Indigo PCN despite displaying Disabled Blue Badge at hospital

sandrew

Thanks so much for your advice folks. Here is my draft POPLA Appeal wording - any feedback most welcome before I submit it tomorrow (Monday). I will heed the advice not to answer questions on the POPLA Portal and attach my appeal as a PDF .....

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I wish to appeal against a parking charge notice from Indigo Park Services UK Limited (the Operator) based on the following points:

1. No keeper liability
A Notice to Keeper has not been issued. As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the Operator has failed to comply with the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012.

Paragraph 4 of The Act states:

(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
The condition specified in paragraph 6 “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.”
Paragraph 9 states this notice to keeper must be given within a "period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given"

As the registered keeper of the vehicle I have not received a Notice to Keeper. The law is unequivocal on this matter. A Notice to Keeper must be served where the driver has not been identified. Without this, the creditor does not have the right to recover the charge from the keeper of the vehicle.

2) Lack of standing/authority from landowner
The Operator has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right. BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put the Operator to strict proof of the contract terms with the actual landowner (not a lessee or agent). The Operator has no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that the Operator is entitled to pursue these charges in their own right.

I require the Operator to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

3. No genuine pre-estimate of loss
The charge of £80 is punitive and unreasonable, contravening the BPA Code of Practice section 19. The Operator must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss for this alleged contravention.

However, with or without any 'breach', the cost of parking enforcement would have been the same and there was no loss or damage caused, therefore the Operator has no cause of action to pursue this charge. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the Operator does not have to justify the amount in advance. In no way does it absolve the Operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

The Operator cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract.

4. Inadequate signage – no contract with the driver

The Operator’s full terms and conditions were not visible from inside the vehicle.

- The Operator states in their letter to me of 23rd April 2016, that their Terms and Conditions of parking “are displayed at the entrance to the car park”. The entrance to the hospital car park is directly off a main road, and therefore cannot be read whilst safely driving and turning into the car park.

- The Operator’s sign (see attached photo) does not prominently show the amount of the parking charge itself in large letters, which is in breach of 2(3) of schedule 4 of the POFA and contrary to the BPA code of practice and therefore the sign is not clear or prominent enough to form any contract with a driver before parking.

- The Operator did not comply with Paragraph 18.10 of the BPA Code of Practice which requires that so that disabled motorists can decide whether they want to use the site, there should be at least one sign containing the terms and conditions for parking that can be viewed without needing to leave the vehicle. Ideally this sign should be close to any parking bays set aside for disabled motorists.

With regard to the final point in this Paragraph 18.10, given that the Operator was seeking to apply different terms and conditions to disabled motorists who did not park in the bays that had been set aside for them (i.e. that disabled motorists were required to pay to park in "non-disabled" parking bays), it was equally important for such signs to be situated in areas adjacent to all parking bays, not just those set aside for disabled motorists.

I have reason to believe that there were no signs in the car park upon which the Operator’s full terms and conditions could be read from inside the vehicle. Given that both the driver and passenger were disabled, POPLA may reasonably conclude that the Operator failed to convey its terms and conditions to the driver.

The car park signs failed to notify the driver that the Operator intended to utilise the provisions of POFA

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage) and where there is any ambiguity or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms. This is confirmed within the Consumer Rights Act 2015 including;

Paragraph 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.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Paragraph 69: Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

I have reason to believe that the Operator’s signs did not include as a core term any condition advising the driver that it would reserve the right under POFA to hold the vehicle’s keeper or hirer liable for the parking charge should this not be paid by the driver.

The application of POFA is not automatic; in order to be able to hold a vehicle’s keeper liable for unpaid parking charges an operator must a) first choose to use POFA for this purpose and then b) fully comply with all of POFA’s terms and conditions.

In accordance with the rule of contra proferentem it is reasonable for the driver to conclude that this Operator was one of the many private parking companies that choose not to use the provisions of POFA to claim unpaid parking charges from the keeper or hirer. It is unreasonable that the Operator should seek to apply this additional condition retrospectively.


5. Breach of the Equality Act 2010
The Operator has failed to make a 'reasonable adjustment' yet they 'knew or should have known' from my appeal that a disabled person was present from the display of the Blue Parking Badge, and therefore met the definition of disability under the Equality Act 2010 ('the EA'). As soon as they were made aware of this, they were obliged by law to consider making a reasonable adjustment.

They failed to do so and so they are in breach of the EA because they have offered no justification for applying a rigid parking rule. Equality law allows a service provider to treat disabled people more favourably than non-disabled people, such as not charging a disabled person displaying a blue badge for parking in a parking space directly adjacent to a disabled parking space, 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.

The EA protects carers as well as the individual with the protected characteristic and the term (the charge of £80) is 'unenforceable' as defined in the Act:

Equality Act 2010

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.''

The Operator has a statutory duty under the law to comply and they have not fulfilled those obligations.

