UKPS TNC Notice to keeper over 200 days later

twhitehousescat

T R Luckins Ltd t/as UK Parking Solutions
Run and owned by Thomas Roy Luckins. Known also as UK Parking Solutions. Graham Luckins is also a Director there. UK Parking Solutions Ltd (08861260) is dormant.

https://beta.companieshouse.gov.uk/company/08861260


although there are simular names

https://beta.companieshouse.gov.uk/company/08197879

I think due to info being outdated or incorrect on parking cowboys / BMPA websites , further research should be done on monday

bimma

How shall I post my draft popla appeal here for it to be checked. Can I add the PDF link or just copy and paste whole lot?

twhitehousescat

just copy/paste , then you can edit out info as needed

Coupon-mad

bimma wrote: »

I went on popla site. Put in ref. It asks to select reason which I selected as I was not driver or registered keeper. It says u must provide evidence ...of who driver was which must be just a generic thing?.

No-one told you to click on that.

We click on 'OTHER' only. You are not arguing that you are neither the driver nor the keeper. Don't muck this up when you actually go to submit the final POPLA appeal as agreed on here one you've shown us your draft for comments.

I think due to info being outdated or incorrect on parking cowboys

Much stuff on the Parking Cowboys website seems to be out of date and no-one should be linking to the pointless 'code checker' anyway.

twhitehousescat

however , when I contacted the BMPA about this the reply was

"Hi

Try Rich at Parking Cowboys. Think he'll have it

Regards

BMPA Support: "


and the reply from parking cowboys was

"The data on the checker might be out of date"


the BMPA made a massive "goof" with brittania parking a few days ago , so "where" is the correct place to get info from ,,,, wiki?

Coupon-mad

The good people at Parking Cowboys and the BMPA host the info & webpages in their own time for the fight against PPCs...although the BMPA stuff is more up to date, in my experience.

I just feel the entire thing here about the POPLA code was a wild goose chase. The person got a POPLA code, who cares what the first 3 digits were really - and no-one needs to be signposted to the 'code checker' anyway, so let's avoid that.

Someone gets a POPLA code, they draft a POPLA appeal, simples.

bimma

Coupon-mad. I'll post my draft on her later this afternoon/evening . for your approval guys and edit/submit towards end of week

bimma

Draft popla appeal

Please bare with me as ive made it long to have more than 1 appeal point although i hope as per your advice that the no keeper liability will win it alone


My details:
details of PCN,
date: 01/07/16 PCN number …………….
issued by UK parking solutions
vehicle reg …………………

As registered keeper I wish to appeal this PCN. I was not the driver at the date/time of the alleged contravention and I am not liable for the parking charge notice on the grounds submitted in this appeal.

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. I am the registered keeper appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''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. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK in the correct time, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


Schedule 4 paragraphs 8(5) or 9(5) of PoFA specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

Schedule 4 Paragraphs 6, 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either

1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked

Based on the above there is No keeper liability ,

I am the registered keeper of the named vehicle ….. and received the notice to keeper on 19/01/17. This was 203 days after the alleged contravention (01/07/16). Therefore clearly exceeding the 56 day time frame of POFA.
Please see Picture evidence of postage envelope from TNC Parking issuing the Notice to keeper and the picture of the Notice to Keeper from TNC Parking services with date. Notice to keeper date 12/01/17, Postage Date on envelope is 17/01/17.
(posted 5 days later).

The copy of the application to DVLA for keeper details shows date of application was 23/12/2016 again proving it was clearly over the time period to hold registered keeper liable.

The parking company or TNC have not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the registered keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the date and time of the alleged contravention. And simply because I received the Notice to keeper 203 days after the event I cannot possibly remember who was driving my car at a specific day over 8 months ago!. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

The creditor must follow the procedures set out in PoFA Schedule 4 to achieve the benefits of 'keeper liability' as described.

Further grounds of appeal




3) There is no keeper liability because the Notice To Keeper was non-compliant with the PoFA 2012 in wording as detailed below.



3a) The Notice to Keeper refers to a private car park but the location is actually a road with through flowing traffic, therefore deemed as a public highway so no restrictions to traffic flow, and trespassing rules do not apply either. See attached picture. Therefore the notice to keeper is non compliant in wording and so invalid.

3b) On the Notice To Keeper, the 'period of parking' i.e time frame is not shown, only the date of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper alleging that the opportunity to pay a discounted amount has been lost”.

Therefore this wording is non-compliant under the POFA 2012, Schedule 4 paragraph 8:”(1) A notice which is to be relied on as a notice to keeper…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;
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available

As No discount has been offered for paying early on the notice to keeper again making it invalid.

6) The notice to keeper must be accompanied by any evidence prescribed in Regulations made under paragraph 10 of Schedule 4 of the Protection of Freedoms Act 2012. As at February 2013 no such Regulations have been made. No evidence of parking was sent to the registered keeper with the notice to keeper, please see attached NTK as evidence.

Later 02/02/17, Two picture were attached to the rejection letter AFTER my appeal to the parking charge company as the registered keeper. Rejection letter pictures evidence attached

6) Lack of signage. no visible signage on road . (various pictures of location attached as evidence to show there are no visible signage on the road to inform the driver of the parking conditions)

7. The sum sought does not represent a genuine pre-estimate of any loss
and yet it is intended as a deterrent, so the charge is a penalty.

The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Normal operational costs and tax-deductible back office function costs, debt collection expenses, etc. cannot possibly flow as a direct consequence of this parking event. UKPS would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The charge that is levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, which states:
“18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.”

I require UKPS to provide a full copy of the, signed and 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 order to refute this it will not be sufficient for UKPS 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.

