CEL - POFA challenge to POPLA if PCN doesn't mention POFA? RESULT - Parking charge CANCELLED!

JJJDec20

HI - Looking for advice on POFA2012 regarding a CEL PCN which was sent out 3 months after the parking event (overstay in a retail car park).  There was no mention of POFA, and no option to identify the driver.  I appealed on the website as the registered keeper, citing POFA2012 Schedule 4 which has been rejected and a POPLA code provided.  The reason given: "There is no legal requirement to send out the PCN within 14 days of the incident day as there is no reference to POFA on this ticket. Your interpretation of the Act is incorrect."

A post on another thread states CEL do not comply with POFA, so if I appeal to POPLA as the keeper, referencing POFA2012 and stating CEL have failed to comply with this act, and failed to identify the driver - would that be sufficient or do I need additional grounds?   

I'm confused about their POFA reason for rejection. Clause 22.8 of BPA Code of Conduct states " While we have an expectation operators will seek to use the POFA legislation, ...there are occasions where this might not be possible...non-POFA NtK must be sent out as soon as possible and no later than 7 months.."

So if they claim this is non-POFA as it wasn't mentioned on the PCN, can it still be challenged at POPLA under POFA, or does POFA not apply?  
Thanks in advance.

Coupon-mad

A post on another thread states CEL do not comply with POFA, so if I appeal to POPLA as the keeper, referencing POFA2012 and stating CEL have failed to comply with this act, and failed to identify the driver - would that be sufficient or do I need additional grounds?   

It should be enough to win, but most people add the usual template points about unclear signs and no landowner authority as well, as belt & braces.

So if they claim this is non-POFA as it wasn't mentioned on the PCN, can it still be challenged at POPLA under POFA, or does POFA not apply?  

I can never understand why people ask this but several people do.  Think about it....they have admitted it is non-POFA, how is that confusing? 

IT'S BLOODY BRILLIANT FOR AN APPELLANT KEEPER!

Umkomaas

PoFA does apply whether the PPC decides to use it or not. PoFA protects the keeper. If the PPC decides not to use PoFA, they can only pursue the driver. If they don't know who the driver was, they're stuffed. You will need to go through the POPLA hoop to get rid of this, but you will need to spell out why you cannot be held liable and build a full POPLA appeal using the template examples in the NEWBIES FAQ sticky, third post. 

Please let us see your initial appeal - in full, to make sure you've put nothing to compromise your immunity as the keeper. 

JJJDec20

Thanks Coupon-mad for the quick response!
The confusing thing for me is when reading in conjunction with the BPA CofC which states there may be occasions when using the PoFA legislation is not possible, in which case operators can send out the PCN within 7 months - not the 14 days stated in the Act.  
I'll appeal to POPLA with the additional template points too, hopefully that will work.
Thanks again.

JJJDec20

Umkomaas said:

Please let us see your initial appeal - in full, to make sure you've put nothing to compromise your immunity as the keeper. 

Thanks for the advice - here is the appeal with key info/dates removed: 

I am the keeper of vehicle [xxreg] which has received your PCN notice [xxxx] issued on [xxdate] relating to an “incident” on [xxdate].

According the Protection of Freedoms Act 2012 Schedule 4, the right to claim unpaid parking charges from the keeper of vehicle only applies if the conditions specified in paragraphs 5, 6,11 and 12 (so far as applicable) are met.

Paragraph 6 (1) (b) requires a notice to keeper is given in accordance with paragraph 9.  Paragraph 9 states:

9(1)      A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1) (b) is given in accordance with this paragraph if the following requirements are met.

(4) (b)   The notice must be given by sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

(5)        The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

 Contrary to Protection of Freedoms Act 2012 Schedule 4, paragraph (9), sub-paragraph (4) (b), Civil Enforcement Limited has failed to deliver the Notice to Keeper within the relevant period. The relevant period being 14 days, as defined in Schedule 4, paragraph 9, sub-paragraph (5). The letter issued on [xx date] refers to an “incident” on [xx date], which is [xx100+] days after the event and therefore not within the relevant period. 

 The requirement to adhere to the strict conditions of Protection of Freedoms Act 2012 Schedule 4 (and particular paragraph 9) is further set out in the BPA Approved Operator Scheme Code of Practice

 I require you to cancel this PCN and provide confirmation within 14 days of this appeal (by [xx Date]), in accordance with paragraph 23.8 of the BPA Code of Practice.

Coupon-mad

It is not confusing. 

There are 2 types of NTK, POFA or 'non-POFA' and a keeper wins if they have the latter and don't blab about driving.  Easy as taking candy off a baby.

The above is your original appeal but clearly not a POPLA appeal.  The words for a POPLA appeal (including the non-POFA argument) are in the NEWBIES thread post #3.

Redx

Yes they have 7 months to issue the PCN to a driver , but because they do not know who was driving they can invite a keeper to pay up , or name the driver ( but they always fail to mention that the keeper can refuse to do either , I wonder why ? Lol )

To pursue the keeper in law , they must follow the law named POFA , or fail spectacularly due to non compliance with POFA

They won't admit all this , but a keeper is bulletproof under POFA if the PPC fail POFA

POFA is not mandatory on any Parking company , it should be , but it's not !! But it still applies to every keeper , but never applies to an admitted driver

Adding in the other appeal points is belt and braces to any appeal , POFA wins for you as a keeper , as long as the driver is never divulged , so no mistakes in any appeal

JJJDec20

Many thanks for your responses.  I'll let you know how we fare.

JJJDec20

Update - Parking charge CANCELLED!
Appeal was submitted to POPLA but due to COVID we've only just heard back.  They referred back to CEL who then wrote to confirm the parching change was cancelled.
Thanks all for the advice!

Umkomaas

JJJDec20 said:

Update - Parking charge CANCELLED!
Appeal was submitted to POPLA but due to COVID we've only just heard back.  They referred back to CEL who then wrote to confirm the parching change was cancelled.
Thanks all for the advice!

Nice result and thank you for feeding back to us, it really does help to keep us going and motivated. 

CEL really don't want to deal with things when full POPLA appeals or robust court defences are produced by informed defendants, so they take the easy way out (as do most bullies when faced with strong opposition) and just run away. Still, they have plenty of scared witless others who supinely open their wallets and invite them to help themselves!  Profitable business if you are prepared to plumb the depths!

Nasty monkey off your back. 

D_P_Dance

They have wasted your time, now consider wasting some of theirs, read this

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