IPC Draft appeal, new signs, parking having exceeded the time limit

SosXX

Thanks just seen so made photobucket private until I can upload new pic. Appreciate your help so much

SosXX

Photo edited and made public again

Coupon-mad

OK I will actually pm you in a few days, by the weekend, when I have worked on this. Don't submit the appeal yet. If I haven't pm'd you by Sunday then pm me!

Coupon-mad

Firstly when you do this IAS appeal, DO NOT SUBMIT IT UNTIL you are certain your attachments, photos and your entire appeal is all there as evidence first!! IAS do not give you a second chance to add anything after you hit 'submit'.


You will need to put a brief synopsis in the appeal box (just the headings, the appeal points) then say see attached full appeal as evidence plus photos attached'.

I would change this (where shown in red) because the NTK doesn't say 'breach' does it?

The signage is ambiguous and contradictory. In the Notice to Keeper (NTK) the sum is stated as a contravention for 'parking having exceeded the time limit' and the rejection letter admits the contravention is 'vehicle exceeded the maximum time permitted' yet the sign misleadingly alleges a ‘contractual’ sum as if cars are permitted to breach the time limit (see attached NTK copies, front and back). If so, there should be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem the interpretation that favours the consumer applies.

And I would add this somewhere in your unclear signage paragraphs:

There are also 6 pictures under the "Parking is permitted for" which I can't make any sense of at all apart from one is a disabled sign.

And finally I would get rid of this final paragraph which lends nothing:

PCM’s failure to use consistent language to that of the IPC/IAS, long with inconsistent language within their own literature is at best a reflection of negligent and sloppy practice, and at worst, it could be seen as a deliberate attempt to frustrate the appeal process with the IAS. PCM cannot have a contract with the driver when they have to satisfy specific conditions, which in this case they did not from the points and evidence raised above. I respectfully ask the IPC assessor to consider my points and photographic evidence and order that this charge be cancelled.

and add the points 7 and 8 below in my next post:

Coupon-mad

7) Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013 (see file attachment of both sides of NTK)
http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
These Regulations apply to all UK consumer contracts from June 2014. PCM charges a daily rate for a parking space so this is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the daily 'rental' of/use of a parking space:
http://www.thefreedictionary.com/rent
RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all).

Information breaches of these Regulations:
PCM have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and (b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). The burden falls upon PCM, under paragraph 17 of the Act I have quoted above, to prove this to the contrary. Consequently, should IAS decide in favour of PCM I will send a Notice of Cancellation to PCM as is my right under the Regulations; a right extended to me for 12 months, as shown above.


8) The charge of £100 plus £5 for card payment and/or £1 for telephone payment, exceeds the appropriate amount specified in law
(see file attachment of both sides of NTK)
PCM's NTK informs me that any card payment costs an extra £5. If paying over the telephone, an extra £1 is charged. Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts(Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.
POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

PCM described no 'specified' charges which 'remained unpaid' as at 'a date no later than the end of the day before the day on which the notice was sent by post'. No amount was stated as being 'unpaid' by the driver. There was no means to pay and the car park was free, so the driver could not have paid nor be aware of any sum owing before the PCN was issued. It follows, therefore, that as the maximum sum recoverable under Schedule 4 is not specified in the NTK, that sum must be zero.

The CC(ICAP) 2013 Regs state:
Additional payments under a contract
(40).—(1) ''Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.''

There was no 'express consent'.

(41).—(1) ''Where a trader operates a telephone line for the purpose of consumers contacting the trader by telephone in relation to contracts entered into with the trader, a consumer contacting the trader must not be bound to pay more than the basic rate.''

The NTK states that £1 is added for payments made over the telephone. This breaches the CC(ICAP) 2013 Regulations because the basic rate of a phone call is a few pence.

The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:
http://www.legislation.gov.uk/uksi/2012/3110/made
(4).A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.
£5 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:
http://www.smarta.com/advice/accounting-and-tax/money-management/how-to-accept-debit-and-credit-card-payments/
''Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards. You will pay a monthly fee to rent the payment terminal. You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction.''

Fruitcake

C-M. Wow, just WOW.


That is an absolutely brilliant piece of work, unlike most PPCs which are by definition, a piece of work.

SosXX

I second Wow, thanks so so much for your help with this, I will get myself organised today and will submit tomorrow. And I'll post back how it goes. Thanks again C-M

The_Deep

[FONT=Times New Roman, serif]Like you. I am unable to decypher the pictograms, the first three are meaningless to me.[/FONT]

[FONT=Times New Roman, serif]Also, the terms requiring payment are buried in the text, and are far smaller than those offering free parking. In my opinion they should be given equal or greater prominence.[/FONT]

[FONT=Times New Roman, serif]See Excel v Martin Cutts where the judge threw the case out for this reason.[/FONT]

http://nebula.wsimg.com/1bb26d17be44123a662f3e1910ea8cf9?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

EnigmaPart1

C-M thats a very well written piece of work where time and effort has been applied and i hope that wins

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However this is the IPC we are talking about so anyone fancy laying a bet?

The_Deep

Indeed. If such an appeal is disallowed, (and we are not allowed to know why), how can we be sure that the appeal system is fair.

WRT payments by credit card, as these charges are contrary to recent legislation, OP should bring this to the attention of their local Trading Standards Department..

Recently in Blackpool I was wrongly surcharged by a large hotel chain. I raised the matter with Trading Standards who received an undertaking that such surcharges would no longer be charged.