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

Coupon-mad

May as well keep going and address it to Mr Gallagher.

You could start by saying the POPLA complaints procedure (whatever that is) cannot possibly have been exhausted and no POPLA staff member has even given you a copy of that complaints policy, as one would reasonably expect from any customer-facing service provider. Tell him you have already lodged a complaint to ISPA but you have found from recent research that he is the named Lead Adjudicator and cannot believe that he woud support fob-off replies offering no complaints escalation and a clear failure to apply the law (POFA).

Then throw Henry Greenslade's words and quoting the 'second condition for keeper liability' into the mix...

thorfan

Sicsiksix wrote: »

Just an update:

I raised a complaint against POPLA with ISPA and received a reply on the 1st of April stating:


I also replied to Premier Parks letter stating they are chasing the wrong person. I received no direct response to this but instead have had a letter saying if the money is not paid by whatever date then they will raise the case with their solicitors to consider court action.

Well that is two cases against Premier Park Limited and POPLA that ISPA are looking at.

Coupon-mad

Your two cases are very similar and POPLA should be ashamed of their failure to train Assessors properly (it seems) and of their basic failure to have an open and clear complaints policy.

Fobbing consumers off isn't customer service. I hate useless customer service. POPLA are shocking right now.

Sicsiksix

Is this a suitable email to send over to the complaints team? Made up primarily of the information provided earlier.

To: [EMAIL="complaints@popla.co.uk"]complaints@popla.co.uk[/EMAIL]; [EMAIL="info@popla.co.uk"]info@popla.co.uk[/EMAIL]
RE: COMPLAINT FAO MR GALLAGER, LEAD ADJUDICATOR – REF XXXXXX

Dear Mr Gallager,

I urge you to look at my appeal and ensure that the law is correctly followed, I appealed as the Keeper in a case where no driver had been named and no Notice To Keeper has ever been sent. I have not been named as the driver and can not be assumed to be the driver. I also can not be held liable as the Protection of Freedoms Act 2012 contains clear guidelines that need to be met for that to be the case – which have not been followed by the Operator.

My experience with your complaints procedure thus far is not a good one, I have been fobbed off and ignored even though a clear breach of the law has taken place. This is a matter of utmost importance to both myself and the integrity of POPLA as an Ombudsman Service. The POPLA complaints procedure cannot possibly have been exhausted and I have not been given a copy of any complaints policy by any of your operators I have spoken with thus far, as one would reasonably expect from any customer-facing service provider. I have already lodged a complaint against POPLA to ISPA due to how my case has been handled with no-one taking me seriously and repeatedly being fobbed off. From recent research online, I have found that you are named Lead Adjudicator and cannot believe that you would support such fob-off replies that offer no complaints escalation and a clear failure to apply the law.

I expect a thorough investigation into this case.

I appealed as keeper of the vehicle in a case where no driver has been named by the Operator, with the primary point of no Notice to Keeper ever being sent. A point backed up by the Operator who stated themselves in the provided evidence that no Keeper was sent. Your assessor, Carly Law, failed to apply the relevant law stated in the Protections of Freedom Act 2012 and cannot find a keeper liable without any Notice to Keeper being served. Due to the absence of the document, the second condition for Keeper liability in law was not met.

The assessor simply CAN NOT exercise ANY discretion about this, nor assume that driver liability is possible. The previous Lead Adjudicator, Henry Greenslade stated that it is a Keeper’s right NOT to name the driver, and of course, still not be lawfully able to be held liable under Schedule 4. Taken from the following article, I quote:
www.transportxtra.com/publications/parking-review/news/46154/there-is-no-50-50-rule-for-private-parking-appeals-says-popla-s-michael-greenslade

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

When we look at the Protection of Freedoms Act 2012 directly, it reads:
''Right to claim unpaid parking charges from keeper of vehicle: 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;

*Conditions that must be met for purposes of paragraph 4:
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;

The Operator has not met the second condition for Keeper liability due to multiple flaws in the Notice To Keeper (the complete absence of the document). There can be no lawful right to claim unpaid parking charges from myself as Keeper of the vehicle as they have not met the required conditions within Schedule 4 of the Protection of Freedoms Act 2012. This was also confirmed by Mr Greenslade, POPLA Lead Adjudicator in page 8 of the 2015 POPLA Report:
https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf

“If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

Thank you for your time and I look forward to hearing from you soon following a full investigation of the reference stated above.

