F1rst Parking PCN - appeal rejected

FireOnFire

Thank you all so much for the advice - I've now drafted an appeal. I've included most of the points you have all pointed out, but could not include the signage point as it is very clear and in well-lit areas, etc.

I'll post the draft here - I'd really appreciate any feedback and criticism please, in addition to any other thoughts you may have. Thank you all, once again.

FireOnFire

Appeal Regarding POPLA Code: --- v First Parking LLP

Vehicle Registration: ---
POPLA Reference: ---

I, the registered keeper of this vehicle, received a letter dated --- acting as a notice to the registered keeper. My appeal to the operator – First Parking LLP – was submitted and acknowledged on --- but subsequently rejected by a letter dated ---. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:
1. Disability Discrimination: Equality Act 2010 – non-compliance;
2. Lack of Disabled Bays;
3. Stopping vs Parking;
4. Grace Period: BPA Code of Practice – non-compliance;
5. No Evidence of Landowner Authority: BPA Code of Practice – no strict proof of full compliance;
6. No Evidence of Period Parked – Notice to Keeper (NtK) does not meet PoFA 2012 requirements;
7. The ANPR System is Neither Reliable nor Accurate;
8. No Evidence of Entitlement to Levy Charges without Consideration.

1. Disability Discrimination: Equality Act 2010 – non-compliance
The BPA Code of Practice (16.1) states that: “The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments’ to remove barriers which may discriminate against disabled people.”

Under the Equality Act 2010 (4), disability is defined as a protected characteristic. The Equality Act 2010 (6.1) further adds that: “A person (P) has a disability if— (a) P has a physical or mental impairment, and; (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

The Equality Act 2010 (20.1, 20.3 and 20.4) then proceeds to explain: “Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.” “The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” “The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”

The following is also stated with regards to non-compliance with the Equality Act 2010 (21.1 and 21.2): “A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.” “A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”

The Equality Act 2010 puts employers under a positive duty to make reasonable adjustments for disabled people, to help them overcome disadvantage resulting from an impairment. The Act includes a new statutory protection from discrimination arising from disability. This states that it is discrimination to treat a disabled person unfavourably because of something connected with their disability. This type of discrimination is unlawful. Indirect discrimination also covers disabled people, if a disabled person could claim that a particular rule or requirement that is in place disadvantages disabled people.

In compliance with the Equality Act 2010, even councils offer mitigating circumstances to appeal an official charge issued. An example of this is Cheshire East Council’s Mitigating Circumstances (MC1) which states that their first mitigating circumstance is “Where the motorist claims to have become unwell while driving.” Cheshire East Council, amongst a multitude of other councils, accept representations “If the motorist provides proof of a medical condition, temporary or permanent, that is consistent with the conditions described and which also indicates that at the time the PCN was issued the condition had prevented safe movement of the vehicle.”

The driver is an asthmatic, suffering from moderate to severe asthma, with childhood atopic onset. According to the American Academy of Allergy, Asthma and Immunology, “Atopy is typically associated with heightened immune responses to common allergens, especially inhaled allergens and food allergens.” The driver is seen in the specialist asthma clinic regularly and is on medication prescribed by their consultant respiratory specialist. The driver has also suffered prolonged bouts of pneumonia which had significantly reduced their quality of life. The evidence for the aforementioned conditions has been attached alongside this appeal.

The driver began experiencing symptoms of an asthma attack in the vicinity of ---, feeling short of breath and wheezy, with significant chest tightness and cough, drawing breaths very quickly. The driver immediately pulled over to the nearest area whilst they were still able to, and this happened to be ---. The driver did not want to endanger themselves, nor the lives of those around them. The driver was also familiar with the area and it was first instinct for the driver to stop at ---. The driver was then able to take their inhaler repeatedly to enable them to recover. The driver then drove off once recovered and once their breathing was satisfactory, so as to not endanger the lives of others.

The American College of Allergy, Asthma and Immunology state that: “The duration of an attack can vary, depending on what caused it and how long the airways have been inflamed. Mild episodes may last only a few minutes; more severe ones can last from hours to days. Mild attacks can resolve spontaneously or may require medication, typically a quick-acting inhaler.”

An acute asthma exacerbation can be considered as ‘protected characteristics’ under the Equality Act 2010 and is a circumstance where ‘the motorist claims to have become unwell while driving’. As such, it is not unreasonable to suggest that First Parking LLP have breached the Equality Act 2010. It is reasonable to suggest First Parking LLP should be acting in compliance with the BPA Code of Practice and the Equality Act 2010 to provide ‘reasonable adjustments’ for those with disabilities and to take these factors into consideration when reviewing evidence and appeals. I require First Parking LLP to provide strict proof of their compliance with the BPA Code of Practice and the Equality Act 2010.

