IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!

PLEASE HELP a NEWBIE - 7 days to respond to POPLA

  • Hi all,


I've read up all of the threads and can't find a similar situation so hence require your help to win my appeal.


Back in October my diabetic son was seriously ill due to insulin issues and we had to rush him to the hospital to receive a new batch of injections. Obviously given the situation we parked up (in an empty car park!) and ran to A&E. We were seen and out of the hospital within 30 mins (as shown on our Penalty Charge), but the hospital allow 20 mins free of charge. Now I completely understand the fact we didn't pay at the time but given the circumstances our Son was our first priority.


So, we appealed (see response below) to PE and it was declined and passed onto POPLA. PE sent all of the information through to them, detailing the signs in photos from 2014 and in clear daylight, not night time as was the fact when we visited. They also haven't detailed the contract they hold with South Tyneside Hospital Trust - I can't find it in their evidence.


I'd really appreciate any assistance in terms of my response as I am sickened by the fact I'm being charged £70 when my Son was seriously ill. Also, do I need to populate the PDF PE have sent through then post this to POPLA or can I email them??


Thanks in advance, I really do appreciate any feedback.


Original response to PE:


You issued me with a parking ticket on 15th October 2015but I believe this was unfairly issued. I will not be paying your demand for payment for the following reasons:


  • Mitigating circumstances
There are mitigating circumstances to explain why I parked where I did and why I'm requesting the charge be waived for this reason. Please see below as a proof of the claim:
My 8 year old Son suffers from Type 1 diabetes and was seriously ill on 15th October 2015due to high glucose levels. At the time the parking charge was applied to my vehicle, I was visiting the children's A&E ward in order to collect life saving medication for him. I had to wait for the Doctor to issue the prescription and for the pharmacist to dispense the medication. At this time of night (10.10pm) and the fact my son's well being was my main priority; I drove straight to the A&E department to collect his life saving medication. The car park was empty and I was not violating any rules such as parking in disabled bays or preventing anyone else from parking (the car park was empty at this time of night). As a result, I feel your unenforceable parking charge was unfairly issued. I have documented evidence from the hospital to support my reason behind the visit.


  • The charge is disproportionate and not commercially justifiable
The amount you have charged is not based upon any commercially justifiable loss to your company or the land owner. According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, £70 or event eh reduced rate of £40 unenforceable charge you are asking for far exceeds the cost to the landowner of £1.20 per hour. I would have had to park there for over 50 hours to substantiate your parking charge.


  • The notice to keeper is incorrect
The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. Notice to Keeper arrived later than the allowable 15 days following the alleged offence. The parking charge notice was received on Saturday 31st October, outside of the 15 days allowed following the alleged offence.


Should you choose to pursue me pleas be aware I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.


Thanks again everyone =- I'm off now to check out my appeals letter for the POPLA but any feedback would be gratefully appreciated, thanks.
LBM 1st May 2012 £53,839
Current debt balance April 2017 £24,427:eek:
DFD - February 2020 (if not sooner) :T
«1

Comments

  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    post #3 of the newbies sticky thread details examples of popla appeals

    you should also complain to PALS and get the charge cancelled, this should have been done long before now, for the following reasons

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

    when your popla appeal is complete you can attach it as a pdf on the popla website (dont fill somebody elses pdf in)
  • Redx wrote: »
    post #3 of the newbies sticky thread details examples of popla appeals

    you should also complain to PALS and get the charge cancelled, this should have been done long before now, for the following reasons

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

    when your popla appeal is complete you can attach it as a pdf on the popla website (dont fill somebody elses pdf in)



    Thank you Redx - I appreciate the quick response. I've never heard of PALS, I'll sort this now. In terms of the POPLA appeal, I should still continue with this based on the fact I'm complaining to PALS?


