CEL Ignored my Appeal

ML_123

My wife received a PCN from Civil Enforcement LTD for an overstay (12 minutes) in our local council run leisure centre car park. She has a disability and is the registered user of the Motability car we lease (the named Driver was driving it that day therefore didn’t use the Blue Badge).
An appeal went up on CEL’s website form citing mitigating circumstances (my daughter was genuinely ill on –site and the driver needed to attend until she was better, resulting in the overstay), poor signage (true) and that the charge is disproportionate and not commercially viable (£100 charge for a 12 min overstay). They responded via post only asking for medical evidence for my daughter’s illness and ignored the other 2 appeal reasons.
The driver then wrote back and asked what medical evidence could be offered as the overstay happened on a Sunday and GP surgeries are closed, also explaining that they hadn’t responded to the other 2 points of the appeal.
Another letter came back simply saying I had failed to offer medical evidence and that the appeal has now been referred to POPLA and now need some advice as I feel CEL has no grounds to ask for medical evidence while ignoring the other appeal reasons.:mad:

ML_123

waamo

Your first port of call is post 3 of the thread at the top of this board that tells Newbies to read it first. For ease here it is https://forums.moneysavingexpert.com/showpost.php?p=64350600&postcount=3

peter_the_piper

2nd port of call is to remove all indications of who was actually driving in your 1stpost. CEL look on here. Use "the Driver" etc.

tboo

Sorry but what’s the point in changing the original post now as the op has already told them who was driving.
Subsequent help from the forum has to know this surely?

Coupon-mad

Has the OP told them who was driving, though? Did the POPLA code go to the driver, or did the appellant appeal properly in the name of the keeper, who now has a POPLA code?

Opportunity for 100% POPLA win thrown in the bin if they mucked this EASY first stage up. Not insurmountable, but naive and happens far too often. Still winnable but harder.

ML_123

Appellant appealed in the name of the driver not keeper. Therefore POPLA code addressed to driver

Coupon-mad

Same as the Smart Parking one I just replied on then. Read it. Same as this one, except yours is with CEL. Same facts, same mess of a wrong person appealing.

You had 100% win guaranteed and you threw it away (gaaaahh!!! again we see this, you came here too late!) so now copy any CEL POPLA appeal and hope the length of the usual POPLA appeals here, sees it off.

Show us the one you copy. The words in bold are your advanced search keywords.

ML_123

Appreciate your advice!

ML_123

Hi, after several hours reading this excellent forum, could you review the below for my cel POPLA appeal? To re-cap I received a postal PCN with ANPR time stamped images (12 mins over) and foolishly submitted my name as driver (massive newbie learn that one, I know) in the original cel appeal, so presumably I can’t use these 2 reasons as my POPLA appeal?:
1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates
2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.’ From a previous poster.

I will also add Coupon _mad's excellent response around signage (I can't fit it here as my character count would exceed 25000!) Links also omitted.

Many thanks for any advice offered…..

POPLA Ref <ref>
Civil Enforcement Parking Charge Notice no <ref>

A PCN was issued on <date> and received the registered keeper of <reg> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at <location>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.


Grace Period: BPA Code of Practice–non-compliance
The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.
BPA’s Code of Practice (13.1) states that:
“If a driver is parking without your permission, or at locations where parking is not normally permitted they must have the chance to read the terms and conditions before they enter into the ‘parking contract’ with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.”
BPA’s Code of Practice (13.2) states that:
“If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes.”
BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”
The BPA Code of Practice (13.2) and (13.4) clearly state that the Grace Period to enter and leave the car park should be a minimum of 10 minutes. Whilst (13.2) and (13.4) do not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period each should apply to (13.1) BPA’s Code of Practice.
Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA):
“The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”
“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”
It is therefore argued that the duration of visit in question (which Civil Enforcement Ltd claim was 12 minutes) is not an unreasonable grace period, given:
a) The lack of sufficient entrance signs and specific parking-terms signage throughout the car park in question (non- compliance with BPA Code of Practice 18.2 and 18.3) and the impact of that upon time taken to locate signage prior to entering into a contract.
b) There are no marked parking bays in some of the venue which causes confusion to the applicability of the Civil Enforcement Ltd’s contract, that was never entered into in the first place.
c) The lengthiness of Civil Enforcement Ltd’s signage (in terms of word count) all written in tiny text the across of the sign
All factors discussed above serve merely to increase the time taken to:
Locate a sign indicating entrance
Locate a sign containing the terms and conditions
Decipher the confusing information being presented
Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

Failure to comply with the data protection 'ICO Code of Practice' applicable to ANPR (no information about SAR rights, no privacy statement, no evaluation to justify that 24/7 ANPR enforcement at this site is justified, fair and proportionate). A serious BPA CoP breach
BPA’s Code of Practice (21.4) states that:
“It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
Be registered with the Information Commissioner
Keep to the Data Protection Act
Follow the DVLA requirements concerning the data
Follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks
The guidelines from the Information Commissioner’s Office that the BPA’s Code of Practice (21.4) refers to is the CCTV Code of Practice found at:

