Popla Appeal Rejected (Hospital Ticket) - Letter Before County Court Claim - ParkingEye

Le_Kirk

bestfootie said:

Letter to BJ:-

Dear Prime Minister

I am aware that around six months ago you stated your Government was going to put a stop to predatory parking upon private land, (in particular, on hospital land). 

I have an ongoing dispute which I have made my MP aware of, as well as the Head of the NHS Trust in question, and the Parking Management company themselves, ParkingEye Limited.

Did you mean predatory ticketing rather than predatory parking?

bestfootie

D_P_Dance said:

"...Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate."

nosferatu1001 said:

Ask why theyre releasing data without confirming that the reason the company was applying wasnt in breach of the mandatory instructions to hospitals on issuing parking charges. 

The DVLA replied to my reply to them (reprinted earlier in the thread) as follows:-

Dear ****

Thank you for your further email dated 29th June 2020.

Electronic requests for information from the DVLA vehicle record are handled via an automated process which is the method used in this instance. There is no requirement for a decision to be made to disclose information at the time an enquiry is received. The request is received and processed in accordance with the terms and conditions of the contractual agreement.

Car parking companies receive vehicle keeper data on the condition that it will only be used in connection with an enquiry relating to identifying a driver for an alleged parking contravention on private land. Information disclosed from the DVLA’s vehicle records must only be used for the purpose it was provided and not be further processed for any other purpose. Recipients of DVLA information are bound by contract and subject to audit by their relevant ATA, the DVLA and the Government Internal Audit Agency (GIAA).

DVLA cannot regulate private car parking companies and is therefore unable to intervene or arbitrate in any disputes between two parties.

As advised previously, if you feel that any of the practices used by the company do not comply with the BPA’s code of practice, you may wish to contact the BPA at Stuart House, 41- 43 Perrymount Road, Haywards Heath, RH16 3BN, or submit your further complaint via the BPA’s online portal at https://portal.britishparking.co.uk/compliance/LogComplaint.

Kind Regards,

Sinead O'Sullivan

Compliance Officer,

Data Sharing Strategy and Compliance Team,

Strategy, Policy & Communications Directorate/ C2/ East/ DVLA Swansea/ SA99 1DY

Any suggestions for follow-up?

nosferatu1001

I gave yo ua follow up - that being a member of the ATA does not exempt the DVLA their data controller responsibiltiies, and when dealing with health sites where they know there are extra requirements this is doubly so. 

bestfootie

My reply sent a moment ago:-

Dear Sirs

Thank you for your email below. 

By way of management, going forward, kindly reply to this email directly to keep the chain of communication in one place rather than separate emails.

You state that:- 'Recipients of DVLA information are bound by contract and subject to audit by their relevant ATA, the DVLA and the Government Internal Audit Agency (GIAA).'

The fact that ParkingEye Limited is a member of an ATA does not exempt the DVLA, as the data controller, from its own responsibilities, particularly when dealing with health sites where the DVLA are aware, or ought reasonably to be aware, of the extra requirements that apply thereto. So a greater duty of care applies to and a carte blanche approach may not legally be applied; nor can a defence that ATA membership defers the DVLA's own duty of care as data controller. 

Simply put, the responsibility is upon the DVLA to ensure the 'legitimate interest' test of GDPR is passed before handing over personal data. This has not been satisfied in the instant case.

Regulation 27 of the Road Vehicles (Registration and Licensing) Regulation 2002 covers the release of information from DVLA's vehicle register to private organisations providing that organisation can demonstrate reasonable cause. While this is not defined in law, government policy is that this should only be where there may be liability on the driver's part. 

In light of the government's principles on parking (https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles) and that the DVLA must act responsibly and in accordance with data protection law at all times, this has not taken place in my case. 

I look forward to your reply.

Yours faithfully

bestfootie

Coupon-mad said:

Email ParkingEye's legal team (they are not the same people who dealt with the appeal and POPLA) and admit to being the driver (no point not, it's a POFA PCN) and attach the evidence of the longterm medical condition once again.

enforcement@parkingeye.co.uk...

Reply from ParkingEye
01 July 2020

Reference: Parking Charge Notice - *******

Dear Sir / Madam,

Thank you for your correspondence in relation to the Parking Charge incurred on 09 January 2020 at 12:00, at ******** Hospital - Patient & Visitors B car park. We can confirm that your request has been passed to our privacy team.

Please note, if your enquiry also relates to an appeal, the case will be placed on hold whilst your request is reviewed.

Yours faithfully,

ParkingEye Team

Coupon-mad

Dear ParkingEye, 
Why has the matter been passed to your data privacy team?

