Hospital Complaint For Breach Of Equality Act 2010

Fergie76

Looks like I'm p!ssing in the wind. Had replies from both DVLA and ICO today:

DVLA first:

I can confirm that I have been in contact with Apcoa regarding the further issue that you have detailed relating to the confusion in regards to the letters of authorisation issued by the trust. DVLA have had sight of a letter from the trust to Apcoa where they have fully clarified that the error made by the Trust was that it implied a 4 year term of contract assignment was in place.

The 2 agreements I have seen dated 7th July 2014 and 26th April 2011 are between The North West London Hospitals NHS Trust and Apcoa Parking (UK) covering The Ealing Hospital Trust sites at Northwick Park Hospital, Central Middlesex and Ealing Hospital.

DVLA are content that these agreements cover Apcoa Parking (UK) to manage the land at the above sites.

And then to the letter I sent yesterday in post 444:

I have responded to your earlier email.

Regarding your email below, DVLA carry out their own investigations on receipt of a complaint. Part of this involves contacting the relevant Accredited Trade Association to seek their views and to ask them to carry out an investigation into any alleged code breaches.

DVLA currently carry out annual remote audits on all organisations who have electronic access to DVLA keeper data and bi annual visits to all parking organisations to ensure assurance and compliance with DVLA contracts.

I hope this explains the Agency’s position in regards to this matter.

and the ICO:

[FONT=&quot]Further to our recent telephone conversation I have completed my research and enquiries relating to your concern that DVLA is in breach of the DPA.

Your concern is that there has been an unauthorised disclosure of your personal data, in the form of information that you are the Registered Keeper of the vehicle in respect of which charges are due, by the DVLA.

The DVLA website provides the following information as to obtaining information:

[FONT=&quot]“You can request details of a vehicle’s registered keeper and certain other information from DVLA if you have ‘reasonable cause’.[/FONT]

[FONT=&quot]Why you might make a request[/FONT]

[FONT=&quot]‘Reasonable cause’ can include:[/FONT][/FONT]

• [FONT=&quot]finding out who was responsible for an accident[/FONT][FONT=&quot][/FONT]
• [FONT=&quot]tracing the owner of an abandoned vehicle [/FONT][FONT=&quot][/FONT]
• [FONT=&quot]tracing the owner of a vehicle illegally parked on private land[/FONT][FONT=&quot][/FONT]
• [FONT=&quot]issuing parking tickets[/FONT][FONT=&quot][/FONT]
• [FONT=&quot]tracing people responsible for driving off without paying for goods and services[/FONT][FONT=&quot][/FONT]
• [FONT=&quot]tracing vehicle owners suspected of insurance fraud[/FONT][FONT=&quot][/FONT]

[FONT=&quot]What information you can request[/FONT][FONT=&quot]

[FONT=&quot]You can ask for:[/FONT][/FONT][FONT=&quot]
[/FONT]

• [FONT=&quot]details of a vehicle’s registered keeper[/FONT][FONT=&quot][/FONT]
• [FONT=&quot]information about previous keepers for a vehicle now registered in your name[/FONT][FONT=&quot][/FONT]
• [FONT=&quot]information the DVLA holds about you [/FONT][FONT=&quot][/FONT]

[FONT=&quot]Private car parking management companies can only request information from the DVLA if they are members of the British Parking Association or the Independent Parking Committee.”

You have challenged the ability of APCOA Parking (UK) Limited (APU) to seek to obtain your details (as registered keeper of the vehicle) from DVLA.

I can advise that schedule 4, Protection of Freedoms Act 2012 (PoF) applies where the driver of a vehicle is required to pay parking charges in respect of the parking of a vehicle on relevant land and those charges have not been paid in full. Paragraph 4, of schedule 4 provides that the creditor – being the person entitled to recover the unpaid parking charges – has the right to recover any unpaid parking charges from the keeper of the vehicle.

If the driver of the vehicle fails to pay the required parking charges in response to a Notice to Keeper (NtK) affixed to the vehicle by the creditor, in order to recover parking charges the creditor will need to obtain contact details for the driver of the vehicle. In order to do this the creditor may apply to the DVLA, using the vehicle number plate information, for details of the Registered Keeper of the vehicle. The creditor may then contact the Registered Keeper seeking details of the driver. If the Registered Keeper fails to provide details of the driver, the creditor has the right to recover unpaid parking charges from the Registered Keeper.

The initial agreement for the construction and operation of the carpark was made between Northwick Park & St Marks Hospital NHS Trust, Lister Healthcare Group Limited and FMG (Harrow) Limited in February 1998 and provided for the agreement to run for 40 years. The agreement provided that the carpark would be managed for the Trust and Lister by FMG (Harrow) Limited.

