Parking Ticket @ Fistral beach. no time given to apeal or pay.

Coupon-mad

Here you go, I've tried to put it all together - and have added the bit about £110 charge - although here it takes more than one reply.

Stacey, you will need to put this all into one word document and if you are happy with it, save it as a PDF and then attach it under 'other' in the POPLA appeals webpages (which are horrible to use, I warn you - make sure your PDF is uploaded successfully as a little 'packet' as well as any photos:

*************************************************************


On (DATE) I came home from my holiday in the South West to find a Parking Charge Notice from Smart Parking, dated (DATE).

Background:-
I appealed to Smart Parking who rejected my appeal on (DATE). I am appealing as the registered keeper of this Motability vehicle, with licence plate number (NUMBER BLOCKED OUT). For the avoidance of doubt, I cannot drive. I am disabled and I use a wheelchair. My case has been publicised in the Newquay press and in forums and Blogs; I hope these links will show POPLA the issue that occurred on arrival:

http://www.cornishguardian.co.uk/this-woman-s-wheelchair-sank-in-sand-on-the-beach-in-newquay-but-a-parking-company-still-fined-her/story-29426266-detail/story.html

http://www.plymouthherald.co.uk/disabled-woman-given-parking-ticket-after-wheelchair-got-stuck-in-the-sand/story-29426799-detail/story.html

http://www.piratefm.co.uk/news/latest-news/2021840/beach-parking-ticket-for-woman-whose-wheelchair-got-stuck/

http://www.real-fix.com/health/severely-disabled-woman-stunned-to-be-given-a-parking-fine-after-her-wheelchair-sank-into-sand/

http://parking-prankster.blogspot.co.uk/2016/06/smart-parking-charge-vulnerable.html

I don’t mind sharing my story because I think it is important people are not scared like I was, by this ‘parking ticket’ demanding money for a day when we didn’t stay on site and didn’t enter into a contract to pay £100 for being discriminated against!

As the news stories explain, we arrived and parked up and the driver assisted me to get into my own wheelchair, then we went to read the signs and look at the ‘beach wheelchair’ to see if it was suitable. We then realised from reading some fairly unclear terms, that parking was not free for disabled people (there had been no such sign close to the car nor in any disabled bay). So I went towards the Surf Shop for change for the machine and became stuck in the soft sand in the car park, injuring myself. I became very upset and we had to leave straight away, without entering into any contract and certainly not knowing about any £100 ‘charge’ for arriving and leaving. In my case ‘leaving straight away’ takes a fair few minutes longer than most people, due to the time taken to clamp my wheelchair back into the vehicle safely, video here:

https://youtu.be/5WygWoWHrC8

The driver also struggles to bend and get on/off the ground; he has arthritis and he has a metal pole in one leg. So, we both have ‘protected characteristics’ under the Equality Act 2010. As you can see from the links and video, I was the passenger (and keeper) and I dispute that I am liable for the alleged parking charge.

I wish to appeal against the charge on the following grounds:-

• No keeper liability
• No driver liability
• Lack of Grace Periods
• Breach of the Equality Act (EA 2010)
• No 'legitimate interest' or 'commercial justification'
• This is (unlike in the Beavis case) an unfair penalty.
• No contract accepted; unlike in the Beavis case.
• The charge exceeds the applicable amount under the BPA CoP
• No landowner authority

********************



1:- No Keeper Liability

Schedule 4 of the Protection of Freedoms Act, Paragraph 9, states that the Notice to Keeper must state the following:

9(1) ''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 9(1)(b) 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)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;

(d) specify the total amount of those parking charges that are unpaid, as at a time which is- (i) specified in the notice; 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...

(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, after the period of 28 days beginning with the day after that on which the notice is given—(i) the amount of the unpaid parking charges specified under paragraph (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''

Smart Parking did not properly specify the vehicle, did not identify the relevant land, and did not specify a 'period of parking'. The location is ambiguous: ‘Fistral Beach’ could imply the vehicle was parked on the sand, which it was not, and there is more than one car park in the vicinity (not that they even identify the town on the PCN). Smart Parking failed to inform me of the circumstances under which the requirement to pay charges arose and the other facts that made them payable. Smart Parking also failed to inform me as Keeper, that they do not know the name and address of the driver and to ‘pass the notice to the driver’.

