POPLA Appeal [Premier Park Ltd] (Short Time Left)

bod1467

They key point to be made to the Lead Adjudicator is that the assessor has made a fundamental error in law, in his/her understanding of it.

Sicsiksix

Please help me out, as I really don't understand what is happening in my case. Here is the response to an email I sent back to them, outlining various points directly from POFA and raised the points Coupon recommended to mention.

[FONT=Tahoma, Verdana, Arial]Thank you for your recent correspondence.
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We have looked at your appeal and are satisfied that the correct decision has been made. This is based on the evidence supplied and that the operator has not sought to transfer liability to the keeper, as such our decision has been based on driver liability.

Kind Regards

Adele Brophy
POPLA Team[/FONT]

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So from this reply, the operator is not seeking liability from the keeper - but their reply to the appeal implies that the operator will be able to seek liability from the keeper following 28 days from that point. This goes entirely against the POFA so I don't understand where they are coming from at all when no driver has been named or implied by either party.

Or should I just consider the matter closed even with the unsuccessful appeal, as they aren't seeking payment from the keeper, don't know the driver and have missed all deadlines to pursue further?
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Sicsiksix

Any suggestions?

Coupon-mad

Was the driver identified at ANY point in either appeal wording?

Sicsiksix

Not to my knowledge, I was pretty careful to ensure it was written in 3rd person or as keeper.

Coupon-mad

I would reply and ask them to show you where the operator supplied any evidence as to who was driving because you are only a registered keeper appellant and to your knowledge, and according to the documents you've seen, the driver was not identified by you or the operator. A keeper who appeals to a windscreen PCN is not the driver and cannot be assumed to be so. Finally, remind them that a NTK is mandatory if a DRIVER is not identified.

Tell them you will complain to ISPA if this is not revisited thoroughly and referred to the Lead Adjudicator as a formal complaint.

Sicsiksix

Thank you for contacting POPLA.

We note you are unhappy with our decision. However, we have now reached the end of our process and there is no opportunity to appeal.

Yours sincerely,
POPLA Team

Well, they clearly aren't interested anymore and don't want to review the case at all.

Coupon-mad

Did you actually say what the issue was, that they have ERRED in law?

How are you writing these complaints, in strong terms as suggested above?

It seems very weak to have got such a brush off without even a name at the bottom - so did you spell it out? Looks like they think you'll go away. That's a clerk replying, no name, nothing. Not good enough.

Did you put FORMAL COMPLAINT - FOR THE PERSONAL ATTENTION OF THE LEAD ADJUDICATOR in the subject line?

Complain again and use the words 'erred in law' and this response is utterly unacceptable, is generic and has not even looked into the fundamental error about the POFA 2012 and the documents needed for liability of a keeper.

Where is the evidence as to who was driving because it is not in your copy of the evidence pack, so you are concerned the operator may have given a shorter version to you, than to POPLA.

Sicsiksix

I have not used that specific phrase, but will do in a follow up. My correspondence thus far following the absurd decision:

Dear POPLA Assessors,

Thank you for taking the time to review my appeal against Premier Park, unfortunately I do not agree with the decision made and I have to request that this case is reviewed by your Lead Assessor - specifically regarding the point surrounding liability of a keeper appellant. The Assessor has clearly not understood or completely ignored the statute (POFA 2012) with regards to Keeper Liability.

If I can quote some parts of Schedule 4 of POFA 2012, which I would expect ALL of your Assessors to know in full:

Paragraph 4
(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2) The right under this paragraph applies only if —
(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met

Paragraph 6
(1) The second condition is that the creditor (or a person acting for or on behalf of the creditor) —
(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b) has given a notice to keeper in accordance with paragraph 9.
(2) If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.

Paragraph 8
(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must —
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d) if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i) specified in the notice to keeper, and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).
(3) The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4) The notice must be given by —
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

Paragraph 11
(1) The third condition is that —
(a) the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b) the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
(c) the information sought by the application is provided by the Secretary of State to the applicant.
(2) The third condition only applies if the vehicle is a registered vehicle.
(3) In this paragraph “application for the keeper’s details” means an application for the following information to be provided to the applicant by virtue of regulations made under section 22(1)(c) of the Vehicle Excise and Registration Act 1994 —
(a) the name of the registered keeper of the vehicle during the period of parking to which the unpaid parking charges relate; and
(b) the address of that person as it appears on the register (or, if that person has ceased to be the registered keeper, as it last appeared on the register).


Based on the sections outlined above, I would ask why your Assessor has imagined an exemption to issuing a Notice to Keeper in this case whereby the Driver has not been established? A Notice to Driver was issued therefore there MUST be a Notice to Keeper for the operator to claim keeper liability (As per paragraph 4). As the keeper I appealed the windscreen PCN, no driver was named or implied and nothing stopped the operator from continuing to follow their prescribed mandatory conditions for keeper liability during the appeals process. A Notice to Keeper is mandatory, not optional.

