Hospital Complaint For Breach Of Equality Act 2010

Ryan_Bryan

So they issued the 'invoice' for a blue badge holder not parking in a disabled bay while acknowledging the presence of the blue badge. That's like invoicing a parent for not parking in a parent/child bay.
Maybe they can stick their goodwill firmly up their Trust policy.

Coupon-mad

Ryan_Bryan wrote: »

So they issued the 'invoice' for a blue badge holder not parking in a disabled bay while acknowledging the presence of the blue badge. That's like invoicing a parent for not parking in a parent/child bay.
Maybe they can stick their goodwill firmly up their Trust policy.

That's a good analogy!

Fergie76

Ok, so I have done my draft POPLA appeal. Happy for any suggestions to make it better. I am conscious that have I have not used the magic winning words of GPEOL.

[FONT=&quot]I am the registered keeper of the above car and I do not hold a valid driving licence, I am not liable for this Parking Charge Notice for the reasons, I set out below. The PCN was issued to the driver of the car parking in a non-disabled bay, displaying a blue badge and not a valid payment voucher. [/FONT]

[FONT=&quot]1. Breach of the Equality Act 2010[/FONT]

[FONT=&quot]Section 20 para 3 states:[/FONT]

[FONT=&quot]The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.[/FONT]

[FONT=&quot]As the NHS Trust/APCOA state that free parking is only applicable to cars parked in a disabled, displaying a blue badge, they are not only discriminating against a disabled person compared to a able-bodied person, but also compared against a disabled person who was able to park in a disabled bay for free. [/FONT]

[FONT=&quot]As a disabled person, by the nature of their disability will take longer to get in and out of their car and to get to wherever they need to be; to charge them same as an abled-bodied person for parking in normal parking bay, puts them at a financial disadvantage as they will need to pay longer for parking. So therefore in accordance with Sect 20 para 20 above, the NHS Trust/APCOA is not taking the reasonable steps to avoid the disadvantage.[/FONT]

[FONT=&quot]2. Breach of the BPA Approved Operator Scheme Code of Practice - [/FONT]

[FONT=&quot]Section 16.5 states:[/FONT]

[FONT=&quot]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]In the photographs in the Notice to Keeper from APCOA, you can clearly see that a blue badge is displayed. The above paragraph of the BPA AOS COP does not stipulate that 16.5 is restricted to disabled bays. Therefore, they have breached the BPA AOS COP.[/FONT]

[FONT=&quot]3. [/FONT][FONT=&quot]The Signage Was Not Compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between APCOA and the driver[/FONT]
[FONT=&quot]
A lack of signs at the entrance to a car park, and unclear wording, creates no contract.[/FONT]

[FONT=&quot]I complained to the BPA in June of this year as the signs at this site, clearly used the word penalty. As a result of this complaint, APCOA changed the signs by means of covering the sentence that contained the word penalty with blue tape. No other parts of the sign were changed, so on the balance of probabilities, I have to assume that any other parts of the sign remain extant and therefore any sum claimed remains a penalty. Also, as a result of my complaint to the BPA, APCOA received penalty points.[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]June 14 Sign containing the word penalty[/FONT]

[FONT=&quot]<Picture of sign>[/FONT]

[FONT=&quot]On the signs themselves, it does not say how much the PCN is, so again no contact can be formed to agree to pay this sum and has to be assumed it is a penalty. As a result of this PCN, I referred to the hospital website which said:[/FONT]

[FONT=&quot][FONT=&quot]<Picture of hospital website> [FONT=&quot]<Close up of T&Cs not stating how much PCN is>[/FONT][/FONT][/FONT]

[FONT=&quot]So according to the hospital website, it is a penalty and also that the penalty is £30, however APCOA are trying to extract double that amount from me as registered keeper of £60.[/FONT]

[FONT=&quot]4. Lack of Standing / Authority from Landover[/FONT]

[FONT=&quot]I have submitted a Freedom of Information request to the NHS Trust as Landowner for a copy of their contract with APCOA to try and determine if APCOA have the relevant authority from the Landowner to issue these charges. The Trust has failed to respond to my FOI despite being well over the 20 working days timescale they have for responding. Therefore, I put strict proof on to APCOA to prove that they have the sufficient authority to issue these charges.[/FONT]

[FONT=&quot]5. Punitive Sums[/FONT]

[FONT=&quot]As I have already stated above, I believe the amount APCOA are trying to claim is a punitive sum. I believe that APCOA cannot claim penalties, as this is an unfair term. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:[/FONT]
[FONT=&quot]
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 1999. 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.

A sign of terms placed as described above, is far from 'transparent'.

Schedule 2 of the 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.”

I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.[/FONT]

Fergie76

I realise I am going to have change the last paragraph, as it is not totally relevant to my appeal. I just C&P without reading it properly.

Coupon-mad

I am conscious that have I have not used the magic winning words of GPEOL.

Deliberately we assume, you are testing POPLA?

I think you could add to this as shown, I would even include the Parking Prankster and pepipoo links to make the Assessor and APCOA read them and weep (and you hand a typo (landover!):


4. Lack of Standing / Authority from Landowner

[FONT=&quot]I have submitted a Freedom of Information request to the NHS Trust as Landowner for a copy of their contract with APCOA to try and determine if APCOA have the relevant authority from the Landowner to issue these charges. The Trust has failed to respond to my FOI despite being well over the 20 working days timescale they have for responding. Therefore, I put strict proof on to APCOA to prove that they have the sufficient authority to issue these charges. In similar cases where APCOA were parking agents at a Hospital, their cases were dropped or struck out this year on the basis they have no standing to sue in their own name due to the wording of their contracts:[/FONT]

24/4/14 3YQ53901 APCOA v Hull at Kingston Court, DJ Smart struck the case out and the motorist was awarded £200 costs:
http://parking-prankster.blogspot.co.uk/2014/04/apcoa-case-struck-out.html

5/2/2014 3YQ53850 and 3YQ53894 - APCOA DROPPED TWO NHS CLAIMS:
http://forums.pepipoo.com/index.php?showtopic=83241

Fergie76

Coupon-mad wrote: »

Deliberately we assume, you are testing POPLA?