Further, there is an absence of any warning whatsoever, about ‘keeper liability’. Arguably, above all other wording omissions, the specific liability warning in 9(2)(f) is absolutely fundamental for ‘keeper liability’ so I cannot be held liable under the applicable law.



2:- No driver liability

There is no possibility of POPLA finding that ‘driver liability’ can apply to me because I am not appealing ‘on behalf of’ the driver nor as the driver. I am the registered keeper only and the driver has not been identified.

I am unable to drive myself, due to epilepsy and side effects of my disability: Degenerative neuro muscle disease, causing lack of muscle control, poor eye sight and many other symptoms relating to my disability that make it impossible for me to drive. I use a wheelchair.

Without keeper liability, Smart Parking have no cause to pursue me or retain my data yet they refused my appeal and ended up in the local press, yet still expect me to appeal to POPLA.



3:- Lack of Grace Periods – a disabled person may reasonably need a longer period of grace

Section 13 of the British Parking Association Code of Practice (BPA CoP), states:

13.1 ''Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to reach your signs and leave before you take enforcement action.''

Additionally, Section 16 of the BPA CoP states:

16 ''Disabled Motorists.

16.1 The Equality Act 2010 says that providers of services to the public must make ’reasonable adjustments’ to remove barriers which may discriminate against disabled people.

16.2 ‘reasonable adjustments’ to prevent discrimination are likely to include larger ‘disabled’ parking spaces near to the entrance or amenities for disabled people whose mobility is impaired. It also could include lowered payment machines and other ways to pay if payment is required: for example paying by phone. You and your staff also need to realise that some disabled people may take a long time to get to the payment machines.''

Grace periods must be 'reasonable' given all the circumstances of the case and are not set in stone; clearly section 16 goes hand in hand with section 13 of the BPA CoP, as far as people like myself are concerned: ’'You and your staff also need to realise that some disabled people may take a long time to get to the payment machines’’ clearly communicates that a fixed ‘grace period’ disallowing the possibility of a 'longer time' is not reasonable.

BPA members are required (and are audited on this) to carry out manual checks before using PCNs based upon ANPR images. On closer inspection, Smart should have seen the stickers on the van:

http://s1378.photobucket.com/user/staceygreen1981staceyk81/library/Stickers%20on%20our%20Van?sort=3&page=1

The ANPR photo of the rear of the vehicle shows at least one very clear sticker with the unmistakeable wheelchair logo, re leaving room for wheelchair access. Smart Parking cannot have missed this if they had made the required checks. That sticker, plus the appeal I made, should have been enough to evidence to Smart Parking that this PCN was not ‘properly issued’.

Clearly a wheelchair stuck in sand, which had to be freed then safely clamped back into the vehicle and the passenger secured safely, would take much longer than ten minutes. It took a longer time than 10 minutes just to arrive, drive down the long approach roadway, queue to find a space (it is busy at the beach!) and stop the car close enough to the beach wheelchair area. Then it took time for me to have my wheelchair unclamped from the car and then to negotiate the sandy/uneven and sinking surface of this car park, looking for signs and the P&D machine. Extra time was needed to notice and read a hand-written note (stuck on the already wordy sign with sticky tape) stating the Pay-by-Phone system was unavailable and so, unexpectedly, we found we were obliged and instructed to get change at the surf shop (nothing was seen about £100!).

Even without getting stuck, it would have been wholly unreasonable to expect us to have paid and displayed within ten minutes flat, which is the arbitrary time limit applicable to able-bodied drivers.

It took 3 people to rescue me in my wheelchair from the sand in the car park (this was not on the beach, this was the car park surface, wholly unsuited to wheelchair-users) and I was stuck near the P&D machine, yet unable to pay. They had to use wooden planks and their bare hands to dig me out. Then I decided I would just go home because I had hurt my foot and the whole thing had scared me, so we decided not to stay.

Plus as we could not safely get to the Surf Shop to get the change needed for the machine, as the sign had stated we needed to do, I felt I had no option but to leave.

