Help please

help4OAP

Can anyone help please.

My husband is 83 and has cancer and arthritis - he has trouble walking and must have knocked off his blue badge.

we have now been issued a parking fine from UKCPS - we telephoned them and said what happened and was told we have to pay £100.

bazster

Please start your own thread by clicking here:

http://forums.moneysavingexpert.com/newthread.php?do=newthread&f=163

I predict Coupon-mad will be on this one like the wolf on the fold.

4consumerrights

help4OAP wrote: »

Can anyone help please.

My husband is 83 and has cancer and arthritis - he has trouble walking and must have knocked off his blue badge.

we have now been issued a parking fine from UKCPS - we telephoned them and said what happened and was told we have to pay £100.

Can you please start your own thread for individual help .- Bazster supplied you with the link.

lorweld

Hi help4OAP

Welcome to Mse :hello:

I've split your posts into a thread of their own

Redx

help4OAP wrote: »

Can anyone help please.

My husband is 83 and has cancer and arthritis - he has trouble walking and must have knocked off his blue badge.

we have now been issued a parking fine from UKCPS - we telephoned them and said what happened and was told we have to pay £100.

I reported this thread for splitting which has now been done by the board guide

please read and follow the NEWBIES sticky thread at the top of this forum, by coupon-mad

tells you everything you need to know, including a template letter and links to popla appeals too

also complain to the landowners citing the EA 2010 ,

ALSO MENTION THE EA 2010 IN YOUR PPC APPEAL AND ALSO IN ANY POPLA APPEAL, AS AN ADDED APPEAL POINT TO THE STANDARD APPEAL POINTS in all of your appeals and complaints to everyone involved

landowner

ppc (ukcps)

popla

anyone else

UKCPS are well known for bullying blue badge holders and people who are covered by the EA 2010

Hot_Bring

So come on then Peter Haswell - defend this one you vile, slimy good for nothing molecule of carbon matter !!!!

Coupon-mad

bazster wrote: »

I predict Coupon-mad will be on this one like the wolf on the fold.

'OAP' please send this letter signed by the registered keeper:



Dear UKCPS,

Re - PCN number xxxxxxx car registration xxxxxxx
Following our telephone call you are already aware that an occupant of the car is 83 and has cancer and arthritis - he has trouble walking and may have knocked off his blue badge in alighting from the car. This is my appeal as keeper and I expect the charge to be cancelled immediately because to continue to pursue me would constitute disability discrimination and unwarranted harassment.

In the interests of open communication (which you failed to engage in on the telephone) here is the appeal I intend to send at POPLA stage if you do not cancel now, and these are the appeal points you must address in any rejection letter:

SUMMARY OF THE LEGAL RIGHT TO USE THE DISABLED PARKING BAY
As you already know, an occupant of the car is 83 years old and unable to walk any distance due to a genuine long-term chronic mobility problem. A valid blue badge was also displayed in good faith, despite the fact it is not applicable as the only indicator of disability need on private land. If the Badge was not visible then the disabled tax disc and the occupants' struggle to and from the car would have alerted your employee to the genuine need anyway. In the interests of open communication I attach a photocopy of the blue badge with the name and number covered to avoid the details being used for other purposes.

At POPLA stage I will allege the following issues:

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
You and your landowner client 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 yourselves might choose to mention disabled Badges on their signs but you cannot legally rely on this scheme in isolation as the only indicator of disability need.

The Equality Act 2010 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 other 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 you 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 you 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 your client that you follow the Act. Indeed, it appears to be based on private parking industry-wide misconceptions about disability law so it is not just you, although research has shown me you do seem to target disabled Blue badge holders in similar circumstances.

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.''

I would specifically cite the disabled driver's appeal in the case of Excel v Greenwood, 3QT60496, 4/10/13 where the parking operator tied to argue that its terms & conditions to display a Blue Badge were binding on someone who they knew was disabled. But the Judge decided that t&cs could not circumvent the Equality Act 2010 which states that such terms are 'unenforceable'. Mr Greenwood - who was elderly and had a debilitating condition rather similar to our own case - won at the hearing because the Judge found that the Operator had a legal duty to make a 'reasonable adjustment' for a genuine disabled person. as soon as they knew about the genuine disability need.

UNCLEAR AND NON-COMPLIANT SIGNAGE
Your signage at the disabled bays was not sufficiently prominent nor clearly worded with all terms, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers, therefore signs are required to be so prominent that all terms must have been seen/accepted by the driver.

No reasonable driver would have accepted such onerous parking terms to pay UKCPS, a third party agent, £100 to use the driver's legal right to a disabled bay and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

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
You do not own this car park and are acting merely as agents with no assignment of any rights to offer contracts in your own name.

If you reject my appeal I will require you to provide a full copy of the contemporaneous, signed & dated contract with the landowner (not just a signed slip of paper from someone without the contract terms/restrictions/charges/details). If you do not send it now I will require you to show the full contract at POPLA stage.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
Clearly you are not offering a contractual agreement to let non-disabled people use the disabled bays as that would be unlawful. Therefore, as it is not a contractual sum it must be a matter of alleged 'breach of contract' under paragraph B 19.5 of the BPA Code of Practice. You must therefore validate this argument by providing me with a detailed financial appraisal which evidences the genuine pre-estimate of loss or damages in this particular car park for this particular 'contravention' by a person you know to be disabled.

The BPA Ltd (seeking advice on behalf of all AOS members, including UKCPS) was warned about such charges being unenforceable by the Office of Fair Trading, who 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' (e.g. the Equality Act 2010 and the Unfair Terms in Consumer Contracts Regulations 1999).

I suggest you confirm that the charge has been cancelled but if not, I look forward to ensuring that POPLA cancel it for us. Do not telephone us about the matter and we do not authorise you to keep our data once the charge is dropped.

A certificate of posting has been retained for this letter and the BPA will be informed if you do not supply a full written response within 35 days in the required manner. Do not attempt to send a holding letter nor to suggest that we should pay a lower sum for 'administration fees' as that would still be a case of causing detriment to a disabled person for using an adjustment they are legally entitled to use for free (badge or no badge). Do not reply without a POPLA code if you are rejecting this appeal.

Signed: {the registered keeper's name}



Date:

ENC: copy of Blue Badge with name/number covered







DO NOT SEND IT SIGNED FOR (NOT RECORDED, NOT SPECIAL DELIVEREY!). JUST 1ST CLASS POST AND ASK THE PO COUNTER CLERK FOR A FREE 'CERTIFICATE OF POSTING'. KEEP THAT LITTLE SLIP, STAPLED TO A COPY OF YOUR LETTER AND WAIT.

bod1467

bazster

I actually feel a little bit sorry for Hasbeen now. Hi Peter!

Nah, just kidding!

Dee140157

Here's just hoping the original poster comes back and finds this post as it was separated from another thread. Do you get a pm when you post is moved?

Coupon-mad

Yes Crabman sends a pm but that too can be hard for a newbie to spot if they don't get email alerts.