Hospital Complaint For Breach Of Equality Act 2010

Herzlos

Fergie76 wrote: »

[FONT=&quot]Thank you for your reply at Reference E, however I most certainly do not consider that matter closed. In fact I still have many unresolved issues. I will begin with your letter at Reference D and then will deal with your email at Reference F.[/FONT]

[FONT=&quot]So your easiness I will respond to each of your points, where I am unsatisfied with your response in order that you replied to them on Reference [/FONT]

(bolding mine), do you mean "for your easement"? Would you be better with something like "for your convenience" or "for the sake of simplicity"?

Fergie76

Herzlos wrote: »

(bolding mine), do you mean "for your easement"? Would you be better with something like "for your convenience" or "for the sake of simplicity"?

Yeah, someone else has already picked that one up. Thanks.

daveyjp

Re the GPEOL fiction its worth a follow up.

To ensure the operator fell in line with the requirements of POFA the hospital legal bods should have undertaken due diligience and agreed the GPEOL calculation.

Looking at that list it's obvious they didn't, but you may as well set out to show the potential negligent approach and FOI the hospital for documents between the Hospital legal department and APCOA signing off the GPEOL charges as being a true representation of the amount actually lost to fit with the requirements of POFA.

Fergie76

So have decided to go with this in reply to the hospital:

Thank you for your reply dated 18 December 2014, however there is a number of unresolved issues that I would like to bring to your attention.

I have listed the points in order that you replied to them on Reference

1. Breach of Equality
Providing disabled bays in excess of the laid down minimum is very noble; however I am mindful that the Equality Act 2010 refers to ‘making reasonable adjustment’ and ‘not to substantially disadvantage’ and I refer to my letter dated 22 October 2014 (Reference C) which articulates in detail why I believe the Equality Act was breached in this regard.

2. Blue Badge Scheme
I wish to highlight that the blue badge scheme does not apply on private land, In light of this I am querying what reasonable adjustment are made for people that require it, but do not have a blue badge?

The signs which are displayed outlining that “Blue Badges are required” does not relieve you of your obligations under the Equality Act for making reasonable adjustment for those that qualify within the meaning of the Act, but do not have a blue badge.

3. Number of Disabled Bays
You have advised that the Trust has 46 disabled bays, however I wish to advise that car park 3 (in which the driver was parked) only one has one disabled bay located there, which was taken on the day in question by another driver. I have already explained why it was necessary to park in this car park.



4. Parking Charge Notice
Your reply to this point confused me, as I felt it did not address the point raised. In previous correspondence you have stated that the driver received this charge for breach of contract. To form a contract all terms and conditions must be displayed/agreed at the time the contract is formed (assuming a contract is ever formed). Nowhere on your signs does it say that breaching the T&C’s will cost £60. Therefore no contract can ever be made, therefore all charges in your car parks are illegal. I would suggest that the Trust is responsible for this, as Landowner. APCOA are merely your Agents and you are responsible for their actions.

5. British Parking Association
I listed 4 breaches and yet in your reply you only responded to one, regarding not ticketing blue badges and even then you seem to accept that it acceptable for APCOA to breach the BPA Code of Practice. The Code states:

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.
6. Freedom of Information Requests
As you are aware I have submitted two FOI’s and both requests were not responded to within the appropriate timeframe. FOI 309-14 was closed, despite me informing you had not fully responded to it and still haven’t. The change of name deeds, changes the name to APCOA FACILITIES MANAGEMENT (HARROW) LIMITED, company number: 03481526. However, the company that is infesting your car parks is APCOA Parking (UK) Limited, company number: 02572947, two completely different companies. I still await further information regarding evidence that APCOA Parking (UK) Limited, company number: 02572947 has a right to issue charges in your car parks.

