ParkingEye POPLA Won 2 Lost 1

Edna_Basher

That would be fun

FranzFerdibland

Morning,

Just a heads up that we've had a response from one of POPLA's experts, at long last.

The full text is below (sorry), but basically amounts to, "yeah, that probably was a bit of a daft decision, but there you go."

Dear Franz,

Your complaint about POPLA

Thank you for your email dated 18 January, which has been passed to me by the POPLA Team, as I am responsible for handling complaints.
I can see you have expressed your concerns about a decision that we have recently made (POPLA reference 6062827308). My response to these concerns is below.

First and foremost, I can see that the outcome that you are looking for is for the decision to be reassessed. You will be aware that POPLA is a single-stage determinative process. There is no review process, and we would not seek to review a case unless there has been a procedural error in our handling of the case. I have considered whether there has been a procedural error. I can confirm:

- You were afforded the opportunity to bring your case to us within 28 days of your POPLA verification code being issued.
- You were afforded the opportunity to upload your grounds of appeal and evidence.
- You were afforded the opportunity to comment upon the operator’s evidence pack.
- You were provided with an outcome based on our assessment of the evidence.

As such, you have not been deprived of our process, and therefore the decision will not be reassessed. With this in mind, however, I felt it necessary to provide you with an explanation of our handling of cases where there is a potential principal-agent relationship.
When assessing an appeal, the first activity an assessor will undertake is to establish the identity of the appellant (e.g. are they the keeper, a driver, or potentially an agent). This is important because ultimately it will determine what rules we need to apply to assess the case.

When deciding who we consider the appellant is, we take into account the evidence provided and the circumstances of the case. We do not need the operator to establish this for us, although evidence provided by the operator will naturally assist in our conclusion. For example, if the appellant has never admitted to being the driver, but then admits it in their appeal to us, then we are entitled to treat them as the driver. Similarly, if the operator has treated the person as the driver, but we are only satisfied they are the registered keeper, then we are entitled to treat them as the registered keeper.

Once the assessor has established the identity of the appellant, we would expect them to apply the relevant rules to cover the situation. In the case of a potential agent-principal, this is not based on presumption. Rather, the assessor will establish based on the facts of the case whether that relationship looks to exist. If the circumstances of the case would lead us to conclude on the balance of probabilities that such a relationship does exist, and the appellant is appealing as a representative of the company, then we will look to consider that relationship exists and treat the company as if it was the driver.

You have stated in your response that you consider POPLA treating the driver as being able to enter contracts on behalf of the company as bizarre. However, agency law is a well-established body of law
that aims to meet the needs of day-to-day commercial reality. Fundamentally, companies can
expressly authorise their agents to perform certain duties on their behalf (eg “Deliver this parcel to this address”). This is express authority, but bundled into express authority is implied authority, namely the authority to do what is reasonably necessary to carry out their express authority. It is not a stretch of the imagination to imagine that a driver driving on behalf of a company has the implied authority to enter a parking contract to fulfil their duties.

My view of the individual facts of this case is that I would not have made the decision that this
assessor did. Not least because I take on board the observations of UK Parking Control v XYZ.
Notwithstanding other observations, in your case the parking charge was incurred on a Sunday, and it would have been my view that it is more likely than it is not that the driver was at the material time acting in a private capacity. Nevertheless, and as stated, POPLA is a single stage process and the decision will not change.

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(dot)citizensadvice(dot)org(dot)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,
Sector Expert

That's all, folks.

Back to waiting around for PE to chase, I suppose.

beamerguy

"My view of the individual facts of this case is that I would not have made the decision that this assessor did."


For POPLA to actually put that in writing simply
shows how stupid they are ????

It is like a bunch of caged monkeys in a zoo with
a head keeper just sitting around eating their bananas

POPLA IS JUST A HUGE JOKE

Coupon-mad

Nevertheless, and as stated, POPLA is a single stage process and the decision will not change.

So why not reply, pointing out the one that did change last month?

