UPDATE Response to CP Plus NTK & advice needed...hoping CouponMad or other expert would look

SpanglyBex

Hi all, this forum has become my 2nd home lately! I have read the Newbies post and stickies so hope this post is all in order. Received a NTK following an alleged overstay of 45 odd minutes by the driver in a local private car park - operated by CP Plus. Alleged overstay was on 14th Dec. NTK was apparently dated 23rd Dec but wasn't received until 31st Dec, due to, I imagine, the usual Christmas delays with the post. Stupidly, I didn't keep the postmarked envelope to prove this, and subsequently mislaid the original document (think it got mixed up in the post-Christmas recycling). Emailed CP Plus via their appeals email address on 7th Jan as keeper (as keeper, no driver name supplied) asking for a copy of the NTK. Their autoresponse email acknowledges receipt of my email and clearly states that further action has been put on hold, and to wait to hear from them within 14 days (but certainly no later than 35 days!) for a response.

In the meantime the 2nd NTK with the upgraded charge (of £100, up from the reduction of £50) dated 11th Jan has arrived, so clearly "further action" has not been put on hold! I haven't received the original NTK or a response via email. I've had some great advice via the forum on Pepipoo but the thread has gone quiet so I'm hoping one of the hugely knowledgeable folk on here would be able to cast an eye over my response to CP Plus before I send it. 
Here's the 2nd letter I received from them: 
https://imageshack.com/i/poP2aHOip
https://imageshack.com/i/poRK7BcQp
and below my proposed response. I'm aware this is all technicalities but hoping that by going in aggressively at the start they will decide I'm too much faff to pursue. I have also written to the stores the driver shopped in with proof of purchase as per Plan A on this forum, but no response yet and I need to go back to CP Plus. 

Dear Sirs,

I have received your Notice to Keeper xxxxx for vehicle VRM xxxx

Having taken advice, I can see that you have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. Your invoice was dated 23rd December 2020 and not received by me, the keeper, until the 1st of January 2021. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so. No assumptions can be drawn as to the driver on this or any other date.

You have also failed to address or respond to my email to you dated 8th January 2021 requesting a copy of the original document. Your email autoresponse received by return quotes the following:

“Further action on your Parking Charge Notice has been put on hold - please wait to hear from us.We aim to write back to you within 14 working days, but certainly, no more than 35 days after your representation is received.

The fact that you have received this auto-response means that we have received your appeal, and will answer it as soon as possible. You will never be asked to pay a charge at a higher rate due to any delay on our part, and will always be given the opportunity to settle it at the rate it was at when we received your appeal.”

This written contract has not been upheld at your end as I have subsequently received a second demand for payment dated 11th January 2021. This subsequent communication also fails to comply with the requirements of Schedule 4 of the PoFA 2012 namely, but not limited to, clauses 9 (2) (a), 9 (2) (b), 9 (2) (e) and 9 (2) (f), as well as contravening your own statement above.

On both counts I as the keeper of the vehicle therefore decline your offer to pay your invoice. I deny any liability or contractual agreement and I will be making a complaint about your conduct to your client landowner, whom I’m sure will be displeased to hear that shoppers in this location are being harassed in this manner, potentially discouraging them from visiting at a time when their retail clients on site are struggling more than ever with footfall and income.

In addition I request under the terms of the Data Protection Act 2018/General Data Protection Regulations (GDPR) ) that you supply the data from your records currently held about me that I am entitled to under data protection law. If you need any more information 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.

Any further communication with me on this matter, apart from the supply of the above information plus confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Any feedback on the above before I send it would be much appreciated! I'm happy to contact MP and add that in if it would help. Thanks!

Redx

You should be appealing in the manner allowed by C p plus on the postal notices

They are using the letter tennis to run down the clock

The plan A is complain to the landowner or managing agent asap

Plan B is appeal as keeper using the blue text template from the newbies FAQ sticky thread , within the 28 day window to appeal

Demanding a copy of the ntk and engaging in email or letter tennis doest assist your case , if the appeal window closes it means up to 6 years of hassle for you

Trying to be clever against a roboclaim invoice won't frighten anyone off !!

Just ensure you appeal again , ASAP

Ant data request goes direct to their DPO by email , not to the appeals team , keep on topic for each item , not one Mish mash of a letter

KeithP

"Your invoice was dated 23rd December 2020 and not received by me, the keeper, until the 1st of January 2021."

Unfortunately, according to POFA para 9(6) an invoice is deemed to be delivered two working days after the date of sending...

9 (6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

So, if dated 23rd December, it is deemed delivered on Tuesday 29th December unless proved otherwise.

