Fined while parked in my own bay

The_Deep

Is the HA a registered charity? If so complain tio the charity commissioners about the very uncharitable way in which the HA is behaving by employing known scammers.

Beautiful-Moose

FORMAL COMPLAINT - FOR THE PERSONAL ATTENTION OF THE LEAD ADJUDICATOR - REF: 5161386015

Dear Lead Adjudicator,

I do not believe my concerns have been taken seriously as in my appeal it is clearly stated by myself, the Appellant and the Operator themselves that a Notice To Driver was issued and was NOT followed up by a Notice To Keeper within the required time frame set out by POFA 2012, to the point whereby no Notice To Keeper was sent at all. Your assessor to my case, Emily Chriscoli, has completely erred in law and not adhered to the stipulations set out by POFA 2012.
The Assessor has clearly not understood or completely ignored the statute (POFA 2012) with regards to Keeper Liability.

If I can quote some parts of Schedule 4 of POFA 2012, which I would expect ALL of your Assessors to know in full:

Paragraph 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

Paragraph 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; or
(b) has given a notice to keeper in accordance with paragraph 9.
(2) If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.

Paragraph 8
(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must —
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c) state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d) if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i) specified in the notice to keeper, and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).
(3) The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4) The notice must be given by —
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7) When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.
(8) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.

Paragraph 11
(1) The third condition is that —
(a) the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b) the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
(c) the information sought by the application is provided by the Secretary of State to the applicant.
(2) The third condition only applies if the vehicle is a registered vehicle.
(3) In this paragraph “application for the keeper’s details” means an application for the following information to be provided to the applicant by virtue of regulations made under section 22(1)(c) of the Vehicle Excise and Registration Act 1994 —
(a) the name of the registered keeper of the vehicle during the period of parking to which the unpaid parking charges relate; and
(b) the address of that person as it appears on the register (or, if that person has ceased to be the registered keeper, as it last appeared on the register).


Based on the sections outlined above, I would ask why your Assessor has imagined an exemption to issuing a Notice to Keeper in this case whereby the Driver has not been established? A Notice to Driver was issued therefore there MUST be a Notice to Keeper for the operator to claim keeper liability. As the keeper I appealed the windscreen PCN, no driver was named or implied and nothing stopped the operator from continuing to follow their prescribed mandatory conditions for keeper liability during the appeals process. A Notice to Keeper is mandatory, not optional.

There are no circumstances where a keeper can be liable when no Notice to Keeper has been issued. As mentioned, I would like this case to be revisited by yourself as the Lead Adjudicator because this information is vital and basic knowledge of the POFA, to which your Assessor has completely missed due to making assumptions. This decision is completely inconsistent with other POPLA appeals where no keeper can lose / has ever lost / can ever be held liable when there was no Notice to Keeper sent by the operator.

I don't have a supporting case number, but would like to present a response from Rochelle Merritt, one of your Assessors, earlier this year to an appeal in a similar situation to this one:
The operator has not identified the keeper as the driver. The appellant has appealed to the operator making clear that they were not the driver, however the operator has not provided any evidence to suggest that it responded to this by issuing a Notice to Keeper. As the driver has not been identified, and the operator has not provided any Notice to Keeper in its evidence, I am unable to conclude that the operator has followed the requirements set out in Protection of Freedoms Act (PoFA) 2012 Accordingly I must allow the appeal.

It seems odd that this case has been treated differently to all other cases, please review the decision made and correct your Assessors mistake and provide training to ensure that no-one else receives the same shoddy assessments that I have endured today.

There has been no evidence provided to me as to who the driver was within the evidence pack, if you have been provided any then I am concerned that the Operator has not issued the full version to me. I have appealed as the Keeper of the vehicle, not the Driver, so making a ruling based on an unnamed and unknown driver seems completely unreasonable. The fact of the matter is that a Notice To Keeper is REQUIRED and there has not been one, regardless of how you look at it. It is completely obvious to myself and your other adjudicators such as Rochelle Merritt that the decision of Unsuccessful in this instance is just plain incorrect.

I request that you take this complaint seriously and look at this case in detail to ensure that the correct decision is given. If you do not then I will have no choice to raise the issue with ISPA as a formal complaint.

Kind Regards,

Coupon-mad

Cite ISPA's decision from today that's in another thread.

Beautiful-Moose

I have sent off my complaint to POPLA. Fingers crossed I get the correct decision now. I shall update you all when I hear anything.

Beautiful-Moose

Ok so I sent my complaint email to the POPLA email address on 21st July and I have heard nothing from them. Should I be concerned by this? Should I contact them again?

Coupon-mad

No, you are likely to end up banging your head against a brick wall like this poster:

https://forums.moneysavingexpert.com/discussion/5378359

But follow it up fully with an ISPA complaint if POPLA do not respond to your satisfaction this month.

All covered in that thread and other similar ones. No-one pays when POPLA make this mess up, people just complain and then complain again and rebut any daft letter from the PPC with a response saying something like: 'as you know, POPLA held there was no keeper liability and only the driver was liable in this case. I suggest you now take the matter up with the driver. If you continue to harass me I will report you to the ICO for misuse of my data and misleading demands for money when you are aware I am only the keeper and you have missed your chance at keeper liability by your own choice.'

Beautiful-Moose

Ok so this morning I finally got a reply

Dear xxx

Thank you for contacting POPLA in relation to your appeal dispute.

