PCN Appeal Rejected

FubbyTucker

I am the registered keeper of a vehicle which was issued with a parking charge notice from a private parking company, whilst parked at a shopping complex (2 hours free parking for all customers). The allegation is that the vehicle was parked in a disabled parking bay without displaying a valid blue badge.

At the time of the alleged breach of terms and conditions, the vehicle was being used by somebody with a long term chronic condition impeding mobility, who had also recently undergone surgery.

I waited for the notice to keeper to arrive and upon receipt sent in my appeal, using the template that is pinned on this forum. I also added a section regarding the Equality Act, referring to their obligations to disabled customers (who may or may not possess a blue badge) and that the blue badge scheme is intended for public parking schemes only.

I have now received a formal rejection to my appeal. It addresses all of the points raised on the MSE template letter but does not refer to the point I raised regarding the Equality Act etc, so I am assuming that the PPC has received many of the MSE template letters and now sends the same generic reply to all similar sounding appeals.

They have given me a POPLA reference number and I would assume that the next stage is to lodge a POPLA appeal. I would be grateful for any guidance you can offer with lodging my appeal and any advice as to the probabilities of success etc?

Thank you in advance.

Fruitcake

FubbyTucker wrote: »

I am the registered keeper of a vehicle which was issued with a parking charge notice from a private parking company, whilst parked at a shopping complex (2 hours free parking for all customers). The allegation is that the vehicle was parked in a disabled parking bay without displaying a valid blue badge.

At the time of the alleged breach of terms and conditions, the vehicle was being used by somebody with a long term chronic condition impeding mobility, who had also recently undergone surgery.

I waited for the notice to keeper to arrive and upon receipt sent in my appeal, using the template that is pinned on this forum. I also added a section regarding the Equality Act, referring to their obligations to disabled customers (who may or may not possess a blue badge) and that the blue badge scheme is intended for public parking schemes only.

I have now received a formal rejection to my appeal. It addresses all of the points raised on the MSE template letter but does not refer to the point I raised regarding the Equality Act etc, so I am assuming that the PPC has received many of the MSE template letters and now sends the same generic reply to all similar sounding appeals.

They have given me a POPLA reference number and I would assume that the next stage is to lodge a POPLA appeal. I would be grateful for any guidance you can offer with lodging my appeal and any advice as to the probabilities of success etc?

Thank you in advance.

Who was the PPC?

You have done everything right so far. Yes, the next stage is a PoPLA using the How To Win At POPLA section of the Sticky thread for NEWBIES. Find one that matches closely your situation and adapt it accordingly using all the appeal points plus the EA2010 point.

FubbyTucker

The PPC was UKPC.

FubbyTucker

Does the following seem suitable to use as my POPLA appeal?

Dear POPLA Adjudicator,

POPLA Appeal RE: UKPC Parking Charge Notice - (POPLA code xxxxxxx)

I am writing on as the registered keeper of this car who is not liable for the parking charge for several reasons, not least that to uphold it would constitute disability discrimination. In addition, the vehicle was not improperly parked and the parking 'charge' notice was nothing but a penalty and exceeded the appropriate amount.

SUMMARY OF THE LEGAL RIGHT TO USE THE DISABLED PARKING BAY

The situation is that at the time of parking, a passenger present in the vehicle was suffering from a chronic health condition that has a substantial and long term effect on their ability to carry out day-to-day activities. They have a genuine long-term chronic health problem but no Blue Badge at present. I have appealed against the Parking Charge but UKPC have rejected it and in doing so they have breached UK disability law. This 'charge' cannot be upheld by POPLA as it breaches the applicable primary law.

BREACH OF STATUTE, NAMELY THE EQUALITY ACT 2010 AND THE EHRC 'CODE OF PRACTICE ON SERVICES, PUBLIC FUNCTIONS AND ASSOCIATIONS' (Chapter 5 Indirect Discrimination) WHICH BECAME LAW ON 6TH APRIL 2011.

The Operator and Landowner are service-providers who are relying on unenforceable terms which purport to create an inflexible contractual term 'requiring' disabled people to display a Council (on-street only) Blue Badge in order to use a disabled bay. In fact, the Blue Badge scheme does not even lawfully apply in private car parks - as is shown in the Blue Badge booklet and on the Government website. Companies such as UKPC might choose to mention the Badge on their signs but they cannot legally rely on it in isolation as the!only!indicator of disability need.!

The EA takes precedence over any 'contractual' terms and a blanket term to display a Blue Badge is specifically an 'unenforceable term' as defined in the EA. It is an example of a blanket policy which seeks to!limit!the provision of the disabled bays to 'badge-display only' and thereby causes disadvantage to other people who have certain protected characteristics (which the passenger does, on disability grounds).!

''EQUALITY ACT 2010
142(1) Unenforceable terms
A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.
144(1)!A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to!exclude or limit a provision!of or made under this Act.

29 Provision of services
(1)!A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not)!must not discriminate against a person requiring the service!by not providing the person with the service.!

(2)!A service-provider (A) must not, in providing the service, discriminate against a person (B)—!
(a)as to!the terms on which A provides the service to B;!
(b)by terminating the provision of the service to B;!
©by subjecting B to any other detriment.!

(3)!A service-provider!must not, in relation to the provision of the service, harass—!
(a)a person requiring the service, or!
(b)a person to whom the service-provider provides the service.!

(4)!A service-provider must not victimise a person requiring the service by not providing the person with the service.!