Yes, I don't want to give POPLA an easy out and want to try and steer them to judging this on EA10. Although, including the penalty stuff, I think they might still steer clear of the EA10 and go down the penalty route.

Coupon-mad wrote: »

I think you could add to this as shown, I would even include the Parking Prankster and pepipoo links to make the Assessor and APCOA read them and weep (and you hand a typo (landover!):


4. Lack of Standing / Authority from Landowner

[FONT=&quot]I have submitted a Freedom of Information request to the NHS Trust as Landowner for a copy of their contract with APCOA to try and determine if APCOA have the relevant authority from the Landowner to issue these charges. The Trust has failed to respond to my FOI despite being well over the 20 working days timescale they have for responding. Therefore, I put strict proof on to APCOA to prove that they have the sufficient authority to issue these charges. In similar cases where APCOA were parking agents at a Hospital, their cases were dropped or struck out this year on the basis they have no standing to sue in their own name due to the wording of their contracts:[/FONT]

24/4/14 3YQ53901 APCOA v Hull at Kingston Court, DJ Smart struck the case out and the motorist was awarded £200 costs:
http://parking-prankster.blogspot.co...truck-out.html

5/2/2014 3YQ53850 and 3YQ53894 - APCOA DROPPED TWO NHS CLAIMS:
http://forums.pepipoo.com/index.php?showtopic=83241

Thanks for this. I will amend the appeal tomorrow to include this, tidy up point 4 to make it more relevant to my appeal and correct the typo's.

How does the rest of read?

Coupon-mad

Looks fine - I still wouldn't put it past POPLA to pull the 'no GPEOL card' out of your point 5 though!

bod1467

As long as the assessor is not Amy Riley?

Coupon-mad

She is the new one to steer clear of, used to be Nozir Uddin and Farah Ahmad!

Fergie76

Well that's POPLA appeal submitted.

I am the registered keeper of the above car and I do not hold a valid driving licence, I am not liable for this Parking Charge Notice for the reasons, I set out below. The PCN was issued to the driver of the car parking in a non-disabled bay, displaying a blue badge and not a valid payment voucher.

1. Breach of the Equality Act 2010

Section 20 para 3 states:

The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

As the NHS Trust/APCOA state that free parking is only applicable to cars parked in a disabled, displaying a blue badge, they are not only discriminating against a disabled person compared to a able-bodied person, but also compared against a disabled person who was able to park in a disabled bay for free.

As a disabled person, by the nature of their disability will take longer to get in and out of their car and to get to wherever they need to be; to charge them same as an abled-bodied person for parking in normal parking bay, puts them at a financial disadvantage as they will need to pay longer for parking. So therefore in accordance with Sect 20 para 20 above, the NHS Trust/APCOA is not taking the reasonable steps to avoid the disadvantage.

2. Breach of the BPA Approved Operator Scheme Code of Practice -

Section 16.5 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.
In the photographs in the Notice to Keeper from APCOA, you can clearly see that a blue badge is displayed. The above paragraph of the BPA AOS COP does not stipulate that 16.5 is restricted to disabled bays. Therefore, they have breached the BPA AOS COP.

3. The Signage Was Not Compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between APCOA and the driver

A lack of signs at the entrance to a car park, and unclear wording, creates no contract.

I complained to the BPA in June of this year as the signs at this site, clearly used the word penalty. As a result of this complaint, APCOA changed the signs by means of covering the sentence that contained the word penalty with blue tape. No other parts of the sign were changed, so on the balance of probabilities, I have to assume that any other parts of the sign remain extant and therefore any sum claimed remains a penalty. Also, as a result of my complaint to the BPA, APCOA received penalty points.
 
June 14 Sign containing the word penalty

<see illegal sign photo>

On the signs themselves, it does not say how much the PCN is, so again no contact can be formed to agree to pay this sum and has to be assumed it is a penalty. As a result of this PCN, I referred to the hospital website which said:

<Parking Charges photo> <photo 1>

So according to the hospital website, it is a penalty and also that the penalty is £30, however APCOA are trying to extract double that amount from me as registered keeper of £60.

4. Lack of Standing / Authority from Landowner

I have submitted a Freedom of Information request to the NHS Trust as Landowner for a copy of their contract with APCOA to try and determine if APCOA have the relevant authority from the Landowner to issue these charges. The Trust has failed to respond to my FOI despite being well over the 20 working days timescale they have for responding. Therefore, I put strict proof on to APCOA to prove that they have the sufficient authority to issue these charges. In similar cases where APCOA were parking agents at a Hospital, their cases were dropped or struck out this year on the basis they have no standing to sue in their own name due to the wording of their contracts:

24/4/14 3YQ53901 APCOA v Hull at Kingston Court, DJ Smart struck the case out and the motorist was awarded £200 costs:
http://parking-prankster.blogspot.co...truck-out.html

5/2/2014 3YQ53850 and 3YQ53894 - APCOA DROPPED TWO NHS CLAIMS:
http://forums.pepipoo.com/index.php?showtopic=83241

5. Punitive Sums

As I have already stated above, I believe the amount APCOA are trying to claim is a punitive sum. I believe that APCOA cannot claim penalties, as this is an unfair term. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:

''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 1999. 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.

A sign of terms placed as described in point 3 above, is far from 'transparent'.

Schedule 2 of the 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.”

I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.