Parked longer than the maximum period allowed

Brucella

Thanks Umkomaas and all your expert colleagues for your encouragement and support. Perhaps you could pass on my experience in complaining via the BPA and the means of emailing POPLA staff direct to appropriate cases. I have messaged MinnieSox9 so I hope that it will work for her.

In the New Year I hope to ask my MP to contact the Minister concerned on my behalf and ask for comment on what happened. Every little helps

Umkomaas

Brucella wrote: »

Thanks Umkomaas and all your expert colleagues for your encouragement and support. Perhaps you could pass on my experience in complaining via the BPA and the means of emailing POPLA staff direct to appropriate cases. I have messaged MinnieSox9 so I hope that it will work for her.

In the New Year I hope to ask my MP to contact the Minister concerned on my behalf and ask for comment on what happened. Every little helps

Your success in pushing this through is well recognised and where posters are having similar problems, I will refer them to this thread.

Great respect for your sterling efforts.

Coupon-mad

Well done Brucella!

Could you kindly show us the reply email text (copy the actual wording please) from John Gallagher that admitted the Sector Expert had told POPLA they were wrong, and your POPLA code and date of this final resolution from the Lead Adjudicator, admitting they were wrong, please?

We will want others to cite your case at Adjudicators until they cotton on.

It may take some time, hence your POPLA code, date of final email and wording will help.

Brucella

My Verification Code is 2412749132

Originally, I was rebuffed when I phoned POPLA who told me that Mr Gallagher did not get involved in individual cases. However, I was not put off by this and sent in an email for his attention. In fact, he was kind enough to reply to me personally as follows. In fact, I initially didn't give him my specific details, but cited another case that had been discussed online. Unfortunately, this was not a great example as that case didn't quite fall outside the 14 days. Nevertheless, Mr Gallagher confirmed the correct interpretation - and I guess internally the alarm bells started ringing! Mr Gallagher wrote:


I agree with your logic. We instruct the team to follow the same logic. The Parking Charge Notice must be ‘given’ within 15 days of the alleged improper parking; or 14 days from “the day after that on which the specified period of parking ended”.

From the example provided in the MSE forum, the Parking Charge Notice was given within 15 days of the alleged improper parking. The date of contravention was 3 July 2019. The 14-day clock started ticking on the following day, 4 July 2019. The appellant confirms that they received the Parking Charge Notice 14 days later, on 18 July 2019.

The Act includes a presumption that a notice sent by post will only arrive on the second day after it is posted unless the contrary is proven. So, if we did not have evidence that the Parking Charge Notice arrived on 18 July 2019, we would have presumed it was ‘given’ on 19 July 2019 and out of time. As we were aware that receipt was on 18 July 2019, we concluded that it was in time.

Thank you for providing feedback to POPLA and I hope this email allows you to understand the logic behind our decision-making.

Regards

John Gallagher

Ombudsman and POPLA Lead Adjudicator
Ombudsman Team

I subsequently replied to him, but as he had gone on leave, I received a reply from a 'sector expert':

Dear *****,

I hope you are well. I am writing to you on Mr Gallagher’s behalf as he left the office shortly before your email yesterday and will not be back until next week. I am picking up enquiries in his absence in my role as Sector Expert of POPLA and I hope to be able to address your concerns below.

I can see that your concerns are that our assessors – *** and *** – have decided that this parking charge notice was issued in compliance with Protection of Freedoms Act 2012 Schedule 4. However, it is your contention that this is not the case because the notice was sent so that it was given outside of the relevant period.

I hope you’ll excuse my brevity and cutting straight to the point: I agree with you. It is clear that where the parking event occurred on 15 August 2019, a parking charge posted on 30 August 2019 would be given outside of the relevant period. A notice issued on 30 August 2019 would not be given until 3 September.

I can see in your email one of your concerns is that *** has confused ‘sent’ and ‘given’. Without any other explanation, this seems like a logical conclusion that would explain how this decision was reached.

Furthermore, I can see in your email another concern is that you think *** has reversed the burden of proof concerning the date of postage. The wording in Protection of Freedoms Act 2012 Schedule 4 – “A notice sent by post is to be presumed, unless the contrary is proved…” creates a rebuttable presumption in favour of two working days postage time. If an operator was to allege it arrived before this date, I’d expect them to provide convincing reasoning for that. Further, if a motorist was to allege that the letter arrived after the two working days, I would expect a motorist to rebut that presumption by providing some convincing reasoning.

Given that the assessor was under an incorrect belief that the date it was sent was acceptable, my reading of this is that the assessor was suggesting that if you felt the letter was sent on a different date than stated on the letter, then it would be for you to provide some rationale for that. I understand the reasoning, even though it is based on an incorrect premise.

POFA cases are surprisingly uncommon, and cases where the operator has got it wrong but continues to pursue at POPLA rarer still. It is clear from the example you have provided below that we have some work to do to ensure that the assessors here understand the Protection of Freedoms Act 2012 Schedule 4 and apply its provisions correctly.

I am sorry that your experience of POPLA was not better than it was, but I do appreciate you bringing your concerns to us. I want nothing more than for our assessors to come to the correct decision, so I will personally ensure that these assessors receive feedback and training to ensure that such mistakes are not repeated.

Kind regards,

******

Sector Expert
POPLA

I replied to him, attaching the prior emails from the assessor and complaint handler who had misinterpreted the law, asking for my appeal adjudication to be changed to 'Allowed'. What is really troubling, despite POPLA's late admission that they had made a huge error, is that they refused to reverse their original decision. This could leave the motorist open to further action by the operator despite a clear admission by POPLA that they didn't have grounds to pursue the motorist. The reply was as follows:

Dear ***,

Thank you for your response and I apologise for the slight delay in responding.

