1 Hour Overstay - Hospital

sillyhilly

Hello all. Firstly, please accept my apologies for creating a new thread - I have searched all over and can't find anything which is relevant to this particular case!

I will summarise best I can:

- My family member works at a Hospital and usually finishes at 3pm, and is picked up by the Driver

- Unfortunately, my family member is a type 1 diabetic - and has been since a child - and had quite a severe 'hypo'. Long story short, this results in dizziness, slurred speech, erratic movements and in worst cases, collapse. As a result of this, they didn't leave the hospital until 4pm. The Driver did not have a mobile phone and did not know. This can be verified by witnesses.

- A PCN was received confirming the >1hr overstay and this was 'appealed'. This didn't follow the template and I wasn't aware of it, and the appeal was, shockingly, rejected. In summary, it outlined the issues and did not confirm driver details, with the final paragraph as follows (I'm paraphrasing/summarising):

This PCN contravenes the Department of Health and Social Care guidance as the charge received is not ‘reasonable’, given that overstaying was beyond the driver’s control.

“‘Reasonable’ implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances)”

As such, the PCN issued to the driver overstaying is unreasonable, given the medical emergency and the fact that the issue was out of the driver’s control.

Overall, the appeal has been rejected - and I'm more than happy to step in here and take it to court - however I'm after some guidance on how best to deal with this.

Thanks in advance!

EDIT: the PCN was issued by Car Parking Partnership (read: Parking Eye).

LoneStarState

Best get on to complaining to PALS for that hospital, particularly if the relative was suffering a hypo and they work at the hospital (a health condition they must know as the relative's employer). A firm complaint to them should be a first port of call giving the evidence you have already adduced at the initial appeal stage.

I see you've already read the DHSC guidance, dropping this particular section might also help sway PALS, particularly with your witness testimony and the fact the relative works at the hospital means they are presumably aware of their health condition:

"Concessions, including free or reduced charges or caps, should be available for the following groups:

disabled people
frequent outpatient attenders
visitors with relatives who are gravely ill, or carers of such people
visitors to relatives who have an extended stay in hospital, or carers of such people
carers of people in the above groups where appropriate
staff working shifts that mean public transport cannot be used"

Appreciate your relative and the driver waiting for them fall into a hybrid of these circumstances, but this is a classic example of the arbitrary unfair nature of PPCs and their (lack of) consideration to appeals.

You will also need to prepare for a POPLA appeal of which there is readily available guidance in the "newbies" thread of this forum.

sillyhilly

Thank you! I originally advised my family member to go straight to the Facilities Manager, but they decided to go through the charade with the 'appeal' instead!

I will stress that they need to complain to PALS and Facilities.

I've asked for photos of the original fine too, to see if it's a 'Golden Ticket'.

EDIT: Bah, it's got POFA included.

Redx

Ideally it's PALS or facilities complaint first , the appeal , or both at the same time

A cancellation at source is always best , with appeals next , and court last

sillyhilly

Looks like the landowner can't cancel the 'fine' and we need to appeal via POPLA.

As part of the appeal, I'll be mentioning that it was an exceptional circumstance / medical emergency, with associated witness statements.

Does anybody know if I should be focusing on anything else? I will of course be reviewing the POPLA sticky. I have also looked at the BPA CoC and to be honest, it does not appear that any signs are unclear etc, but I will be checking myself to ensure that there are no technicalities i can rely on.

Any help greatly appreciated!

steve1500

sillyhilly wrote: »

Looks like the landowner can't cancel the 'fine' and we need to appeal via POPLA.

Me thinks someone is telling a big porky.

Last time I checked, the ultimate landowner, is the public

FoI asking for the contract - also ask

If they haven't used a standard NHS contract, ask for the document that authorised the use of a non NHS contract.

You then start having fun! about why they are not using NHS contracts & what type of scrutiny /checking has been carried out

MistyZ

Hospitals can be extremely stubborn about cancelling PCNs. I reckon it's partly to do with the fact that they (obviously!) deal with so many ill people as ill-health and dealing with it trump clock watching, therefore loads of patients and staff get PCNs. They're purposefully intransigent because of the sheer volume of PCNs and, presumably, the volume of complaints.