There are no circumstances where a keeper can be liable when no Notice to Keeper has been issued. As mentioned, I would like this case to be escalated to the Lead Adjudicator because this information is vital and basic knowledge of the POFA, to which your Assessor has completely missed due to making assumptions. This decision is completely inconsistent with other POPLA appeals where no keeper can lose / has ever lost / can ever be held liable when there was no Notice to Keeper sent by the operator.

I don't have a supporting case number, but would like to present a response from Rochelle Merritt, one of your Assessors, earlier this month to an appeal in a similar situation to this one:
The operator has not identified the keeper as the driver. The appellant has appealed to the operator making clear that they were not the driver, however the operator has not provided any evidence to suggest that it responded to this by issuing a Notice to Keeper. As the driver has not been identified, and the operator has not provided any Notice to Keeper in its evidence, I am unable to conclude that the operator has followed the requirements set out in Protection of Freedoms Act (PoFA) 2012 Accordingly I must allow the appeal.

It seems odd that this case has been treated differently to all other cases, please review the decision made and correct your Assessors mistake and provide training to ensure that no-one else receives the same shoddy assessments that I have endured today.

Kind regards,

[FONT=Tahoma, Verdana, Arial]Dear
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[FONT=Tahoma, Verdana, Arial]Thank you for your recent correspondence.

We have looked at your appeal and are satisfied that the correct decision has been made. This is based on the evidence supplied and that the operator has not sought to transfer liability to the keeper, as such our decision has been based on driver liability.

Kind Regards

Adele Brophy
POPLA Team[/FONT]

Dear POPLA Assessors,

Please provide any evidence from the Operator where the driver has been named. As made clear by myself and your own response, I was appealing as a Keeper after the time whereby the date for keeper liability had already been missed by the Operator. POFA 2012 outlines the requirements that the Keeper can only be liable for the charge if certain criteria is met, all relevant sections of POFA provided in my prior email. As no driver has been mentioned, who is the payment being sought from? As it isn't myself as the keeper - and I can no longer be liable due to the POFA not being followed by the operator, even by their own admission in their response to the POPLA appeal:
The appellant’s point regarding a Notice to Keeper is irrelevant as this PCN was issued to the vehicle as can be seen in the photographic evidence. No Notice to Keeper has been issued.

A Keeper who appeals to a windscreen PCN is not the driver and cannot be assumed to be so. Again, I reiterate that a Notice to Keeper is mandatory if no driver has been named, regardless of how you are assessing this appeal. I am appealing as a Keeper - not the driver, so the case should be assessed on this basis.

If you do not thoroughly revisit this case and refer to a Lead Adjudicator I will have to raise the issue with ISPA as a formal complaint.

Kind Regards,

[FONT=Tahoma, Verdana, Arial]

[FONT=Tahoma, Verdana, Arial]Thank you for contacting POPLA.
[/FONT][FONT=Tahoma, Verdana, Arial]
We note you are unhappy with our decision. However, we have now reached the end of our process and there is no opportunity to appeal.

Yours sincerely,
POPLA Team
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I will look to send something along the lines of the following back to the generic response, would it be worth copying in any other authorities? Anything to add?
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[FONT=Tahoma, Verdana, Arial]FORMAL COMPLAINT - FOR THE PERSONAL ATTENTION OF THE LEAD ADJUDICATOR - REF: XXXXXXXXXX

Dear Lead Adjudicator,

I do not believe my concerns have been taken seriously as in my appeal it is clearly stated by myself, the Appellant and the Operator themselves that a Notice To Driver was issued and was NOT followed up by a Notice To Keeper within the required time frame set out by POFA 2012, to the point whereby no Notice To Keeper was sent at all. Your assessor to my case, Carly Law, has completely [/FONT][FONT=Tahoma, Verdana, Arial]erred in law and not adhered to the stipulations set out by POFA 2012.

There has been no evidence provided to me as to who the driver was within the evidence pack, if you have been provided any then I am concerned that the Operator has not issued the full version to me. I have appealed as the Keeper of the vehicle, not the Driver, so making a ruling based on an unnamed and unknown driver seems completely unreasonable. The fact of the matter is that a Notice To Keeper is REQUIRED and there has not been one, regardless of how you look at it. It is completely obvious to myself and your other adjudicators such as [/FONT][FONT=Tahoma, Verdana, Arial]Rochelle Merritt that the decision of Unsuccessful in this instance is just plain incorrect.

I request that you take this seriously and look at this case in detail to ensure that the correct decision is given.

Kind Regards,
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[FONT=Tahoma, Verdana, Arial]
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Coupon-mad

Keep trying, that's perfectly reasonable.