Hospital Complaint For Breach Of Equality Act 2010

Fergie76

You must know by now, I'm not one to give up easily. I'm a royal pain in the @rse. lol I will definitely be writing back, but this time with the whole problem of PPC's and not just my wee problem. I'll need to do it over the weekend now.

What annoys me is that people don't read, what you actually write. He said:

Can we just clarify that the person using the badge in this instance was the blue badge owner?

I have already clarified that. After my first email to him, they emailed me and asked me to clarify then:

I am not quite clear whether or not your wife was driving the mobility car in question or whether someone was driving it with or without her authority. Could you kindly clarify the situation for me.

And this was my reply:

[FONT=&quot]My wife does not drive. Someone else was driving and my wife was a passenger in the car on the day in question and it was her blue badge that was being used. [/FONT]

Unfortunately, his seat is safe. Over 15000 of majority 2010. Tory as well...

Umkomaas

Copy in your UKIP candidate with your correspondence and make sure that the cc is writ large on the original to your Tory boy!

Fergie76

Good suggestion, but I don't want nothing to do with UKIP, horrible party.

Umkomaas

Fergie76 wrote: »

Good suggestion, but I don't want nothing to do with UKIP, horrible party.

May be so, but a 'cc' at the bottom of a letter (even if you don't actually cc) can't help but help!

esmerobbo

Usual nonsense letter from an MP, they never seem to have relevance to the issues raised. Probably passed to their spouse or sibling, who they pay very well to construct an irrelevant Letter.

bazster

Dear MP,

The car park is owned by the Trust, APCOA is merely its agent. It is trite law that the Trust is responsible for the actions of its agent, as was made clear in the recent Department of Health guidance on hospital parking which stated "NHS organisations are responsible for the actions of private contractors who run car parks on their behalf." I am appalled at your ignorance of these matters.

Furthermore, I resent the suggestion that a Blue Badge may have been misused, and I require an apology. I have already told you that my wife, the holder of the Blue Badge, was in the vehicle at the time.

I am also further appalled at your ignorance of the fact that the Blue Badge scheme is not applicable on private property and hence no offence could arise.

Please now look at my letter again, read it properly this time, and treat it as what it is intended to be: a complaint against the Trust concerning a matter for which the Trust is clearly and fully responsible.

Fergie76

Excellent Baz.

Fergie76

Ok, so I have replied to my MP, it's a bit long and not quite as eloquent as Baz':

Thank you for your reply, but as with the hospital, I feel you have missed the point of my complaint.

I will respond to the specific points of your email first and then I will then explain, in my opinion, the whole problem with Private Parking Companies (PPC’s)

In your reply below, you state that “it appears that the hospital does not have responsibility for the car park in question”. Can you please clarify this statement? It is the hospitals car park/property and not APCOA’s. The NHS Trust are the principles as landowners and APCOA are merely their Agents. In fact the Government’s own Department of Health explicitly state this:

NHS-Patient-Visitor-and-Staff-Car-Parking-Principles

[FONT=&quot]Contracted-out car parking[/FONT]

• [FONT=&quot]NHS organisations are responsible for the actions of private contractors who run car parks on their behalf.[/FONT]

Therefore, I stand by my assertion in my original complaint that it is the NHS Trust that have breached the Equality Act 2010 and not APCOA. If I was writing to you complaining about an Agency Nurse’s conduct, would you say that I should contact that Agency rather than Trust? Same principle here.

In paragraph two, you suggest that I write to APCOA, I have already done so and they rejected my appeal. I am currently appealing to POPLA. APCOA and PPC’s are predatory companies and prey on the weak and vulnerable. They are just interested in getting as much money as possible from the public even when they have no right to. You also suggest that the problem may lie with APCOA policies, I was unaware that a company can ignore the law, as long as it was in their own policies?

