CEL PCN received, cash payment not registered and no ticket issued

PinkFuschias

I have read the Beginners and become overwhelmed

A PCN has been received from CEL for non payment of parking.My payment was made at the machine in cash, £1 coin and my car reg was entered, but no no ticket was issued.

i ws not concerned about the ticket as I just thought that they had run out, it was a weekend evening and had been very busy all weekend.

I appealed before joining this forum, but obviously not on the advice given in the Newbies section, so I now feel I have made a huge mistake. I did not dispute my car was present, or that it was driven by myself.

In short I appealed on grounds that my £1 coin was accepted , my car reg details were keyed in, but no ticket was issued.

Signage says Pay & Display but also says not necessary to display a ticket so misleading to the consumer.

No instruction of what to do in event ticket not issued

No number to call in the event a ticket was not issued or any issues with the machines (whilst there is a number for people wishing to pay by credit card).

I now know that this is detail.

Needless to say I have received a standard letter from CEL in reply jectting my representration that does not answer any of my challenges and says that the machine was working before and after the times I parked. I have never disputed that their machine was working, just that it did not issue a ticket.  

Should I give up and just pay? It's an extrotionat charge and I want to fight but not if it's hopeless.

I now need to go to POPLA by early August.

Coupon-mad

No, don’t give up. Do a POPLA appeal anyway based on the third post of the NEWBIES thread.

Le_Kirk

Apart from the points you will find in the area signposted by @Coupon-mad, you could point to frustration of contract due to the failure of THEIR pay & display terminal.

PinkFuschias

Hi , I have created my POPLA Appeal using items from the newbies thread. I'd appreciate any feedback please. For me my main point is no 3. I didn't include frstration of contract as suggested above as I'm not sure how to use this reason in the appeal. I have removed the images but they do support each point (I'm quite confident of that). Thank you

As the registered keeper, I would like to appeal this notice on the following grounds:

1. Non-compliance with requirements and timetable set out in Schedule 4 of POFA

2. The amount demanded is a penalty

3. Signage is misleading and contradictory

4. No landowner contract nor legal standing to form contracts or charge drivers

 

 1. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012.

 If CEL Ltd want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and CEL Ltd have not issued and delivered a parking charge notice to the driver in the place where the parking event took place, the Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). I have had no evidence that CEL Ltd have complied with these BPA Code requirements for ANPR issued tickets so require them to evidence their compliance to POPLA. Furthermore, the notice to keeper was not given within the maximum 14-day period from the date of the alleged breach. Specifically, the alleged breach is stated to have occurred 13 June 2021, and the notice to keeper was issued 1 July 2021 and ‘given’ 16 days later on 5 July 2016.

See image following - PCN from CEL Ltd

2. The amount demanded is a penalty.

Amount demanded is a penalty and is punitive, contravening the Consumer Rights Act 2015. The authority on this is ParkingEye v Beavis. That case was characterised by clear and ample signage where the motorist had time to read, and then consider the signage and decide whether to accept or not. In this case the signage was neither clear nor ample, in fact it was misleading and contradictory there are no instructions for the consumer choosing to pay in cash and there are contradicting messages reagrding displaying a ticket. All information available refers to credit card payment methods, this is not equitable or reasonable.

Image 1.  A close up of the Terms & Conditions Signage

3. Signage is misleading and contradictory.
The car park is described as ‘Pay & Display’, however in the smaller print there is a note stating ‘There is no need to display a ticket’. If there is in fact no need to display a ticket, a consumer who pays by cash is misled where payment and registration have been accepted by the service provider’s equipment and a ticket not issued.

Additionally the only reference to the service provider’s equipment failing in the published Terms & Conditions is in respect of a total failure / machine unavailable situation i.e. ‘in the event the payment machine is unavailable’.

In this instance the machine was available but a paper tickets was not issued.

The BPA Code of Practice states in section 19.1 ‘You must use signs to make it easy for them [ the consumer] to find out what your terms and conditions are.’. It also states in section 19.3, Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.

The signs are cursory and do not provide the level of information that CEL Ltd later rely on to issue Parking Charge Notices, reject Appeals and refer to POLA , this is unreasonable and unfair.

Under the Consumer Rights Act 2015 the service provider, in this instance CEL Ltd, must give the consumer specific pre-contract information, this is not provided in the Terms & Conditions for those who pay by cash. There is no information in respect of where the consumer might actually access ‘detailed’ Terms & Conditions. CEL Ltd follow processes that are not stipulated within the advrtised Terms & Conditions, leaving the Consumer ‘guessing’ about the lawful or right thing to do when faced with a minor issue. Any action in 'good faith' is disregarded. As they stand, CEL’s advertised Terms & Conditions, as presented at XXXX carpark are cursory only.

The Consumer Rights Act 2015 also stipulates that if a service is not carried out with reasonable care and skill, at a reasonable price, within a reasonable time or is not carried out in line with information said or written down, then the trader is in breach of contract. I put forward that the signs being misleading and contradictory means that CEL Ltd is in breach of contract.

