GEMINI Parking Solutions

luke123456

I know....I noticed that

Shall I add a line to say the CoP stated that

'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.'

Or would that go against me as it is outdated?

luke123456

Coupon-mad wrote: »

Yes but not paragraph 8, a postal PCN comes under paragraph 9. I'm writing something for you now so patience (LOL...patients...!).

Your PCN looks to have arrived LATE, after day 15 from 13th December?!

The date of the parking incident was 13/12/15 and the notice is dated 23/12/15, is this allowed?

Coupon-mad

luke123456 wrote: »

The date of the parking incident was 13/12/15 and the notice is dated 23/12/15, is this allowed?

I can see that, it's why I raised it and asked you when it ARRIVED? In what I have written below I've assumed it arrived after New Years Day, is that true?


You should be looking to add the photographs of the entrance signs if Gemini send an evidence pack which can be in 3 or 4 weeks time.

No need to bother with photos otherwise - not yet - but I would raise the fact, NOW, in your unclear signage section that the blue sign looks photo-shopped behind the girl with the umbrella as the angle of sign compared to the 2 poles (one of which disappears behind her leg but should match the angle of the blue sign, and doesn't!) is wrong and the location & terms on that sign are oddly covered up (why would that be?). Looks like a library picture of a similar sign plonked there at the wrong angle for the 2 poles.

Screenshot that picture, zoom in on the girl/grass and blue sign, crop the bit you are talking about then copy & paste it into the body of your word document where you are talking about signs. Raise it now.


You need your point #2 to be as below and move the rest down - surely that PCN 'dated' as issued on (but not posted on) 23rd December wasn't received by you until over 15 days past 13th December. So I have factored in that it arrived too late under the law.



Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

a. The Notice arrived in the first week of January which is too late for keeper liability because the alleged parking event was three weeks earlier on 13th December. It is apparent that the 'issued date' is not the date it was posted which is also a fatal flaw of any NTK (see b).

b. The ‘date on which the notice is sent’ is not explicit and as a point of fact, is certainly not the 'date issued' stated on the Notice. This 'date issued' is quite clearly just the date the Gemini office clerk put the details into the system to create the Notice because it cannot have been posted until their offices opened again after New Year's Day (due to it arriving in early January). However, Schedule 4 prescribes that a NTK 'must' include the actual 'date sent' or 'date given'. This NTK has neither.

c. The 'period of parking' is not shown, just two photographs with nothing to identify where the car was within the Hospital site at that time, in moving traffic. No visible signs or landmarks are in the background to show where the pictures were taken and there is more than one parking area within the Chase Farm Hospital site - which is fairly large - so this cannot be evidence sufficient to establish any period of parking.

d. The NTK fails to state the sum of the unpaid parking charge that the driver was alleged not to have paid on the day (which can only be the tariff and not the £100 which is not payable by any mechanism and cannot be deemed the 'unpaid' sum). To comply with paragraph 9, a NTK 'must' describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the postal Notice. It does not mention those unpaid charges (the tariff).

e. This NTK does not identify the creditor, which may be Gemini, may be Chase Farm, may be the Royal Free Hospital Trust, or could certainly be another party altogether. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the Notice to Keeper is compliant. And (as was found by POPLA on many occasions in 2015) nor can the 'creditor' be assumed just because the NTK asks for payment to be made to Gemini. The NTK should have a statement to the effect that 'the creditor is'...and it does not.

A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant and a late serving of a NTK beyond day 15 from the parking event is incapable of establishing keeper liability in law.

Redx

luke123456 wrote: »

The date of the parking incident was 13/12/15 and the notice is dated 23/12/15, is this allowed?

if its ANPR it has to arrive by day 15 , not be dated within the 15 days (although it would be in order to arrive by day 15)

so 13 + 15 = 28 so depends on the day it arrived, not the day it was written , you were asked for the ARRIVAL date

its allowed either way, but fails POFA2012 if it arrives late, meaning they cannot rely on POFA2012 if it arrived late

also have a read of these Jeremy Hunt guidelines, they may help you

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

luke123456

Thanks C-M! Appreciate that!!

As for the pictures, as I said before the pictures were sent in the rejection letter response to my first appeal to the second invoice I received.

I received 2 invoices for 2 separate parking events with the same problem. My friend was taking her disabled mum to hospital.

This POPLA appeal that I am about to submit is for the first invoice received. The first appeal to the first invoice was rejected but I didn't mention anything about discriminatory behaviour in that first appeal so they never sent any pictures or anything they just sent a standard rejection reply letter.

Does that make sense?

So as far as this POPLA appeal is concerned for the first invoice I received, I can't mention this image of the dodgy photoshopped sign as this was not associated with this invoice it was with the second invoice which was rejected by Gemini.

How can I mention to POPLA that I received this image from Gemini?

luke123456

Redx wrote: »

also have a read of these Jeremy Hunt guidelines, they may help you

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

Thanks I will add this too....

Unfortunately with this Junior Doctor's dispute Jeremy Hunt isn't someone I think of highly but thanks maybe he will be of use here.....
HAHAHA!!!