Kind Regards

Coupon-mad

Yep, why not?! :T

If you wish, you could add that POPLA Assessors have scrutinised Premier Park's NTKs when they DO serve one, and found them not compliant, such as this case from this week (no POPLA code known, grabbed it from the POPLA Decisions thread today). So, how does POPLA suggest that the complete absence of any attempt at a NTK, passes the requirements for keeper liability compared to decisions which rightly look for compliance in the wording? It is irrelevant when a keeper appeals. If a keeper appeals (not a driver, or the driver is never identified) then the POFA must be complied with and it seems some Assessors know this and others think they can hold keepers liable anyway, outwith the statute (how, exactly)?:




Decision Successful
Assessor Name Ashlea Forshaw

Assessor summary of operator case
The operator’s case is that the appellant was not displaying a ticket in the vehicle.

Assessor summary of your case

The appellant has raised issues with signage at the site and states that the Notice to Keeper has not met the requirements of PoFA 2012. The appellant has also questioned the operator’s authority to
operate on the land and states that the amount requested on the Parking Charge Notice (PCN) does not represent a Genuine Pre Estimate of Loss.

Assessor supporting rational for decision

The operator has provided photographic evidence of the appellant’s vehicle, registration XXXXXXX, parked at the site in question on NN December 2015. The operator advises that a Parking Charge Notice (PCN) was issued as the vehicle was not displaying a parking ticket. While the appellant has raised a number of grounds of appeal, my report will focus solely on if the Notice to Keepers was compliant with PoFA 2012. After reviewing the evidence provided by both parties, I am not satisfied that, the appellant has been identified as the driver of the vehicle in question at the time of the relevant parking event. The operator is therefore pursuing the appellant as the Registered Keeper of the vehicle in this instance.

The Notice to Keeper will need to comply with section 9 of
PoFA, 2012 that states that the creditor must ‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (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;’.

From the evidence provided, I cannot conclude that the operator met the conditions of PoFA 2012. Therefore, I must allow this appeal and the other grounds of appeal do not need any further consideration.
auspuff is online now

Sicsiksix

I added in the points raised about that other case and sent it over. I have received another worthless reply.

Dear

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

We have looked at the decision that has been issued to you, and can confirm that this was the correct decision on your case.

If you would like to raise a complaint to POPLA, you can do this by emailing complaints@popla.co.uk

However, please be advised that your decision outcome will not be re assessed.

Yours sincerely
POPLA Team

The email was directed at the complaints address already, my second one that has been, but it doesn't appear to make any difference whatsoever...

Coupon-mad

Utterly ridiculous. Let's hope ISPA see it as it really should be.

You are not liable in law so thank goodness POPLA isn't binding on you!

Ir377

As someone who is just about to write my POPLA appeal with no NTK as its main point, is there anything that could be added to the OPs appeal to strengthen the case for no keeper liability?

Coupon-mad

Ir377 wrote: »

As someone who is just about to write my POPLA appeal with no NTK as its main point, is there anything that could be added to the OPs appeal to strengthen the case for no keeper liability?

Yes we have some newer examples where the previous Lead Adjudicator has been quoted, to drum it into POPLA that there is no reasonable presumption in law relating to private parking, that can assume a keeper was a driver. Therefore, the appellant cannot be held liable and the absence of a NTK 'fails the second condition for keeper liability' which you then quote from the statute. Shown on similar recent threads.

I think you will find an April example if you search this forum for the keyword 'presumption' which has only cropped up in such threads.

Sicsiksix

I have now received a letter from DRP (Debt Recovery Plus Ltd) demanding payment of £150.00 by tomorrow. Is it worth giving them a call to say I'm not liable for the payment or just ignore this?