Having read through the appeal and the decision Emily has made, I am satisfied that Emily has made the correct decision.

As you had appealed the Notice to Driver, the operator had no reason to send a Notice to Keeper and therefore was not pursuing the keeper, only the driver. As a result, Emily had no reason to address the Protection of Freedom's Act 2012. Further to this, Emily did explain this within her report as she stated "After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. However, after reviewing the operator’s case file, it is clear that the operator is not seeking keeper liability and therefore, PoFA (PoFA) 2012 does not apply. In this case, the operator is seeking the driver’s liability."

To conclude, PoFA 2012 only needs to be address when the driver has not been identified and the operator are trying to transfer the liability to the registered keeper from the driver. In this case Emily did not know who was the driver, but established that the operator was not pursuing the keeper.

I hope this answers your question and explains in more detail why Emily came to this decision.

Kind Regards

Samuel Connop

POPLA Team

I am not sure that he even knows what he is going on about. I have appealed as the registered keeper of my car, not the driver. So would it be fair to say that should I get any more bother from P4Parking I can tell them they are barking up the wrong tree as I they are seeking payment from the driver and I am the registered keeper? I shall see what happens when I send off my ISPA complaint.

Redx

ok , so they still dont understand POFA2012 and transfer of liability from driver to keeper

some good advice from C-M recently in this thread

https://forums.moneysavingexpert.com/discussion/5378359

and an ISPA complaint is a good idea too , the more the merrier

Beautiful-Moose

Ok so I have edited and come up with this as I go back to POPLA with another complaint attempt.


FORMAL COMPLAINT - FOR THE PERSONAL ATTENTION OF THE LEAD ADJUDICATOR - REF: 5161386015

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 cannot be assumed to be the driver. I also cannot 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, P4 Parking.

My experience with your service thus far is not a good one, I have been fobbed off with a reply from the POPLA team even though I have addressed my complaint to Mr Gallagher and 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. I am ready to log a complaint against POPLA to ISPA due to how my case has been handled. From recent research online, I have found that you are named Lead Adjudicator and cannot believe that you would support such 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, Emily Chriscoli, 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.

Samuel Connop, who has reviewed my complaints email despite it being addressed to the lead adjudicator, has stated “As you had appealed the Notice to Driver, the operator had no reason to send a Notice to Keeper and therefore was not pursuing the keeper, only the driver. As a result, Emily had no reason to address the Protection of Freedom's Act 2012. Further to this, Emily did explain this within her report as she stated "After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. However, after reviewing the operator’s case file, it is clear that the operator is not seeking keeper liability and therefore, PoFA (PoFA) 2012 does not apply. In this case, the operator is seeking the driver’s liability."
To conclude, PoFA 2012 only needs to be address when the driver has not been identified and the operator are trying to transfer the liability to the registered keeper from the driver. In this case Emily did not know who was the driver, but established that the operator was not pursuing the keeper.”

I would ask why your Assessor has imagined an exemption to issuing a Notice to Keeper in this case whereby the Driver has not been established? A Notice to Driver was issued therefore there!MUST!be a Notice to Keeper for the operator to claim keeper liability. As the keeper I appealed the windscreen PCN, no driver was named or implied and nothing stopped the operator from continuing to follow their prescribed mandatory conditions for keeper liability during the appeals process.!A Notice to Keeper is mandatory, not optional.

There are no circumstances where a keeper can be liable when no Notice to Keeper has been issued. As mentioned, I would like this case to be revisited by yourself as the Lead Adjudicator because this!information is vital and basic knowledge of the POFA, to which your Assessor has completely missed due to making assumptions. This decision is completely inconsistent with other!POPLA!appeals where no keeper can lose / has ever lost / can ever be held liable when there was no Notice to Keeper sent by the operator.

I don't have a supporting case number, but would like to present a response from Rochelle Merritt, one of your Assessors, earlier this year to an appeal in a similar situation to this one:
The operator has not identified the keeper as the driver. The appellant has appealed to the operator making clear that they were not the driver, however the operator has not provided any evidence to suggest that it responded to this by issuing a Notice to Keeper. As the driver has not been identified, and the operator has not provided any Notice to Keeper in its evidence, I am unable to conclude that the operator has followed the requirements set out in Protection of Freedoms Act (PoFA) 2012 Accordingly I must allow the appeal.

It seems odd that this case has been treated differently to all other cases, please review the decision made and correct your Assessors mistake and provide training to ensure that no-one else receives the same shoddy assessments that I have endured today.

There has been no evidence provided to me as to who the driver was within the evidence pack, if you have been provided any then I am concerned that the Operator has not issued the full version to me. I have appealed as the Keeper of the vehicle, not the Driver, so making a ruling based on an unnamed and unknown driver seems completely unreasonable. The fact of the matter is that a!Notice To Keeper is REQUIRED!and there has not been one, regardless of how you look at it. It is completely obvious to myself and your other adjudicators such as!Rochelle Merritt that the decision of Unsuccessful in this instance is just plain incorrect.

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:
https://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.”

I request that you, Mr Gallagher, take this complaint seriously and look at this case in detail to ensure that the correct decision is given. I do hope that I am not once again fobbed off with a reply from a member of the POPLA team and receive a reply directly from yourself on this matter.

Fruitcake

Take out the unnecessary exclamation marks. Remove some of the rant and make it a forceful but polite complaint.

Have you complained to your MP? He/she needs to be aware that the law is being flouted by PoPLA.