The ICO’s CCTV Code of Practice makes the following assertions:
“This code also covers the use of camera related surveillance equipment including:
Automatic Number Plate Recognition (ANPR);”
“the private sector is required to follow this code to meet its legal obligations under the DPA. Any organization using cameras to process personal data should follow the recommendations of this code.”
“If you are already using a surveillance system, you should regularly evaluate whether it is necessary and proportionate to continue using it.”
“You should also take into account the nature of the problem you are seeking to address; whether a surveillance system would be a justified and an effective solution, whether better solutions exist, what effect its use may have on individuals”
“You should consider these matters objectively as part of an assessment of the scheme’s impact on people’s privacy. The best way to do this is to conduct a privacy impact assessment. The ICO has produced a ‘Conducting privacy impact assessments code of practice’ that explains how to carry out a proper assessment.”
“If you are using or intend to use an ANPR system, it is important that you undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary.”
“Example: A car park operator is looking at whether to use ANPR to enforce parking restrictions. A privacy impact assessment is undertaken which identifies how ANPR will address the problem, the privacy intrusions and the ways to minimize these intrusions, such as information being automatically deleted when a car that has not contravened the restrictions leaves a car park.”
“Note:
... in conducting a privacy impact assessment and an evaluation of proportionality and necessity, you will be looking at concepts that would also impact upon fairness under the first data protection principle. Private sector organisations should therefore also consider these issues.”
“A privacy impact assessment should look at the pressing need that the surveillance system is intended to address and whether its proposed use has a lawful basis and is justified, necessary and proportionate.”

The quotations above taken directly from the ICO’s CCTV Code of Practice state that if Civil Enforcement Ltd wish to use ANPR cameras then they must undertake a privacy impact assessment to justify its use and show that its introduction is proportionate and necessary. It also states that Civil Enforcement Ltd must regularly evaluate whether it is necessary and proportionate to continue using it.
It therefore follows that I require Civil Enforcement Ltd to provide proof of regular privacy impact assessments in order to comply with the ICO’s CCTV Code of Practice and BPA’s Code of Practice. I also require the outcome of said privacy impact assessments to show that its use has “a lawful basis and is justified, necessary and proportionate”.
The ICO’s CCTV Code of Practice goes on to state:
“5.3 Staying in Control Once you have followed the guidance in this code and set up the surveillance system, you need to ensure that it continues to comply with the DPA and the code’s requirements in practice. You should:
tell people how they can make a subject access request, who it should be sent to and what information needs to be supplied with their request;”
7.6 Privacy Notices
It is clear that these and similar devices present more difficult challenges in relation to providing individuals with fair processing information, which is a requirement under the first principle of the DPA. For example, it will be difficult to ensure that an individual is fully informed of this information if the surveillance system is airborne, on a person or, in the case of ANPR, not visible at ground level or more prevalent then it may first appear.
One of the main rights that a privacy notice helps deliver is an individual’s right of subject access.”
Civil Enforcement Ltd has not stated on their signage a Privacy Notice explaining the keepers right to a Subject Access Request (SAR). In fact, Civil Enforcement Ltd has not stated a Privacy Notice or any wording even suggesting the keepers right to a SAR on any paperwork, NtK, reminder letter or rejection letter despite there being a Data Protection heading on the back of the NtK. This is a mandatory requirement of the ICO’s CCTV Code of Practice (5.3 and 7.6) which in turn is mandatory within the BPA’s Code of Practice and a serious omission by any data processor using ANPR, such that it makes the use of this registered keeper’s data unlawful.
As such, given the omissions and breaches of the ICO’s CCTV Code of Practice, and in turn the BPA’s Code of Practice that requires full ICO compliance as a matter of law, POPLA will not be able to find that the PCN was properly given.

Vehicle Images contained in PCN: BPA Code of Practice – non-compliance
The BPA Code of Practice point 20.5a stipulates that:
"When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorized way. The photographs must refer to and confirm the incident which you claim was unauthorized. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."
The NtK in question contains two close-up license plate images. The time and date stamp and license plate have been inserted into the underneath (but not part of) the images. In addition, the first image does not even show a vehicle, only an inserted image of the license plate and time stamp. Given the vast area that has neither been bounded nor marked as parking restricted, any vehicle passing by can be captured by Civil Enforcement Ltd’s APRN. As a result, these images cannot be used as the confirmation of the incident and Civil Enforcement Ltd claim was unauthorized. I require Civil Enforcement Ltd to produce evidence of the original images containing the required date and time stamp and images showing the car is actually parked in the location stated rather than just passing by. Given the unbounded nature of the venue, failing to produce such evidence would indicate the Civil Enforcement Ltd has been using APRN to engage random license plate collection of all vehicles passing by and send NtK with the aim to extract penalty. Such action is no different from sticking parking tickets to all vehicles passing by.
Recent investigation (27 Apr 2018) by BBC shows that the private parking industry is unregulated and does not have any accountability. Various cases show the industry’s priority is maximizing the penalty received from the motorist without due regard to the integrity of the evidence. Private parking operators are financially incentivized not to use the original image as evidence, but putting partial evidence together to generate a case biased towards generating a penalty fee. Based on the fact above, I require Civil Enforcement Ltd to produce strong evidence, audited by qualified third party, to prove that its process is not biased to suit its financial objective.