    TIA
    LBM 1st May 2012 £53,839
    Current debt balance April 2017 £24,427:eek:
    DFD - February 2020 (if not sooner) :T
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    yes, do it in parallel, dont miss the popla deadline

    you have already told PE too much info, so make sure you work on that popla appeal or you could lose by default, mitigation doesnt normally work at popla but should do with PALS
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    what I dont understand here is this popla appeal

    it reads to me like you have already appealed to popla

    remember, it is YOU that appeals to popla , PE dont refer it to popla at all, PE issue YOU with a popla code and you have 28 days to appeal to popla

    yoiur post seems to indicate that PE have sent info to popla, meaning you have already appealed

    it seems to me you need to prepare a rebuttal to the PE evidence pack , in which case you have already appealed to popla and are close to a decision
  • Sorry Redx - yes, in my panic I haven't explained myself correctly.


    I've been contacted by POPLA to provide additional evidence in line with PE response. I have already submitted my appeal to POPLA back in November. It looks like I'm going to have to just accept the fine based on your feedback (in terms of providing too much information)- I'm seriously gutted.


    I've contacted PALS and informed them of the situation and asked if they would consider cancelling the charge given the document link you kindly provide. I'll keep my fingers crossed but not holding out much hope now :-(
    LBM 1st May 2012 £53,839
    Current debt balance April 2017 £24,427:eek:
    DFD - February 2020 (if not sooner) :T
  • tiredmumof2
    tiredmumof2 Posts: 862 Forumite
    edited 22 February 2016 at 4:46PM
    So, not only have I emailed PALS but I've also spoken with them to reiterate the urgency. The receptionist stated she would direct the mail onto the Director of Estates who will then decide id there are grounds for an appeal. If they do think there are grounds for appeal they then pass it onto Parking Eye for them to reconsider their decision??? Aren't the hospital the owner of the land and hence it should be up to them to make the cancellation decision, not PE!! So, with that in mind and given I'm now in the "rebuttal" stage - should I detail:


    I've not seen the contract between the hospital and parking eye

    The location (height) of the signage and the fact it was pitch black

    The offence took place on 15th October but we didn't receive notification until 31st October.


    Have I shot myself too far in the foot by stating "the reason I parked" and "I visited"... Thanks again, appreciate the continued feedback
    LBM 1st May 2012 £53,839
    Current debt balance April 2017 £24,427:eek:
    DFD - February 2020 (if not sooner) :T
  • Coupon-mad
    Coupon-mad Posts: 153,404 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 22 February 2016 at 7:09PM
    The bad news first:

    You have shot yourself in the foot with your appeal which would have been a slam-dunk WIN at POPLA on 'no keeper liability' as the PCN was served too late...but you threw the POFA 2012 totally in the bin when you appealed as driver ('There are mitigating circumstances to explain why I parked where I did'...OUCH!).


    Now the good news:
    So, we appealed (see response below) to PE and it was declined and passed onto POPLA. PE sent all of the information through to them, detailing the signs in photos from 2014 and in clear daylight, not night time as was the fact when we visited. They also haven't detailed the contract they hold with South Tyneside Hospital Trust - I can't find it in their evidence.

    You can win on either one of the above points (AS LONG as you had 'no landowner authority' and 'signage not lit' in your POPLA appeal?). Even if you didn't - but I hope you did at least question their authority to operate on the land - tell POPLA clearly what's missing and why you should win! See below.

    You won't be able to fit all this in on the Portal, you need to email this back to POPLA as your rebuttal of evidence, with the 10 digit POPLA code in the subject line:


    *****************************************************************************************

    I wish to rebut ParkingEye's evidence in its entirety and am not liable to pay £70 or any sum at all.

    - the incident occurred in darkness and no signs were seen due to the emergency being our priority and the fact the terms were certainly not prominent or in large lettering nor even legible or lit, in the hours of darkness. The operator has not presented prima facie evidence to show how their signs appeared at night. In fact there is no evidence as to whether the terms could be read at night at all so they have not established the level of proof needed to show that this charge was properly issued.

