POPLA Appeal, ECP NTH and major keying error

kaylouem

**URGENT UPDATE - ADVICE NEEDED**
I sent a letter of complaint to my MP ( I take back what I said about him earlier in this thread!!  )
I have just received a letter from his secretary saying that my MP is sorry to hear of my frustrations with ECP and that he has sent a letter to them to urgently review the charge, which is great but I am not sure it is a guaranteed cancellation so my question is: do I continue with my POPLA appeal in the meantime as my 28 days is up today,( I know its said on here that it can be 33 but with my track history of luck, it will be too late after today) I worry that once it is at POPLA stage, no other party can intervene, is that correct?
I await further advice, thank you.

UncleThomasCobley

You do have 33 days for a POPLA appeal even though it states only 28. You should still carry on with your POPLA appeal. If you lose at POPLA, it is no big deal and means nothing if it were to progress further.

Coupon-mad

Yes you continue with POPLA but the Code lasts 33 dats so no rush. Not urgent.

And yes if you read the POPLA Decision I signposted you to find and read (in fact there was more than one this year) it already explains to you why that wording isn't sufficient.  I explained what to add about that. Your job is to go copy and quote from one of those recent decisions to make it easy for POPLA.

1505grandad

OP stated "A month later a NTH was received without the required hire documents...."

If I have the correct POPLA adjudication OP is directed to it states:-

"In this case the operator has issued the PCN directly to the keeper so therefore must follow Paragraph 9 of POFA 2012. In their PCN the operator has not brought a satisfactory warning to the keeper, as the notice does not advise the keeper that if they were not the driver to pass the notice onto the driver."

Just checking if wording above is still valid for OP's specific NtH case.

kaylouem

Coupon-mad said:

Yes you continue with POPLA but the Code lasts 33 dats so no rush. Not urgent.

And yes if you read the POPLA Decision I signposted you to find and read (in fact there was more than one this year) it already explains to you why that wording isn't sufficient.  I explained what to add about that. Your job is to go copy and quote from one of those recent decisions to make it easy for POPLA.

Sorry I know you don't like to spoon feed, my anxiety is through the roof and I am struggling to take it all in.... is this the full text that should have been on the original NTK? I think I have found the correct thread...


Schedule 4, Paragraph 9, subsection (2) (f) of the Protection of Freedoms Act (POFA) 2012, states that the keeper must be warned that ‘after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver’. It goes on to state in (e) (ii) that ‘if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver’. In this case the operator has issued the PCN directly to the keeper so therefore must follow Paragraph 9 of POFA 2012. In their PCN the operator has not brought a satisfactory warning to the keeper, as the notice does not advise the keeper that if they were not the driver to pass the notice onto the driver. 

kaylouem

Coupon-mad said:

Yes you continue with POPLA but the Code lasts 33 dats so no rush. Not urgent.

And yes if you read the POPLA Decision I signposted you to find and read (in fact there was more than one this year) it already explains to you why that wording isn't sufficient.  I explained what to add about that. Your job is to go copy and quote from one of those recent decisions to make it easy for POPLA.

I think this is the post you are referring to?.... So i need to add that the original NTK did not have the full wording on, just parts? Am I correct? 

I am allowing this appeal for the following reason: When an appeal comes to POPLA the burden of proof begins with an operator to demonstrate that the parking charge has been issued correctly. The driver of the vehicle has not been identified. As such, the operator is pursuing the registered keeper for the PCN. Schedule 4, Paragraph 9, subsection (2) (f) of the Protection of Freedoms Act (POFA) 2012, states that the keeper must be warned that ‘after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver’. It goes on to state in (e) (ii) that ‘if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver’. In this case the operator has issued the PCN directly to the keeper so therefore must follow Paragraph 9 of POFA 2012. In their PCN the operator has not brought a satisfactory warning to the keeper, as the notice does not advise the keeper that if they were not the driver to pass the notice onto the driver. I am therefore not satisfied that the operator has met the requirements set out in POFA 2012. And, as such, I am allowing this appeal. I acknowledge that the appellant has brought other grounds of appeal and evidence to POPLA, but as I am allowing this appeal based on the reasoning above, there is no requirement to address these grounds as they will not affect the outcome of this appeal.

kaylouem

kaylouem said:

Coupon-mad said:

Yes you continue with POPLA but the Code lasts 33 dats so no rush. Not urgent.

And yes if you read the POPLA Decision I signposted you to find and read (in fact there was more than one this year) it already explains to you why that wording isn't sufficient.  I explained what to add about that. Your job is to go copy and quote from one of those recent decisions to make it easy for POPLA.

I think this is the post you are referring to?.... So i need to add that the original NTK did not have the full wording on, just parts? Am I correct? 