So, contrary to the requirement of good faith, it can be seen that a charge of £80 still being pursued by the Operator - 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.


This concludes my POPLA Appeal.

sandrew

I'll be submitting my POPLA Appeal, as drafted above, this evening to ensure I meet the deadline.

Fruitcake

I would put the EA 2010 breach first, just to make the assessor read it before moving on to other points. I don't believe a PoPLA appeal has ever been won on a breach of Equality Act, and I would be pleasantly surprised if you win on this point. I do however firmly believe PoPLA assessors should be made aware of these breaches.

bod1467

The operator will likely counter item 3 with Beavis. Item 3 either needs beefed up/tweaked, renamed (from GPEoL) or removed.

Edna_Basher

Here are few suggested paragraphs which at least draw POPLA's attention to some of the differences between your case and Beavis. You could use these instead of your current GPEOL argument.


3) The charge is extravagant and unconscionable and is disproportionate to the scale of the alleged breach

Although, the charge of £80 claimed by the Operator may not be materially different from the level considered by the Supreme Court in the case of ParkingEye Ltd v Beavis (“Beavis”), I set out below a non-exhaustive list of reasons why this case is distinctly different from Beavis.

Beavis: Paragraph 90

The Supreme Court acknowledged that ParkingEye had displayed at Riverside Retail Park about 20 signs at the entrance to the car park and at frequent intervals throughout it and considered that the signs were large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.

As detailed within Section 4 of this appeal, in this case the Operator’s signs were neither prominent nor legible.


Beavis: Paragraphs 97-100

The Supreme Court recognised that ParkingEye’s revenues at Riverside Retail Park were wholly derived from the charges for breach of the terms. The landowner’s objectives were stated as including:

a) The need to provide parking spaces for their commercial tenants’ prospective customers;
b) The desirability of that parking being free so as to attract customers;
c) The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
d) The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
e) The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.

The Supreme Court added that against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services without which those services would not be available.

The Supreme Court also explained how the landowners receive a fee from ParkingEye for the right to operate the scheme, and that ParkingEye meets the costs of managing the scheme from charges for breach of the terms.

With regard to the objective of deterring motorists from overstaying their welcome in a busy retail park close by a mainline railway station (deemed to be legitimate by the Supreme Court), the same level of deterrence cannot reasonably apply to circumstances where disabled motorists using a hospital car park have no option but to park in a “non-disabled” bay because all of the parking bays set aside for disabled car park users were already occupied.

With regard to the desirability of running that parking scheme at no cost, or ideally some profit, it is of great significance that the alleged incident took place on land belonging to the NHS and not a retail park.

The Department of Health’s Guidance on NHS Patient, Visitor and Staff Car Parking makes it clear that parking contracts must not be let on any basis that incentivises additional charges, e.g. income from parking charge notices only. The NHS Hospital Trust would be in clear breach of NHS rules were it to allow the Operator to benefit financially from the issuing of additional Parking Charge Notices. Therefore, the only legitimate arrangement would be for the Trust to pay the Operator a simple management fee to control parking (i.e. with no additional commission being paid based on the number of Parking Charge Notices issued).

It is reasonable to expect that the Operator, being a commercial organisation had ensured that the agreed management fee was sufficient to cover its operating costs plus a reasonable profit margin. There is no justification for the Operator to double-recover its operating costs and boost its profits beyond a reasonable level by levying extravagant and unconscionable Parking Charges.


Beavis: Paragraphs 96 & 111

The Supreme Court describes the BPA Code of Practice as a detailed code of regulation governing signs, charges and enforcement procedures, stating that while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.

The Supreme Court judgement in favour of ParkingEye was dependent upon ParkingEye complying with the BPA Code of Practice. However, as detailed in Section 4 of this appeal, I explain how in this case, the Operator has failed to comply with the BPA Code of Practice.

sandrew

Thank you all so much for your expert and invaluable help. I have amended the appeal wording and submitted it to POPLA. I shall keep you posted on the outcome as soon as I hear from them. You're a star :A

Edna_Basher

Excellent.

Indigo now have 21 days to submit their evidence pack to POPLA. It will be interesting to see if they even bother.

sandrew

Just to let you know that I have just heard back from POPLA and they have said .....

"Indigo Park Services have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge."

Result! Many thanks for all your wonderful help.

Coupon-mad

A darn good job well done!

I hope to see more success like this one (I have an Indigo appeal in for a friend, not a disabled case but an unfair PCN, nonetheless). Never lost one for friends or colleagues or random fellow Brighton fans...keen for that to continue!

sandrew

Indeed! And I have just heard, separately, from Gloucestershire Hospital Complaints Department Chief Executive that she has instructed Indigo to cancel the PCN, stating my experience was "far from ideal" and also, most encouragingly, stating ......

"I have also asked that we review our charging policy for patients who are Blue Badge Holders to consider whether a change in our policy might be warranted - I cannot guarantee the outcome of this review but I am very happy to take a look."

:T