While I appreciate that you are looking for your appeal to be overturned, that isn’t something that we can do. POPLA has been appointed to deliver a free, single-stage, determinative appeals process. In practice this means that once we have decided an appeal, our involvement in whether the charge is valid or not ends. Even in cases where we have made an incorrect decision, we cannot issue new or revised decisions.

My intention in being so frank with you below was to provide you with helpful information to assist you if you are having ongoing discussions with the parking operator or disputing the matter through a legal route. I do hope that it can provide you with the information necessary to challenge it via alternative means, but regrettably we are not able to issue a revised decision once we have made a decision.

I am sorry that I have not been able to offer further assistance in that regard, but I do remain committed to provide feedback and training to ensure that this does not happen in future appeals.

Regards,

***

Sector Expert
POPLA

As you know, in parallel I complained to the BPA. They too agreed with me that the PCN was out of time and replied:

Dear ***

Thank you for providing us with POPLA’s email.

You are correct that Euro Car Parks did not fulfil POFA 2012 in this instance, and as a result they have cancelled the parking charge notice.

Euro Car Parks advise that this was an IT error and we are currently working with them to ensure all previous instances are rectified and that this does not reoccur.

Thank you for bringing this to our attention and I hope this has been helpful.

Kind regards,

***
Compliance Investigations Officer
British Parking Association
Tel: 01444 447 300
Email: aos@britishparking.co.uk
Web: https://www.britishparking.co.uk

Note that they say that they will be reviewing and rectifying past errors like this. Somehow we must ensure that this is done.

I went back to them with a series of points, to which they responded in green:

Dear ***,

Thank you for your email.

I’ve reviewed this case for my colleague. For ease of reference please see comments below in green.

1) What reason did the operator give for not cancelling the charge immediately when I pointed out the error in my original appeal? – I would surmise this is a training issue for the appeals handler dealing with your case. It is also a matter for the operator to deal with internally, and we would not share this with the public.

2) I would like a full explanation and apology from the operator. Please will you instruct them to provide these? We have passed on your request, but we have no authority to instruct them in this.

3) What sanction have you imposed on the operator for this breach of the code? Sanctions are confidential. It should be noted that we give the operator a chance to rectify issues before sanctions are given.

4) When you say that the operator will be rectifying previous instances, will you ensure that drivers wrongly charged will be proactively contacted and reimbursed? We look at every issue on a case by case basis – it is not for the BPA to become involved in disputes over individual charges as all motorists have the option of appeal. The appeals process is in place for identifying any errors – which happen rarely - as well as allowing the operator the opportunity to review every individual case and to make an informed decision.

5) What explanation do you have for several staff in POPLA misinterpreting PoFA which is the core piece of legislation for their business? POPLA are independent from the BPA and have their own processes and quality assurance which they administer internally themselves.

6) What action will you be taking against POPLA who have failed to provide even a minimum standard of adjudication? Please see above – POPLA are independent and this is not within our remit.

I can understand your frustration in this matter, however as with every system or process sometimes errors can occur, and as the charge has since been cancelled, and as measures are being taken to prevent this from happening again in the future, there is no further action we can take at this time.


I trust this information is of use.



Kind regards,


***
Compliance Investigations Officer
British Parking Association
Tel: 01444 447 300
Email: aos@britishparking.co.uk
Web: https://www.britishparking.co.uk


As you see, the responses were as expected. Nevertheless, I hope that this is of some use in your continuing battles for fairness

Umkomaas

I can understand your frustration in this matter, however as with every system or process sometimes errors can occur, and as the charge has since been cancelled, and as measures are being taken to prevent this from happening again in the future, there is no further action we can take at this time.

We are watching BPA! :cool:

Thanks for the extremely comprehensive response Brucella, and once again, great fight-back example.

Castle

Brucella wrote: »

From the example provided in the MSE forum, the Parking Charge Notice was given within 15 days of the alleged improper parking. The date of contravention was 3 July 2019. The 14-day clock started ticking on the following day, 4 July 2019. The appellant confirms that they received the Parking Charge Notice 14 days later, on 18 July 2019.

The Act includes a presumption that a notice sent by post will only arrive on the second day after it is posted unless the contrary is proven. So, if we did not have evidence that the Parking Charge Notice arrived on 18 July 2019, we would have presumed it was ‘given’ on 19 July 2019 and out of time. As we were aware that receipt was on 18 July 2019, we concluded that it was in time.

Except of course that 18th July 2019 in this example is day 15 and therefore a day late.

Umkomaas

Castle wrote: »

Except of course that 18th July 2019 in this example is day 15 and therefore a day late.

Sums and adding up still a problem - even at the very top!

What hope for the rest. :cool:

MistyZ

Brucella wrote: »

I can understand your frustration in this matter, however as with every system or process sometimes errors can occur, and as the charge has since been cancelled, and as measures are being taken to prevent this from happening again in the future, there is no further action we can take at this time.


I trust this information is of use.

I'm so impressed by your approach Brucella. You are meticulously polite and, from the point of view of those you've contacted, infuriatingly rational.

My interpretation of the above: 'it is impossible to refute the points you make. Please just stop, I am begging you. The damn thing's been cancelled, all right? Please, please, please ..... '(repeat as necessary).

Coupon-mad

Who is the Sector Expert, please?

Brucella

Hi Coupon Mad
I'm happy to name the Sector Expert if your advice is that it is acceptable to do so - on the forum and legally
Thanks