That's not to say you should abandon the land-owner complaint route. Far from it. It means you have to be very, very determined.

sillyhilly

I will upload the POPLA appeal in my following post. It's a loooong read, and I've effectively thrown the kitchen sink at them.

As an aside, I have contacted PALS who are entirely useless and are of no assistance what-so-ever. Their responses have been, and I quote:

PALS or the trust do not have jurisdiction over the Private Parking Company. As they are a private entity. I hope this has answered your query

Which is a load of rubbish.

can only advise that you follow the process of appeals via Car Parking Eye if this is unsuccessful I would advise that you contact POPLA (Parking on Private Land Appeals) to appeal their decision

Which I told them I had already done so...

unfortunately we have no further response to offer you. We as the PALS are only facilitators of conversation and am unable to provide you with more than this

Useless.

Le_Kirk

You maybe need to contact the NHS Trust that controls the hospital and remind them of THIS especially the bit about contracted out parking. Unfortunately PALS is only a liaison service and have no teeth.

The_Deep

You state that the overstay was beyond the driver's control. I disagree. AFAICS, the driver was always in control.

I think that if they took this to court they might win. PoPLA also may well find against the driver. However, one card you hold is that PE signs are rubbish, read this.

https://forums.moneysavingexpert.com/discussion/5972164/parking-eye-signs-oxford-road-reading

Why not get your relative's MP on side as nine times out of ten these tickets are scams.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies

sillyhilly

POPLA wording
My grounds for appeal are multiple, which shall be summarised as follows, and will go into greater detail further within the appeal:

* CPP have not provided evidence of Landowner Authority

* CPP has not shown that the individual who it is pursuing is in fact liable for the PCN

* The signage in question is not sufficiently prominent, clear or legible from the area in question

* The signage in question does not sufficiently provide notice of the sum of the parking charge itself

* The parking charge levied is disproportionate and commercially unjustifiable

* CPP and the Notice to Keeper (“NtK”) are in breach of the Protection of Freedoms Act 2012 (“POFA”)

* CPP are in breach of the BPA Approved Operator Code of Practice 2012 – Version 7, January 2018 (hereinafter “BPA CoP”)

* CPP are in breach of the Financial Conduct Authority and ‘Fair Treatment of Customers’ regulatory requirements

* CPP have contravened the government-approved guidance relating to parking at NHS sites, issued by the Department of Health and Social Care

* CPP did not review our initial appeal fairly or reasonably, and did not refer to our actual area of appeal

I will now go into further depth regarding each of the above bullet points:

Landowner Authority
As this operator does not have proprietary interest in the land, I therefore 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

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

Section 7.2 and 7.3 - as per landowner authority template, removed due to character count

CPP has not shown that the individual who it is pursuing is in fact liable for the PCN
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but we are exercising our rights not to name that person. You will note from the evidence to be provided by CPP that there was also no unequivocal naming of the driver.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. My father, the appellant throughout (as he is entitled to be, and as I am entitled to act on his behalf), as there has been no admission regarding who was driving, and no evidence has been produced, further evidence should be provided. It has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NtK.

The burden of proof rests with CPP, because they cannot use the POFA in this case, to show that (as an individual) my father has personally not complied with terms in place on the land and show that he is personally liable for their parking charge. They cannot show that he is liable by virtue of him being the driver, and they have not to date. The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Quote - removed due to character count

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NtK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

Quote - removed due to character count

Signage
There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar ParkingEye Ltd v Beavis case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only.

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed. This is particularly the case with regards to entrance of the area, and within the area where the text is small and particularly obscured.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read before entering into a restricted area.

As such, I request that CPP provide evidence of the location of where all the signs are, as per Section 18.3 of the BPA CoP which states that:

“… Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”

This case is more similar to the signage in POPLA decision 5960956830 on 02/06/2016, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

To confirm and for the avoidance of doubt, the site of this PCN is a hospital. As such, there are literally hundreds of signs with directions to various areas, warnings, speed limits, no access, emergency access, accident and emergency access, various medical facilities and general traffic control. I have included three images in the Document Bundle (DB.2 – DB.4) which have been taken from the front seat of a vehicle on approach to the hospital. Note: none of those signs circled bear any relation to any implied parking contract and/or restriction, such is the absence of them.

