No NTD when PCN warden-issued

spet1909

I'm in the process of appealing to POPLA and have a quick question.

There was no NTD posted on the car but the photos provided make it clear that they were taken manually by a parking warden who was physically present rather than CCTV or ANPR (it was slightly ambiguous from the NTK, a point that will be made!). Only an NTK was sent, with the PPC having gone straight down the KADOE route and contacted the registered keeper. From my initial research when the NTK was first received, my recollection is that there should only be "reasonable cause" to seek a keeper's details via KADOE where either (a) a driver has not responded to an NTD within the relevant time frame or (b) where it is not possible to put an NTD on the car as ANPR / CCTV was being used. Obviously the starting point is always that the driver should be liable first and regardless I will make the argument that the PPC failed to take that step but am I wrong in recalling an actual requirement on PPCs to issue NTD if they are able to before they are entitled to request the keeper's details?

Much appreciated!

Coupon-mad

I know what you mean and I did add one like that to a POPLA appeal yesterday, suggesting this is a breach of the BPA CoP( because POPLA like those) and that this means there was no audit trail because the photo could have been taken by anyone on a mobile phone.

https://forums.moneysavingexpert.com/discussion/comment/70271978#Comment_70271978

In that linked case, the PPC went straight to a PCS 'NTO' which is not POFA compliant so cannot be a 'Notice to Keeper' for the purposes of keeper liability under Schedule 4.

Show us your draft POPLA appeal. The linked example is missing 'no keeper liability' and admits who was driving (because he'd already blown it in the first appeal) so don't copy any of those sentences. I see from your other thread you appealed as keeper.

BTW please ask the board guides to merge your threads. We need to see all info in one place.

Guys_Dad

Date of contravention and date of NtK please.

spet1909

Thanks for input, point about audit trail is a helpful one I'll pop in there - no full draft to post yet.

In terms of dates, contravention was 1 Jan and NTK was sent on 6 January.

bod1467

In that case it is out of time for keeper liability ... too early. If a NTD was claimed then a NTK/NTO must not be issued until at least 28 days after the contravention (but before 56 days).

spet1909

Very true and I can certainly argue that they should have gone the NTD route but they haven't claimed they have issued an NTD or proceeded as if they have, instead they have just gone straight to NTK i.e. in the same process as if they had issued a charge based on NPR or CCTV. To my mind it is clear that the intention of both POFA and the BPA CoP is that you should issue an NTD if you use a method that allows for one and that the "straight to NTK" method is for when you use a method where an NTD is not possible since you should always try to pursue the driver first. But what I can't find is any specific rule that state that an NTD should be issued if it is feasible to do so (be it POFA, BPA or KADOE) - may just be that it isn't explicit anywhere!

Coupon-mad

Not really too early, they treated this like an ANPR one which has to come out within 14 days, where there was no PCN on the windscreen. So I think they haven't got the data too early but you can try an argument that there was no reason not to issue a PCN and this is not ANPR (as per the example already linked, no audit trail, neither one thing nor the other).

There is no specific rule that says they have to issue a NTD first. But you can write around this using the BPA CoP to 'paint the picture' to POPLA that there are two avenues for an NTK and this has followed neither of them which creates unfairness and breaches the CoP (you can say it does - it's up to the PPC to rebut!).

spet1909

Below is draft section on lack of NTD. Thoughts welcome!

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Charge Improperly Issued: NTD should have been issued

The ticket was issued based on photographs taken by an individual physically present at the car park and not by ANPR or CCTV. A Notice to Driver should have been issued on the vehicle itself; it was not and instead PCS have a) sought the registered keeper details from the DVLA and b) immediately pursued the registered keeper of the vehicle via a Notice to Keeper ("NTK"). This is in breach of a number of British Parking Association Code of Practice Rules ("BPA CoP"), a breach of PCS' own purported contract with drivers, in breach of the requirements for seeking registered keeper details from the DVLA and a failure to provide a proper audit trail as follows:

• BPA CoP states the following;
o "when a vehicle is parked in a private car park, the normal rule is that the driver is responsible for…following the terms and conditions which apply" (21.1). PCS failed to follow the normal rule by first issuing a NTD on the vehicle itself in order to bring the charge directly to the driver's attention.
o "if you were unable to issue a parking charge notice while the driver was present, perhaps because you use ANPR or camera equipment to monitor the car park, you may want to issue a parking charge by post" (20.9). PCS was able to issue a NTD but failed to do so.

