Secure Parking Solutions NTK

IhateFines

email sent, will wait reply now 

IhateFines

Thank you for your email dated 25 May 2022 which was addressed to the POPLA lead adjudicator, Mr John Gallagher.

 

Please note that your email was passed to me, as I am responsible for responding to POPLA complaints. However, prior to responding to your email, I have discussed this complaint with Mr Gallagher himself and below are our findings.

You state that you believe a procedural error occurred which resulted in the appeal being refused.

You say that the alleged offence was on the 30 January 2022 and that the assessor has incorrectly interpreted 14 days after the date of the parking contravention date. You have raised PoFA 2012, schedule 4 paragraph 9 and have said that the NTK did not arrive until the 15th day. However, the assessor noted that the NTK was issued within the 14 days and so, PoFA was met.

You ask that we re-examine PoFA Schedule 4 para 9[6] and have referred to previous procedural errors that were made back in 2019 whereby the sector expert advised that the assessor required more training. You say it appears that the assessors are still making the same errors.

Having reviewed the NTK sent, I can see that the date of the contravention was the 30 January 2022.

As the driver of the vehicle was not known, the operator was relying on PoFA 2012 in order to successfully transfer liability from the driver, to the registered keeper. In order to transfer liability, the operator was to follow the strict requirements of PoFA 2012, schedule 4 paragraph 9 which states:

9 (4) the notice must be given by-

 

1. Handling it to keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
2. 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 end.

 

(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 days” means any day other than a Saturday, Sunday or a public holiday in England and Wales”.

 

Below is a copy of  the NTK issued.

As can be seen above, the NTK was issued on the 10 February 2022. This was outside of the relevant 14 days period and so, the NTK was not valid. PoFA 2012 was not met.

I can see that the assessor has refused this appeal based on PoFA 2012 being met. The assessor states:

“Having reviewed the evidence provided by the operator, I am satisfied that the NTK has complied with the requirements of POFA 2012. It invited the keeper to supply the driver’s name and address so that the charge can be passed to the driver. It warned the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given the amount of the unpaid parking charges has not been paid in full, and the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will have the right to recover from the keeper so much of that amount as remains unpaid. The operator also sent the NTK to be delivered within the relevant period which is the period of 14 days starting from the day after the contravention. The date of the contravention was 30 January 2022, therefore, the NTK needed to be sent to be delivered by 14 February. The NTK was issued on 10 February which I am satisfied would have given it the opportunity to be delivered by 14 February. It is entirely possible that the NTK did not arrive by this time due to a third-party issue concerning the appellant’s postal delivery service. It is outside of POPLA’s remit to assess any aspect of a third-party issue. As such, I will work on the basis that the operator issued the Notice to Keeper and posted this to the appellant’s address to be delivered within relevant period.

Whilst I disagree with the assessor’s comments regarding the NTK being delivered within the relevant period, I do not consider this to result in a procedural error.

The assessor has based their decision on their interpretation of PoFA 2012. I consider this to be a mis assessment and feedback will be provided to the assessor and their team manager for coaching purposes and so that improvements can be made in their decision making moving forwards.

POPLA considers a procedural error to be missed evidence or missed information. The assessor has taken into account all grounds raised and evidence provided by both parties however, they have misunderstood PoFA 2012.

This does not constitute a procedural error and for this reason, we will not be rolling this case back for re assessment. The decision is not one I would have reached had I assessed this case myself however, the decision reached stands and will not change.

I appreciate that you have raised concerns regarding similar issues back in 2019 whereby assessors were making the same mistakes regarding PoFA.

Assessors have been trained on these areas and our decision-making guidelines. They have also passed an accreditation process following our training programme and receive regular internal quality audits as well as coaching and personal development.

We understand that at times, errors can be made and such errors are dealt with internally and regular coaching sessions are given to our assessor’s. As stated above, feedback will be given to the assessor and their team manager where we can provide additional training to the assessor so that improvements can be made when reviewing the Protection of Freedoms Act (PoFA) 2012 to ensure they have a better understanding of this relevant law.

I appreciate this is not the outcome you had hoped for however, POPLA is a one stage appeal process and so, the decision will not change. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter.

 

As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

Yours sincerely,

Ashlea
POPLA Complaints Team

IhateFines

What would be the next steps seen as Ashlea didn't want to clearly state they made an error and that the above email could be used in court as Mr Gallagher has in the previous posts, should the operator take this to court?

Coupon-mad

Just use that as evidence.

Show it to the parking firm now, point out that POPLA has admitted the assessor was wrong but their useless self-serving policy is not to change a 'wrong in law' decision.  Which is clearly preposterous but POPLA is a failed service that is being replaced by a Single Appeals Service by the Government.

Bottom line - POPLA admit they were wrong.  Invite the parking firm to cancel the PCN forthwith.

To pursue the keeper now, pretending that POFA was met (when all sides including POPLA know it wasn't) would be a misuse of DVLA keeper data, a breach of the DPA 2018 (due to no lawful reason to process this data from this point on) and harassment of the wrong person.  The matter is causing immense distress and an inordinate amount of time and sleepless nights are being wasted on it by the keeper, who simply is not liable in law. A counterclaim of not less than £300 will be filed, in the event of a court claim.

Umkomaas

What an appalling whitewash. Despite their admitted error in law, they are quite happy to see the OP disappearing under a bus. The sooner they're gone, the better. Back to nail polishing!

IhateFines

Coupon-mad said:

Just use that as evidence.

Show it to the parking firm now, point out that POPLA has admitted the assessor was wrong but their useless self-serving policy is not to change a 'wrong in law' decision.  Which is clearly preposterous but POPLA is a failed service that is being replaced by a Single Appeals Service by the Government.

Bottom line - POPLA admit they were wrong.  Invite the parking firm to cancel the PCN forthwith.

To pursue the keeper now, pretending that POFA was met (when all sides including POPLA know it wasn't) would be a misuse of DVLA keeper data, a breach of the DPA 2018 (due to no lawful reason to process this data from this point on) and harassment of the wrong person.  The matter is causing immense distress and an inordinate amount of time and sleepless nights are being wasted on it by the keeper, who simply is not liable in law. A counterclaim of not less than £300 will be filed, in the event of a court claim.

Dear Sirs,

I write to you in relation to the above alleged PCN. POPLA made a fundamental error during its review of the PCN despite it being pointed out clearly to them that the NTK was non PoFA 2012 compliant and therefore, keeper liability could not be pursued. I complained about this error in law to POPLA and they have have admitted their assessor was wrong and that the NTK was outside of the relevant 14 days period and so, the NTK was not valid. PoFA 2012 was not met.

I have attached POPLA's response for you to read below.

(Insert all of POPLAs reply or maybe cut out the last 2 paragraphs?)

As POPLA have admitted they were wrong, I invite you to cancel the PCN forthwith. 

To pursue the keeper now, pretending that POFA was met (when all sides including POPLA know it wasn't) would be a misuse of DVLA keeper data, a breach of the DPA 2018 (due to no lawful reason to process this data from this point on) and harassment of the wrong person. The matter is causing immense distress and an inordinate amount of time and sleepless nights are being wasted on it by the keeper, who simply is not liable in law. A counter claim of not less than £300 will be filed, in the event of a court claim. 

IhateFines

Do you guys think it would be worth complaining through BPA's complaint forum? I was reading Brucella's thread and its what she did in which the operator stated it was an IT error and cancelled the PCN.

Coupon-mad

Yes complain to the BPA.

I have appealed to POPLA 

Nope.  You complained about this error in law.

KeithP

Replace To whom it may concern with Dear Sirs.

To whom it may concern is only appropriate if you have no idea who will read it - e.g. you were sticking a notice on a lamppost or notice board.

IhateFines

Coupon-mad said:

Just use that as evidence.

Show it to the parking firm now, point out that POPLA has admitted the assessor was wrong but their useless self-serving policy is not to change a 'wrong in law' decision.  Which is clearly preposterous but POPLA is a failed service that is being replaced by a Single Appeals Service by the Government.

Bottom line - POPLA admit they were wrong.  Invite the parking firm to cancel the PCN forthwith.

To pursue the keeper now, pretending that POFA was met (when all sides including POPLA know it wasn't) would be a misuse of DVLA keeper data, a breach of the DPA 2018 (due to no lawful reason to process this data from this point on) and harassment of the wrong person.  The matter is causing immense distress and an inordinate amount of time and sleepless nights are being wasted on it by the keeper, who simply is not liable in law. A counterclaim of not less than £300 will be filed, in the event of a court claim.

When emailing the operator, should I just copy and paste the whole response from Ashlea or should I trim some bits out?