2. Lack of Disabled Bays
The Development Control Advice Note 11 (DCAN 11): Access for People with Disabilities states in paragraph 11: “The Department recommends that where car parking provision is in excess of 50 spaces 4% should be reserved specifically for people with disabilities. In smaller car parks at least one space should be provided.”

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA), has also stated: “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 not unreasonable to suggest that First Parking LLP do not have proof of accommodation for people with disabilities. This can be demonstrated both through their lack of obvious ‘reasonable adjustment’ for those with disabilities in accordance with the Equality Act 2010, in addition to their refusal to consider ‘reasonable adjustments’ for an asthmatic suffering from an asthma attack. Furthermore, First Parking LLP have not provided any guidance regarding grace periods and how it is adjusted for those with disabilities. I require First Parking to provide strict proof to evidence their compliance with the Equality Act 2010, the BPA, and the DCAN 11.

3. Stopping vs Parking
Contrary to the parking charge issued, the case in question was not one of ‘parking’. The vehicle in question was stopped for a period of time, as opposed to being ‘parked’. The distinction being drawn here is in line with the rulings from the Crown Court in the Laura Jopson v Homeguard Services Limited trial on 29/06/2019.

In the Laura Jopson v Homeguard trial, it was stated that: “it is possible to draw a real and sensible
distinction between pausing for a few moments or minutes […], and parking in the sense of leaving a car for some significant duration of time.”

It was agreed that there were distinguishing factors between parking and stopping. Parking was suggested to be “leaving a car for some duration of time beyond that needed for getting in or out of it, loading or unloading it”, whereas stopping was defined as “perhaps coping with some vicissitude of short duration”. It is not unreasonable to suggest that coping with a medical emergency, such as an asthma attack, is coping ‘with some vicissitude of short duration’ and thus comes under the category of ‘stopping’ as opposed to ‘parking’.

At the end of the trial, it was concluded that: “Whether a car is parked, or simply stopped, or left for a moment while unloading, or accompanying a frail person inside, must be a question of fact or degree.” In the Laura Jopson v Homeguard Services Limited trial it was decided that even though “the appellant’s car had been stationary […] it was not ‘parked’. Accordingly, for that reason too, the appellant was not liable to the charge stipulated in the respondent’s notice.”

It is not unreasonable to extrapolate the outcomes and findings of this trial to the current case in question, with the argument being that the vehicle in question was not ‘parked’ – rather it was ‘stopped’ to cope “with some vicissitude of short duration”, i.e. an asthma attack in a patient who suffers from moderate to severe asthma. As First Parking LLP have stated the vehicle in question was ‘parked’ as opposed to ‘stopped’, I require First Parking LLP to provide strict proof of their claim of the vehicle being ‘parked’.

4. 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: “Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

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.”

BPA’s Code of Practice (18.5) states that: “If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the 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.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does 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 stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

In addition, Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking Association (BPA), has stated (as previously quoted in this appeal): “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.”

Some 4 years ago, on 30th July 2015, the minutes of the Professional Development & Standards Board meeting show that it was formally agreed by the Board (of BPA members and stakeholders) that the minimum grace period would be changed in 13.4 of the BPA Code of Practice to read 'a minimum of eleven minutes': “Implications of the 10 minute grace period were discussed and the Board agreed with suggestion by AH that the clause should comply with DfT guidelines in the English book of by-laws to encourage a single standard. Board agreed that as the guidelines state that grace periods need to exceed 10 minutes clause 13.4 should be amended to reflect a mandatory 11 minute grace period.”

The recommendation reads: “Reword Clause 13.4 to ‘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 11 minutes.” (Source: won't let me post the link here)

This shows that the intention of stating vaguely: 'a minimum of ten minutes' in the current BPA CoP (not a maximum-a minimum requirement) means to any reasonable interpretation that the timescale eluded to by F1rst Parking is de minimis as a part of the grace period and therefore not taken into account – certainly an allegation of an eleven minute grace period (as is the case here) is perfectly reasonable.

As stated earlier in this section, whilst 13.4 does not apply in this case (as a contract was never entered in to), it is not unreasonable to suggest that clarification of this time period in relation to 13.4 also goes some way to clarifying the terms “reasonable period” and “reasonable grace period” stated in 13.1 and 13.2 respectively of the BPA’s Code of Practice. If the BPA feel “a minimum of 11 minutes” is a reasonable time period to leave a car park after a period of parking, it stands to reason that at least the same period of time is reasonable to also enter an area during a medical emergency, stabilise one’s self so as to not compromise the safety of the public and one’s self, decide not to enter into a contract once stabilised and then leave the car park.

It is therefore argued that the duration of visit in question does not carry an unreasonable grace period.

