Fined while parked in my own bay

Umkomaas

The thrust of this is fine, and makes your point strongly.

Suggest you do a thorough proof read as there are one or two spelling/grammatical errors (opening salutation for example - you missed out the 'h' in Gallagher) and throughout, your draft is littered with exclamation marks (!) which suggests, if you've copied and pasted it from a word processing program, that the software might be warning you of a typographic error.

Beautiful-Moose

I don't know why it has come up with all the !, however I have taken all these out in my email and made it look a lot nicer than how it has shown up on here. I have done a spell check as well and I am currently getting my partner to proof read it now.

Remove some of the rant and make it a forceful but polite complaint.

What bit of rant do you suggest I remove?

The_Deep

I hope, when you have prevailed, you put in a rather large invoice to the HA. (copied to the Charity Commissioners), tenants should not have to put up with this nonsense.

Beautiful-Moose

I am currently complaining separately to Maureen Corcoran, Chair of Customer Services Committee about Southern Housing and their treatment throughout this ordeal. I do not want them to get away with this either regardless of weather they pay my fine or not.

bod1467

Beautiful-Moose wrote: »

I am currently complaining separately to Maureen Corcoran, Chair of Customer Services Committee about Southern Housing and their treatment throughout this ordeal. I do not want them to get away with this either regardless of weather they pay my fine invoice or not.

Fixed. Please keep the correct terminology in your mind - it'll make things much easier for others that read this.

Fruitcake

Beautiful-Moose wrote: »

I don't know why it has come up with all the !, however I have taken all these out in my email and made it look a lot nicer than how it has shown up on here. I have done a spell check as well and I am currently getting my partner to proof read it now.



What bit of rant do you suggest I remove?

You have repeated yourself several times. You used different wording each time but the comments are really the same. That comes across to me as a bit of a rant and tends to lose its effectiveness as a result. Other opinions are available of course.

yotmon

So, it's official, the lunatics are running the asylum. All that's required now is a brick wall and a designated place to bang ones head against.

If it wasn't so funny, i'd cry....

Beautiful-Moose

So, it's official, the lunatics are running the asylum. All that's required now is a brick wall and a designated place to bang ones head against.

If it wasn't so funny, i'd cry....

It would seem so. I have taken the same approach otherwise I would just be in tears all the time! This whole situation is ridiculous that you have just got to laugh at it all.

Beautiful-Moose

Ok made a few tweaks to my complaint so it doesn't seem too rant filled and doesn't repeat too much. Any feeback welcome!

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

Dear Mr Gallagher,

I urge you to look at my appeal and take this complaint seriously. This is a matter of utmost importance to both myself and the integrity of POPLA as an Ombudsman Service. I expect a thorough investigation into this case.

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 a member of the POPLA team even though I have addressed my complaint to yourself, as a clear breach of the law has taken place. 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.

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. There are no circumstances where a keeper can be liable when no Notice to Keeper has been issued. This information is vital and basic knowledge of the POFA, to which your Assessor has completely missed due to making assumptions.

Samuel Connop, who has reviewed my original complaint 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 both your Assessor Emily Chriscoli and Sammuel Connop have 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.

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.

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. There has been no evidence provided to me as to who the driver was within their 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 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 would like you to look at this case in detail to ensure that the correct decision is given and that the law is now correctly applied and followed. 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. If this complaint is once again not taken seriously then I will have no choice but to log a complaint against POPLA to ISPA due to how my case has been handled.

Regards,

Beautiful-Moose

Ok so I got a reply from POPLA today

Dear XXX

Thank you for contacting POPLA.

While I fully understand that it is disappointing and even frustrating when an appeal results in an outcome that you were not hoping for, our role as an impartial appeals service means that quite simply, we must base our decisions upon the factual evidence presented to us. I am satisfied that this has been done in your appeal and there will be no change to the outcome of our decision.
POPLA’s role in your appeal has now ended. As such, any future correspondence you may send to us will be added to your case but we will not respond.

Alexandra Roby
POPLA Team

I honestly don't understand how with all the evidence presented to them that they can just say that they won't change their decision on this case. This is just ridiculous now!