Forgot to display blue badge.

Snakes_Belly

So Gladstones were a no-show and the DJ had to act for the Claimant. These cases where they don't show up should be dismissed.

Coupon-mad

antandann wrote: »

Hope you enjoyed your weekend Cm. I've offered a story to two local papers suggesting a title of the £270 Pizza, but I will run everything by the forum first regarding writing to the land owners.

Regarding the crutch, yes on the first letter and several others and at the hearing. The court lost my first defence, but it's okay for them to foul up without reprimand.

I didn't officially appeal as such as I'd read so much about it being a waste of time with it being the IPC. But I did write in the first response letter and say in an assertive manner that my wife wouldn't be taking them up on their invoice for £60 as she was disabled, here's the badge, so do one you parking parasite. Well that was the gist of it but I was cordial. They took the letter as an appeal as they wrote back and said thank you for your appeal but ...the usual nonsense they write and then went on to inform me that an appeal to their independent body (yeah right) the IPC wouldn't be likely succeed as mitigating circumstances ( the badge being knocked on the floor, my wife's illness) wouldn't be taken into consideration. So I thought, so why bother? I ignored all future letters until good old Gladstone's wrote. I'll scan all the letters when I get time and email them to you. A good read if you want to get to sleep. Anyway, I responded to the usual Gladstone's nonsense thus:

"I am writing as the previous keeper of vehicle **** who is not liable for the parking charge for several reasons, not least that to uphold it would constitute disability discrimination.

I have suffered from a condition known as Trigeminal Neuralgia for over twenty years which is one of the most painful conditions known to medical science, which is known colloquially as the suicide disease, as many suffers take their own life rather than endure the chronic excruciating pain. I take various medication to attempt to control my condition, which, along with the extreme pain, often results in me feeling dizzy, unbalanced, having poor concentration/memory and generally poor cognitive function. I also have Freiberg Disease which limits my range of motion. I use crutches and or a wheelchair for mobility.

Movement and inclement weather exacerbate my condition and being able to park in disabled bays is essential for me to be able to both get into and out of my vehicle, without exceptional pain, or damaging adjacent vehicles with my door, and to get to my destination without the pain becoming intolerable.


SUMMARY OF MY LEGAL RIGHT TO USE THE DISABLED PARKING BAY




Your client, HX Car Park Management Ltd. have acknowledged that I have a Blue Badge, and I am therefore entitled to park in the bay, however they continue to harass me for a payment which currently stands at £160. I consider this to be an unconscionable and disproportionate penalty charge for a disabled person using a disabled bay to give custom to the adjoining business.


BREACH OF STATUTE, NAMELY THE EQUALITY ACT 2010 AND THE EHRC 'CODE OF PRACTICE ON SERVICES, PUBLIC FUNCTIONS AND ASSOCIATIONS' (Chapter 5 Indirect Discrimination) WHICH BECAME LAW ON 6TH APRIL 2011

Your forementioned client is a service-providers who are relying on unenforceable terms which purport to create an inflexible contractual term 'requiring' disabled people to display a Council (on-street only) Blue Badge in order to use a disabled bay. The Blue Badge scheme does not lawfully apply in private car parks - as is shown in the Blue Badge booklet and on the Government website. Companies such as your client may choose to mention the badge on their signs but they cannot legally rely on it in isolation as the only indicator of disability need.

The Equality Act takes precedence over any 'contractual' terms and a blanket term to display a Blue Badge is specifically an 'unenforceable term' as defined in the Equality Act. It is an example of a blanket policy which seeks to limit the provision of the disabled bays to 'badge-display only' and thereby causes disadvantage to other people who have certain protected characteristics.

''EQUALITY ACT 2010
142(1) Unenforceable terms
A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.
144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

29 Provision of services
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a)as to the terms on which A provides the service to B;
(b)by terminating the provision of the service to B;
©by subjecting B to any other detriment.

(3) A service-provider must not, in relation to the provision of the service, harass—
(a)a person requiring the service, or
(b)a person to whom the service-provider provides the service.