Coupon-mad

luke123456 wrote: »

Thanks C-M! Appreciate that!!

As for the pictures, as I said before the pictures were sent in the rejection letter response to my first appeal to the second invoice I received.

I received 2 invoices for 2 separate parking events with the same problem. My friend was taking her disabled mum to hospital.

This POPLA appeal that I am about to submit is for the first invoice received. The first appeal to the first invoice was rejected but I didn't mention anything about discriminatory behaviour in that first appeal so they never sent any pictures or anything they just sent a standard rejection reply letter.

Does that make sense?

Yes - that makes sense.

Maybe leave out the bit about the blue sign in THIS appeal then, you don't need it as long as the keeper is appealing without the driver being identified at any point and the NTK arrived after day 15 (28th December). A late NTK wins a POPLA appeal, slam dunk win.

No doubt in their evidence pack Gemini might repeat all those pictures and by then you might have a real-time (dated) photo to prove whether that odd blue sign is there at all. It would be fun if it's not!

Your appeal should be fine now if you just replace point 2 with the NTK version (because your point 2 is repeated in point 6 anyway). You DO need the section about landowner authority there but only once of course.

luke123456

Thanks C-M. This is my proposed final appeal

Dear POPLA,

I am the registered keeper and I wish to appeal a recent parking charge from Gemini issued at Chase Farm Hospital. I submit the points below to show that I am not liable for the parking charge:

1) The operator/landowner has not complied with provisions of the Equality Act 2010
2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012
3) No standing or authority to pursue charges nor form contracts with drivers.
4) Unclear and non-compliant signage, forming no contract with drivers.
5) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.
6) No genuine pre-estimate of loss



1) The operator/landowner has not complied with provisions of the Equality Act 2010

The operator/landowner has not complied with provisions of the Equality Act 2010 In fact under the Equality Act Chapter 2, the operator would be considered to be showing indirect discrimination and discrimination due to disability.

The Operator has put in place measures which prove more difficult for a disabled person to park rather than an able-bodied person with no disability! In fact the operator asks the disabled person to cross the road in order to register their car to park. As seen in the images attached the unclear signage which is located outside the car park, expects the disabled person to leave their parking bay in the multi storey car park and pass through 2 doors to exit the car park and then reach the paying booth which has the sign which then directs the disabled person to cross the road and register their car with a touch screen device in order to state the VRM and the disabled badge number. Then the disabled driver is to cross the road again, re enter the car park and then probably to display their badge (unless they are expected to memorise their VRM and disabled badge numbers) and then to leave the car park and enter the hospital for whatever reason they chose to attend in the first place. Please see the attached map as proof. This is discriminatory.

The able bodied person would just be expected to pay and display and not expected to cross the road to enter the highlands wing and complete this troublesome process. The signage and instructions are difficult for a disabled person to read, to access and the ‘touch screen console’ that requires the disabled person to input their VRM and disabled badge number is located far from the point of parking.

As such the disabled person will struggle to read the signage, understand and retain the instructions necessary to park and then to locate a machine located further than the pay and display machine and then input the required details from their disabled badge then return to the car to put the badge back on display and then leave the car park. This seems to be an excessive, unnecessary and troublesome process for the disabled person. Please see all images attached that explain the great deal of stress and effort the disabled person is expected to undergo. This is enough to mislead and confuse the able bodied person.

In the BPA CoP it states that; 16.1 The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.
16.2 ‘Reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example, paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machine. In fact Gemini has clearly decided to do the opposite of this and has not made any adjustments and has actually put in place further barriers for the disabled person compared to the able bodied person.

The CoP also stated ’16.5. 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.' The disabled badge was clearly displayed on the vehicle windscreen.

Gemini has not complied with any aspect of the Equality Act and certainly not complied with the BPA Approved Operator Scheme.

Furthermore , Gemini has no regard for Department of Health guidelines for parking on NHS sites and this cannot be deemed acceptable. https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

This is a crucial point in which this appeal will be directed to PALS who are responsible for patients experiences in the hospital, reference will be made to BPA CoP and the DOH guidelines. As the disabled person in the vehicle attended a hospital appointment on that day and this clearly is a barrier to accessing healthcare.

2) Non-Compliant and late Notice to Keeper - no keeper liability established under Protection of Freedoms Act 2012

As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit that I am not liable to any charge.

I would like to point out that Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and a parking company can only potentially pursue the (unidentified) driver.