I am offended that you suggest the blue badge may have been misused or abused, especially when you or your office have already asked that question and I have replied. I have attached the email to refresh your memory. Also a point of note, the blue badge is not valid on private land, where people with protected characteristics are protected under the Equality Act 2010, whether they have a blue badge or not and that was the basis of my complaint to the hospital.

Blue Badge Scheme

[FONT=&quot]The Blue Badge scheme[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]A Blue Badge will help you to park close to your destination, either as a passenger or driver. However, the badge is intended for on-street parking only. Off-street car parks, such as those provided in local authority, hospital or supermarket car parks are governed by separate rules. This leaflet will provide you with more information about where you can and cannot park in the on-street environment.[/FONT]

I have already complained to the ICO and I received a reply to my FOI from the hospital on 28 Oct 14, well over the 20 working day timeframe. Although the hospital rejected one of the requests, the one where I requested a copy of their contract with APCOA, claiming commercial sensitivity. I have appealed this decision on the grounds of Section 43 of the FOI Act, which is where there is a public interest, then commercial sensitivity is not enough to reject a FOI request and there is already precedence where other NHS Trusts have already released their contracts with PPC’s.

The General Problem With PPC’s

PPC’s are there to make money by charging people for breaching their arbitrary rules and very few of them actually do any car park management. They do this by fear and intimidation. They try to imitate the authority of a council parking ticket, but looking very similar and using similar wording. The Government are implicit in this scam through the DVLA selling registered keepers details to the PPC’s for £2.50 a time. The Government should change this as matter of priority as it should be a clear breach of the Data Protection Act.

In order to gain access to the DVLA records, a parking company must be a member of a Credited Trade Association and signed up to their Approved Operator Scheme (AOS), of which there are currently two, the BPA and IPC. These two companies are merely clubs funded by and for their members and despite what the BPA try and portray have no legal authority.

APCOA are member of the BPA and as members are signed up to their AOS which gives them access to the DVLA database for Registered Keeper details. Although signed up to the AOS, APCOA routinely breach the Code of Practice. In fact I highlighted 4 breaches in my complaint to the hospital:

[FONT=&quot]First breach – When I visited the same car park in June 14, the signs clearly had the word penalty on them, see Annex B. I reported this breach to the BPA and APCOA were made to change their signs and were awarded penalty points by the BPA. To change the signs all APCOA did were to cover the sentence containing the word penalty with blue tape. As no other bits of the sign were changed, I have to assume, in accordance with your website site which confirms this, that the sum you/APCOA are trying to extract is a penalty. Therefore I put it to you again; under what authority are you trying to claim this penalty.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Second breach – Section 16.5 of the BPA AOS COP says:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]16.5 If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]So in accordance with AOS COP, APCOA should not have issued a parking charge notice as you as landowner provide a concession for disabled people. You will note from the above paragraph that it does not state that this is only applicable to the disabled bays.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Third breach – Pretending for a minute that it is not a penalty and that it is a contractual charge the BPA AOS COP states:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] 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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The £60 charge cannot be a genuine pre-estimate of loss or else you would not be able to offer a 50% discount if paid within 14 days or else you would be losing money on each and every ticket paid within the 14 days. Can you please provide me, under the Freedom of Information Act, a copy of your genuine pre-estimate of loss? Bearing in mind that you cannot look to cover costs, where there has been none in the first place. Please do not refer me to APCOA for this, they are your Agents and I am requesting that you supply the information as they are issuing these penalties on your behalf.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Forth Breach – The BPA AOS COP places high importance on Entrance Signs:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT][FONT=&quot]18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]There are no entrance signs at the entrance to the hospital, car park 3 or the car park at the St Marks entrance to the hospital.[/FONT]

So why should companies who routinely have no regard for their own rules be allowed access to this database to fleece the public? Also, why should Registered Keepers be held responsible for contracts that they possibly have no party too? My wife is the Registered Keeper, but does not drive as an example.