(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—
(a)as to the terms on which A provides the service to B; ''


Any term that HX Car Park Management may have on their signs to the effect of 'Blue Badges only' is null and void if the effect is to deny a disabled person the statutory right to use a reasonable adjustment without penalty; any such term unlawfully limits the disabled bay provision and this could well be deemed as harassment and discrimination.

The unenforceable term in Charlestown Road Retail Park requiring all disabled people using a disabled bay to show a Blue Badge may be the result of an ill-conceived attempt to ostensibly comply with the Equality Act; indeed, it appears to be based on private parking industry-wide misconceptions about disability law. But, as it specifically states in the Equality Act, ignorance of disability law and lack of intention to discriminate is no defence for breach. My argument, which I am fully prepared to defend in court is that your client and indeed your company in support of their claim have shown no regard for the Equality Act nor for the Equality and Human Rights Commission (EHRC) Statutory 'Equality Act - Code of Practice on Services, Public Functions and Associations'. Consequently to seek any further erroneous recourse to be a blatant act of discrimination against a genuine disabled person and I will seek legal advice to challenge your and your client's unconscionable conduct and operations in a court of law

I feel it is vital to reiterate that this parking charge issued as a result of an unenforceable term has created indirect and if you continue to pursue this matter direct discrimination, and as such, it is a breach of the EA. It is also a breach of the statutory EHRC 'Code of Practice on Services, Public Functions and Associations' (Chapter 5 Indirect Discrimination) which became law on 6 April 2011:

''5.4 What does the Act say?
Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.''


I refer you to Excel v Greenwood Case Number 3QT60496 (4/10/2013), where a driver with MS forgot to display his blue badge due to forgetfulness being a feature of his condition. The Judge threw the case out because Excel had a duty to make a reasonable adjustment as soon as they knew about his condition, and had no lawful excuse to harass the disabled person by continuing to demand money. Excel could not legally offer any contract to make a disabled bay available to a person with protected characteristics at a price, given the facts of his MS and the fact they already knew about it from his appeal.

Also in the landmark case of ParkingEye Vs Beavis, 2015 in the Supreme Court, at 107:


‘’In our opinion the term imposing the £85 charge was not unfair. The term does not exclude any right which the consumer may be said to enjoy under the general law or by statute."

So in the case where a person is legally allowed a reasonable adjustment (a legal duty upon service providers, not guidance), that person can expect the rights accorded to those as mentioned above, by statute, more specifically in this case, the Equality Act statute."

There was no Witness Statement unfortunately, which is where I was really going to put it all together. But when I found out about my wife's affair I left her and wasn't going to defend her in court, and by the time we had reconciled the window had passed for the WS. But I did state the case well enough at the hearing I feel by applying the relevant passages from the EA to the case, but he'd made his mind up before we got through the door. He said that without a badge the system wouldn't work. I mentioned the Greenwood case, that had wrongly been decided according to his godliness, and in any case it wasn't binding on him he said smugly. And the EA got a, "Yeah, Well." When I asked what would someone do if they were visiting from a foreign country that was disabled but didn't have a Blue Badge, and he answered that they would need some proof they could use the bay - yeah it's called a disability! (So all disabled visitors to our green and pleasant land, however disabled you are, if you don't have a BB, you can stay out of our bays, no badge, no disability it would seem.) There was no debate or decent argument put forth from him other than no badge no right to be in the bay. A few bays I've noticed recently are for 'BB holders' with no mention of displaying the badge. So that negates Judge Dread's argument that you need to display a badge every time you enter a disabled bay. But conveniently none of this is recorded and you can't get the better of people like him as he'd be tempted to add on more money for denting his ego. If the argument had been fair I'd have won as he had no answers for my questions other than I'm big, your small and there's nothing you can do about it. Right from the start he said it was a clear case and we'd admitted fault. I thought he was playing devil's advocate because Gladstone's were a no show and he was arguing their point to make it a fair debate, but no, he'd already decided. So why drag my wife along who is in agonizing pain to your kangaroo court? He even acknowledged my wife's illness and said he sympathized, and showed his understanding by slapping her with a £260 penalty!

