PCN with a blue badge

Conventional

Hello,

I recently received a PCN from a private company, Local Parking Security Ltd. The allegation is that I failed to pay for the duration of a stay. The letter I received shows two images of my car - one entering the car park, and one leaving - but the company has not provided evidence of my car actually being parked. The car park also provides access to a neighbouring road, with at least two entrances.

I have appealed this through email in which, as the registered keeper, I explained my concerns and asked for clarification and further evidence. I attempted to explain that, in any event, I am registered disabled and the owner of a blue badge, but this has not been addressed. My appeal was very quickly rejected. The company is now threatening to pursue myself if I do not provide details of the driver during the alleged contravention. "Debt recovery procedures" and "Court action" have also been broached.

As it happens, I have made use of this car park a number of times fairly recently, and without issue. The car park continues to offer 3 hours of free parking for blue badge holders in disabled bays, however it appears as though this has since changed, and the badge now requires to be scanned in person on one of the pay machines. This would prove difficult, as it would require additional physical effort to reach, thereby bringing into question the value and function of a disabled parking bay.

I understand my next step is POPLA, but I have little experience with these matters, and would greatly appreciate any advice.

Coupon-mad

I think include this at POPLA stage:

The car park continues to offer 3 hours of free parking for blue badge holders in disabled bays, however it appears as though this has since changed, and the badge now requires to be scanned in person on one of the pay machines. This would prove difficult, as it would require additional physical effort to reach, thereby bringing into question the value and function of a disabled parking bay.

Along with the usual template points in the POPLA section of the NEWBIES thread.  Show us your draft and we'll help.

Conventional

Still working on the draft (this is proving difficult even with the Newbies thread, as I'm not entirely sure which information best applies to this situation). Nevertheless, I have asked the company to provide details of the landowner. They have replied by saying:

"we are unable to provide these details due to GDPR Data Protection. The Landowner information is confidential. All confirmation and evidence will be provided to POPLA upon POPLA’s request."

Thoughts on this would be appreciated. Thanks again.

Trainerman

I saw the landowner contract when my appeal went to PoPLA, so you should get to see it and comment on it then

Conventional

No idea if I'm on the right track here, but here is the draft so far. Again, I am hugely grateful for the advice up to now, and for any more that may still come. Quite a bit here from the Newbies thread, it has to be said.

Dear Sir or Madam,

Appeal re POPLA Code: xxxx
Parking Charge Notice: xxxx
Vehicle Registration: xxxx
POPLA Verification Code: xxxx

I, the registered keeper of this vehicle, received a letter "issued" on xxxx acting as a notice to the registered keeper for the date of xxxx - the letter was received xxxx.

My appeal to the operator – xxxx – was submitted and acknowledged on xxxx, but subsequently rejected by an email dated xxxx. I contend that I, as the keeper, am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

The company has not been clear in their accusations. In the broadest of terms, they claim I am liable for "Failure to Pay for the Duration of Stay". They have also threatened to instigate debt recovery and Court action against myself if I do not disclose the driver of the vehicle at the alleged time of contravention. I consider this to be in clear breach of data protection laws, and I do not believe I am under any obligation to disclose any information that has been demanded by the company.

Furthermore, no conclusive evidence has been offered by the company that unquestionably demonstrates that my vehicle was parked, for any alleged duration, in their car park. The xxxx car park connects with xxxx with no barriers. It is therefore entirely feasible that my vehicle could have passed through the car park itself and not parked at all.

That being said, I have made use of this car park a number of times in the past, including fairly recently, and always without issue. The car park continues to offer 3 hours of free parking for blue badge holders such as myself; however, it appears as though the company's terms have since/recently been changed.

In the attached photographic evidence, taken xxxx, there is contradictory signage merely requesting: "Blue badge holders please scan your blue badge bar code, this will give you 3 hours free parking in designated bays only." but does not adequately explain how or where the badge be scanned.

The signage also states that "Parking Charge Notices apply for: Parking without displaying a valid blue badge". As I am registered disabled due to mobility-impairment, should this company wish to proceed in litigiously pursuing myself as now formally advised, I contest they would need to provide evidence that, in addition to parking as they allege, I also did not display my badge correctly, as per their own terms and conditions which can easily be found on-site.

The signs are not prominent, clear or legible from all parking spaces. The signs and the machine tariff board are contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015: {link here}

Requirement for transparency
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent. (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

I can only assume through these vaguely-worded documents submitted by the company, that blue badges are now requested to be taken elsewhere on site for further unnecessary validation, despite the freedoms and assurances afforded to me by the issuer (xxxx). I find it unfair, and potentially discriminatory under the Equality Act 2012, that the company seemingly expects additional physical effort and exertion to be required by vulnerable users such as myself in making use of this car park. This also brings into question the value and function of a disabled parking bay to begin with; particularly given how the signage in xxxx car park states that blue badges are "ONLY" valid in designated bays, which seems particularly inconsiderate and unreasonable. To date, the company has not addressed the fact I am disabled.

There does not appear to be any evidence of landowner authority - the operator is put to strict proof of full compliance with the BPA Code of Practice. I have requested this information via email, which to date, has been rejected on the basis of GDPR Data Protection and confidentiality.

The operator has not shown that the individual who it is pursuing is in fact liable for the charge. In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot, and will, fail to show I can be liable because of this.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-

Understanding keeper liability “There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

'No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:'

'I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Coupon-mad

If you are going to talk about your right to free parking as s BB Holder (which I think you should) you should also admit to being an occupant of the car and say your BB was displayed.

That avoids saying who was driving but brings the BB disabled free parking allowance into play.

Embed into your appeal some photos of the signs offering that, and a scan or photo of your BB but with the photo covered so it's not a true full copy, in case of copying by an untrustworthy person.

Make the POPLA appeal like an illustrated storybook so it's one document for the assessor to read

KeithP

Conventional said:

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

Instead of "I am the appellant throughout...", you should be saying "I am the keeper throughout...".

KeithP

@Conventional, did you win your PoPLA appeal?

Conventional

I did! So grateful for all of the help. Apologies I didn't express my thanks sooner.

B789

@Conventional well done with your appeal. Could you please post the detail in the POPLA appeals thread at the top of the forum?