The following points may be observed as failures in this Notice to Keeper, making this non-compliant under the POFA 2012, Schedule 4 paragraph 9:

a. The Notice arrived in the first week of January which is too late for keeper liability because the alleged parking event was three weeks earlier on 13th December. It is apparent that the 'issued date' is not the date it was posted which is also a fatal flaw of any NTK (see b).

b. The ‘date on which the notice is sent’ is not explicit and as a point of fact, is certainly not the 'date issued' stated on the Notice. This 'date issued' is quite clearly just the date the Gemini office clerk put the details into the system to create the Notice because it cannot have been posted until their offices opened again after New Year's Day (due to it arriving in early January). However, Schedule 4 prescribes that a NTK 'must' include the actual 'date sent' or 'date given'. This NTK has neither.

c. The 'period of parking' is not shown, just two photographs with nothing to identify where the car was within the Hospital site at that time, in moving traffic. No visible signs or landmarks are in the background to show where the pictures were taken and there is more than one parking area within the Chase Farm Hospital site - which is fairly large - so this cannot be evidence sufficient to establish any period of parking.

d. The NTK fails to state the sum of the unpaid parking charge that the driver was alleged not to have paid on the day (which can only be the tariff and not the £100 which is not payable by any mechanism and cannot be deemed the 'unpaid' sum). To comply with paragraph 9, a NTK 'must' describe the parking charges which were due from the driver as at the day BEFORE the date of posting of the postal Notice. It does not mention those unpaid charges (the tariff).

e. This NTK does not identify the creditor, which may be Gemini, may be Chase Farm, may be the Royal Free Hospital Trust, or could certainly be another party altogether. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the Notice to Keeper is compliant. And (as was found by POPLA on many occasions in 2015) nor can the 'creditor' be assumed just because the NTK asks for payment to be made to Gemini. The NTK should have a statement to the effect that 'the creditor is'...and it does not.

A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a Notice to Keeper is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory Notice to Keeper wording renders it non-compliant and a late serving of a NTK beyond day 15 from the parking event is incapable of establishing keeper liability in law.

3) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Gemini must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Gemini to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Gemini and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Gemini

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.


4) Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

When with reference to the BCP Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the sign adjacent to the disabled bay is red with very small white text. The signs were also unlit which makes them very difficult to read, especially during winter. These were easily missed as they are on one end of the car park only adjacent to the disabled bays, with low height which could easily be concealed by cars, and not by any lighting.

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering.

Furthermore, as the driver enters the car park a large sign states ‘PAY ON EXIT’ it states nothing else clearly as the driver enters the car park.

The 'sign’ beside the disabled parking space does not communicate fully the contractual terms & conditions. It does not state clearly the terms and conditions of parking and the complicated steps that Gemini have put in place and make it necessary for a disabled driver.
The red sign adjacent to the disabled bays asks the driver to use the intercom, this is hardly visible as there is a large misleading blue disabled logo and very small sized white words. The other white sign outside the car park with yellow text states the disabled person must cross the road and ‘authorise their stay by entering their VRM and disabled blue badge number on the touch screen console located within the entrance of the Highlands Wing’. Please see images attached.

The red sign with small white text is very difficult to read from a distance. The white sign outside gives different steps and the ambiguity in a contractual term must be read in such a way that is favourable to the driver, the principle of contra proferentem.

The requirement to pay £100 is not clear on any of the signs that are directed to the disabled driver and are not prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.


Any photos supplied by Gemini to POPLA will no doubt portray it with the signs in a clear picture without many pieces of information in the clutter of this Hospital car park. As such, I require Gemini to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo-shopping or cropping and showing where the signs are placed among a myriad of other information bombarding the disabled person without the help of external lighting such as a camera flash or torch.

Unreadable signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

5) Unreasonable and unfair terms – no contract agreed to pay £100. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of the day in the surrounding residential area (residential side roads with no restrictions at all surround Chase Farm Hospital). One could have also parked in other disabled bays in the hospital grounds, where such daunting, exhausting and discriminatory steps do not exist for the disabled driver. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm especially since they discriminate against the disabled person and do not accommodate for their specific needs by asking them to cross the road to simply park ’to register with the touch screen console located at the entrance of the Highlands wing…the highlands wing is located opposite this car park'. Their charge relies upon unseen terms to the driver entering let alone the disabled person, not clear contracts especially for the disabled person, and as such this unjustified and discriminatory charge should not be upheld.

6) No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19.
Gemini must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Gemini have no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Gemini cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Gemini Ltd are likely to be paid by their client - so any such payment income must be balanced within the breakdown Gemini supply and must be shown in the contract, which leads me to appeal point 5 below.


In any case, even if POPLA consider signage to be relevant in this instance, the driver was not adequately informed of the terms nor warned 'prominently in large letters' of the actual sum of the parking charge anywhere, which fails 2(3) of Schedule 4 outright. Gemini fail on a number of occasions and as such I would respectfully request that this appeal is upheld.


Yours faithfully,

luke123456

Is the above correct in terms of the changes you mean?

I will submit it now if so.

Thanks

Coupon-mad

Yep that will do the job for now. When Gemini send their evidence you will need to argue the final point more strongly in a rebuttal - but let's see how they argue it first, that's the point of mentioning 'no loss' (to draw out their argument and rationale for the charge) even though that's not the silver bullet it used to be.

You have your silver bullet by saying the NTK arrived late.

You just attach this under 'other' as a PDF along with any other attachments such as that map showing where the car park is over the road from the building. You don't need to show POPLA the NTK. Gemini have to show all that.