Secure-A-Space PCN

PDid

Hi - this is my first PCN and I've done quite a lot of research before getting this far including reading many of the threads but nothing quite matches my issues.


In a nutshell SAS issued me with a PCN in Feb 17 because my valid parking permit fell off the dashboard onto the car floor. I found the attendant on site and he refused to do anything about it. The appeal to SAS was rejected as was the POPLA appeal. SAS have now sent me a letter threatening me with court action if I don't pay soon.


Would appreciate some advice on whether to take it to court and if so what my best defence would be or whether to take a different course of action. I'm writing back to SAS to tell them I won't be paying until it goes to court and to make a formal complaint given various issues along the way. Incidentally as part of the correspondence with them I enacted an appeals process against them and wondered if this is likely to success if I take them to small claims court.


I'll post further details on the case and appeals process. Thanks Steve

PDid

Background
I am a Nuffield gymn member and only park on the Princess Park Manor site in Friern Barnet to use the gymn for approximately 45 minutes most weekends. I have a parking permit (issued on 15 January 2017 for one year) which I display in my car every time I use the gymn.
PCN Issuance
On Sunday 19th February 2017 I used the gymn between 9.30am and 10.15am and when I got back to my car I had received a PCN dated 10.05am. The permit had fallen onto the car floor, but was clearly visible from outside the car through the driver window, while I was in the gymn. I found the person who gave it to me still on site, showed him the valid permit and asked if he could cancel it and he told me to contact the parking company as soon as possible through the appeals process detailed on the PCN with evidence of my permit.
Following this discussion I sent an email at 10.52am to the Secure-A-Space (SAS) email address as instructed with photographic evidence of the permit, explaining the situation with a physical description of their site staff member.
An appeal rejection was sent to me by email on the 24th February. This is my first ever PCN which puts me at a considerable disadvantage to a full-time parking management company which runs its own appeals process and I don’t think they considered my appeal appropriately.
Following the appeal rejection I asked a number of questions to SAS and have received a number of unsatisfactory and unprofessional replies contrary to section 22 of the BPA code of practice, causing me considerable stress and anxiety, which are attached as evidence.
I then went on holiday from 8th to 16th March and visited the gymn for the first time since the PCN on Saturday 18th March to gather evidence for the POPLA appeal as SAS rejected all my requests for evidence. There are no longer any SAS warning signs on site including the entrance sign, presumably as SAS is no longer employed by the site, which has limited my ability to make an appeals case based on the inadequate warning signs.
POPLA Grounds For Appeal