As the signage is misleading and contradictory the consumer, having input registration and cash would have no reason to be concerned about the failure of a ticket to issue.  It is not an uncommon occurrence. It is not an uncommon occurrence on a Sunday evening, at the end of a very busy day, in a popular tourist location, in excellent weather (24’c), in a period after a three national lockdowns.

As the signage is contradictory, any potential consumer concerns would be unwarranted. See also The BPA Code of Practice : 19.1 A driver who uses your private car park with your permission does so under a licence or contract with you. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. AS CEL’s Terms & Conditions state there is no need to display a ticket, any concerns about non issue (and any ensuing concerns about the ticket machine failing to register when cash and registration have been input)  would seem to unfounded.

There are no instructions in the signage for a cash payer of what to do in the event of the failure of the machine to issue a ticket. A requirement of the BPA AOS Code of Practice states the following:19.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle… Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm. CEL Ltd do not provide ‘detailed’ Terms & Conditions’

As the sign's wording is misleading and where there is an unclear or ambiguous contract term, the doctrine of contra proferentem - giving the benefit of any doubt in favour of the party upon whom the contract was foisted - applies. It is up to the company to ensure their terms are clear and unambiguous; otherwise, any ambiguity must be interpreted in the favour of the consumer.

Image 1 Headline Pay & Display

Image 2 – No requirement to display a ticket

4. No landowner contract nor legal standing to form contracts or charge drivers

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession, which would give CEL Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, CEL Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require CEL Ltd to demonstrate their legal ownership of the land to POPLA.
I contend that CEL Ltd is only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS-v-HMRC 2012 is the binding decision in the Upper Chamber, which covers this issue with compelling statements of fact about this sort of business model.
I believe there is no contract with the landowner/occupier that entitles CEL Ltd to levy these charges and therefore it has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to CEL Ltd to prove otherwise so I require that CEL Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between CEL Ltd and the owner/occupier, containing nothing that CEL Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

 I therefore request that POPLA uphold my appeal and cancel this PCN

Coupon-mad

Don't put this, it makes it easy for POPLA to hit the 'Beavis case says no' button:

. The amount demanded is a penalty

Did you already exhaust the complaint to the landowner, PLAN A in the NEWBIES thread?

MUST BE DONE BEFORE POPLA!!

A POPLA code lasts 33 days not 28.  

Don't tell us it's 28, don't show us the POPLA website or CEL's letter.  It lasts 33 days.  You have time then, to get it cancelled.

Umkomaas

1. Non-compliance with requirements and timetable set out in Schedule 4 of POFA 2012.

That's a good point to make, especially in many CEL cases, provided that the driver wasn't identified in your initial appeal. We need to see - verbatim - what you said in it. 

Specifically, the alleged breach is stated to have occurred 13 June 2021, and the notice to keeper was issued 1 July 2021 and ‘given’ 16 days later on 5 July 2016.

You're on the right lines with the dates (subject always to the driver not having been identified), but your 'given' date makes no sense. 

PinkFuschias

Hi , I did identify myself in my initial appeal.See below.  It's all written in the first person.First para as follows:

I received a parking fine from you dated 1 July on Monday 5 July, for allegedly parking without paying the £1 fee at XXXX carpark on Sunday evening 13 June.I do not dispute entering the carpark at the times logged via your ANPR. However, I do dispute not paying, as the fee of £1 versus an exorbitant charge for non-payment is deterrent enough.

It goes on about poor signage etc and that it's confusing etc.

Ref the the incident occurred on Sun 13 June, the PCN issue date was listed as Thu  1 July and it arrived  at my home on Mon 5 July.

I haven't written to the Landowner but can send that tomorrow.

PinkFuschias

Letter written and posted to  Landowner.

Coupon-mad

You will need to follow it up by phone otherwise your POPLA time will tick down and you certainly DO NOT want to start POPLA until you are sure the landowner is not willing to cancel it.  That's because POPLA costs CEL money and would be a reason for them to refuse to cancel, so it's back to front to do POPLA first.

Can you confirm you have done the Government Consultation - see link below?  

We are also getting people to complain to their MPs to pose questions to the MHCLG because there is a horrific (very obviously PPC-led) naive mistake - indeed a U turn - in the proposed framework that will CAUSE court claims:

 https://www.gov.uk/government/consultations/private-parking-charges-discount-rates-debt-collection-fees-and-appeals-charter-further-technical-consultation

We need to know you have done the Government Consultation and sent an email to your MP as explained here, please do:

https://forums.moneysavingexpert.com/discussion/comment/78515438#Comment_78515438

To be clear, we need individuals (you and your family and friends, separately) to do the consultation linked there AND we are now calling for everyone to ask their MPs to raise with the MHCLG, what the heck has gone wrong since March, that they now think it's OK for false debt recovery costs to be added that positively drive cases to court?  

What are the MHCLG thinking? 

That added sum was supposed to end.  The Knight Act included MPs unanimously condemning charges as high as £120, but this proposal takes it up to £200 and FUNDS THE ROBOCLAIM RACE TO COURT 

We want MPs to kick up a stink.  This MUST be stopped.

PinkFuschias

HI , I have completed the consultation and written to my MP.

D_P_Dance

Have you brought this to the attention  of Trading Standards?