The email below was a response to your LBCCC and if you choose to call it another 'appeal', sobeit, but that is not how I described it.  This is a formal complaint regarding a failure to make 'reasonable adjustments' to avoid indirect discrimination against drivers and passengers 'at large' at a hospital site. 

A word of warning - neither you nor the hospital can justify indirect discrimination by saying either that:

(a) - we use ANPR and the Blue Badge scheme as a cheap method of automatic enforcement because to exempt other people with protected characteristics or to patrol the car park would be too difficult and/or costly, or
(b) -  we didn't know you had protected characteristics (not a defence to INDIRECT discrimination).

I continue to copy in the NHS Trust as part of my formal complaint and look forward to hearing from you, once the NHS Trust have properly reviewed the matter and can explain what they intend to do, in order to right this wrong and make a reasonable adjustment available in future for people like me.

yours faithfully, 

Dear Sirs
Re: PCN ********  and your Letter before County Court Claim ('LBCCC')
VRN: *******
I write further to my email sent to you on 24 June 2020.

I have received your LBCCC and the purpose of this email is to inform you once again - because your appeals team appear not to understand the law - that there has been a breach of the Equality Act in failing to allow more time to persons with longterm medical conditions. That POPLA don't understand the law either is a concern, but I would hope your dedicated legal team will finally review it properly.

The driver has a longterm ongoing medical condition which means they require more time than an able-bodied person to go about their daily life. The fact that the driver was attending a hospital appointment (evidence of which was submitted in the original appeal and is reattached forthwith) should have been a red flag, but clearly not, so I will spell it out:

1. The driver has protected characteristics and meets the definition of 'disability' in the Equality Act. This has nothing whatsoever to do with the Council Blue Badge Scheme and is a fact in law. The driver needed a reasonable adjustment of time over and above the hour paid for.

2. This has been tested following a court challenge, albeit on Local Authority land. Unlike private operators, Councils are restricted to only make adjustments for Blue Badge Holders but this is not the case on private land. The Equality Act 2010 is silent about permits and badges, for obvious reasons.
https://www.wake-smith.co.uk/news/council-car-park-case-settled-a-victory-for-blue-badge-holders/

3. I am formally asking for a retrospective reasonable adjustment, which should have been allowed at the time of my appeal. What I am requesting is recognition of the driver's medical condition and their needs, and that ParkingEye allow an extra hour for persons such as the driver, over and above paid-for time. 

4.  If you refuse, you will need significant and compelling justification and at all times the Hospital remains jointly and severally liable for your actions. I have cc'd the Hospital's PALS team into this email.  I suggest you choose your words carefully if you are going to try to refuse a reasonable adjustment that is in line with the caselaw on the subject.

5.  Indeed I have found out that in some car parks, ParkingEye allow disabled people to register for more time (e.g. by going to the Customer Sevices desk at a retailer and being added to a 'white list' to be exempted from the arbitrary time limit and the risk of a parking charge).  Kindly explain why ParkingEye thinks it is OK to offer that at a retail park, but not at a hospital where there may well be a number of persons visiting for appointments who qualify for more time?

For the avoidance of doubt, I am once again attaching the evidence of the driver's medical condition. I know that your contract requires you to liaise with the Hospital regarding appeals and to make sure court claims are not issued inappropriately. As a result, I have herewith CC'd the relevant NHS Trust into this email for review. 
As service providers, both ***** Hospital and ParkingEye are jointly and severally liable for a significant breach of the Equality Act and I am giving you the chance to put this right now. 

Lastly, please be advised that if you decide to bring an action against me in the County Court I will counterclaim for the sum of £900, setting my claim very reasonably at the bottom rung of the Vento guidelines. I will also summons a representative of ****** Hospital as a witness, to explain your joint breaches of the Equality Act and the apparent lack of any ability to identify people who qualify for more time on their tariff. I will claim for my costs in full and pursuant to 27.14(g) I intend to include my further costs that the court may order to be paid by a party who has behaved unreasonably (together with interest).

Please now confirm that you are making a retrospective reasonable adjustment and will now cease and desist in bringing this vexatious and without merit action, or I will have no choice but to consider bringing an action against ParkingEye Limited in the first instance for your breach of the Equality Act.

Yours faithfully

[Name]

bestfootie

Coupon-mad said:

Dear ParkingEye, 
Why has the matter been passed to your data privacy team?

The email below was a response to your LBCCC and if you choose to call it another 'appeal', sobeit, but that is not how I described it.  This is a formal complaint regarding a failure to make 'reasonable adjustments' to avoid indirect discrimination against drivers and passengers 'at large' at a hospital site. 