Since 1998 FMG (Harrow) Limited has changed its company name to APCOA Facilities Management Harrow Limited (APFMG) and the Northwick Park & St Marks Hospital NHS Trust has become the North West London Hospitals NHS Trust. The 1998 agreement in respect of the carpark appears to continue to be in operation albeit that both main parties to the agreement have changed their names.

You are concerned that as it was APUK that applied to the DVLA for your information and this is not the company required to manage the carpark under the 1998 agreement (being APFMG), it had no ‘reasonable cause’ to ask for the information.

I have reviewed the information available including the copies of two letters from the Trust authorising APCOA Parking Limited to manage the car park on its behalf. The first letter is dated 26 April 2011 and is from Northwick Park Hospital to APCOA Parking authorising it to conduct private land enforcement and debt recovery on land owned or managed by the Hospital.

The second letter is dated 7 July 2014 from the Trust to APCOA Parking (UK) Limited authorising it to undertake parking control and enforcement work and refers to an agreement between the Trust and APUK dated 1 January 2014 in relation to this activity. The letter specifically authorises APUK to seek information from the DVLA in relation to this activity.

These letters are clear authority for APUK to act on behalf of the Trust in relation to enforcement action in relation to the carpark. The DVLA has not acted in breach of the DPA in disclosing personal data to APUK in relation to unpaid parking charges which APUK is clearly authorised to collect on behalf of the Trust.

In conclusion, the DVLA has provided information in respect of the registered keeper of a vehicle that incurred parking charges that are unpaid. The information has been provided to a private car parking management company which is a member of the British Parking Association and is therefore entitled to apply to the DVLA for information.

It is our view that the DVLA has not breached the DPA in disclosing personal data to APUK in these circumstances. Therefore we will not be pursuing this particular matter any further.

With regard to your email of 2 February 2015 in which you state you would now like:[/FONT]

• [FONT=&quot]For the case not to be closed, but to escalate this complaint to the next level within the ICO.[/FONT]
• [FONT=&quot]Establish why the Trust does not hold copies of the two attached letters or the agreement dated 1 Jan 14.[/FONT]
• [FONT=&quot]For you to re-examine the ‘evidence’ of name change.[/FONT]

[FONT=&quot]I can confirm that the evidence of name change has been re-examined and detailed above. There is no 'next level' within the ICO as such, although you can make a complaint about our service. I have provided the link to our website for further information on how to do this.

Finally, we can continue with regard to the second bullet point above. I should advise that this will not necessarily establish why the Trust does not hold the information, but only if it has carried out appropriate and adequate searches for it. I would therefore be grateful if you could advise if you wish to continue with this aspect.

[/FONT]

nicechap

Fergie, please don't give up. They are being completely dense. APOCA UK and APOCA facilities are 2 different entities and the DVLA need to acknowledge that, whatever they say they've seen, it doesn't allow APOCA Facilities to access data from parking events at the Hospital.

bod1467

Fergie ... have YOU seen those letters that DVLA mention? If not then this is yet another FOI breach by the Trust.

Fergie76

nicechap wrote: »

Fergie, please don't give up. They are being completely dense. APOCA UK and APOCA facilities are 2 different entities and the DVLA need to acknowledge that, whatever they say they've seen, it doesn't allow APOCA Facilities to access data from parking events at the Hospital.

bod1467 wrote: »

Fergie ... have YOU seen those letters that DVLA mention? If not then this is yet another FOI breach by the Trust.

APCOA Facilities have they contract, but the contract doesn't allow for the collection of parking charges. What the DVLA and ICO are claiming is that the two letters APCOA Parking (UK) Ltd have from the hospital, can take precedence over a legally binding contract. Now, I'm not legally qualified, but what is the point in having a contract if you can just write a letter that over-rules the contract?

Yes, I have seen the letters, but not from the Trust. APCOA sent them to DVLA as evidence.

What is confusing me about the second letter dated Jul 14, it mentions the agreement of Jan 14, which the Trust have admitted does not exist, so why is any other content of letter reliable? Surely in Jul 14 they must have know if that agreement existed or not?





As you can see from the second letter it says that parking charges 'as envisaged by the agreement', but the agreement doesn't exist.

Is it me that's just not getting it? Am I missing something?

ampersand

I'll join you on that 'missing something' list Fergie.