• I had a valid permit and I can’t reasonably be held responsible what happens in my car while I am not in it. I made every reasonable effort to show my valid permit to the Secure-A-Space staff member on site after I realised it had fallen off the windscreen. The “contractual agreement” is unfair placing a responsibility on me for what happens to the permit while I’m not in the car given my car could be tampered with or natural causes may cause the permit to become not clearly displayed as in this case. In addition if the site staff had looked through my car windows (per section 20.5b of the code of practice) they would have seen the valid permit on the car floor.
• The “contractual agreement” terms sign that I was sent an image of is invalid and ineffective for a number of reasons:
  1. The top of the sign says “this car park is managed by”…. – however I saw nothing to indicate this is a car park or the area of the car park. As far as I understand the site is mixed use with residential property, a gymn and residential and other parking. I have asked SAS for clarification on the term car park and they have declined to answer. There are no bays or markings near where I parked showing a car park or where I can or cannot park e.g. the large grass area in my photo evidence.
  2. For a contract to be valid the parties to the contract have to be clear. There is no definition of who “You” is. And although “SECURE A SPACE” is mentioned on the sign it is not clear if the driver has a contract with them (ever though that is just a collect of words rather than an entity) or the landowner. Moreover, “SECURE A SPACE” is not a person (individual or company). As far as I understand the name of the parking company involved is “SECURE-A-SPACE LIMITED” but that this entity is a party to the “contract” is in no way clear.
  3. It is an unfair contract as noted above as it places responsibility on the driver for continued displaying a permit on the windscreen while the driver is not in the car.
  4. The PCN describes the signs as “warning notices” at the top of the notice which suggests they are warnings rather than contractual agreement signs therefore invalidating them. The company has stated that the signs are a notices of contractual agreement which is again confusing.
  5. As mentioned above all signs have been removed from the site during the appeals process which unfairly prejudices my ability to appeal given that I have asked SAS for evidence which have they have not provided to me. I also question whether the company is employed by the landowner given the lack of signs and no evidence of the agreement between them.
  6. I did not enter into a contract with the company or the landowner in any case as the minimum requirements of forming a contract were not satisfied such as a meeting of minds, agreement and certainty of terms.
  7. I saw no required entrance sign, was sent no evidence of it and there is now no evidence of the required entrance sign on the site per section 18.2 of the BPA code of practice.
  8. As the signs no longer exist on the site I can’t measure them to make sure they meet the minimum requirements per section 18.3 of the BPA code of practice.
  9. I can see no evidence on the BPA website that “Secure-A-Space Limited” is a BPA approved operator as claimed on their sign – on 3 March Secure-A-Space is listed but all the limited companies seem to have their full legal names sometimes noting what I assume are their trading names other than Secure-A-Space Limited.
• The amount of the charge in the PCN is disproportionate, unreasonable, arbitrary, unjustifiable and punitive contrary to section 19.5 and 19.6 of the BPA code of practice - £100 for under 1 hour parking is not fair as noted in my emails especially as I had a valid permit on display in my car when I went into the gymn. I have not deprived the site of any revenue or incurred it any losses or damages as there are always spaces to park and has never been full when I’ve visited at the weekends (as evidenced in my photos) and I would not park on the site unless I was visiting the gymn for which I have a valid permit.
• SAS have been very unprofessional in their dealings with me since sending the PCN which I think breach a number of BPA codes of practice (particularly section 9.1 in dealing with drivers in a professional way):
  1. Lack of appropriate explanation of the appeals process for someone who has received a PCN for the first time and the types of evidence that should be produced.
  2. Lack of thorough review of my appeal – there was no evidence that they communicated with their staff on site for example.
  3. Lack of thorough review of my email correspondence including sarcasm about my ability to follow their appeals process (I sent my information request and follow up to their enquiries email address not their appeals email address as they claimed) which was wrong.
  4. Basic spelling mistakes in emails sent by SAS.

• 1. They refused to answer my reasonable email questions as they said I had been “furnished with all information” which in my opinion was not true.

• 1. They didn’t inform me they were no longer working for the landowner – if they had I would have been able to collect more evidence for the POPLA appeal while the signs were still in place.
  2. Their on-site staff did not have a visible photo ID required as required in section 9 of the BPA code of practice.
  3. The plastic PCN envelope (photo in the evidence document) implies they are acting under legal authority by the word “must” (contrary to section 20.5c of the BPA code of conduct).
  4. The rejection letter said I needed to pay the full charge by 24/3/17 (28 days after the rejection letter) but the code of practice section 22.12 recommends at least 35 days from the rejection date.
  5. I believe the company has been deliberately misleading me as to this being a penalty charge notice instead of a parking notice by telling me by email I have no choice to reject the notice (which I have a perfect legal right to do) and given I was told to go straight to the appeals process by SAS staff on site rather than the possibility of just rejecting the notice. SAS also emailed me on 20th February 2017 saying my driver address was “required”. This is not required and was therefore an illegal and misleading statement. I also believe it is in breach of code of practice section 14.

I will be separately complaining to the BPA due to the unprofessional conduct of SAS and taking legal action against them.