I have received a copy of two letters from the DVLA that APCOA have supplied to them dated 26 Apr 11 and 7 Jul 14. The letter dated 7 Jul 14, references an agreement dated 1 Jan 14, which is valid for 3 years from 1 Jan 14 to 31 Dec 17 (you will notice that this is in fact 4 years not 3). This appears to be an amendment to the contract and you have not supplied a copy of it or any other letters. Therefore as I requested in FOI 309-14, can you supply fully unredacted copies of all documents relating to the contract and amendments to the contract with APCOA FACILITIES MANAGEMENT (HARROW) LIMITED, company number: 03481526 and APCOA Parking (UK) Limited, company number: 02572947?

Bear in mind that guidance was in 2004 that you should structure contracts such that you can easily just withhold a single schedule with the prices in and submit EVERYTHING else, including all the main T&Cs.

7. Contact with the Trust
I remain dissatisfied with the way in which the Trust has handled my complaints and FOI requests. Routinely, not replying and when you have replied not answering the points that I have made. As you are aware I have on two occasions had cause to report the Trust to the Information Commissioners Office.

8. POPLA Outcome
You state that the outcome of my POPLA appeal does not affect your view on the validity of parking charges? This is very concerning. It has been deemed by an Independent Assessor that the charges were not justified and yet you still back them?

In addition I wish to advise that your contractor APCOA has still not sent me any confirmation that they have cancelled the charge. I would be grateful if you would confirm in writing if it is cancelled or not?



9. Email
Again I will take your email reply at Reference F in turn.

1. You say the contract does not cover charges for breach of contract and to see response 3. I think response 3 refers to the document entitle ParkingPolicy-April2010v3, it’s not too clear. I have looked at this document and still fail to see where it says APCOA can apply charges; again can you please point me in the direction of the relevant paragraph.

All I can see is a table at Annex 1 which states current tariffs. This relates to penalty charges, which we know you cannot apply. It also states that these penalties are only £15. Nowhere does it explicitly say that APCOA can charge penalty charges.

2. Yet again you state the company that you have a contract with is APCOA Facilities Management (Harrow) Ltd and not APCOA Parking (UK) Ltd, who is the one dishing out the penalties.

3. You say that it is entirely appropriate for you to empower the parent company to deliver the Trusts Parking policy. If you have empowered APCOA Parking (UK) Ltd, this must have been done by executing a contract amendment which makes APCOA parent company a party to the agreement or by inserting a clause which makes affiliates inclusive. What evidence do you have they are the parent company? Why was this not supplied as part of the FOI for the contract?

4. Genuine Pre-estimate of Loss (GPEOL)
Can you confirm that this is your GPEOL and has not been supplied by APCOA ?
I am aware that APCOA have submitted this GPEOL to POPLA and have been defeated every time for not being a GPEOL?

What due diligence has the Trust conducted on this GPEOL? Can you please supply under the FOI Act full unredacted copies of all correspondence between the Trust, APCOA and the Trust’s Solicitor’s where the GPEOL has been discussed?

• Loss of P&D revenue Tariff £12.20
• Cost of PCN issuance: Labour Cost / Licences / Software upload / Consumables / Misc. £12.25
• Associated Labour cost of officer patrol per hour: £9.05
• DVLA Fees / Processing Costs for appeals £15.00
• Admin Expenses for appeal: Stationery £3.00
• Postage £2.00
• Printing £2.00
• Attendant and POPLA Appeals staff wages and salaries including Employers National Insurance Attendants (PCN recording and issuing) for a standard case £15.38
• Appeals Staff 1 hour (call handling / appeals writing) for a case £9.13
• Management at 3 hours (quality control / evidence gathering / appeal writing ) for a case £30.28


Loss of P&D revenue – why £12.20? One hours parking is only £2.40 and a full days parking is £12.00. I would suggest it would be unfair to assume someone will stay all day and the T&C’s do not state that all under paid parking will be charged at the full day’s rate, so you cannot do this after the event. What if the person has paid for a P&D, but is delayed by circumstances out with their control, for example clinic over running? Your loss is not £12.20.

Cost of PCN issuance: Labour costs / Licences / Software upload / Consumables / Misc – I am cognisant that these are the costs of running a business and thus the Trust will incur them regardless, therefore these should not be included in a GPEOL.

