in Northampton

Quickathri

This is a draft of a letter I proposed sending to Newlyn

Dear Sir/Madam

Parking Charge Notice: xxx

I am writing concerning your letter of xxx.

First of all, I have no intention of paying the money demanded by your client Parking Control Management (UK) Ltd, and any court proceedings will be vigorously defended.

Next, should it be your client's intention to start court proceedings, they must provide a Letter Before Claim which complies with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct.

Please also note that a failure and/or refusal to comply with the Practice Direction will result in a complaint being made to the court and an application for a stay of the action and costs pursuant to the provisions of paragraph 4 of the Practice Direction on non-compliance and sanctions.

In the meantime, you should note that this charge is disputed, and you must now refer this matter back to your client and cease and desist all further contact with me.

I trust that I have made myself clear.
Yours faithfully

This is based on a letter elsewhere on this forum. That included Failure to do so will result in a complaint to the Credit Services Association. However, I looked at the list of members of the Credit Services Assoc and could not see Newlyn mentioned so I was not sure if it was relevant to them. Newlyn are on the list of members of the BPA.

Quickathri

Thanks for your thoughts thus far. Yup it was tedious but I hope useful. My poor Blue Badge holder had to sit in the car while I wrote it all down. She is getting increasingly upset at the extra work she has given me.

I spoke to to the Equality Advisory Support Service before I prepared my letter to the shopping centre. From the information I gave them, in addition to her mobility issues, they believe her memory problems constitute another disability and they separately qualify her to be covered by the Equality Act 2010.

I handed in my letter to the shopping centre on Friday 13th June. What do you think would be a suitable length of time before chasing a reply?

Ho hum, I'm going to stop now for a bit and then come back to look at any replies I have got and then see what else I have to do - for example, the appeal concerning the second pcn rejection by PCM.

Thanks for the spelling correction. Any others and typos will be gratefully received - I just wanted to get some stuff on the site for comment - my excuse anyway.

Quickathri

I waited for any further comments as you suggested Redx but as none received I am putting my letters to PCM and Newlyn in the post today. I tweeked them myself a bit but am going to post them (for good or ill) without bothering you all further.

I shall chase up a response from the shopping centre tomorrow first thing using the email address provided elsewhere on this forum.

I've begun putting down appeal points, shamelessly using text from others I have seen used by other forum members, in case the shopping centre does not respond quickly enough or as I desire.

Coupon-mad

Remember you only have 21 days to get the IAS appeal received by them. This poster on pepipoo, barnacles, just won v PCM at IAS stage so although the thread doesn't show his IAS appeal wording, it does show the advice he was given about what to include, and it shows that he won:

http://forums.pepipoo.com/index.php?showtopic=91147

Apart from that, just adapt a POPLA appeal. As Bazster said above, you've got two signs which state: "Failure to comply with terms and conditions will result in a parking charge notice being issued".

So it's a slam-dunk win for you, a 'no GPEOL' case which will win at IAS.

Quickathri

Thanks for your continuing support.


Going to do some work on my appeal now. I've asked ipc some small queries by email but so far not received even an acknowledgement. Happy days. If I think they are key points I will post them on this forum. I'm sure one of you will know.


After this is over, if the management of the shopping centre do not cancel the charge, I am thinking of putting something on at least one of the shopping centre review sites about the parking regime.

Quickathri

Here is the text for my IPC appeal - thanks to all those people who have gone before me and whose drafts I have taken chunks from. It is very long and I think I may have over-egged the pudding so if anyone wants to suggest taking anything out please do. I'll apologise now for the presentation, spelling/grammatical mistakes, typos etc. I just wanted to get something on the forum for comment. Happy to receive any feedback or suggestions for improving it. In the meantime I am going to have a break from it - tummy rumbling. Then I shall start making it look prettier and easier to follow before incorporating anything you all suggest.