PDid

Dear Sir/Madam,
Thank you for your email of 24th February 2017. I am very surprised with your decision to reject my appeal for a number of reasons:
1) I had a valid permit which I showed to your employee while he was on site as explained in my appeal. If your service is meant to ensure that authorised visitors are parked on the site then your decision is unreasonable as I had a valid permit albeit at some point while I was in the gymn it fell on the car floor. If your service is meant to be protecting the revenues of the site this is also unreasonable as I have visited the site on a number of occasions and there are always available parking spaces so I have not deprived the landowner of any revenues or incurred it any losses or damages.
2) The photo of the sign you sent me does not mention who the contractual agreement is between (“You” is that the driver or motor vehicle owner, is it with Secure A Space or the landowner?) and also does not even include the name of your company “Secure-A-Space Ltd” per the Companies House website or the land owner. It therefore does not constitute a valid contract.
3) Your sign states “car park” – it is very unclear what part of the site constitutes a “car park” – your notice says it is a breach of the “terms and conditions of the car park / private area” which is contrary to the sign and therefore causing significant confusion.
4) Your notice says “the terms clearly displayed on warning notices provided” – your company have stated the signs are meant to be a notice of a contractual agreement not a warning sign. It certainly doesn’t say “warning sign” on it and is therefore confusing.
5) I did not enter into a contract with your company or the landowner in any case as the minimum requirements of forming a contract were not satisfied such as a meeting of minds, agreement and certainty of terms.
6) Your 'Parking Charge Notice' is very unclear as to whether it is an invoice pursuant to a contract or does it have some other status? If your notice constitutes an invoice for payment your invoiced charge should include an element of VAT as a VAT registered limited company. However, your parking charge notice does not state a VAT registration number or a VAT amount and so does not appear to be a valid demand for payment.
7) Over and above these points I consider the notice claim to be disproportionate, arbitrary, unjustifiable and punitive and therefore void and unenforceable - a £100 invoice for under an hour of parking while I was at the gymn is hugely out of line with surrounding parking facilities. As such the large sum demanded amounts to a penalty and/or is not an accurate reflection of any loss suffered so it is not a reasonable charge. It is also be an unfair term (and therefore not binding) in breach of the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term." The charge you are levying is also an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
In light of these issues and your vexatious action I reject your notice, request cancellation of the notice by the end of Monday 6th March and will be complaining to the landowner and appealing to POPLA.
In order to appeal to POPLA I will need the following information from your company:
1) A detailed breakdown of the demanded £100 parking charge so that I can consider further whether it amounts to a penalty, comparing it to 45 minute parking charges nearby, and a breakdown of the resultant financial losses incurred. Please also provide details of how / why these losses are recompensed by payment of a fixed sum no matter whether the alleged contravention was trivial or more serious, and further how that can amount to a genuine pre-estimate of loss. Also similarly please explain the losses incurred and resultant calculation of the £60 and £45 fixed sums mentioned in your documents.
2) Clarification of your 'Parking Charge Notice' – is this an invoice pursuant to a contract or does it have some other status? If it is the latter, please clarify exactly what you say it is.
3) Explanation why the notice does not include a VAT amount or the VAT registration number
4) A detailed description of the term “car park” in general and in relation to the site as there don’t appear to be any road markings showing a car park in the sections of the site where the signs you sent me photos of are placed. It is very unclear what part of the site constitutes a “car park” – your notice says it is a breach of the “terms and conditions of the car park / private area” which is contrary to the sign – please clarify.
5) Your notice says “the terms clearly displayed on warning notices provided” – I thought you are saying that the signs are notice of a contractual agreement not a warning sign. It certainly doesn’t say “warning sign” on it. Can you clarify?