To get any sort of justice from this now would be great, but this is now more about helping others. If one person gains from this, I'm happy. Hell, if I receive any money from my fightback, I'll give the cash to a disabled charity and that's a solemn promise. Money IS the root of all evil, it's combating injustice, cruelty and bigotry that motivates me, as god only knows there's a lot of it to go around.

What did he say about the added costs and the fact the POFA only allows a parking firm to recover the sum on the NTK, and no more (£100 I assume?). How did he justify granting £260+ or didn't he consider the added costs as any issue at all, despite that fact parking firms can't claim for loss/damages, as there are none, ever in circs like this?

I think we should take this to pm and off forum to discuss if there's a fightback.

Snakes_Belly

If plenty of fluttering ticket cases are dismissed I cannot understand why a BB that accidentally slipped off the dashboard was not. It's surely the same principle.

Coupon-mad

It's even stronger than the same principle, it's a Judge who:

(a) ignored the Equality Act, thought he knew it all as a previous Council Parking Adjudicator (not the same rules at all) and

(b) who also ignored the fact he knew the Defendant wasn't driving, yet allowed the Claimant to also breach the POFA Schedule 4 and claim more than the sum that the statute says can be recovered, and

(c) did not consider the Consumer Rights Act test of fairness, which MUST be considered by a court in a civil case about a contractual term, even if the consumer didn't raise it. It cannot for one minute be fair and equitable, to pursue a disabled person they know from appeal stage, had a Blue Badge, for a penalty sum that is the same as they would have charged an able-bodied rogue parker with no Blue Badge.

IMHO, whilst the PCN was correctly issued, the legal failings came after that. The point where a reasonable adjustment needed to be made was at appeal stage, as Councils do (they cancel a disabled person's PCN on first appeal, as policy, if it's a first offence and the person shows their BB in appeal). Private firms sometimes do the same, by asking for £10 or £15 for admin only, to cancel at that stage.

But this firm has ignored their legal duty and continued blindly.

This just shows why the Parking Bill is going through Parliament, if disabled persons' appeals are being turned down and then a PPC is being allowed to harass a disabled person and take them to court and pursue them for an unconscionable sum.

As all three of these points are enshrined in statute law, and the DJ failed, spectacularly, in my view.

Snakes_Belly

I agree it's a stronger case than a fluttering ticket case because of the disability element, yet these are just dismissed.

Crabman

Threads have been merged

antandann

The pcn was correctly issued and at the hearing I commended the fact that abuse of the bays was being managed. I then said a disabled person using a disabled bay could hardly be seen as an abuse, with or without a badge. I really felt for my wife at the hearing. It was at that very same court that a case went to crown after a thug attacked my wife at a late night garage she worked at, which lead to her disability and a life sentence of agony. He escaped justice on a technicality.

I'll have to wait to get the ccj through the post to give the breakdown of the fine - my senses were questioning themselves by that stage of the hearing. Maybe the counter claim swayed the Judge's decision, who knows. I decided on the counter claim after I read the Greenwood case. Although Mr. Greenwood was the driver, where the registered owner and defendant was the passenger in our case. Oh well, I gave it my best, and that's all any of us can do.

Coupon-mad

It's not over, we haven't even discussed this yet. I said I wasn't available much over the weekend and you sent me a pm. I will reply to you.

Unless you want it to be over?

antandann

No, it ain't over by a long shot. I'd love to take this as far as it will go as I'm fed up to the back teeth of ordinary everyday decent folk being pushed around. Cheers. CM, you're a legend. The next battle will be fought the right way. There's no rush my friend.

Cheers Deep, I was thinking about the tabloids. The Mail it is then.

Fruitcake

As well as your own MP, I think this is a case that should also be brought to the attention of Sir Gregg Knight and Mrs May.

The justice system has failed your wife twice now and I believe everything possible should be done to highlight this injustice, especially the failings of the judge himself.

Definitely contact the Daily Wail. As already mentioned, they love this sort of thing. Just make sure they don't use the F word.