The ANPR System is Neither Reliable nor Accurate
Civil Enforcement Ltd’s NtK simply claims “that the vehicle “entered [xxx] at [xxx] and departed at [xxx]”. Civil Enforcement Ltd states the images and time stamps are collected by its ANPR camera system installed on site.
In terms of the technology of the ANPR cameras themselves, POPLA please take note and bin your usual 'ANPR is generally OK' template because:
The British Parking Association DOES NOT AUDIT the ANPR systems in use by parking operators, and the BPA has NO WAY to ensure that the systems are in good working order or that the data collected is accurate. Independent research has NOT found that the technology is 'generally accurate' or proportionate, or reliable at all, and this is one of the reasons why Councils are banned from using it in car parks.
As proof of this assertion here are two statements by the BPA themselves, the first one designed to stop POPLA falling into error about assumed audits:
Steve Clark, Head of Operational Services at the BPA emailed a POPLA 'wrong decision' victim back in January 2018 regarding this repeated misinformation about BPA somehow doing 'ANPR system audits', and Mr Clark says:
"You were concerned about a comment from the POPLA assessor who determined your case which said:
"In terms of the technology of the cameras themselves, the British Parking Association audits the camera systems in use by parking operators in order to ensure that they are in good working order and that the data collected is accurate"
You believe that this statement may have been a contributory factor to the POPLA decision going against you, and required answers to a number of questions from us.
This is not a statement that I have seen POPLA use before and therefore I queried it with them, as we do not conduct the sort of assessments that the Assessor alludes to.
POPLA have conceded that the Assessor's comments may have been a misrepresentation of Clause 21.3 of the BPA Code which says:
''21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with. The processes that you use to manage your ANPR system may be audited by our compliance team or our agents.''
Our auditors check operators compliance with this Code clause and not the cameras themselves.''
Secondly, ANPR data processing and/or system failure is well known, and is certainly inappropriate in a mixed retail and residential area, such as the location in question. The BPA even warned about ANPR flaws:

''As with all new technology, there are issues associated with its use'' and they specifically mention the flaw of assuming that 'drive in, drive out' events are parking events. They state that: ''Reputable operators tend not to uphold charge certificates issued in this manner''.
In this case, as the driver drove in and briefly stopped where there are no signs or bays at all (not in any retail area, but at a private residence not signed as being managed by Civil Enforcement Ltd) the ANPR system has indeed failed and the operator has breached the first data protection principle by processing flawed data from their system.
Excessive use of ANPR 24/7 when such blanket coverage is overkill in terms of data processing, was also condemned by the BPA and the ICO:

As POPLA can see from that, excessive use of ANPR is in fact, illegal, and no-one audits it except for the ICO when the public, or groups, make complaints.
Civil Enforcement Ltd is put to strict proof that the system has not failed visitors to the residential homes within this site.
POPLA cannot use your usual 'the BPA audits it' erroneous template which needs consigning to the bin.
Please show the above email from Steve Clark, to your Lead Adjudicator.
Kindly stop assuming ANPR systems work, and expecting consumers to prove the impossible about the workings of a system over which they have no control but where independent and publicly available information about its inherent failings is very readily available.

The Signs Fail to Transparently Warn Drivers of what the ANPR Data will be used for
The signs fail to transparently warn drivers of what the ANPR data will be used for which breaches the BPA Code of Practice and the Consumer Protection from Unfair Trading Regulations 2008 due to inherent failure to indicate the 'commercial intent' of the cameras.
Paragraph 21.1 of the BPA Code of Practice advises operators that they may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as they do this in a reasonable, consistent and transparent manner. The Code of Practice requires that car park signs must tell drivers that the operator is using this technology and what it will use the data captured by ANPR cameras for. Civil Enforcement Ltd’s signs do not comply with these requirements because these car park signage failed to accurately explain what the ANPR data would be used for, which is a 'failure to identify its commercial intent', contrary to the BPA CoP and Consumer law.
There is no information indicates that these camera images would be used in order to issue Parking Charge Notices. There is absolutely no suggestion in the sentence above that the cameras are in any way related to Parking Charge Notices.

No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

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

Fruitcake

I would have thought that if the PoPLA code was sent to the driver who has been named, then it is the driver not the keeper who appeals to PoPLA.

For the appeal itself, I suggest you have numbered headings for each point, then numbered headings at the start of each point themselves.

For egg-sample

1 Not the Landowner
2 No standing to bring charges in their name
3 Lack of Grace periods (note the plural)
4 ANPR Inaccuracies
5 Inadequate signage
6 Etcectra

ML_123

Hi guys, I'm having difficulty posting the link for review as a new user and can't copy & paste the text as the character count of the document is too large, does anyone have any recommendations as to how I can share my final draft?
Many thanks!