Another ten minutes was taken to get me safely into the van, give me pain medication for my hurt foot, get my coat off and clamp the wheelchair back in place and leave. I had tried to follow all instructions given to me, by the signs. However, no consideration had been made by Smart Parking regarding whether it was safe or even achievable for someone in a wheelchair to get to the Surf Shop for change. We had no other alternative but to leave the car park, which we did, as quickly as we possibly could, given my physical disabilities.

The BPA CoP quoted above, states very clearly ‘You and your staff also need to realise that some disabled people may take a long time to get to the payment machines’ (see point below on the EA 2010, my legal right to a reasonable adjustment of time as a disabled passenger).



4:- Breach of the Equality Act (EA 2010)

‘Indirect discrimination’ - disadvantaging a group of people who share a protected characteristics:

I believe that Smart Parking are Indirectly Discriminating against disabled people who are in the Protected Characteristics group of disabled consumers at large, in particular those who require the use of a Wheelchairs, Scooters, walking aids and other mobility aids.

Section 19 of the Equality Act 2010, states:

(1) ''A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are - disability...'' (there are other characteristics, but disability is the one that relates to this case).

Indirect discrimination occurs when there is a policy which applies in the same way for everybody but which has an effect which disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. If this happens, the person or organisation applying the policy must justify it. A ‘policy’ can include a practice, a rule or an arrangement.

It makes no difference whether anyone intended the policy to disadvantage a disabled person or not, nor is it an excuse that the Service Provider did not know in advance about the medical conditions and needs of an individual service user.

I believe this operator is 'indirectly discriminating' by offering a service which operates under set policies which put disabled visitors who are reliant on Wheelchairs, Scooters, walking aids and other mobility aids at a substantial disadvantage.

Smart Parking offer a service to the public to park here for a set fee. Their ‘Pay by phone’ Option is - or was at the time of this incident - NOT working and the only alternative offered to the public was to access change from the local surf shop.

Whilst this is possible for many members of the public, it leaves a large group of people at a substantial disadvantage, of not being able to access the Surf Shop, due to the soft sand, uneven surfaces, narrow entrance and other physical barriers. This includes people who are reliant on Wheelchairs, Scooters, walking aids and other mobility aids.

This resulted in Smart Parking offering a service to these people on worse terms than they would offer to the rest of the public because we were penalised for taking longer than the fixed ‘grace period’ to leave once we found the site and method to make payment to park, was inaccessible for me. It is no excuse that a Service Provider did not know about a specific disability because ‘indirect discrimination’ as defined in the EA 2010 relates to consumers ‘at large’. Service Providers have a statutory duty to take proactive steps to consider in advance, the potential needs of the disabled public at large, in order to avoid this form of discrimination.

The fixed Grace Period is also discriminatory. Smart Parking offer a set 10 minute grace period for all service users to read the signs, and choose to agree to the terms of contract, then pay or leave.

Whilst this is possible for many members of the public, it leaves a large group of people at a substantial disadvantage, as 10 minutes is highly unlikely to be enough time for people with mobility impairments, traversing a sandy uneven car park. This includes those people who are reliant on Wheelchairs, Scooters, walking aids and other mobility aids, resulting in Smart Parking offering a service to these people on worse terms than they would offer to the rest of the public.

Smart Parking are using an ANPR Camera recording system to record arrival and exit, using timed photos of vehicles at the boundary of the car park. This system does not always allow easy recognition of a vehicle which is used by a disabled motorist or disabled passenger.

Smart Parking should make more thorough checks of the pictures to assess if the vehicles involved in slight ‘overstays’ possibly may have needed more than the arbitrary 10 minutes grace period. Unlike foot patrolling staff, who can take close up photos and walk around a vehicle to inspect for wheelchair or Motability stickers and/or blue badges and other information needed to see if more time is required.

Whilst ANPR works for many members of the public, it leaves a large group of people at a substantial disadvantage with mobility impairments, as it cannot identify a car with a mobility impaired passenger or driver. This includes those people who are reliant on Wheelchairs, Scooters, walking aids and other mobility aids, resulting in Smart Parking offering a service to these people on worse terms than they would offer to the rest of the public. This too, is indirect discrimination.