It was your Government that brought in the Keeper liability in 2012 through Schedule 4 of the Protection of Freedom Act. The BPA heavily pressed the Government for inclusion of Keeper liability using false figures for small claims court cases, claiming that there were thousands each year, when in actual fact there were a few hundred. By contrast, since the introduction of Schedule 4, it has seen court case rocket and one PPC, Parking Eye, issuing 1000’s each week.

Basis for Charge

As per my breach 3 above, there is no basis for charging such amounts. These are clearly penalties which are invalid under law:

Unfair-terms---regulation-by-common-law[FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Penalty clauses[/FONT][FONT=&quot][/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]Some contracts may contain a clause specifying an amount which is payable in the event of a breach of contract. This can be helpful to both parties in that each will know exactly what their position is in advance and can prepare for such eventualities. However, if such a clause specifies an excessive sum is payable this can operate harshly on the breaching party and as such the law provides some protection. English law draws a distinction between [FONT=&quot]liquidated damages[/FONT] [FONT=&quot]clauses[/FONT] (which are valid) and [FONT=&quot]penalty clauses[/FONT] (which are invalid).[/FONT]
[FONT=&quot]
To amount to a liquidated damages clause the sum specified must be a genuine pre-estimate of loss. A penalty clause is where the sum specified acts [FONT=&quot]in terrorem[/FONT] (to punish, or to deter a breach). It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach:[/FONT]
[FONT=&quot]Dunlop v New Garage[/FONT] [1915] AC 79 (Case summary)

However, if a PPC only charged a genuine pre-estimate of loss, they would soon go out of business as no one wants to work for free, but that non the less makes the charges anymore valid.

I could give you hundreds of examples of PPC’s unfairly trying to extort money from the public, but I will just give you two links, where you can read the injustice people feel at your leisure.

moneysavingexpert.com

Pepipoo

One of the more ludicrous examples of a PPC trying to scam money is where a resident owns a parking space (usually in apartment complexes) and forgets to display their permit, that a PPC has decided the must display and then demands £100 for the pleasure. Would you a pay someone £100 because you forgot to display a permit when you are parked in your own driveway? That is effectively what the PPC’s are doing.

Apologies for the long email, but I felt it was important that you understand the issues surrounding the Private Parking Companies.

I look forward to hearing from you.

bazster

Well OK, but the longer a letter you write to an MP the less chance of a sensible response and the more opportunity you give them to focus on one easy point and ignore the rest.

Fergie76

Had a reply back from my MP today, reference the email I sent above on Friday.

Being kind, He just doesn't get it. Most definitely part of the problem.

I am sorry you do not feel I have understood you correctly and for in any way offending you. Here is your situation as I understand it:

In July, the driver of the mobility car, which your wife is the registered keeper of, drove her to hospital. Your wife’s blue badge had been displayed but they parked in a non-disabled bay. This resulted in a fine being sent to your wife, as the registered keeper. You made a complaint to the hospital as you believe they should be obliged to offer free parking in all bays in order to not discriminate. You also believe that the hospital is or should be responsible for the actions of the car park. It appears from the photograph from the car park that these fines and rules were clearly displayed, but your complaint is based on the belief that these Private Parking Companies in their rules are discriminatory. You also believe that the car park should not have any access to the DVLA database, and that the requirement to show a blue badge should also not be necessary.

Contracting out parking for hospitals is common practise nationally. Whilst this may not be a perfect system, it does enable the hospitals to focus on care. With regards blue badges needing to be shown, it is understandable that some proof of disability is required to deter any abuse of the system, like imposters. I agree that many hospital car parks charge too much; taking advantage of patients who have no other choice. However, the NHS Parking Principles you referred to were published in August, so it is possible that change is happening now. It also means they cannot apply to events previous to August.

Whilst I am very sympathetic to your situation, I am at odds as to what you would want me to do. I understand your argument but believe it would be highly unlikely to succeed in any review, as the rules at the car park were clear and similar rules are commonplace. I appreciate you feel very strongly about this, and have clearly done a substantial amount of research, but I highly doubt any success will come of this.

If there are any steps you believe I could take, please do not hesitate to get back to me.