    - ParkingEye also had no signs visible which stated how the data captured by ANPR cameras would be used. This is a very large and sprawling site with one-way roadways between wards and buildings, so even if I had seen terms and known that cars could only park for 20 minutes free, I was not warned that in fact, ParkingEye had started the 'clock' right back at the entrance to the entire Hospital! It beggars belief that the time does not start when a car parks once through to the building they require and is the opposite of what a driver would expect to be the case (for example, a Council does not film a car at the top of a high street and count any free parking time from then, long before a car actually parks!). The requirement to show on clear notices how data captured will be used and for what reason it is being stored is a requirement of the ICO registration of any data handler and a strict requirement of the BPA CoP.

    - There is no reliable period of parking shown at all because the parking bays near the building in question that night are a very long way from the Hospital entrance. So, at least five minutes driving in, a few minutes to find a bay close enough to park and get my son safely out, then five minutes driving out, more than accounts for the alleged 'overstay' which has not been proven as parking time at all.

    - ParkingEye do not own this site and have not shown their landowner contract to show their authority to operate on the land, as required by the BPA Code of Practice.

    - ParkingEye have failed to make a 'reasonable adjustment' yet they 'knew or should have known' from my appeal that my son meets the definition of disability under the Equality Act 2010 ('the EA'). Type 1 Diabetes and the symptoms arising from that lifelong medical condition was the sole reason that the car remained in the car park for a few minutes longer than the 20 minutes that ParkingEye allow able-bodied drivers. As soon as they were made aware that my son, a passenger, has the protected characteristic of Diabetes and that his needs caused the minimal alleged overstay, they were obliged by law to consider making a reasonable adjustment to that arbitrary 20 minutes.

    They failed to do so and so they are in breach of the EA because they have offered no justification for applying a rigid timescale which has caused us detriment and potential loss. Equality law allows a service provider to treat disabled people more favourably than non-disabled people, such as to extend or even remove a time limit, if it causes detriment to a protected person/carer. The aim of the law in allowing this is to remove barriers that disabled people would otherwise face to accessing services - it is not sufficient even if ParkingEye were to suggest that we were not caused detriment because we were allowed the 'same' 20 minute time limit that everyone gets (in fact that is discriminatory in itself in terms of free parking times because it takes people with certain conditions longer to go about their daily lives):

    http://www.eveningnews24.co.uk/news/disabled_campaigners_claim_norwich_parking_victory_1_775388

    The EA protects carers as well as the individual with the protected characteristic and the term (the charge of £70) is 'unenforceable' as defined in the Act:

    Equality Act 2010

    http://www.legislation.gov.uk/ukpga/2010/15/contents

    20 ''Duty to make adjustments


    (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

    (2)The duty comprises the following three requirements.

    (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

    (4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

    (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.''

    21 ''Failure to comply with duty

    (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

    (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.''


    142 ''Unenforceable terms

    (1)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.''


    ParkingEye have a statutory duty under the law to comply and they have not fulfilled those obligations. Their only excuse for not cancelling the charge and making an adjustment in this case by a mere 10 minutes would be if they could strictly 'justify' their decision but the POPLA evidence is generic and no such justification has been made.

    So, contrary to the requirement of good faith, it can be seen that a charge of £70 still being pursued by a service provider like ParkingEye - in the sure knowledge of a protected characteristic - causes a significant imbalance in the parties’ rights and obligations to the detriment of myself, as a carer/protected consumer.

    - With reference to The Consumer Rights Act 2015 ('the CRA') the charge is very clearly an unenforceable contract term due to it falling within the unfair terms in Schedule 2. It is noted that in their evidence, ParkingEye have not mentioned the CRA at all, so they have not made any argument that can disapply it and the test of fairness must be considered, especially in the light of the Equality Act.