Smart Parking are offering a service to the public, so they must - by law - make it accessible to all members of the public, including persons with disabilities. They should not be putting persons with disabilities at a substantial disadvantage, which they are doing in the three ways described above, showing clearly that they are indirectly discriminating against people with disabilities – and in particular, those with mobility impairments.

The £100 charge is therefore unrecoverable in law.



(see next reply for next points)

Coupon-mad

5:- No 'legitimate interest' or 'commercial justification'

No 'legitimate interest' or 'commercial justification' can be reasonably argued, in a case involving disability discrimination. This series of events over a period of minutes cannot reasonably attract any tariff, let alone £100 punitive charge. Clearly this was a PCN which should have been cancelled at the outset when Smart Parking got the appeal. I can only assume the person who rejected it has not been trained in the EA 2010 as regards the need for a ‘reasonable adjustment’ of grace period and they failed to recognise the inaccessibility of the only payment method. Perhaps they pay lip service to disability discrimination, thinking a few disabled bays is all that is required: wrong.

There is certainly no 'legitimate interest' to justify this charge which is out of all proportion to any tariff. The charge being pursued under these circumstances is the very definition of 'unconscionable' as it breaches the EA 2010. This PCN fails the test of reasonableness under the CPUTRs and fails the test established in ParkingEye v Beavis, where at 28 it was held in the Supreme Court:

''A damages clause may properly be justified by some other consideration than the desire to recover compensation for a breach. This must depend on whether the {parking firm} has a legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question.''

Clearly, there is no legitimate interest extending beyond pecuniary compensation, in expecting a person with significant disabilities, and their also disabled carer, to 'perform' the task of leaving as quickly as an able-bodied person could when quickly jumping back into their car.




6:- This is (unlike in the Beavis case) an unfair penalty.

This is (unlike in the Beavis case) an unfair penalty. At the Supreme Court it was held at 107:

''In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute''

But this charge imposed by Smart Parking does 'exclude the right' the consumer (myself) is legally ‘said to enjoy’ under the applicable law, which is the EA 2010 - specific sections on ‘indirect discrimination’ and the duty to make ‘reasonable adjustments’. Therefore, this charge is unfair.



7:- No contract was accepted; unlike in the Beavis case.

No contract to pay £100 was known about nor accepted.

Further, the inaccessibility of the Surf Shop and the out of order ‘pay-by-phone’ facility frustrated any contract to pay the tariff, through no fault of our own.

Unlike in the Beavis case, due to the distress caused by the inaccessible method of payment, the occupants of the car had no opportunity to understand what they would later be held to have 'agreed'. The vehicle left as soon as possible after deciding NOT to stay and the fact the vehicle took some minutes longer to leave than one with able bodied passengers is shown by the video evidence of how long it takes merely to clamp the wheelchair back in place safely. This was not an unreasonable time taken, given the circumstances, which cannot possibly render the registered keeper of this Motability van liable to pay a tariff, let alone an inflated £100 (or £110) charge.




8. The charge exceeds the applicable amount under the BPA CoP

In their rejection letter after apparently ‘considering’ my appeal, Smart Parking informed me that if I did not pay by a date in June, they would add another £10 ‘admin fee’. I did not even receive that letter until after the date specified but it also failed to inform me that in fact, this is a charge merely aimed at a driver, not a keeper (and they know I wasn’t/could not have been driving).

Further, the POFA 2012 sets out that the maximum sum that can potentially be recovered from a registered keeper is the sum of the parking charge as set out in a compliant NTK. By not using a POFA-compliant NTK, this does not allow Smart Parking to randomly add sums for 'admin' to the sum of the parking charge. Indeed, following my appeal, this operator knows that I cannot have been the driver so in fact, this operator has no reasonable cause of action to pursue me/force me to pay them money or undertake a POPLA appeal at all.

Moreover, this now makes the charge £110 which exceeds the sum on signage and exceeds the ceiling set by the BPA CoP. Charges must not exceed £100 except by prior authority of the BPA and parking firms are forbidden from starting debt collection or carrying out ‘work’ on a PCN whilst the POPLA appeal window is open to a consumer.
Therefore, a £10 admin fee cannot possibly be incurred nor reasonably be added at that stage prior to POPLA and the entire charge is clearly a penalty, unsupported by the EA 2010 and the CoP.