In the absence of any evidence of contract as above it is my case that they lack any or sufficient proprietary interest in the land.
Also TNC are a member of the BPA, I believe they have breached the code of conduct and acted unlawfully in getting my details from DVLA, and they are stating that as the registered keeper of the vehicle I am liable for the parking charge when I am not.
1) parking charge notice to driver originally issued by uk parking solutions (BPA member, registered as T R Luckins Ltd) on 01/07/16
(I am the registered keeper and was not the driver therefore had no knowledge of this parking charge until January 2017)

2) Notice to keeper issued by TNC Parking Services, BPA member (please see attached document scan of the Notice to keeper. posted 17/01/17, received 19/01/17 which is 203 days after the alleged contravention by the driver . see evidence of date on postal envelope

The v888/2 clearly shows they contacted dvla 23/12/2016 to get keeper details to pursue the parking charge , yet POFA clearly states that for there to be keeper liability the notice to keeper must be issued within 56 days of the original notice to driver.

3) TNC parking services is a trading name for TNC Management Ltd (please see footer of the Notice to keeper ) which are a BPA member hence should have used v888/3 to get the registered keeper details from dvla in order to pursue the parking charge


But they have circumnavigated rules as the copy of the v888/2 form attached clearly shows they are saying they are debt collectors getting details to chase a debt but actually using the information to issue a notice to keeper in which case they should have

a) used the correct form and b) declared they are TNC parking when applying

5) With reference to the V888/2 form attached I will say as follows:

TNC collections: Type of Company: Debt collections agency
Name of body : they put BPA , correct they are a member of the BPA ATA and as such must use V888/3

reason: driver has failed to pay for parking charge notice or provide written appeal within 14 days

use of information: information will be used to contact the registered keeper to obtain payment.
FALSE , the infomation was used to send a Notice To Keeper which is attached as evidence

They have quoted that they are a debt collection , when they are clearly a BPA ATA member and use the name "TNC Parking Services" as shown on notice to keeper

on the dvla site, it states use of forms as:
Form An individual Form V888
A company Form V888/2
A company that issues parking or trespass charge notices Form V888/3


So TNC are clearly breaking DVLA /Data protection rules by using v888/2 as a private company , when they should as BPA ATA members be using v888/3

NO parking company getting details for a parking charge are allowed to use v888/2 , they HAVE to declare their actual interest and use v888/3

Following my appeal as the Registered keeper informing UK Parking solutions that I was not the driver and there is no keeper liability due to the PoFA not being complied to with regards issuing the NTK with the specified time frame ,

The rejection letter from UKPS wrongly informs me the registered keeper that I as registered keeper am "fully liable" for a non-POFA charge: please see page 2 of the rejection letter where I have highlighted their statement.

This is a serious breach of the BPA CoP for a parking operator to tell a keeper they are liable when they are not. and also deemed by me as a unlawfull threat/demand.

When POFA (2012) is not utilised correctly/lawfully, the parking operator is not able to claim that the Keeper of a vehicle is liable for the parking charge notice.

The rejection letter is telling a keeper that they are 'fully liable' for a non-POFA PCN from July 2016, where TNC have only recently bothered to get the data via the dubious excuse of being a 'debt collector' despite in fact using the data to issue a parking charge NTK, not for purposes of debt collection stage.

This PCN should rightfully be cancelled as there is no keeper liability .

In conclusion, I respectfully request that my appeal is upheld and that the charge is dismissed.

Due to the conditions named above not being met I state as Keeper I am not liable for this charge.



evidence:

1) notice to keeper pdf with envelope pic
2) rejection letter with popla code

3) v888/2
4) various pics of location both off google and my phone showing no signs


should i include the recent letter from tnc demanding more money even though its at appeal ? anything else to include?

thanks

Coupon-mad

Remove these two whole chunks which are not valid as appeal points (you don't need this first stuff because th NTK was so late):

3) There is no keeper liability because the Notice To Keeper was non-compliant with the PoFA 2012 in wording as detailed below.



3a) The Notice to Keeper refers to a private car park but the location is actually a road with through flowing traffic, therefore deemed as a public highway so no restrictions to traffic flow, and trespassing rules do not apply either. See attached picture. Therefore the notice to keeper is non compliant in wording and so invalid.

3b) On the Notice To Keeper, the 'period of parking' i.e time frame is not shown, only the date of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper alleging that the opportunity to pay a discounted amount has been lost”.

Therefore this wording is non-compliant under the POFA 2012, Schedule 4 paragraph 8:”(1) A notice which is to be relied on as a notice to keeper…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;
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available

As No discount has been offered for paying early on the notice to keeper again making it invalid.

6) The notice to keeper must be accompanied by any evidence prescribed in Regulations made under paragraph 10 of Schedule 4 of the Protection of Freedoms Act 2012. As at February 2013 no such Regulations have been made.

and this is not worth arguing, following the Beavis case:

7. The sum sought does not represent a genuine pre-estimate of any loss
and yet it is intended as a deterrent, so the charge is a penalty.

The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Normal operational costs and tax-deductible back office function costs, debt collection expenses, etc. cannot possibly flow as a direct consequence of this parking event. UKPS would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The charge that is levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, which states:
“18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.”

Once they are removed, re-number the appeal points as they are confusing, some numbers are repeated!

bimma

ok ive removed those and re-edited it so it flows better.
as to the evidence to submit
my main appeal point is the no keeper liability so just submit the ntk, pic of evelope with date showing, the v888/2 form, the rejection letter
and some pics of the road showing location/lack of signs
is that sufficient?