6) Full details of the legal owner of the land and specifically the car park / private area as I wish to send them a copy of my correspondence with you
7) A copy of the full terms and conditions for use of the land where I was allegedly parked in breach of an agreement
8) A copy of your certificate of membership of the BPA and proof of your current “approved operator” status
9) A copy of your standard appeals procedure, evidence that it was followed correctly including as a minimum what factors were taken into account, who is the judge or arbitrator and whether they are independent and confirm whether or not it complies with the Arbitration Act 1996.
10) A copy of your protocol which your enforcement operators are required to follow
11) A copy of the contract which you allege I entered into when I parked as your sign does not constitute an effective contract as explained above
12) A copy of your contract with the land owner which authorises you to act on their behalf in the management of this car park / private area
13) Details of any codes of conduct by which you claim to comply
14) A copy of all of the images that you have of my vehicle and other data you hold relating to me entitled to me under section 7 of the Data Protection Act 1998
15) A copy of your procedures for handling all personal data such as images of my vehicle and confirmation that this is not disclosed to any third parties
Please provide this information within 10 calendar days of receipt of this email so that I can prepare my appeal to POPLA. If you are unable to provide any of the requested documents please provide a detailed reason for each omission. A failure to provide any of the information requested above within 10 calendar days will be deemed an implied agreement on your part to cancel this “notice”.
Any other contact by your company, other than confirmation of cancellation, a cancellation letter and answers to my questions, will be deemed as an appeal of my rejection of your notice and subject to the following terms and conditions:
·All appeals are subject to a £54 Appeal Registration Fee (ARF) that, by submitting an appeal, you agree to pay.
·The ARF has been determined utilising the court rate of £18 per hour for a three hour period to cover the processing and consideration of your appeal of my rejection of your “notice”, and any subsequent acceptance or rejection response which is required.
·The ARF must be paid at the time the appeal is registered, by cheque (made payable to ‘XXXXXXXXXXXX and sent to my address.)
·Any appeals received without the relevant ARF will not be considered, but the ARF will remain payable, along with an additional £18 administration charge for any and each subsequent communication or appeal received without payment.
·In all cases, an individual invoice will be prepared and submitted for each subsequent appeal received. The administration charge per invoice has been determined utilising the court rate of £18 per hour for one-half hour in preparation of the invoice, plus £9 to cover postage costs by Royal Mail Special Delivery. Failure to pay this invoice may result in your case being transferred to a debt collection company or to further legal proceedings where additional costs could be incurred.
For the avoidance of doubt, any correspondence or contact received from yourselves (Secure-A-Space Ltd) or by agents acting on your behalf (including, but not limited to, debt collection companies) by either post or email will be considered as an appeal and thus subject to the ARF that, by submitting said appeal, you will have agreed to pay. Note that the ARF is non-refundable, regardless of the outcome of your appeal.
If you decide not to cancel the notice by the end of Monday 6th March for whatever reason the following terms and conditions will also apply:
·You may not send me any document purporting to be from the County Court unless it is a valid Claim Form duly issued.
·You may not communicate with me threatening to send round bailiffs without first going through the process of issuing a Claim Form and obtaining judgment
·You may not send me any standard communications including letters either from yourselves or debt collectors without addressing the specific points raised in this email
This vexatious action is causing me considerable stress and anxiety with the wording of your correspondence threatening “debt recovery procedures… court action and …. further charges”. I will hold your company fully liable for any stress related injuries and any loss of earnings due to this action.
In addition I will remind you of the obligations set out in the Practice Direction on Pre-Action Conduct
Yours Faithfully,

