Gemini Hospital parking at POPLA appeal stage

Mjolnir7

Hi there,


My friend parked at a hospital to attend an emergency/urgent appointment with a specialist for their young child after being referred by a different hospital.


Due to traffic and lack of parking spaces they were in a great rush and a bit of a panic and missed the machine and signage for buying a ticket and although they came back out to the car to purchase a ticket following a conversation in the waiting room they received a windscreen ticket. This may have been 10/15 minutes after parking but unable to say accurately or for definite due to the situation.



They received the NTK as they are the owner of the vehicle but they were not the driver on the day. They had replied using the template from this forum in the newbie and have received a reply from Gemini showing photographs of the vehicle and the machine, but not anything showing where the machine and signage is in relation to the cars. This particular section of parking has the machine on a walkway hidden by the row of parked cars, on the opposite side of the road to the main hospital buildings, I personally don't think it is very clear or easy to see, certainly not when you are rushing and flapping with a poorly young child in your arms, but that is just my opinion.

The main issue here is that despite putting this on the bottom of the appeal:


"Formal note:
Should you later pursue this charge by way of litigation, note that service of any legal documents by email is expressly disallowed and you are not entitled to assume that the data in this dispute/appeal remains the current address for service in the future."



the response from Gemini was actually sent to their email address, not sent in the post, and ended up in their spam folder and was luckily only just found today, just over a day before the 28 days to appeal to POPLA expires.



Due to the lack of time left and other factors outside of all this I'm a bit confused as to how to construct the appeal for them, can I appeal under the POFA aspect or have they worded it correctly? I won't have time to get to the hospital to take any more photographs before the POPLA deadline passes.



They're obviously happy to pay the correct amount for the hour or so they were parked at the hospital but the £60 is somewhat ridiculous. I've tried to attach the original NTK and Gemini's email response but I'm not allowed to post links.

Thanks in advance for any help with this.

Mjolnir7

I've added spaces in, if that's acceptable?



NTK - imgur . com / a / 1MUj37h


Gemini response - imgur . com / a / IYTPGnv


Gemini photo of machine and signage - imgur . com / a / dE84yhR

KeithP

Here are your links:

NTK - https://imgur.com/a/1MUj37h

Gemini response - https://imgur.com/a/IYTPGnv

Gemini photo of machine and signage - https://imgur.com/a/dE84yhR

If you need to post more links, you only need one blank to break it. Too much fiddling, both for you and us, otherwise.

Mjolnir7

KeithP wrote: »

Here are your links:

NTK -

If you need to post more links, you only need one blank to break it. Too much fiddling, both for you and us, otherwise.

Thank you Keith, I did try it various ways with less spaces but it wouldn't let me play and I've ended up overcomplicating it.

Le_Kirk

Try complaining to PALS at the hospital.

Mjolnir7

Le_Kirk wrote: »

Try complaining to PALS at the hospital.

I have emailed them but no response as yet, I;m not overly confident I will get anything back in time.

MistyZ

It should be possible to 'visit' the hospital car park on Google Streetview. Take a good look with your friend and capture screenshots of signage / lack of signage etc. That should equip you to tackle the signage section with confidence. Embed the screenshots in the POPLA appeal. Then you have all the other POPLA sections as outlined in the POPLA section of the Newbies' thread.

Clearly there are mitigating circumstances that are best tackled via the complaint to PALS. Typically this requires perseverance so don't fall at the first hurdle. Ideally it is best done before POPLA but I interpret that frequent advice as meaning 'before the POPLA decision'. Therefore you do have time to get PALS on side.

The_Deep

Read this

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

Have they complied?

Nine times out of ten of these tickets are scams so consider complaining to your MP.

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

Mjolnir7

Thanks all, I'll get cracking today and try and post a draft on here.


Just another quick question, Gemini have stated I have 28 days to appeal to POPLA but I'm sure I read that POPLA codes are valid for 32 days. Have I got that wrong or do I actually have 32 days to appeal to POPLA?

Umkomaas

Mjolnir7 wrote: »

Thanks all, I'll get cracking today and try and post a draft on here.


Just another quick question, Gemini have stated I have 28 days to appeal to POPLA but I'm sure I read that POPLA codes are valid for 32 days. Have I got that wrong or do I actually have 32 days to appeal to POPLA?

28 days is the official line, but we know that appeals can be submitted up to day 32. Don't drag it out to 32 days just because they are available, get it done in 28, then there's no worries.

Mjolnir7

Here's my draft of the POPLA appeal. Should I include the element about the keeper needing to get to an urgent appointment with an ill child in the grace period section, or should I include it elsewhere? Or simply leave it out?





POPLA Verification Code: xxxx
Vehicle Registration: xxxx


As keeper of the vehicle I wish to appeal on the following grounds:


1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.



2. There are inadequately positioned and lit and signs
in this car park are not prominent, clear or legible from all parking
spaces and there is insufficient notice of the sum of the parking
charge itself


3. The operator has not shown that the individual who it is pursuing
is in fact the driver who was liable for the charge


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


5. Grace Period: BPA Code of Practice – non-compliance






1. Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due the wording used.


Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12.

Gemini Parking Solutions have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

9(2) The notice must —

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f) warn the keeper that the creditor have the right to recover from the keeper so much of that amount as remains unpaid after the period of 28 days beginning with the day after that on which the notice is given

FAILURE TO COMPLY WITH 9(2)(e)OF SCHEDULE 4:
The NTK posted by this operator asks the keeper recipient to name the driver but fails to include the mandatory words:

''...and to pass the notice on to the driver''.

The whole point of this section - and the clear intention and will of Parliament - is that keepers are to be informed in the first letter, that if they were not driving, they are to pass the Notice to the driver. I was not informed about this and had no opportunity to pass the notice to the driver, and instead understood from the NTK that (if I chose not to name the driver, as was my right) I had to either pay it or appeal it. So I am appealing it as registered keeper and the wording has misled me on a fact of the applicable law.

FAILURE TO COMPLY WITH 9(2)(f) OF SCHEDULE 4:
The NTK posted to me fails to use the right period of time or wording, in its crude attempt to paraphrase 9(2)(f).

It says (wrongly and very loosely):

"If after 29 days we have not received full payment or driver details, under schedule 4 of the Protecion of Freedoms Act 2012, we have the right, subject to the requirements of the act, to recover the parking charge amount that remains unpaid' from the keeper of the vehicle'

This timeline is incorrect as it misses out the fact that the period begins only on the day after the notice was given, and it also fails to even inform me what relevance the (top right) 'issued date' has or what 'date given' means, as they have omitted that phrase entirely. The wording is wrong and ambiguous as to charge to whom it shall be recovered from.

So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

Failure to comply with sections of the applicable law - namely 9(2)e, and f of the POFA - are significant omissions and errors which are fatal to any postal PCN attempting to transfer liability to the registered keeper. It is in the public domain that POPLA (this current version of POPLA, as well as the previous London Councils service too) have found before, many times and consistently for years, that NTKs with the words 'after' or 'within' 28/29 days and the loose phrase 'or driver details' fail to meet the statute and are PCNs that were not properly given.




3. The signs are inadequately positioned and lit and signs in this car
park are not prominent, clear or legible from all parking spaces and there is
insufficient notice of the sum of the parking charge itself.


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.


Inadequate signage
The signs in this car park are not prominent, clear or legible from all parking spaces.
On request, Gemini Parking had submitted some close up photo of the vehicle in question and an isolated close up sign of a notice on an unspecified ticket machine.
On a recent visit after the alleged contract and on locating the position from where the vehicle was parked (illustrated by yellow circle) – it is clear and apparent that there are no signs in view for the driver to see. The location of what could be the ticket machine is circled in blue. On the day in question this would have been obscured by other vehicles and is situated in the opposite direction to anyone trying to get to the main buildings of the hospital.

*picture of parking space*


Gemini Parking Solutions claims that the terms and conditions are clearly displayed on the signs on-site but it is clearly not the case.



I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

[FONT=&quot]4. The operator has not shown that the individual who it is pursuing is in fact[/FONT][FONT=&quot]
the driver who was liable for the charge


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 I am
exercising my right not to name that person.


In this case, no other party apart from an evidenced driver can be told to pay. I
am the keeper throughout (as I am entitled to be), and as there has been no
admission regarding who was driving, and no evidence has been produced, it has
been held by POPLA on numerous occasions, that a parking charge cannot be
enforced against a keeper without a valid NTK.


As the keeper of the vehicle, it is my right to choose not to name the driver, yet
still not be lawfully held liable if an operator is not using or complying with
Schedule 4. This applies regardless of when the first appeal was made and
regardless of whether a purported 'NTK' was served or not, because the fact
remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA
(or evidence of who was driving) can cause a keeper appellant to be deemed to
be the liable party.


The burden of proof rests with the Operator to show that (as an individual) I have
personally not complied with terms in place on the land and show that I am
personally liable for their parking charge. They cannot.


Furthermore, 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:


Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4.
Provided certain conditions are strictly complied with, it provides for
recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a
vehicle is the driver. Operators should never suggest anything of the sort.
Further, a failure by the recipient of a notice issued under Schedule 4 to
name the driver, does not of itself mean that the recipient has accepted
that they were the driver at the material time. Unlike, for example, a
Notice of Intended Prosecution where details of the driver of a vehicle
must be supplied when requested by the police, pursuant to Section 172 of
the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal
obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not
complied with then keeper liability does not generally pass.''
Therefore, no lawful right exists to pursue unpaid parking charges from myself as
keeper of the vehicle, where an operator cannot transfer the liability for the
charge using the POFA.


This exact finding was made in 6061796103 against ParkingEye in September
2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for
the charge using the Protection of Freedoms Act 2012 and so in mind, the
operator continues to hold the driver responsible. As such, I must first
consider whether I am confident that I know who the driver is, based on the
evidence received. After considering the evidence, I am unable to confirm
that the appellant is in fact the driver. As such, I must allow the appeal on the
basis that the operator has failed to demonstrate that the appellant is the
driver and therefore liable for the charge. As I am allowing the appeal on this
basis, I do not need to consider the other grounds of appeal raised by the
appellant. Accordingly, I must allow this appeal.''



5. 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 Code of Practice) 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 Code of Practice 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.


6. Grace Period: BPA Code of Practice – non-compliance
The NTK fails to state the period of contravention and the hence Operator has not complied with BPA code 13.


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.


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.”


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.”




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 seconds are de minimis and therefore not taken
into account – certainly an allegation of under eleven minutes (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 a car park, locate (and read) terms and
conditions decide not to enter into a contract and then leave the car park. [/FONT]