ParkingEye POPLA Won 2 Lost 1

Castle

I think the Consumer Rights Act 2015 could be useful here with reference to part 4 of key definitions:-

"4)A trader claiming that an individual was not acting for purposes wholly or mainly outside the individual’s trade, business, craft or profession must prove it."

http://www.legislation.gov.uk/ukpga/2015/15/section/2/enacted

DoaM

FranzFerdibland wrote: »

If, for example, there was evidence that the driver probably was an employee, in the shape of two of our vehicles being on the site at the same time, and both going through the same appeals process, would this entirely nullify the argument that the driver could have not been an employee, for the purpose of this letter?

IMHO that's a side show to the main fact ... the main fact being that PE didn't even try to argue the point of the driver being an employee - the assessor raised it all by himself! As there was no evidence (from either claimant or defendant) on that matter then the assessor had no right to consider it.

Edna_Basher

DoaM wrote: »

.....the main fact being that PE didn't even try to argue the point of the driver being an employee - the assessor raised it all by himself! As there was no evidence (from either claimant or defendant) on that matter then the assessor had no right to consider it.

Bod's spot on.

The defendant can only respond to the arguments and evidence presented by the PPC. It's farcical that the so-called "independent and impartial" adjudicator should be introducing additional arguments in favourof the PPC (which the PPC did not itself put forward).

To add insult to injury, POPLA introduced its new "reasoning" at a stage in the process where the defendant had no further opportunity to respond.

The_Deep

Grist to the mill should it get to court. The longer this goes on, the more judges will recognize the whole process as a scam.

Edna_Basher

Thanks TD. I have no doubt that should this ever go to Court, PE would lose. However, why should it have to come to that? Why should we have to waste further time and effort as a consequence of POPLA's failure to provide a fair dispute resolution process?

Franz - for your information, we've received POPLA's response to our complaint to Mr. Gallagher. As expected, it was intercepted by one of POPLA's complaints handlers. Needless to say we were underwhelmed.

Dear Edna,

Your complaint about POPLA

Thank you for your email dated 18 December 2017, which was passed to me by the POPLA team as I am responsible for responding to complaints.

I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Parking Eye.

Following some recent guidance from our Sector Expert, [XX], we have adopted a different approach to how we assess an appeal where the vehicle is a company vehicle and the company itself is appealing against the Parking Charge Notice (PCN). In the Notice to Keeper, I can see that the operator invited you to identify the driver. Instead, the company itself continued to appeal against the PCN on behalf of the driver.

The only reasonable conclusion was that the driver was an employee of the company undertaking duties in accordance with his or her employer’s wishes. As an agent of the company, the driver had the authority to enter into contracts on its behalf. As such, our assessor has assessed the company’s liability for the PCN as if it were the driver of the vehicle.

As a result, your comments regarding the Notice to Keeper not meeting the requirements of the Protection of Freedoms Act 2012 (PoFA 2012) are irrelevant, as PoFA 2012 would only apply when the driver is unknown.

Ultimately, I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct. As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

In closing, I am sorry that you feel your experience of using our service has not been positive. However, we have reached the end of our process and my response now concludes our complaints procedure.

I trust you will appreciate that there will be no further review of your appeal and it will not be appropriate for us to respond to any further correspondence on this matter.

Kind regards,

[XX]

POPLA Complaints

We've already fired back an escalation of our complaint, once again requiring a personal response from Mr. Gallagher - given the serious implications of POPLA's adoption of a "different approach".

In their recently-published Annual Report 2017, POPLA state that we recognise that we are in an era of consumer distrust and this is evident across all sectors within which Ombudsman Services operates. Consumers are not just dissatisfied, they are angry and technology is giving them the tools to take out their frustration on businesses, parking operators and even the service providing an independent review. Over the past 12 months, POPLA has seen increased anger from members of the public.

If POPLA carry on delivering an unfair and unsafe "appeals" process, they can only expect the public's anger to grow.

Coupon-mad

So, POPLA's ''Sector Expert'' moved the goalposts (with zero warning) for companies appealing and decided that a company 'MUST' therefore be wrongly assumed to always be appealing for an employee (not an employee's wife doing her shopping, oh no, and never mind if it's 9pm on Boxing Day, it MUST be a company employee driving as part of their job...).

And as such, Mr Sector Expert reckons that they can pretend the driver is 'known' because they think the firm has put themselves in the driver's shoes? So chuck POFA out the window then? Pretend a commercial entity was ''the driver''?

And POPLA now reckons that EVERY company has decided to appeal 'on behalf of' the driver (an assumed employee, but half the time that would be wrong), even though they haven't, and never said they did in the POPLA appeal webpages, where it specifically asks 'are you appealing on behalf of someone?' and your firm would always opt for 'NO'.

Whaaaaat??!

ISPA would turn in their grave at this ''Sector Expert'' - and who is that person, an 'expert' PPC plant feeding POPLA a line?

What's this Sector Expert's name, Edna?

Edna_Basher

Astonishing isn't it? I doubt that even the IPC's "Independent Appeals Service" would have thought to pull a stunt like this.

I don't think the MSE Forum Police would like it if I named the "Sector Expert" here. However, I believe that his name has appeared in the Completed Case Summaries over on pepipoo.

nosferatu1001

Yikes. That’s appalling.

So they’ve decided to create a hodgepodge of

Driver known...erm, no. They’ve decided the company was the driver, yet the company cannot have been but hey, throw enough crap some of it might stick...

Mixed up with

Law of agency to decide it’s ALWAYS an employee ALWAYS on company business

Gah. What a COMPLETE load of tosh. I find it difficult to believe the person writing that didn’t throw up , it’s so distasteful.

That’s not just professional negligence. That’s malfeasance. They’re making stuff up to satisfy the people that pay the bills. I hope the ppc try court. The counter suit dragging popla in - as well as PE for allowing popla to do 5his - would be hilarious.

FranzFerdibland

Huh. I think Coupon-mad has summed up everyone's feelings on this one already, but it does appear to be absolutely bonkers.

I've not yet sent our letter, but I'll do so anyway, and see if the riposte is the same.

Again, we had exactly the same situation overturned twice about ten days before that decision, on the grounds that the driver wasn't identified. At what point this sea change came into force, and why no one appears to have been warned about it are both beyond me.

In terms of escalation, did you just email pack asking for a personal response from Mr Gallagher? Interesting to see how they handle that. One suspects these might end up in court, if they're heading everything off at the pass in the above manner.

It really is astonishing stuff; "the only reasonable conclusion..." section is unfathomable. Particularly when the PPC did not ask for proof otherwise during the POPLA process. Evidence-based my eye. I can't see that the omission of driver's name/ details in the first instance could ever lead to that end.

You'd suspect that a number of companies had been using the POPLA argument, and that therefore, we should see more rejections showing up on these grounds. How exciting!

Umkomaas

It seems that a court has already given a judgment in a case with similar circumstances - and it doesn’t make good reading for POPLA’s ‘Sector Expert’.

http://parking-prankster.blogspot.co.uk/2017/12/company-not-liable-for-drivers-personal.html