Umkomaas

Not sure what 'legal action' you are intending to take against SAS. Can you elaborate?

In terms of where this goes from here, SAS are in the driving seat and you need to see what their next move is. If they issue court proceedings, you formulate your defence then.

Look at their past court performance, then do the math on whether your case might be only their second venture ever into a courtroom (and there's no information available as to whether their first attempt was a parking-related case; it might just as likely be a supplier or contractor issue).

http://www.bmpa.eu/companydata/Secure_a_Space.html

Have you asked the gym to intervene and get the charge cancelled (or the landowner if it's not the gym that contracted with SAS).

PDid

Thanks for the reply and the link. I kept the legal action part deliberately vague but considering a claim for stress/loss of earnings. Also breach of contract for my appeals process although not sure how valid that is.


Yes I approached the gymn and there is nothing they can do as SAS were employed by the landowner. I approached the landowner who again said it was out of their hands and with SAS. SAS had their contract terminated by the site shortly after I received my PCN which meant I had no opportunity to take photos of their signs before the POPLA appeal.


I'm going to persevere as I had a valid permit and it's not my fault it fell to the floor - given the number of mistakes they've made subsequently I'll take my chances in Court.


Thanks again for your help

Coupon-mad

SAS had their contract terminated by the site shortly after I received my PCN

That's very telling.

I'm going to persevere as I had a valid permit and it's not my fault it fell to the floor - given the number of mistakes they've made subsequently I'll take my chances in Court.

Glad to hear it, that's the attitude we encourage, you have nothing to lose and everything to gain by defending. Dodgy signage often wins cases and even though they removed the signs now, you may be able to Google and find another forum thread with images on it from this place. And if they try a claim, they will eventually have to send you pics of the signs anyway, before the hearing.

Cases have also been won on the fact that the 'permits' are deliberately(?) flimsy and no method of securing them to a dashboard or windscreen is supplied. There's no law on it but the argument there is that this issue is actually caused by the claimant, and is outside of the control of a consumer.

PDid

Thanks for the encouragement and the advice! Good point on the permits - mine had no method for securing which I'll try and use as well. Cheers!

Half_way

even though they were given the boot, you should try to get the landowner to cancel, or at the very least issue a statement saying they want it cancelled and don't support SAS taking this further.
this will give you plenty of ammunition should SAS continue, for things such as harassment/dpa breach etc, as long as you set things up for that.
It also gets the gym/landowner off the hook so potentially a win win for all.

PDid

I've tried already - this is what I got back from the landowner originally:


"Your complaint has been passed to my office for comment.
As you rightly note, the matter is dealt with by Secure-a-Space who control parking on the site as a third party parking management contractor.
Whilst we retain some degree of influence with the contractor during the early stages of any matter of ticket issue (the first three days); we have no influence thereafter.
Secure-a-space has their own appeal procedurre which is augmented by the POPLA independent appeal process; neithed of which we are involved in.
My understanding from Secure-a-space is that the details for the POPLA appeal procedure are contained within the appeal rejection letter. This will be your best course in the event of further appeal.
The parking management is handled by the contractor issuing the notice, as are any matters of appeal; with the added level of POPLA.
Thus, whether we regard the circumstances in your case as fair has no relevance since we have no mechanisms to deal with it (or intervene) in a contrary manner.
In terms of what we intend to do about it; there is nothing we can do about it.
The Secure-a-space contract for PPM has not been renewed and the parking on site will be handled by Fencrest, which will provide us with direct access so as to manage matters like this going forward.
That does not however mitigate your matter since it was within the Secure-a-space management period. You would be best advised to go to POPLA if you believe that you have a case."


But based on what you've said I've just gone back to them again to ask if there's anything they can - they seem to have washed their hands of it though. By the way it took me more than 3 days to get to them as they just ignored my emails until I emailed the right person......

PDid

They've just replied back and said:


"The position remains the same as my previous e mail of 20th March.
You have appealed to POPLA and had the appeal rejected. Now, I note your comment about believing their reasons to be incorrect; that is between you and POPLA.
You have listed out a comprehensive complaint which presumably was sent to POPLA; thus there can be no assertion that they were working without full particulars. POPLA are the independent adjudicators in such matters and it would not be for us to second guess any matter once referred to them.
We do not have the power you suggest without defraying the costs of the matter ourselves, which we will not be doing."


Does anyone know if that latter part is correct? Or is there something the landowner can do to stop the parking charge company from pursuing?

Umkomaas

Looks like you're going to have to ride this out. You'll likely get an initial 6 months of debt collector letters, but after that it should go quiet.

Be watchful for any court claim - but vanishingly unlikely, given the SAS past track record. They do have 6 years to lodge one.