Dear IPC Assessor
This letter encloses my appeal against Parking Charge Notice XXX
I am the registered keeper of XXX and I am appealing against the parking charge above. As all elements of my appeal do not fit into the space given in your form I am detailing them here and then attaching them to a completed front page for your ease of reference. I have assumed the unique IAS number you require is the Verfication Code quoted on the Parking Control Management (UK) Ltd (PCM) letter to me dated xxx; I was unclear what number to use.
I believe I am not liable for the parking charge on the grounds stated below, I ask that all points are taken into consideration.
1. Misuse and Fraudulent Use of Blue Badges
- I was not misusing or fraudulently using a disabled persons parking bay on XXX. I was parked in a disabled persons parking space because I was driving my mother who is disabled as defined in the Equality Act 2014 (EA). My mother receives the Higher Rate of Attendance Allowance and has a Blue Badge. I receive a Carers Allowance.
As I got out of the car to get her wheelchair out of the boot I reminded her to display Blue Badge but she did not. Consequently it was not displayed but my mother has memory issues which in and of themselves are sufficient to constitute a disability under the EA. I pointed out in my appeal to PCM that a disabled person was in the vehicle who had memory problems. Following my appeal to them their response in their letter dated xxx was:
“The misuse of disabled bays and fraudulent use of Blue Badges is widespread; to combat the issues we cannot accept claims of disability or copies of Blue Badges provided at a later date. Therefore PCM cannot consider copies of Blue Badges provided after the Parking Charge Notice is issued as valid entitlement to park.
Although PCM appreciate the circumstances for why the vehicle was parked in this position: mitigating circumstances cannot be taken into account at this stage of appeal.“
I require PCM to provide evidence that they had reason to believe I was and/or continue to believe that the parking bay I used was not being used by a disabled person.
- The IPC Code in Section 11 says operators must not state or imply that they have any government or regulatory powers. PCM have implied it by the use of the words “to combat the issues of fraud they cannot accept claims of disability or copies of Blue Badges provided at a later date.”
A Blue Badge has no legal status on private land. Consequently, I do not see that it is PCM’s role to police the scheme. I require PCM to provide written instructions from a regulatory body that it cannot accept claims of disability or copies of Blue Badges.
- The EA requires "reasonable adjustments" to be made for those who meet it’s definition of disability. PCM have not done so and should have cancelled the Parking Charge Notice as soon as I made them aware that a disabled person had used the parking bay. Consequently the company are in Breach of the E A. Such a factor should not be regarded as a “mitigating” factor. It is a major point in the EA as regards people with disabilities.
- . Parking Control Management suggest that people with disabilities have to have a Blue Badge to use a bay for disabled persons when that is not the case. They are seeking to create an unfair and unlawful term which circumvents the EA and which would make any such contractual term null and void. A disabled bay on private land is there as a 'reasonable adjustment' for any disabled visitor who needs it as a result of their 'protected characteristic'.
Once I informed PCM that my mother has a 'protected characteristic' they should have considered if any reasonable adjustment should be made regarding the parking charge, as per the EA Part 2 Section 15.
PCM's staff should have been adequately trained in the EA to understand the need for such adjustments.. I require PCM Ltd to provide evidence of the training it’s staff have received in the EA and any briefings staff receive to update them on developments and cases lost at appeal under such grounds.
In this parking charge, the Blue Badge scheme is an irrelevant on-street and public car park scheme only and cannot lawfully be the only identifier of a disabled visitor's needs when in a private car park. I require PCM to provide details of any other means accepted by them as allowing them to identify drivers of disabled visitors to the xxx site.
.
The xxx site includes provision for Parent and Child parking in the same location as those for disabled persons. I require PCM to provide details of what checks it carries out to ensure appropriate use of these. In particular, I require them to say what paper/card means they use that must be displayed in such cars. If PCM do not have such means then they are in breach of the EA c 15 Part 2 Chapter 2 Discrimination Section 13, in that they are treating those with disabilities less favourably than Parent and Child visitors.

- PCM has not followed the IPC Code as in Section 7 as it reminds operators of their duty to make reasonable adjustments.

2.Non genuine pre-estimate of loss
The Amount of £95.00 that PCM wish to charge is not a genuine pre-estimate of loss. Any such estimate must be based upon loss following from a breach of parking terms. This might be, for example, a loss of parking revenue or retail revenue at a shopping centre. I was parked at xxx Shopping Centre where parking is free therefore, there is no loss flowing from the parking event on xxx.
There were other free parking bays vacant on xxx, so there can be no losses incurred from onsite parking. Therefore, I request that PCM Ltd provide a full breakdown of how these costs are calculated. All must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount of £95.00.
PCM say in their rejection letter that it is confident that their signage is adequate and compliant in all areas and clearly states that parking restrictions are in force. PCM maintain that the parking restrictions are concise and clearly displayed through out the disabled parking areas. PCM’s sign says failing to comply with terms and conditions will result in a parking charge notice being issued. So PCM Ltd must demonstrate their charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park is a free one so there was no loss of potential income.

If PCM have included day to day running costs and overheads of their business (for example wages, uniforms, vehicles, signage, erection, office costs, maintenance outlay) in their charge these would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

As PCM charge the same fixed rate regardless of the nature of an alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that it is a genuine pre-estimate of loss.

