Underpaid unknowingly

BaBa

Umkomaas wrote: »

If you're inclined to respond, ask them whether they believe that the keeper or the driver should pay this.

You might also ask them to be prepared, that should this go to court, for Lauren Bailey to be asked to appear as a witness to justify the assessment.

My inclination now is just to send an email summary of the case, including copies of the two responses from POPLA, to IPSA.

The responses that I'm receiving from POPLA are irrational to the point of them effectively being nonsense, and I can't see any point in trying again to encourage them to see sense. It's seemingly not going to happen.

Temptation when I start to get harassed by the operator and it's debt collector will be to advise the operator that POPLA have said that I'm not liable and that POPLA consider that they themselves (ie. the operator) are clearly not seeking to make me liable. Effectively, case closed is all that I can assume from the web of confusion and incompetence that has been spun.

Zero_Gravitas

So, if Popla has decreed that the driver is liable to pay the charge, would there be any sense in writing to Highview pointing this out and telling them they need to contact the driver, whom you are under no obligation to name?

BaBa

Zero_Gravitas wrote: »

So, if Popla has decreed that the driver is liable to pay the charge, would there be any sense in writing to Highview pointing this out and telling them they need to contact the driver, whom you are under no obligation to name?

Yes, in theory that is what I ought to do, with the expectation that they'll acknowledge that point and cancel this PCN.

Unfortunately I suspect that the reality would be that they'd ignore rationality in exactly the same way as POPLA have been doing and simply respond with a generic statement along the lines of POPLA have upheld the PCN, please submit payment to this address, or online etc.

Within the appeal response, POPLA haven't decreed that the driver only must pay, they have simply refused the appeal with a statement that POFA doesn't apply as the operator hasn't sought keeper liability - so not as explicit as they've subsequently been to me in response to my complaint, which highview may disregard as irrelevant in light of the appeal result saying that I should pay.

Coupon-mad

That's the point - these appeal results TELL KEEPER APPELLANTS THEY SHOULD PAY!

People who believe POPLA's flawed 'logic' and suffer loss might feel tempted to try to sue POPLA for its failures. Oh POPLA, we despair...

- You have JUST ONE APPLICABLE LAW (in the main) to understand. One tiny Schedule!

- You even had the benefit of a previous POPLA provider which understood it and whose Lead Adjudicator explained it in Annual Reports in very clear terms.

- All you needed was [STRIKE]a watch[/STRIKE] a read of Schedule 4.

Jeez. POPLA. Sort it out. :eek:

BaBa

I received the following response to my complaint to ISPA today:

Dear BaBa,

Thank you for your email dated 10 June 2016 regarding the appeal
decision you received. Our director is currently on leave and I am
writing to you in her absence to inform you of the outcome of your case review.

One of our Independent Assessors, Charlotte Holland, has investigated your complaint and looked at the processes applied to your appeal. She has identified a concern with the processes followed in your case. That concern will be reported to the ISPA Board and to the BPA and Ombudsman Services. As you are aware, ISPA cannot overturn an appeal decision.

Thank you for bringing these issues to our attention.

Best wishes,

EB

Board Secretary to ISPA

I'm pleased that one of the bodies involved in the broader process has seen what the fundamental aspects of this case are, though the fact remains that the POPLA judgement can not be overturned.

The resultant is that I still don't know who is expected to pay this charge, but at least ISPA appear to acknowledge that fact - amongst other equally pertinent facts perhaps.

In terms of where to go now, I've no idea. Paying is not on the agenda however as ISPA have seemingly concurred that liability on anyone to pay does not exist, despite me now being pursued by Highview.

Coupon-mad

Well you just ignore it, like we all did before POPLA existed.

BaBa

Long time passed without any further contact until this morning when I received a letter from JMW Solicitors acting on behalf of Highview.

Having done some research around this great forum, my next move will be to send the letter listed as template 2 in zzzLazyDaisy's excellent thread here:
https://forums.moneysavingexpert.com/discussion/4814108

I'm hoping that that's the right step to take still, but please let me know if things have changed since that template was last updated.

Further query would be whether I should stick rigidly to the template or would there be any benefit in adding that ISPA expressed concern that the procedure followed by POPLA for the appeal was not correct?

Thanks in advance, and great to see the help that continues to be given impartially and generously within this forum.

Should add that the letter from JMW makes no mention of 'letter before action' anywhere within the text or as a header.

Coupon-mad

Who does it say is the client/who to pay? Debt collector?

BaBa

The client is named as Highview Parking Ltd., and the letter advises that payment should be made directly to the client, before explaining how this can be done (by telephone, by post or online) and by what means of payment (cheque, debit or credit card).

Coupon-mad

Try this:




Dear Sirs,

Re: Flawed POPLA decision regarding your client Highview's PCN xxxxxxx

I write in response to your letter dated xx/xx/17.

It appears that your clients have withheld material information from you. It is a fact that POPLA made an error in an irrational decision regarding the above PCN. POPLA agreed that only the driver could be liable but also agreed that they were not satisfied that the driver had been identified. Therefore, because Highview choose not to rely upon the POFA 2012, they are unable to hold a keeper like myself liable for the actions of an unidentified driver.

If you have evidence of the identity of the driver, please let me have that evidence by return so I may pass your letters to that person.

In the absence of such evidence, the fact remains that I cannot be held liable under any applicable law. At the time of this error by POPLA, I complained to the independent POPLA Scrutiny Panel, ISPA. For your information and in case the BPA failed to tell your client, ISPA shared my concerns and this was the reply:

Dear xx xxxxx,

Thank you for your email dated 10 June 2016 regarding the appeal
decision you received. Our director is currently on leave and I am
writing to you in her absence to inform you of the outcome of your case review.

One of our Independent Assessors, Charlotte Holland, has investigated your complaint and looked at the processes applied to your appeal. She has identified a concern with the processes followed in your case. That concern will be reported to the ISPA Board and to the BPA and Ombudsman Services. As you are aware, ISPA cannot overturn an appeal decision.

Thank you for bringing these issues to our attention.

Best wishes,

EB
Board Secretary to ISPA

Whilst ISPA were never able to overturn wrong decisions by POPLA, as stated in that reply, the BPA will be aware of the findings in this case and no doubt Highview can ask their Trade Body for clarification, to avoid pursuing the wrong party and opening themselves up to the possibility of being sued for continuing to harass me and processing my DVLA data without reasonable cause.

Now that you are aware that this POPLA decision was reviewed by ISPA who shared my concerns that the decision was unsupported by the applicable law, I trust you will advise your client to cancel the charge. Any further processing of my data from this point on will be deemed harassment, as well as a serious breach of the strict terms of the KADOE contract, which (where the POFA does not apply) only provides keeper data for the single purpose of enquiring as to the identity of the driver. That excuse has been more than exhausted and abused by your client and to pursue me now certainly fails to meet the high bar of 'reasonable cause' nor can it possibly be held to meet the DPA Principles.

Consider this a formal objection to processing of my data, under Section 10 of the DPA.

Kindly warn your clients that I intend to sue them for data misuse, should they now refuse to cease storing and processing my DVLA data and the private details relating to of this vehicle. As a first step, should I receive any further demands about this matter - including letters from your firm - I will be making a formal complaint to the Information Commissioner about Highview, using ISPA's findings and the provisions of Schedule 4 of the POFA as evidence to support my concern, as well as my honest account of the significant distress and harassment that I have suffered as a result of this unwarranted demand.

I look forward to hearing within 21 days that your client has deleted my data and cancelled the charge.

yours faithfully,