    Whether a defendant/appellant mentions the fairness of a contract term or not in any appeal/defence, UK courts are obliged and MUST ALWAYS give consideration to any possible unfairness. The £70 charge is a term which is unfair, due to the following issues:

    SCHEDULE 2 of the Consumer Rights Act 2015

    ''Consumer contract terms which may be regarded as unfair

    http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

    PART 1 - List of terms

    6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

    10) A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.

    12) A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.

    14) A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.

    18) A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.


    62 - Requirement for contract terms and notices to be fair

    (1) An unfair term of a consumer contract is not binding on the consumer.

    (2) An unfair consumer notice is not binding on the consumer.

    (4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

    (6) A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.


    68 - Requirement for transparency

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.''



    - Finally, ParkingEye's evidence adduces the irrelevant Beavis case in response to my questioning the rationale or loss behind this charge. Contrary to the spiel emanating misleadingly from the BPA and parking operators, that case is not a 'silver bullet' for every parking charge (nor indeed, for every ParkingEye parking charge). The reasoning in that decision is inapplicable to this situation.

    The Beavis case was considered to be a contractual arrangement with a specifically argued 'legitimate interest'. Here, ParkingEye has merely adduced the Beavis case but shown no comparable 'legitimate interest' in enforcing their charge, considering the specific details of this case, the contract, the signage, the NHS location and the EA breach.

    And as the terms were unreadable in the dark and the terms caused detriment to a disabled passenger and their carer contrary to disability law obligations upon the operator, it cannot be said that as driver I made any promise that could constitute consideration. Nor can it be said that unlit signs in the dark constitute any offer, nor are they capable of creating the sort of agreed contract as was found in Beavis, where by contrast, the signs were 'prominent' and in 'large lettering' (and that event occurred in clear daylight in a retail park which is entirely different from my case).

    This case can easily be distinguished from Parking Eye v Beavis, which is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the decision was made public).

    None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged. There is no 'legitimate interest' in enforcing a punitive charge against a carer with a passenger with a known protected characteristic. This charge is simply being enforced in an attempt to punish the motorist and arbitrarily apply a blanket 20 minutes rigid 'rule' which is in fact unenforceable under the EA and unfair under the CRA.

    The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment.

    The penalty rule is clearly engaged in any private parking charge case but unlike in Parking Eye v Beavis it is not 'disengaged' by Parking Eye merely pointing to the Beavis case as if it has blanket relevance. It most certainly does not. In fact the citations used by ParkingEye in their own evidence give away the fact that the Judges were ONLY discussing a contractual arrangement 'of this kind' (i.e. of the kind in the Beavis case, which occurred in daylight with clear signs and an able-bodied sole occupant of the vehicle).

    ParkingEye said:

    ''Addressing the issue of pre-estimate of loss and commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate.”

    and ParkingEye then say:

    ''In agreement with Moore-Bick LJ...Sir Timothy Lloyd states at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is disincentive, or deterrent, against overstaying”.

    So their own evidence shows that the 'landmark' case they are relying upon has no application here because the Judges were only discussing ''a contract such as we are concerned with'' in ''a case of this kind''.

    Then at the Supreme Court, Lord Mance at 152 found:

    ''What is necessary in each case is to consider, first, whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable. In judging what is extravagant, exorbitant or unconscionable, I consider (despite contrary expressions of view) that the extent to which the parties were negotiating at arm’s length on the basis of legal advice and had every opportunity to appreciate what they were agreeing must at least be a relevant factor.’’

    We did not have every opportunity to appreciate the terms by which we would later be bound and the SC Judges stated that the unconscionability of a charge depends upon the circumstances of each case.

    Crucially at paragraph 107 the Supreme Court held:

    ''In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute.’’

    Well in this case, our rights that we enjoy under the EA statute WERE constricted and excluded.