A word of warning - neither you nor the hospital can justify indirect discrimination by saying either that:

(a) - we use ANPR and the Blue Badge scheme as a cheap method of automatic enforcement because to exempt other people with protected characteristics or to patrol the car park would be too difficult and/or costly, or
(b) -  we didn't know you had protected characteristics (not a defence to INDIRECT discrimination).

I continue to copy in the NHS Trust as part of my formal complaint and look forward to hearing from you, once the NHS Trust have properly reviewed the matter and can explain what they intend to do, in order to right this wrong and make a reasonable adjustment available in future for people like me.

yours faithfully, 

In all fairness I did make a separate data subject access request as per the below on 24 June 2020:-

24 June 2020

ParkingEye Limited
PO Box 117
Blyth NE24 9EJ

By WebForm and Email Only: enforcement@parkingeye.co.uk  

Dear Sir or Madam

Subject access request (Data Protection Act 2018 / General Data Protection Regulations (GDPR)

Registered Keeper:- *************
Vehicle Registration Number: *******
Reference: ***********

Please supply the data about me that I am entitled to under data protection law relating to myself and the above matters.

These include inter alia:-

• All photos taken of my vehicle at any time and held by yourselves;
• All letters/emails sent and received, including any appeal correspondence;
• The PDT Machine Record from the date 9 January 2020;
• All payments made on the date of 9 January 2020;
• Any and all data held by you or any third party connected with you, in relation to the above subjects;
• All evidence ParkingEye will rely on in relation to the intended claim, and a full copy of the ‘Penalty Charge Notice’ and Notice to Keeper;
• A list of all PCNs you claim are outstanding against me, and/or this VRN.

You are reminded that any claim for PCNs must be in one claim not in several claims.

If you need any more data from me to confirm my identity please let me know as soon as possible. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.

Lastly, in good faith, you are again reminded that the driver was a genuine patient at the hospital, see attached. 

Frankly your behaviour is predatory and disgusting and has been reported to PALS, the DVLA and my local MP.

I suggest you urgently cancel the ticket. Should the matter proceed to court, I am confident this will not bode well for you.

Yours faithfully

Coupon-mad

OK, but the thing about 'appeal' needs a pushback and you need either to tell them that they cannot justifiy this by (a) or (b) or at least be aware that they can't...not for indirect discrimination against people at large.

I want you to be confident of that and read up about indirect discrimination in the Equality Act, so you don't come back in a week, telling us that P/Eye said they couldn't make a reasonable adjustment because they 'didn't know' about your medical condition.

bestfootie

Thank you and you are completely correct re:- cost etc not being a defence to indirect discrimination.
I have now sent the following email to ParkingEye, copying in the NHS Trust:-

Dear Sirs

I am in receipt of your latest email and attached correspondence thereto in respect of the Data Subject Access Request contained within the below email.

Preliminary Matters

For clarity and good practice in accordance with the CPR, I request that you maintain one chain of correspondence, i.e. within this email chain. 

As you will well appreciate, it is poor practice to send a party separate emails with replies to- and fro- and expect a proposed party to litigation to keep track of your disorder. Further, this conduct may amount to a breach of your obligations under the CPR (1.3), or at the very least, non-compliance with PD (Pre-Action Conduct and Protocols) (3)(e). Should the matter proceed to court, the court will take into account whether it deems that your conduct amounts to substantial non-compliance with the PD (13) thereto. This can result in sanctions (15(c)).

Content

Your letter states:-

"Please note, if your enquiry also relates to an appeal, the case will be placed on hold whilst your request is reviewed."

You may choose to call my previous email an 'appeal' but that is not how I described it. 

This is a formal complaint regarding a failure to make 'reasonable adjustments' to avoid indirect discrimination against drivers and passengers 'at large' at a hospital site. 

A word of warning - neither you nor the hospital can justify indirect discrimination by saying either that:

(a) - "we use ANPR and the Blue Badge scheme as a cheap method of automatic enforcement because to exempt other people with protected characteristics or to patrol the car park would be too difficult and/or costly"; or

(b) - "we didn't know you had protected characteristics". (This does not provide you with a defence to INDIRECT discrimination).

I continue to copy in the NHS Trust as part of my formal complaint and look forward to hearing from you, once the NHS Trust have properly reviewed the matter and can explain what they intend to do, in order to right this wrong and make a reasonable adjustment available in future for people like me.

Yours faithfully

bestfootie

Well, there you go...
Any further action to be taken?