Umkomaas

I will be making a complaint about your conduct to your client landowner

Get on with that. You surely realise that hardly you write to a PPC has any effect?  Maybe with CPP Plus an emphasis on the appropriate elements of PoFA could cause a cancellation. Concentrate on the basics rather than trying to 'blind them with science', with which I'm not convinced you are fully au fait. 

SpanglyBex

Thanks to all of the above. All points taken on board. I understand what you mean by needing to appeal imminently...my issue is that without the original NTK I have no way of knowing if it was PoFA compliant or not? So have no real basis to appeal upon. 
I also get that the NTK will techincally have been deemed to be delivered 2 working days after posting, but given that there were TWO x Christmas bank holidays in between it's clear that this wouldn't have happened...surely even the penpushers at POPLA would see that? Or maybe not...but it's down to CP Plus to prove it WAS delivered in time, isn't it? If only I could find that envelope...

Umkomaas

Unless there has been a dramatic change to their NtKs, CP Plus have never been PoFA-compliant. I'd take a pretty safe punt that they still remain so.  

SpanglyBex

Umkomaas said:

I will be making a complaint about your conduct to your client landowner

Get on with that. You surely realise that hardly you write to a PPC has any effect?  Maybe with CPP Plus an emphasis on the appropriate elements of PoFA could cause a cancellation. Concentrate on the basics rather than trying to 'blind them with science', with which I'm not convinced you are fully au fait. 

Thanks UmKomaaas.  The location is Prospect Place Retail Park in Dartford - this website seems to suggest that the landowner is these guys: www.britishland.com. Sadly there's only an email address for what seems to be the relevant person but I'll write to them asap. 
I am definitely trying to "concentrate on the basics" but without the original first document I'm at a loss to challenge them with emphasis on the appropriate elements of PoFA, exactly as you suggest, given that I can't prove what they wrote... 

KeithP

SpanglyBex said:

I also get that the NTK will techincally have been deemed to be delivered 2 working days after posting, but given that there were TWO x Christmas bank holidays in between it's clear that this wouldn't have happened.

What? My calculation takes into account those two bank holidays and the Saturday and Sunday.
That specific point is well covered in POFA Sch4 para 9(6).
See my earlier post.

SpanglyBex said:

...but it's down to CP Plus to prove it WAS delivered in time, isn't it?

No, that is wrong too.
Please read again my earlier quote from POFA.
It includes the words "is to be presumed, unless the contrary is proved".

SpanglyBex said:

If only I could find that envelope...

Would make no difference. It wouldn't show the delivery date, only the possible posting date.

Fruitcake

Being retired, and not being a christian, christmas bank holidays don't mean much to me at the time. If the date of the alleged event was the 14th of December, and assuming the 25th and 28th of December were state holidays, the NTK was presumed delivered on Tuesday the 29th of December, which would be day 15 and therefore too late for keeper liability to apply.

SpanglyBex

Fruitcake said:

Being retired, and not being a christian, christmas bank holidays don't mean much to me at the time. If the date of the alleged event was the 14th of December, and assuming the 25th and 28th of December were state holidays, the NTK was presumed delivered on Tuesday the 29th of December, which would be day 15 and therefore too late for keeper liability to apply.

Correct - 25th and 28th were Bank Holidays in 2020...

Redx

The blue text template is the appeal , no need for anything else , but allege that they have failed POFA if you wish to

As for post , no they do not have to prove delivery , Johnnersh posted about this recently , is deemed delivered as was explained earlier by KeithP , plus if they don't comply with or follow POFA , they have 7 months to get it to the recipient

Read this post and link by Johnnersh , then stop concentrating on irrelevant arguments

https://forums.moneysavingexpert.com/discussion/6210285/postal-service#latest

C p plus definitely made the 7 month PCN deadline , even if they failed POFA , meaning they can try to use the on the balance of probabilities argument , that the keeper and driver are one and the same person

The Court of appeal say it is the sending that is important , not the delivery

Pofa determines the decision about keeper liability deadlines

The postal service plus litigation rules have definitions on when a letter is deemed delivered after posting

https://www.moneyclaimsuk.co.uk/creditor-and-claimant-questions-and-answers/when-is-meant-by-deemed-served.aspx

Note , you have to add on bank holidays etc if required , pushing the deemed served date back as required due to no post on those days

The argument about the PPC proving delivery is complete b******* due to the above

So the whole reason for using the blue text template as keeper is to obtain a popla code , which hasn't happened yet , but missing the appeal deadline would be foolish , unless they have accepted your last communication as an appeal , with the 35 day window , so appeal anyway ASAP just to be sure