From the evidence that I have seen so far, it is our opinion that:

- The terms and conditions are displayed inadequately, in letters no more than quarter of an inch high, approximately. I therefore put CPP to strict proof as to the size of the wording on their signs, and the size of lettering for all Groups of text as per BPA CoP sign guidance.

- The signs which are in place are illegible. For example, one sign is located on a 180-degree bend in the road which is impossible to see when you are driving. Other signs are obscured behind parked cars. Other signs are only viewable upon leaving the restricted area. There are no signs confirming that you are entering into a restricted area before you get there (see DB.4).

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA CoP, these signs do not clearly mention the parking charge which is hidden (particularly on the signs on the pillars). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
https://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.'

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.'''

So, a letter height of just quarter an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

This is notwithstanding the fact that the speed limits in the entrance to this area are 15mph which, given the size of the signs, and the fact that they are approximately 20 feet away from the junction in to which the Driver turns into, is entirely disproportionate to the speed.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. very clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA CoP, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact Vine v London Borough of Waltham Forest [2000] EWCA Civ 106 about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case: https://www.casemine.com/judgement/uk/5a8ff70f60d03e7f57ea6e9c

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

The driver in that case (who had not seen any signs/lines) had not entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.
Further, Section 18.1 of the BPA CoP states:

“In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.”

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective.

Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

Breach of BPA CoP
As per Section 21.1 of the BPA CoP, it states the following:

“You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

As per images of the signs in the immediate vicinity of the parking controlled area, we do not believe that they are sufficient in advising drivers that ANPR technology is being used. It appears from the poor quality image provided by CPP that the images have been taken before you approach any sign which suggests that ANPR is in force.

In fact, it is only when you are able to approach a sign up close, are you able to see that ANPR is in force. This sign in question is at the exit of the parking restricted area.

Furthermore, signs state that “Car park monitored by ANPR systems”. This is inconsistent with the BPA CoP which states that CPP “must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for”. This is not abided by, and therefore it appears that CPP are in breach of this section.

Section 21.2 of the BPA CoP states that:

“before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action”

I request evidence from CPP to confirm their procedures for carrying out the aforementioned ‘manual quality check’ and what was performed on this particular occasion, for this PCN.

Section 21.3 of the BPA CoP states that:

“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.”

I request evidence from CPP which confirms their: i) security processes ensuring that images are held securely and cannot be tampered with, ii) which parties have access to these images, iii) evidence of calibration of ANPR equipment in force, iv) evidence of quality checks and audit on these cameras, v) location of these cameras, and vi) how the physical camera itself is ensured to be secure and not be tampered with.

The parking charge levied is disproportionate and commercially unjustifiable
As per the BPA CoP, Section 19.5 states the following:

“If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.”

We note from the PCN received that the charge is, indeed, £100. There has been no evidence received from, or provided by, CPP which validates why it believes that in its opinion, £100 is ‘proportionate’ or, indeed, ‘commercially justifiable. We therefore require evidence and confirmation from CPP as to why they believe this to be the case. This should include: i) what their calculation of potential loss as a result of the overstay is, ii) how they believe this to be a proportionate cost, and iii) how they consider this to be justified (notwithstanding the signage issues referenced earlier in this document).

Indeed, it in fact appears that rather than considering whether a charge is ‘justifiable’ or ‘proportionate’, CPP have instead decided to choose the highest amount that they can possibly charge under the BPA CoP which bears no correlation to what is considered proportionate. We understand that should a charge of more than £100 be levied, this would lead to an investigation by Trading Standards or other appropriate authority as per Section 19.6 of the BPA CoP.

As such, the charge of £100 appears to be based purely on the fact of what CPP can ‘get away with’ rather than what is considered justifiable/proportionate. We therefore believe that this is therefore a breach of BPA CoP.