Can't find it now, would take some searching, but it was one here where the Assessor decided that a keeper was liable, yet there had been no NTK. The decision WAS reversed and not because the appellant was ''deprived of our process'' but because they got it wrong on liability...

POPLA do change decisions, it's rare, but they are lying to say they do not.

Umkomaas

Kind regards,
Sector Expert

Is that literally how the letter was signed off? No actual name?

‘Sector Expert’, what is one of those please?

Edna_Basher

... I am sorry that you feel your experience of using our service has not been positive.

What a lame excuse for an apology from POPLA.

.... we take into account the evidence provided and the circumstances of the case. We do not need the operator to establish this for us, although evidence provided by the operator will naturally assist in our conclusion.

So, POPLA are saying that they will consider evidence regarding a particular point of Law which potentially favours the operator, even if the operator did not establish this. By the same token, if POPLA are to be truly "independent" they must surely consider all relevant points of Law which may favour the "appellant", even if the "appellant" did not establish them for POPLA.

Similarly, if the operator has treated the person as the driver, but we are only satisfied they are the registered keeper, then we are entitled to treat them as the registered keeper.

Applying the "Sector Expert's" logic, in all cases where the driver is not identified, POPLA should automatically check to see if the operator has complied with Schedule 4 of POFA - even if the "appellant" did not establish this. On that basis, every keeper's "appeal" concerning obviously non-POFA-compliant PCNs (e.g. from Highview, Smart etc.) should be allowed.

Also, what about a car park where POPLA has already allowed "appeals" because the signage was inadequate or because the PPC did not have the landholder's authority to operate? Applying the "Sector Expert's" logic, with these points having already been established, then surely every subsequent "appeal" should have to be allowed for PCNs issued at that particular car park without the need for the "appellant" to re-establish them to POPLA.

The "Sector Expert" seems to be leading POPLA down a very slippery slope.

Edna_Basher

Rant (Part 2)

Once the assessor has established the identity of the appellant, we would expect them to apply the relevant rules to cover the situation. In the case of a potential agent-principal, this is not based on presumption.

Yes it is. It presumes that the driver was actually an employee of the company.

Rather, the assessor will establish based on the facts of the case whether that relationship looks to exist. If the circumstances of the case would lead us to conclude on the balance of probabilities that such a relationship does exist, and the appellant is appealing as a representative of the company, then we will look to consider that relationship exists and treat the company as if it was the driver.

What facts? What circumstances? What a load of tosh.

It is not a stretch of the imagination to imagine that a driver driving on behalf of a company has the implied authority to enter a parking contract to fulfil their duties.

It's certainly a stretch of the imagination to imagine that the driver was a) an employee of the company and b) was engaged on company business at the time of the "parking event". After all, on the balance of probabilities, how likely would it be for a driver to be driving on behalf of the company when visiting a retail park, leisure park, hospital, fast food "restaurant", supermarket etc.?

POPLA's promise to the "appellant" is that they will consider only the evidence presented to them, not to imagine, hypothesise or dream up unsubstantiated theories which the "appellant" has no opportunity to discredit.

claxtome

Here is a link to the thread where a POPLA decision was appealed and overturned that Coupon-mad was referring to in post #35:
https://forums.moneysavingexpert.com/discussion/5746596

Coupon-mad

Thanks claxtome, the OP should use that one to say 'it is not true that POPLA does not change your decision on appeal outcomes, here's one from the other week, on a public forum'.

FranzFerdibland

Umkomaas wrote: »

Is that literally how the letter was signed off? No actual name?

‘Sector Expert’, what is one of those please?

There was a name underneath, I just chose to omit it. To be honest, if that were the case, it still wouldn't be the most ridiculous thing about the letter.

Thanks for your input all - I'll respond, noting that overturned decision. I had assumed, given the way that it was put in the letter, that no such instance would have occurred; obviously not.
I won't hold out much hope though.

Surely a response like this, where POPLA actively discredit their own decisions but refuse to change them, would count against them in court?