9. No landowner authority

Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Smart Parking do not.

Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Smart Parking to strict proof of the contract terms with the actual landowner (not another agent, shop, etc) and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) who has the responsibility for putting up and maintaining signs
e) the definition of the services provided by each party to the agreement
I do not believe that Smart Parking have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.

I hope as a result of this appeal and publicity, that Smart Parking are required to reconsider their fixed grace period policy and their alternative methods of payment when pay-by-phone is out of order. And that they make more thorough checks in future, for stickers and other signs of disability need when scrutinising ANPR images and if a case clearly involves a Motability vehicle, that they do not issue a PCN at all or flag the case file for cancellation if an appellant shows proof of disability.

Coupon-mad

Any typo-spotting or additions or suggestions for Stacey's appeal welcomed from the regulars.

Fruitcake

As usual, that is a most excellent appeal, Coupon-Mad.

I had a quick read and couldn't see any obvious mistakes.

Stacey, you should be proud that C-M's appeal is your own work. You did the research, you asked the questions, you found the relevant information. Obviously C-M deserves credit for compiling the appeal, but the content is yours.

It's a winner.

Well done.

Stacey81

Jumps in me computer gives Coupon mad big hug


I no even read it all yet me just sooo happy happy happy you help me do it


me go read it now hehe


thank youuuuuuu lotssssss

Stacey81

that most bestist appeal EVER thank you LOTS coupn mad and Everyone


me sould add at bottom me think SMART should pay for flowers an chocolates for everyone and BBQ on beach for everyone hehe - me jokin


me no go try remember how make PDF


thank you LOTS for mak it supar awsome

Fruitcake

The number plate is visible on some of the pictures of the van included in the appeal.

As I mentioned earlier, personally I would like to see the Breach of EA 2010 as appeal point 1, and the Lack of Grace period for disabled motorists as appeal point 2.

This will ensure that the breach of EA is actually read by the assessor, and there is every possibility that the lack of grace periods for disabled motorists may win which I think would be extremely useful in the future for other disabled motorists or passengers.

Even if it doesn't win again it ensures that the assessor will read all points concerning disabled occupants of the vehicle.

With regard to the section about grace periods, "disabled access to pay machines" could be included as well as lowered machines for wheelchair users. By not providing disabled/wheelchair access to the pay machine, [STRIKE]Heartless[/STRIKE] Smart Parking effectively introduced a "Frustration of Contract" into the process. The wheelchair user could not get to the pay machine because of [STRIKE]Heartless[/STRIKE] Smart's heartless discrimination against wheelchair users.

From the appeal, "I hope as a result of this appeal and publicity, that Smart Parking are required to reconsider their fixed grace period policy and their alternative methods of payment when pay-by-phone is out of order. And that they make more thorough checks in future, for stickers and other signs of disability need when scrutinising ANPR images and if a case clearly involves a Motability vehicle, that they do not issue a PCN at all or flag the case file for cancellation if an appellant shows proof of disability."

I would also suggest that the BPA re-introduce the clause of the CoP whereby a PCN should be cancelled as soon as the parking company has been made aware that one or more of the vehicle's occupants is disabled/a blue badge holder or the vehicle concerned is provided under the Motobility scheme..

I have read the appeal twice and cannot see any errors.

Stacey81

OK it in a PDF now.


I gots it all in folder so easy for me find to upload,


I gots


1 - me appeal letter
2 - 3 pics of the parking sign ON the sand
3 - pics of ALL the signs on me van
4 - Scans of the original letter asking for money
5 - scans of refusing me appeal
6 - Scans of me blue badge
7 - pic show where me blue badge sits in van


Video is linked to me letter so me no worry bout that.


AND most importants I gots me 2 songs playin whilst me dos this ....
Fight Song - Rachel Platten ans Shawn McDonald - We Are Brave


NOW ME GO ROLL OVER SOME NO SO SMART PEOPLES hehe

Stacey81

OH no they want me phone number???


I no want give them that me NEVER give me phone number ANYONE why they need that?

Stacey81

Can I attach more than 1 file? or do me need put everything in zip folder an attach that?