Associated Labour Costs of Patrol Officer per hour – Again a normal business cost that cannot be included in a GPEOL.

DVLA Fee / Processing Costs – This is only £2.50, not £15.00.

Stationery – Again may be valid, if you had a valid claim.

Postage – Assuming that APCOA send their letters first class this is only £0.62 not £2.00.

Printing – See stationery.

Attendant and POPLA Appeals staff wages and salaries including Employers National Insurance Attendants (PCN recording and issuing) for a standard case – Again this is a business cost and not part of a GPEOL.

Appeals Staff 1 hour – If someone pays up between 14 and 28 days, without appealing, why are they being charged for an appeal they have never made? Also this is a normal business cost.

Management at 3 hours (quality control / evidence gathering / appeal writing ) for a case – See Appeals staff.

This GPEOL is quite clearly a work of fiction and as I have already said is routinely dismissed at POPLA.

Taking the above, the true GPEOL would:

Loss of P&D - £2.40
DVLA cost - £2.50
Stationary (including printing) - £3.00
Postage - £0.62

Total - £8.52.

bod1467

Nitpick comments as follows:

there are a number of unresolved issues

Spacing before point 6.

Bear in mind that guidance was issued in 2004 that you should structure contracts

I am aware that APCOA have submitted this GPEOL to POPLA and have been defeated every time for not being a GPEOL. (fullstop not question mark).

Fergie76

Too late for typo's, it's gone. Lol

The spacing is fine on the actual word document.

Fruitcake

Loss of P&D - £2.40.

But this should have been free for disabled visitors and therefore shouldn't be included in GPEOL calculations.

Fergie76

Good point, well made Fruitcake.

Fergie76

Happy New Year to everyone, except the scamsters...

Now that the holiday season is out the way, time to get stuck back in to this.

I have emailed my MP, further to our meeting and will wait and see what comes of this.

I have also emailed the ICO again:

[FONT=&quot]I have now received a reply from the Hospital (please see attached), as far as I can see from what they have supplied APCOA Parking (UK) Ltd are not legally party to any of the agreements and therefore are obtaining registered keepers details from DVLA in breach of the DPA.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]In their email attached, they say they have empowered the APCOA Facilities Management (Harrow) Ltd’s parent company APCOA Parking (UK) Ltd, however, I have taken advice and have been told that to empower APCOA Parking (UK) Ltd it would need to be done by a contract amendment or APCOA Parking being made party to the contract. From the documents supplied by this hospital this has not happened and in fact they quite categorically state “[/FONT][FONT=&quot]The contract provided is therefore the correct and sole documentation related to the current operation.[/FONT][FONT=&quot]” [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I have complained to the DVLA about this (see attached email) and APCOA have supplied two documents to the DVLA which states they do have authority, but these are not contract amendments, therefore I don’t think they are legally binding? One of the documents is dated Apr 11 and the other Jul 14. In the Jul 14 letter it refers to an agreement dated 1 Jan 14 which runs for three year through to 31 Dec 17 (you will notice that this is actually 4 years, not 3). Also why are they writing letters 6 months after an agreement and why have the hospital not supplied them as part of my FOI, indeed the hospital say they don’t exist, going by their above statement “[/FONT][FONT=&quot]The contract provided is therefore the correct and sole documentation related to the current operation.[/FONT][FONT=&quot]”?[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I am still concerned that hospital is not supplying all information requested as part of my FOI and that the DVLA are in breach of the DPA by releasing registered keepers details to a company who has no authority to obtain such details.[/FONT]

Fergie76

Had a reply from the ICO to my email above:

Thank you for your email of 4 January 2015. Under these circumstances I can re-open this case and contact the Trust again regarding any further information it may hold and I will write to you again to outline the scope of the case.

With regard to the legality of the contract itself and/or any amendments, this is not a matter that falls within the remit of the Commissioner.

I will discuss your concerns about the DVLA with our data protection team, as I believe that there are ongoing issues relating to this particular matter.