[Mind you, some have been thinking this for years:-)]

bod1467

Dear DVLA,
Are you being deliberately dense? Or can you genuinely not link the facts presented to see that:

APCOA Facilities have the contract with the Trust at the hospital, but are not issuing PCNs.
APCOA Parking UK do not have the contract, yet are issuing PCNs at the hospital. As such, they are obtaining keeper data from DVLA without reasonable cause.

The letters to which you refer also refer to an agreement dated Jan 2014 - the Trust have already confirmed that this agreement does not exist! As the letters refer to something that does not exist, then the letters carry no legal weight or bearing whatsoever, thus they must be ignored.

Furthermore, a letter does not and cannot supersede a legally-binding contract, especially when that contract does not allow legal rights to be assigned without an amendment to the contract - something else which has not happened!

In short ... the company with access to keeper data through their KADOE agreement (APCOA Parking UK) do not have a contract to operate at the hospital. Thus every time they seek keeper data for this site they are breaching their KADOE agreement. It is as simple as that.

Yours,
Mr. Angry from Tunbridge Wells

Fergie76

bod1467 wrote: »

Dear DVLA,
Are you being deliberately dense? Or can you genuinely not link the facts presented to see that:

APCOA Facilities have the contract with the Trust at the hospital, but are not issuing PCNs.
APCOA Parking UK do not have the contract, yet are issuing PCNs at the hospital. As such, they are obtaining keeper data from DVLA without reasonable cause.

The letters to which you refer also refer to an agreement dated Jan 2014 - the Trust have already confirmed that this agreement does not exist! As the letters refer to something that does not exist, then the letters carry no legal weight or bearing whatsoever, thus they must be ignored.

Furthermore, a letter does not and cannot supersede a legally-binding contract, especially when that contract does not allow legal rights to be assigned without an amendment to the contract - something else which has not happened!

In short ... the company with access to keeper data through their KADOE agreement (APCOA Parking UK) do not have a contract to operate at the hospital. Thus every time they seek keeper data for this site they are breaching their KADOE agreement. It is as simple as that.

Yours,
Mr. Angry from Tunbridge Wells

Already sent a similar letter, which was what the reply was today:

Further to my email on 28 Jan 15, I have now received a reply from the Hospital Trust with reference to my latest FOI request.

The Trust has categorically confirmed that no contract exists between themselves and APCOA Parking (UK) Ltd and that the agreement that APCOA Parking (UK) have supplied to the DVLA claiming it empowers them, does not exist.

From the Trust’s FOI response:

[FONT=&quot]Point 6. Freedom of Information Requests[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“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 and 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?”[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]• The “agreement” referred to in the letter dated 7th July 2014 does not exist; this is an error on the part of the Trust and all parties will be informed accordingly. All documents relating to the contract with APCOA Facilities Management (Harrow) Ltd have been provided and no contract exists with APCOA Parking (UK) Ltd[/FONT]

This means that APCOA Parking (UK) Ltd have never had 'reasonable cause' to request Registered Keeper data in relation to Parking Charges at this site.

I dispute your finding that APCOA Facilities Management (Harrow) Ltd or the Trust could simply 'empower' APCOA Parking (UK) Ltd on the following grounds.

1. In the contract that exists between APCOA Facilities Management (Harrow) Ltd and the Trust, the contract does not contain any clauses allowing affiliates to be conjoined to the contract.

2. The contract specifically states that APOCA Facilities Management (Harrow) Ltd cannot transfer any rights under the Agreement.

Therefore, the simple fact remains that APCOA Parking (UK) Ltd, the legal entity accessing Registered Keeper data from the DVLA database under KADOE, are not, and never have been a party to any existing or historical contract with the NHS Trust.

It also follows that all Registered Keeper data obtained by them at this site, has been done so out with the Data Protection Act, and I would like you to take appropriate action.

But for whatever reason both the DVLA and the ICO seem to think that these letters can somehow supersede a legally binding contract.

Now am I just being cynical, that I happened to get both the DVLA's and ICO's similar replies 15 minutes apart... collusion...

ManxRed

I work in contracts for a living. A letter CANNOT over-ride a contract. That's the plain and simple fact of the matter.

I would send bod1467's letter (without the 'are you dense?' bit!).

ManxRed

I would also ask the DVLA if you've reached the end of the complaint procedure or can you take it higher? Once you get to the end of this, you can go to your MP I think.

Fergie76

Just found this wee snippet in the contract. I think this may put an end to the letter of authorisation !!!!!!...

Do you agree Manx?

17.3 No variation of any provision of this Agreement shall be effective unless it is in writing, refers specifically to this Agreement and is duly executed by each party.