    This judgment makes clear that the Court of Appeal would also have considered the disproportionate charge in this case a clear penalty. Without displaying intellectual dishonesty, it would be impossible to apply Beavis to this case.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Redx
    Redx Posts: 38,084 Forumite
    Eighth Anniversary 10,000 Posts Name Dropper Photogenic
    and there you have it, all explained in one post ^^^^^

    please do as she asks, try and snatch victory on this one and in future dont tell em anything at all, dont make it easy for them and hard for yourself

    no it shouldnt be this way, which is why we are trying to change it with helping Beavis last year and helping his current petition too
  • Coupon-mad,

    What can I say other than THANK YOU! I'm honestly lost for words with your response and assistance with this matter (and Redx). I'll know in future not to lose the case from the offset by claiming liability but the da t you've taken the time to reply to my call for help is very much appreciated. I'll keep you updated with the claim once I send my response to POPLA.

    Thank you again.
    LBM 1st May 2012 £53,839
    Current debt balance April 2017 £24,427:eek:
    DFD - February 2020 (if not sooner) :T
  • tiredmumof2
    tiredmumof2 Posts: 862 Forumite
    so - received the outcome from POPLA - we've been unsuccessful.




    The operator has provided photographic evidence of the signage in place at the site showing the terms and conditions in force. The terms and conditions state, “Parking tariffs apply 24 hours a day, 7 days a week” and “Failure to comply with the terms & conditions will result in a parking charge of: £70”. The operator has also provided a copy of the whitelist look up, which provides the vehicle registration numbers for vehicles registered at the car park on that day. This demonstrates that the vehicle was not registered to park at the site on the day in question. The appellant states that his son suffers from Type 1 diabetes, on the night in question his son was very ill due to experiencing a Hyperglycaemic episode and needed to be rushed to hospital for urgent treatment. The appellant states that his mind was not on parking but on his gravely ill son and feels that the parking charge notice was inappropriate and unfair, under the circumstances. The appellant states that due to the circumstances and time of night he did not see the signage. I appreciate the appellant’s circumstances and that his mind was not on parking charges and checking the signage on the day in question. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist presents mitigating circumstances setting out exceptional reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. Therefore, the operator has demonstrated to my satisfaction that the signage is sufficient and meets the British Parking Associations (BPA) Code of Practice and, that there is sufficient ambient lighting to ensure that the signage is visible at night. Furthermore, it is the appellant’s responsibility to ensure that he is aware of the sites terms and conditions before parking. By parking at the site, the appellant has agreed to the terms and conditions and, agreed to pay the parking charge notice (PCN) if he contravenes them. The appellant has raised other grounds for appeal in his comments regarding the operator’s evidence. However, the opportunity to provide further comments regarding the operator’s evidence is chance of rebuttal, not the opportunity to raise further points of appeal. Therefore, while I recognise that appellant’s comments I cannot consider any further points of appeal. In conclusion, the operator has demonstrated that the appellant did not comply with the sites terms and conditions. Therefore, while I recognise that the appellant’s main concern was getting his son treatment, I determine that the PCN was issued correctly.


    We contacted the hospital as soon as Redx suggested it and they said they couldn't assist until POPLA made their decision. I've just spoken with the lady from PALS and she said she's going to speak with Parking Eye now.... fingers crossed!
    LBM 1st May 2012 £53,839
    Current debt balance April 2017 £24,427:eek:
    DFD - February 2020 (if not sooner) :T
This discussion has been closed.
Meet your Ambassadors

🚀 Getting Started

Hi new member!

Our Getting Started Guide will help you get the most out of the Forum

Categories

  • All Categories
  • 351.4K Banking & Borrowing
  • 253.3K Reduce Debt & Boost Income
  • 453.8K Spending & Discounts
  • 244.4K Work, Benefits & Business
  • 599.6K Mortgages, Homes & Bills
  • 177.1K Life & Family
  • 257.9K Travel & Transport
  • 1.5M Hobbies & Leisure
  • 16.2K Discuss & Feedback
  • 37.6K Read-Only Boards

Is this how you want to be seen?

We see you are using a default avatar. It takes only a few seconds to pick a picture.