I am allowing this appeal for the following reason: When an appeal comes to POPLA the burden of proof begins with an operator to demonstrate that the parking charge has been issued correctly. The driver of the vehicle has not been identified. As such, the operator is pursuing the registered keeper for the PCN. Schedule 4, Paragraph 9, subsection (2) (f) of the Protection of Freedoms Act (POFA) 2012, states that the keeper must be warned that ‘after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver’. It goes on to state in (e) (ii) that ‘if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver’. In this case the operator has issued the PCN directly to the keeper so therefore must follow Paragraph 9 of POFA 2012. In their PCN the operator has not brought a satisfactory warning to the keeper, as the notice does not advise the keeper that if they were not the driver to pass the notice onto the driver. I am therefore not satisfied that the operator has met the requirements set out in POFA 2012. And, as such, I am allowing this appeal. I acknowledge that the appellant has brought other grounds of appeal and evidence to POPLA, but as I am allowing this appeal based on the reasoning above, there is no requirement to address these grounds as they will not affect the outcome of this appeal.

And then quote the Assessor

Coupon-mad

Yes, that is quoting the right assessor and @1505grandad already posted what to say before that.

Obviously you also need to explain what you are quoting though!

kaylouem

Coupon-mad said:

Yes, that is quoting the right assessor and @1505grandad already posted what to say before that.

Obviously you also need to explain what you are quoting though!

Thanks, it’s becoming clearer now, I panic too much and get word blind!

kaylouem

Hi all, here is my updated POPLA draft, thoughts please. Thanks. 

POPLA Ref: xxxx

Vehicle Registration: xxxx

 I, the hirer of the above numbered vehicle, received a Notice To Hirer dated 15th September 2023 from Euro Car Parks (ECP) I submitted an appeal to them on 9th October 2023 but this was subsequently rejected by email letter dated 20th October 2023.

I contend that as the hirer, I am not liable for the alleged parking charge and wish to appeal against it on the following grounds:

1) Notice to Hirer non-compliant with POFA 2012- The Operator (ECP) failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA)

In order to rely upon POFA to claim unpaid parking charges from a vehicle’s hirer an operator must deliver a Notice to Hirer in full compliance with POFA’s strict requirements. In this instance, the operator’s Notice to Hirer did not comply.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet to be able to hold the hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper.

 The Operator did not provide me with copies of any of these documents.

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator's Notice to Hirer refers only to the Notice to Keeper, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.

Further, the original Notice to Keeper, a copy of which was obtained from the Hire Company, was also non- compliant as the full wording of paragraph 9 of POFA 2012 was omitted;

Sub paragraph (2) (f) of the Protection of Freedoms Act (POFA) 2012, states that the keeper must be warned that ‘after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver’. It goes on to state in (e) (ii) that ‘if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver’

The appellant has seen an online record of recent 2023 POPLA decisions where the original Notice to Keeper was also non compliant because Euro Car Parks omit the following mandatory Paragraph 9 wording:

Assessor supporting rational for decision

“I am allowing this appeal for the following reason: When an appeal comes to POPLA the burden of proof begins with an operator to demonstrate that the parking charge has been issued correctly. The driver of the vehicle has not been identified. As such, the operator is pursuing the registered keeper for the PCN. Schedule 4, Paragraph 9, subsection (2) (f) of the Protection of Freedoms Act (POFA) 2012, states that the keeper must be warned that ‘after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver’. It goes on to state in (e) (ii) that ‘if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver’. In this case the operator has issued the PCN directly to the keeper so therefore must follow Paragraph 9 of POFA 2012. In their PCN the operator has not brought a satisfactory warning to the keeper, as the notice does not advise the keeper that if they were not the driver to pass the notice onto the driver. I am therefore not satisfied that the operator has met the requirements set out in POFA 2012. And, as such, I am allowing this appeal. I acknowledge that the appellant has brought other grounds of appeal and evidence to POPLA, but as I am allowing this appeal based on the reasoning above, there is no requirement to address these grounds as they will not affect the outcome of this appeal.”

 

 

 

 

2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a hirer appellant, yet no POFA 'keeper/hirer 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. I am the Hirer 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 parking charge cannot be enforced against a hirer without a valid NTH.
As the hirer of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the hirer and ONLY Schedule 4 of the PoFA (or evidence of who was driving) can cause a hirer appellant to be deemed to be the liable party.

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.

Furthermore, the vital matter of full compliance with the PoFA 2012 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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as hirer of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against 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.''

 

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is authorised on the material date, to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal agreement.

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d) who has the responsibility for putting up and maintaining signs

e) the definition of the services provided by each party to the agreement