5. No Evidence of Landowner Authority: BPA Code of Practice – no strict proof of full compliance
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. It is not unreasonable to 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 Code of Practice) and basic information such as the land boundary and bays where enforcement does or 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, particularly because template private parking terms and sums have been known not to match the actual landowner agreement).

The BPA Code of Practice (7.2) states: “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.”

Furthermore, in paragraph 7.3 the BPA Code of Practice adds: “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.”

Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put it to this operator to provide strict proof of full compliance.

6. No Evidence of Period Parked – NtK does not meet PoFA 2012 requirements
Contrary to the mandatory provisions of the BPA Code of Practice, there is no record to show that the vehicle was parked versus stopped, having not entered into a contract.

Furthermore, PoFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”. Most notably, paragraph 9(2)(a) requires the NtK to: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;” First Parking LLP’s NtK simply claims the vehicle “was in breach of the terms and conditions for parking”.

The NtK separately states that the vehicle “entered --- at --- --- and departed at --- ---”. At no stage do First Parking LLP explicitly specify the “period of parking to which the notice relates”, as required by PoFA 2012.

It is not in the rights of First Parking LLP to substitute “entry/exit” or “time in car park” in place of the POFA requirement “period of parking” and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, First Parking LLP are not able to definitively state the period of parking.

I require First Parking to provide evidence to show the vehicle in question was parked on the date/time (for the duration claimed) and at the location stated in the NtK.

7. The ANPR System is Neither Reliable nor Accurate
The First Parking LLP’s NtK shows no parking time, merely two images of a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question.

The Notice to Keeper states the vehicle “entered --- at --- --- and departed at --- ---”.

These times do not equate to any single evidenced period of parking. By First Parking LLP’s own admission on their NtK, these times are claimed to be the entry and exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed.

Since there is no evidence to actual parking times this would fail the requirements of POFA 2012, paragraph 9(2)(a), which states; “Specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Furthermore, advice provided by the BPA states that: “As with all new technology, there are issues associated with its use”. They mention flaws with their system, specifically with regards to “‘drive in/drive out’ motorists”, receiving “a charge certificate even though they have not parked”. They further mention that: “Reputable operators tend not to uphold charge certificates issued in this manner”. (Source: won't let me post the link here)

The BPA Code of Practice (21.2) states: “Quality checks: 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.”

The BPA Code of Practice (21.3) further adds: “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.”
In this case the driver drove in and briefly stopped, where there are no signs or bays at all. It is not unreasonable to suggest that the ANPR system has failed and the operator has breached the first data protection principle, through processing flawed data from their system.

I require First Parking LLP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo images to ensure the accuracy of the ANPR images. I also require First Parking LLP to provide strict proof of manual quality checks carried out prior to issuing this charge.

As grace periods are of significant importance in this case (it is strongly suggested the time periods in question are de minimis from a legal perspective), and the parking charge is founded entirely on two images of the vehicle number plate allegedly entering and leaving the car park at specific times, it is vital that First Parking LLP produce the evidence requested in the previous paragraph.

8. No Evidence of Entitlement to Levy Charges without Consideration
I contend that First Parking LLP are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS v HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I require First Parking LLP to provide strict proof of their contract with the landowner that entitles them the authority to levy these charges. I require that First Parking LLP produce a copy of their contract with the landowner and that the POPLA adjudicator reviews this.

Fruitcake

I have had a skim read and it looks okay to me. I think you have done a good job on expanding on your medical condition, but don't hold your breath (pun intended) where PoPLA assessors are concerned.
I would however suggest you use UK sources instead of USA references.

KeithP

Despite what you think about the quality of the signs, I believe that you should include the inadequate signage point from post #3 of the NEWBIES thread.

If the signs were prominent enough, the driver would have seen them and maybe reacted differently.

Assert that the signs are rubbish and force the PPC to rebut that.

FireOnFire

Thank you both for the advice! I'll get onto finding UK references to include for my first point, and I'll add the inadequate signage point on.

I was wondering whether there was anything you thought I should amend or add? It's my first time writing an appeal like this so it feels a little like sailing in uncharted waters.

FireOnFire

Just a quick update: my appeal was submitted and opened, and I was subsequently emailed by POPLA to say that F1rst Parking no longer wished to contest the appeal - meaning my appeal was successful. Thank you all for your help! I would've been fairly lost without you all and this forum.

FireOnFire

MistyZ

That's so good to hear! Well done!

The 'no contest' leaves questions unanswered but I suspect that the way you presented the mitigating circumstances - coming at them from 3 different angles, very confidently and competently - made the PPC very wary of continuing.

While mitigating circumstances aren't considered by POPLA, you used the opportunity to signal to the PPC that you were very bright, very clued-up and had a really compelling reason for stopping. 'Local rag? National rags??! TV?? - don't touch with barge pole!' I can imagine their worried little faces.