CPP and the Notice to Keeper (“NtK”) are in breach of the Protection of Freedoms Act 2012 (“POFA”)
As per the BPA CoP, Section 20.7 states the following:
“… your parking charge notice must tell drivers that you may be requesting information from the DVLA as to the registered keeper of the vehicle, and the ‘reasonable cause’ you have for making that request.”

As per the correspondence sent by CPP, there is no reference to a request of information from the DVLA as to the registered keeper of the vehicle. There is also no reference to ‘reasonable cause’. See DB.5.

Section 20.14 states the following:
“When you serve a Notice to Keeper, you must also include information telling the keeper the ‘reasonable cause’ you had for asking the DVLA for their details”

There is no such statement regarding the ‘reasonable cause’ that CPP had when requesting information from the DVLA. See DB.5.

CPP did not review our initial appeal fairly or reasonably, and did not refer to our actual area of appeal
As per the BPA CoP, Section 22.1 states the following:
“Under the Code you must have procedures for dealing fairly, efficiently and promptly with any communication”

You will note that CPPs response states the following:
“Your appeal is unsuccessful because … [the appellant] have not provided sufficient evidence to show that they did not break the terms and conditions as outlined on the signage. We can confirm that the signage on site is appropriately located and that all signage clearly outlines the terms and conditions of parking”

Not withstanding the signage issues which have been referenced above, you will notice from our initial appeal to CPP that we did not even reference potential signage issues, but instead referred to the Department of Health and Social Care information referenced further in this document.

This appears to suggest that the appeal was not actually reviewed appropriately in the first instance, and instead appears to be a templated response to an almost certain rejection of ‘appeal’. I would argue that this directly falls foul of the BPA CoP which states that procedures must be in place to deal with communication “fairly”, given that there appeared to be no intention in the slightest to review the particular circumstances of the ‘appeal’.

Department of Health and Social Care – Car Parking Management
The Department of Health and Social Care (“DHSC”) have issued information regarding how car parking in the NHS should be managed, including details about the charges, concessions and additional charges. This information states the following:
“Additional charges should only be imposed where reasonable and should be waived when overstaying is beyond the driver’s control (eg when treatment takes longer than planned, or when staff are required to work beyond their scheduled shift)”

Furthermore, there is a distinction added for “reasonable” as follows:
“‘Reasonable’ implementation of additional charges practice might include additional charges for people who do not have legitimate reasons for parking (eg commuters), or who persistently flout parking regulations (eg blocking entrances). A period of grace should normally be applied before a parking charge notice is issued"

As stated in my initial appeal to CPP, I stated that I finish work at 15.00pm on the day that the PCN was received as a result of a medical emergency which results in dizziness, slurred speech, erratic movements and in worst cases, collapse and coma. Luckily, I recovered and managed to get out of the office where the driver was waiting for me. As a result, this took the driver over the 10 minute threshold.

In that regard, I have therefore attached a witness statement from the Senior Administration Manager of the Trauma Services Department of the NHS Trust which confirms the above. This can be found in DB.6.

As per the letter written by the Senior Administration Manager, I believe that the PCN is “grossly unfair and extremely uncompassionate”. Additionally, as per the DHSC information, I do not believe that the PCN can be considered to be anywhere near “reasonable”, given that:

- There was a legitimate reason for overstaying 10 minutes, given that it was a medical emergency, at a hospital

- There is no persistent flouting of parking regulations at the area, and there is a reasonable reason for having exceeded the ten minute period in the area

- The DHSC information is primarily geared towards ‘persistent offenders’ such as commuters, as well as those who are causing a nuisance. This is not the case in this instance, unless CPP can prove beyond doubt that the vehicle and the Driver was causing a nuisance

- The reason for overstay was ultimately out of the drivers control, given the medical emergency, at a hospital and as per DHSC information “should be waived when overstaying is beyond the driver’s control”

- Whilst a period of grace is considered to be, for example, 10 minutes, I believe that in a Court of Law, it would be expected that where a medical emergency is currently in operation, a ‘grace period’ should be considered to be significantly longer in such instances

Overall, we are of the opinion that this appeal should be upheld, and the PCN struck off.