The Office of Fair Trading has stated that a 'parking charge' is not automatically recoverable simply because it is said to be a parking charge, as it cannot be used to state a loss where none exists. Further that a charge for a breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

As PCM cannot show any initial quantifiable loss the parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Costs such as those relating to normal operations and tax-deductible back office functions, debt collection, etc. do not flow as a direct consequence of the parking event on xxx. PCM are in the same position as they would have been had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
It would therefore follow that this charge is a fine and has an element of profit. The parking charge PCM have tried to levy exceeds an appropriate amount and bears no relation to genuine losses. To clarify, the xxx Shopping Centre operates a free car park so the loss would be £0.00.
The amount claimed is not covered by trespass (parking is allowed there and the passenger was disabled). Nor was it a contractual amount to pay in order to park there. The Contravention Code and the signage is unfair and unlawful in that the wording about 'Blue Badges/disabled badges' tries to create an alleged contractual term which breaches the EA.

The amount is an unlawful penalty. PCMs signs seek to establish that any 'charge' is for a breach of contract as failing to comply with terms & conditions is shown. The amount claimed is not covered by trespass (parking is allowed there and the passenger was disabled). Nor was it a contractual amount to pay in order to park there. It is not a genuine pre-estimation of loss on PCM’s part.
PCM have breached the IPC Code as Section 8 says all parking charges issued by operators must be reasonable and enforceable under any applicable legal provisions. If charges amount to damages then operators should be able to demonstrate how such charges are calculated as a ‘genuine pre-estimate of loss’ in order to be justifiable. I require PCM to demonstrate that the charge they seek is reasonable and enforceable.

3. No contract between Myself /Inadequate signage
Following receipt of the decision the reject my appeal by PCM, I visited the site on xxx. The signs displayed relate to PCM previous membership or the British Parking Association.
The signs also breaches the IPC Code of Practice, which effectively renders it unable to form a contract with a driver if it does not contain a minimum of one phrase from the guidance given in the notice to drivers in Group A. There are no other signs at xxx to identify PCM as the creditor etc and none to make it clear to a driver that he/she is entering into a contract with the creditor PCM. A Notice is not imported into a contract unless brought home so prominently that the party must have known of it and agreed terms. There was no consideration/acceptance and no contract agreed between myself and PCM. I require them to prove I actually saw, read and accepted the terms and conditions they seek to rely on.

I require them to show I made a conscious decision to park in exchange for the high fixed amount the Operator is now demanding. As parking is free on the site to say I accepted such terms knowingly is perverse and not credible.

The charge that was levied by PCM is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR). The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

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".

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.”

4. Lack of standing/authority from landowner
PCM has no title in the land on which I parked. If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start to operate. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to a recognised Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
I contend that PCM are only an agent working for the owners of xxx Shopping Centre and their signs do not help them to form a contract without any capability of consideration being offered. I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). I require PCM to produce a copy of their contract with the owner/occupier of xxx Shopping Centre and that the IPC adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between PCM and the owner/occupier, containing nothing that PCM can lawfully use in their own name as an agent, that could impact on a third party customer.

I put PCM to strict proof of the contract terms with the actual landowner (not a lessee or agent). PCM have no legal status to enforce this charge because there is no assignment of rights to pursue Parking Charge Notices in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear to have a licence to put signs up and 'ticket' vehicles on site, thereby acting as agents. No evidence has been supplied to show PCM are entitled to charge and issue proceedings for the sum claimed against me, in their own right.I refer the Assessor to VCS -v- HMRC 2012 the binding decision in the Upper Chamber which covers this issue with statements of fact about this sort of business model.
I require PCM to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the IPC Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in the xxx car park. In order to refute this it will not be sufficient for the Operator 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 ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins examined the contract in that case and picked out the contradiction between clause 3.7, where the landowner appointed ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. That decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the view taken in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.
Other issues
The Parking Charge Notice does not show the period of parking as per the IPC Code of Conduct. A flaw as PCM seek to rely on it to enforce it’s Parking Charge.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.
Yours faithfully
　
　
　
　
　

Coupon-mad

Yep I like that, I think it will win because the signs are old signs based on breach and BPA rules.

But I am a bit concerned about this:

'As all elements of my appeal do not fit into the space given in your form I am detailing them here and then attaching them to a completed front page for your ease of reference. '

...because we haven't seen what happens if the IPC don't receive a full appeal wording and also (unlike POPLA) you CANNOT add more later. So did you mean you were doing this online then posting a front page filled in? I am concerned the IAS would only consider whatever evidence they get in the first attempt.