(5)!A service-provider (A) must not, in providing the service, victimise a person (B)—!
(a)as to the terms on which A provides the service to B;!''

Any term that UKPC may have on their signs to the effect 'Blue Badges only' is null and void if the effect is to deny a disabled person the statutory right to use a reasonable adjustment without penalty. This term unlawfully limits the disabled bay provision and UKPC have subjected the passenger to 'detriment' and harassment.!

The unenforceable term requiring all disabled people in those bays to show a Blue Badge may be the result of an ill-conceived attempt to ostensibly comply with the EA in order to convince the Landowner that UKPC follow it. Indeed, it appears to be based on private parking industry-wide misconceptions about disability law. But as it specifically says in the EA, ignorance of disability law and lack of intention to discriminate is no defence for breach.!
This parking charge issued as a result of an unenforceable term has created indirect disability discrimination and as such, it is a breach of the EA. It is also a breach of the statutory EHRC 'Code of Practice on Services, Public Functions and Associations' (Chapter 5 Indirect Discrimination) which became law on 6 April 2011:

''5.4!What does the Act say?!
Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.''

POPLA assessors have completely missed this legal requirement before and I would specifically cite the disabled driver's appeal in the case of Excel v Greenwood which was rejected by POPLA but won by the motorist in court. On 10th April 2013, a POPLA assessor, Shona Watson, erroneously decided in that case, that an Operator's terms & conditions to display a Blue Badge could circumvent the Equality Act 2010. Mr Greenwood subsequently faced Excel in Court on 4th October 2013, and in 3QT60496 the judge decided that the Operator had a legal duty to make a 'reasonable adjustment' for a genuine disabled person.!

The Operator's case was lost in court, showing that POPLA was wrong to allow T&Cs over disability law - and my case is the same as Excel v Greenwood.

OTHER POINTS OF APPEAL AGAINST THIS CHARGE!

UNCLEAR AND NON-COMPLIANT SIGNAGE
It is a specific requirement of the BPA Code of Practice paragraph B(18.9) that there must be very clear terms & conditions signage at a height where a driver could have read them when actually parking in a disabled bay - indeed without even needing to get out of the car.

But in fact no such signs with full terms are visible at these disabled bays, only the discriminatory/misleading 'Blue Badge only' sign. I say that the signs in that car park do not comply with the BPA Code of Practice requirements and fail to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Ltd v Martin Cutts, 2011).!

CONTRACT WITH LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO STATUS TO OFFER PARKING OR ENFORCE TICKETS
UKPC do not own this car park and are acting merely as agents for the Landowner. UKPC has not provided me with any evidence that it is lawfully entitled to offer parking spaces, allege breach of contract or enforce parking charges (as evidenced in the Higher Court findings in VCS v HMRC 2012). UKPC has no proprietary interest or assignment of title of the land in question.!

I require UKPC to provide a full copy of the contemporaneous, signed & dated contract with the landowner (not just a signed slip of paper from a Landowner representative) because even if one exists, I say it does not specifically enable UKPC to pursue parking charges in the courts. This would not be compliant with the requirements set out in the BPA Code of Practice.

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
UKPC are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice and must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.!

UKPC have not shown a breakdown of their alleged 'loss' - which cannot include their operational day-to-day running costs. No claim for loss for a 'breach of terms' can possibly apply to a disabled passenger needing and using a 'reasonable adjustment' provision which is directly already provided by the Landowner. Since the car park is provided free of charge to customers of the Landowner, there can have been no loss arising from this incident and the only elements of a contract the driver agreed to were between them and the Landowner alone. This parking space cannot somehow have been offered again - on more restrictive limited and discriminatory terms - by a mere agent, UKPC.!

UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket. This was the case in several compelling and comparable Court decisions such as UKCPS v Murphy April 2012 (a case involving a disabled bay and no Blue Badge, where the 'Parking Charge' was found to be a penalty). Also Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011).!

The BPA Ltd (seeking advice on behalf of all AOS members, including UKPC) was warned about such charges being unenforceable by the Office of Fair Trading in 2013. The information that the Office of Fair Trading gave to the BPA Ltd on parking charges expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. If a parking charge is imposed for {breach} under a contract, in order for it to be recoverable as liquidated damages, the court will need to be satisfied of a number of matters, including that it represents a genuine pre-estimate of the loss incurred and that it meets the requirements of applicable consumer protection legislation, for example the Unfair Terms in Consumer Contracts Regulations 1999. The OFT also expressed the view that the court will also need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings.!

This transparently punitive charge by UKPC is therefore unenforceable.!

SUMMARY AND CONCLUSION
I ask that this appeal be allowed and respectfully request POPLA consider the disability protection aspects of the EA in all future cases whether or not the appellant knows to raise it as an issue, as I have done here. A disabled person does not have to raise the Equality Act by name to be protected by its provisions and POPLA has stated that it will consider all applicable laws when making their decisions.

The EA and the EHRC Code of Practice I have referred to is statutory disability legislation which renders any parking contract term null and void if the effect is to deny a protected motorist or passenger their rights (whether it be the right to use a disabled bay unharassed or the right to be allowed an extension on any arbitrary time limit for their visit).!

POPLA must surely now order the Operator to cancel this fake PCN. I firmly believe that failure to do so could even leave POPLA exposed to a claim for disability discrimination because POPLA are also a service provider (with the same legal duties under the EA) and the Act is unequivocal.


Signed:

Dated: