McDs & MET & lockdown - submitted appeal to MET before visiting forum! bad move! pls help...

Le_Kirk

Good result.

D_P_Dance

They have wasted your time, consider wasting theirs, read this

https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

Umkomaas

Nice one. This emphasises the need not to identify the driver, especially with a BPA operator (where POPLA do uphold with a well-worded appeal) and a clearly non-compliant NtK. 

MET must have thought they'd 'got you' by misreading your appeal as you having dropped yourself in it by revealing yourself as the driver. Oh dear!  Well done. 🥂

Redx

Or they do not make the case by case study thoroughly investigated enough and so overlook crucial information , if they even study cases at all , no due diligence and the arrogant assumption that they are right and everyone else is wrong , especially victims (customers of their employer I might add)

A win for POFA !!

Email Mickey Dees CEO and tell them what you said above !!

Well done

Coupon-mad

Very good to see a POPLA Assessor who sort of gets the POFA!

Can you post a link to this thread and the outcome (copy & paste) into POPLA Decisions please, as this thread will die and POPLA Decisions doesn't leave the top of the forum.

IduntExist

Hi again Amigos,

So thanks for all the comments, but now for a bit of a twist on this case. So when we visited McDonalds we went as a family group in multiple vehicles, resulting in multiple NTKs being received for each vehicle. I created both the appeal document, with help from here, and the response to the operators "evidence" for all NTKs. Every single submission to each case was an exact copy of each other, with details changed like names and reg etc, including METs evidence pack. All of them the exact same as the situation was the same!

Somehow the following unsuccessful decision was made on one of the other cases, we're baffled??
It reads as though this assessor, different from the first response yesterday, ignored much of the facts, rushed through the case and made his conclusion based on his own assumptions and not the evidence provided!
A lot of his response has a lot of typos and does not explain many of the points he mentions. for example on this one he states the appellant admitted to being the driver when no admission was ever made, yet he does not back this up with when, where and how he came to this conclusion? 
I'm not just saying this because this one was unsuccessful but it does seem this assessor in comparison  is not well trained and got bored whilst assessing this case. He even claimed the response to operators evidence provided new grounds for appeal when I was careful to only provide comments on what the operator stated!

any advice would be greatly appreciated. I have spoken to POPLA about the issue and they have said to email to the complaints section asking them to look at the case again and why we think they should. 
If all had been unsuccessful and explanations given to all reasons then we would accept what they said but when it is inconsistent and vague we feel cheated.

Decision

Unsuccessful

Assessor Name

P G

Assessor summary of operator case

The operator has issued the Parking Charge Notice (PCN) due to remaining at the site for 102 minutes and exceeding the maximum stay authorised or without authorisation.

Assessor summary of your case

The appellant has raised several grounds of appeal. These are: They state that the Notice to Keeper does not comply with the Protection of Freedoms Act (POFA) 2012. They explain that the grace period does not comply with the British Parking Association (BPA) Code of Practice. They advise that the entrance signs are inadequately position or lit and the signs within the car park are not prominent clear or legible from all parking spaces. They state that the operator has not shown that the individual it is pursing is the driver. They explain that there is no evidence of landowner authority. They advise that the images on the PCN do not comply with section 20.5a of the BPA Code of Practice. They state that the Automatic Number Plate Recognition (ANPR) cameras are neither reliable nor accurate. They explain that there is no planning permission from the relevant authorities and local council for the pole mounted ANPR nor advertising consent for signage. They advise that time spent on site was due to technical issues experienced by the site owner/restaurant operator.

Assessor supporting rational for decision

The appellant has indicated that they were the driver at the time of the parking event. I will therefore be considering their liability as the driver. When parking in a car park that is subject to specific terms and conditions, a motorist who uses the site does so under contract with the parking operator. The terms and conditions should be stipulated on the signs displayed within the car park to allow the motorist to decide if they wish to accept or not. In assessing this case I have reviewed the signage on site to confirm if the terms and conditions of parking were made clear. The operator has provided photographic evidence of the signs within the car park which state: “…90 minutes maximum stay…By parking in this car park motorist are entering into a contract and must comply with the terms and conditions of use and also accept liability to pay the parking charge if they fail to comply with them…If you breach any of the above terms and conditions you will be charged: £100…” The operator has provided photographic evidence of the vehicle entering the site at XX:56 and exiting at XX:38. A total stay of one hour and XX minutes. Based on the evidence provided, I am satisfied that a parking contract was entered into between the appellant and the operator. On the face of the evidence, it appears that the terms of the contract have been breached. I will now assess the appellants grounds of appeal to determine if they make a material difference to the validity of the PCN. The appellant has raised several grounds of appeal. I have addressed these as follows: They state that the Notice to Keeper does not comply with POFA. They state that the operator has not shown that the individual it is pursing is the driver. POFA is used to transfer liability of the PCN to the registered keeper when the identity of the driver is unknown. In their appeal to the operator, the appellant has indicated that they were the driver on the day in question and as such, the operator is not seeking to transfer liability of the PCN using POFA. Therefore, in this instance, POFA is not applicable. They explain that the grace period does not comply with the BPA Code of Practice. ANPR systems are used to take images of vehicles entering a site and exiting. The operator then uses the times of these ANPR images to calculate the total duration of stay on site. As the site permits motorists to 90 minutes free parking time, I am satisfied that the free parking period would begin from the time the vehicle enters the site. This is because motorists do not need to obtain the free parking period; all they do is park their vehicle on site and agree to comply with the terms and conditions. As such, a grace period does not apply on this site. They advise that the entrance signs are inadequately position or lit and the signs within the car park are not prominent clear or legible from all parking spaces. While an entrance sign plays an important part in establishing that a site is managed, there must be other signs around the site, bringing the specific terms and conditions to the motorist’s attention. The British Parking Association Code of Practice sets the standards which parking operators must comply with. Section 19 of the code refers to signage. Specifically, section 19.3 states that signs containing the site’s terms and conditions must be placed throughout a car park to give motorist the chance to read them at the time of parking. It confirms further that signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand. The operator has provided several images of the signs within the car park and also a site map which shows the locations of the signs and after reviewing these images, I am satisfied that the signs comply with the Code of Practice. There is no requirement that the signs are visible form every parking space on the site. It is the driver’s responsibility to seek out and comply with the terms and conditions displayed on the signage. They explain that there is no evidence of landowner authority. Section 7.1 of the British Parking Association (BPA) Code of Practice outlines to operators, “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. In response to this ground of appeal, the operator has provided a copy of the contract, confirming that the operator has sufficient authority to pursue charges on the land. They advise that the images on the PCN do not comply with section 20.5a of the BPA Code of Practice. The BPA Code of Practice was updated on 6 January 2020. This new Code of Practice supersedes all previous versions of the code. As the parking event occurred on XX February 2020, it is the new code that is applicable. In this code, there is no section 20.5a. Therefore, I am unable to comment further. They state that the Automatic Number Plate Recognition (ANPR) cameras are neither reliable nor accurate. ANPR cameras are generally reliable. As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the technology is inaccurate nor reliable. However, as the appellant has not provided evidence to demonstrate otherwise, I will work on the basis that the technology is accurate. The burden of proof begins with the operator to show it issued the PCN correctly. If they do that by providing ANPR images that support its version of events, the burden of proof then passes to the appellant. They explain that there is no planning permission from the relevant authorities and local council for the pole mounted ANPR nor advertising consent for signage. I acknowledge the appellants comments, however, as this issue holds no impact on the appellants ability to comply with the terms and conditions of the car park on t eh day in question, I do not consider r this relevant to my assessment. If the appellant wishes to pursue a dispute regarding this issue, they will need to contact the relevant authorities. They advise that time spent on site was due to technical issues experienced by the site owner/restaurant operator. The parking operator is in place to control the car park. McDonalds and the parking operator are separate entities and as such, the operator cannot be held responsible for any technical issues the appellant nay have experienced via a third party. If the appellant wishes to pursue a dispute regarding this matter, they will need to contact McDonalds directly. I acknowledge that the appellant has requested the operator to provide information such as the original uncropped images of the vehicle. POPLA is an appeals service only. Our role is to assess the validity of the PCN based on the evidence provided. Should the appellant require specific information, they will need to contact the operator directly. I note that the appellant has raised additional grounds for appeal in their comments despite not raising this when submitting the initial appeal. Please note that POPLA does not accept new grounds of appeal at the comment stage. Instead, the comment stage is to be used to expand on the initial grounds of appeal after seeing the evidence pack from the operator. As these were not raised in the initial appeal, I cannot consider these this as part of my decision. Ultimately, it is the motorist’s responsibility to comply with the terms and conditions of the car park. Upon consideration of the evidence, the appellant exceeded maximum stay period, and therefore did not comply with the terms and conditions of the car park. As such, I conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

beamerguy

Well done ....

MET expects drivers to follow their terms and conditions yet they clearly cannot function within the rules set out to them. 

MET needs re-training by the BPA ....... pigs will fly

I would write to the CEO of McD's showing him he employs cowboys

Were_Doomed

Get the appellant to raise a complaint with the POPLA Lead Adjudicator that the assessor has made a fundamental error in law whilst assessing the appeal. The appellant can make reference to the other successful appeal(s) for the exact same incident as proof that the assessor erred in their understanding of POFA.

IduntExist

Were_Doomed said:

Get the appellant to raise a complaint with the POPLA Lead Adjudicator that the assessor has made a fundamental error in law whilst assessing the appeal. The appellant can make reference to the other successful appeal(s) for the exact same incident as proof that the assessor erred in their understanding of POFA.

YES, Great advice, thank you for that. I was just about to send an email and hadn't included wording regarding law and understanding of it. Cheers

IduntExist

Wow, POPLA are so convoluted and backasswards... The Appellant sent an email to complaints to ask them to look at the decision again based on the precedent set on the first case and to look at all the evidence etc. They have responded to say that they have submitted the request to the complaints department but have noted at the end of the email that because the appellant admitted to being A CUSTOMER of McDonalds they are the driver and as such POFA does not apply! 
What kind of logic is that!