• POFA states the following:
o "the first condition [for a keeper to be liable under Sch 4 para 4] is that the creditor is unable to take steps to enforce the requirements against the driver because the creditor does not know both the name driver and a current address for service" (Sch 4 Para 5(1)(b)). By failing to issue a NTD, PCS sought to enforce keeper liability without having established that they were unable to take steps against the driver.

• The signs at the car park state "in the event that a parking charge remains unpaid the DVLA may be contacted for the registered keeper's details". PCS rely on these signs as forming a contract with a driver which they claim has been breached. The signs clearly anticipate a NTD being issued. By failing to issue a NTD and follow the requirements of POFA Sch 4 Para 6 before seeking registered keeper's details, PCS have breached the terms of that purported contract by seeking the registered keeper's details at a time when the charge cannot be considered to "remain unpaid".

• In addition, a NTD having been issued, there is no audit trail to show that the photographic evidence was taken by someone properly authorised to do so by PCS / the landowner rather than an unauthorised party or a member of the public nor anything to confirm the reliability of that evidence.


Charge Improperly Issued: Circumvention of POFA and BPA CoP requirements

By failing to issue a NTD where able and obliged to do so, PCS has sought to circumvent the requirements of POFA and BPA CoP. POFA sets out a separate process where a parking charge is issued in person; a NTD must be issued to the driver. If a driver has not responded to the NTD, after 28 days a request can be made to the DVLA for the keeper's details and a NTK sent to the registered keeper. PCS have attempted to circumvent those time limits and instead pursued a shortcut to imposing keeper liability by seeking personal information regarding the registered keeper from the DVLA earlier than they should. Should PCS have followed POFA requirements they would have issued a NTD on 1 January 2016, a NTK no earlier than 29 January 2016. Instead, PCS issued a NTK on 6 January 2016.

nigelbb

spet1909 wrote: »

Very true and I can certainly argue that they should have gone the NTD route but they haven't claimed they have issued an NTD or proceeded as if they have, instead they have just gone straight to NTK i.e. in the same process as if they had issued a charge based on NPR or CCTV. To my mind it is clear that the intention of both POFA and the BPA CoP is that you should issue an NTD if you use a method that allows for one and that the "straight to NTK" method is for when you use a method where an NTD is not possible since you should always try to pursue the driver first. But what I can't find is any specific rule that state that an NTD should be issued if it is feasible to do so (be it POFA, BPA or KADOE) - may just be that it isn't explicit anywhere!

The reason that you haven't found a specific rule is because there isn't one. POFA doesn't even mention ANPR. It's perfectly valid to send an NTK within 14 days of the parking 'crime' if there is no NTD even i an NTD could physically have been issued. The DVLA's position previously was that if there were boots on the ground e.g. bloke with a bike & notebook that they would normally expect an NTD to be issued but this is no longer the case. There is no obligation to precede an NTK with an NTD whatever the method of recording the 'crime'. Appealing on this issue is pointless.

spet1909

Thanks Nigel - I'm interested in your source for a DVLA change of position as understanding that would be helpful? is that from correspondence others have had with the DVLA over KADOE requests?

Appreciate that there is no specific rule (ascertaining that was the original point of this thread and its been covered) but I would politely disagree that there is no point in appealing on the basis - even if it's a weaker argument I'd make any that aren't stupid (and if the DVLA had once taken that approach, even if they don't know, then I can't see it being an argument that does any harm, even if you're right that it does limited good). But that's a difference of opinion!

nigelbb

spet1909 wrote: »

Thanks Nigel - I'm interested in your source for a DVLA change of position as understanding that would be helpful? is that from correspondence others have had with the DVLA over KADOE requests?

Sorry I don't have any links but it may have been from an FOI request. Basically the DVLA case is that they do not have the legal authority to request that a parking company place a notice on the vehicle when it is alleged to have infringed the terms and conditions of parking & while the DVLA feels that it would be best practice that a notice is provided at the soonest opportunity they can only recommend such a process.

spet1909 wrote: »

Appreciate that there is no specific rule (ascertaining that was the original point of this thread and its been covered) but I would politely disagree that there is no point in appealing on the basis - even if it's a weaker argument I'd make any that aren't stupid (and if the DVLA had once taken that approach, even if they don't know, then I can't see it being an argument that does any harm, even if you're right that it does limited good). But that's a difference of opinion!

Just so long as all the flannel regarding dubious appeal points doesn't distract the dim-witted assessor from noticing that there is an absolutely killer point of appeal e.g. no NTK was delivered so that there is no keeper liability possible