NCP auto-pay failure - multiple PCNs - tricky case

christopher101

Hi everyone,

My wife and I currently have a lease car. She has been using the car to park in Manchester city centre. She had been using an NCP car park on Oxford Street for several months using the auto-pay feature on the app. At some point, she realised that her work account had not been charged for the parking and realised that this was because the auto-pay feature had been disabled at this car park. There were no alerts by email or phone calls that the autopay feature was not processing, so my wife thought the payments were being successfully processed on her business account.

My wife then saw there was a wall mounted sign on entrance/exit, although she is not sure if this sign was there the entire time she had been parking. She appealed that the signage was not sufficient and can easily be obscured. For example, she noted in her rejected appeal that the lifts in the car park were not working for many months during this time and the automatic door entry system has been smashed. This meant there were often workmen and other distractions blocking the signage. 

So she then went through a period of trying to pay for previous parking instances, but despite multiple efforts (flagged by email to NCP in the middle of all this) she did not know how to pay manually whilst keeping her corporate discount rate. She tried their ‘Pay Later’ option on the website. The 'Pay Later' option was confusing because it suggested she did not have any previous parking charges on her account. But she later realised this option was only possible within a limited number of hours (I think 24 hours) so it was too late. FYI The fact there is a time restriction on the option to pay later is not mentioned on the signage that states the auto-pay is not working (although there are other signs mentioning this time window). 

We have received multiple PCNs. The lease company paid these and then charged us admin fees and threatened to take our lease car unless we pay, so we have now paid a bill for over £780. Unfortunately my wife has already appealed to NCP (which they rejected) and admitted to being the driver so I assume we cannot use the lack of PoFA adherence as an appeal case, despite the fact that the PCNs were delivered after 14 days. 

The case is complex because the initial reasons for many of the PCNs related to the auto-pay and lack of communication that it was disabled. But later PCNs were also accrued because my wife did not know how to pay while keeping her corporate discount, and she has evidence during this time of trying to pay by phone call and email.

I will copy her appeal that has been rejected below. If anyone can please help me understand what is our best defence in the POPLA appeals. Each PCN needs to be appealed separately and it is difficult to work out the order of events so I am wondering whether to use the same defence for all PCNs? This has been a huge stress given the size of the final bill and I would really value any input or advice. Thank you in advance!

(my wife's appeal email): 

I have tried so hard to pay for my parking and have now racked up a large number of fines through no fault of my own, namely:

·       Lack of initial signage in the car park making it clear that the usual automated payments were not being taken

·       Lifts in the car park not working for many months and the automatic door entry system smashed for many months, meaning distractions and frustrated parkers blocking payment signage

·       Nothing alerting me by email that the autopay feature was not processing, so I thought the payments were being successfully processed on my business account

·       Manual payment methods in the car park not accepting my corporate discount code, no matter how many times I tried (flagged on email early February)

·       Pay Later website not recognising my reg number (flagged on email early February)

·       Lack of signage stating that the Park Now, Pay Later option was only valid for a set number of hours

·       Being told I could ring up to pay, but not being able to get through by phone and/or wait times being impossibly long

·       The one team I did speak to by phone saying they could not process payments beyond 7 days after parking and transferring me to another team whereby it cut off

·       Discussion on email (below) leading to being told to phone up when I’ve tried to resolve over email

·       Parking fines being sent to our lease company rather than my home address, therefore I was not alerted to the payments issue until several months after it began, despite first emailing NCP to say I was having an issue on 6th February.

 

Coupon-mad

She cannot appeal if the PCNs have been paid.

She could sue NCP for breach of contract and breach of the Consumer Rights Act 2015 and the CPUTRs (moving the goalposts without alerting continuous users to the fact that Autopay was suddenly pulled).

I think she'd have a good case.

christopher101

Thanks. This makes a lot of sense now. We received rejections to our appeal to NCP for 5 out of 8 charges. I have now realised going through the invoices that we have been charged by the lease company a higher amount (£144 per PCN) for 3 of the invoices. For the other 5 invoices we have been charged admin fees only. It appears the reason we did not receive rejections to the other 3 is because they have already been paid i.e. they cannot be appealed.

To add a bit more context (and complexity!), we are currently using a short term rental car until our long-term lease car arrives, and so the lease company we are using is renting the short-term rental car from another company. We have therefore been charged two sets of admin fees, and two sets of VAT charges, for every PCN. The rental company charge £50.80 (incl. VAT) as admin charge, plus the £60 PCN charge (and then add VAT for this) = £122.40. Then the lease company charge another admin fee of £18 (incl. VAT) = £144.40. 

So we currently have 5 POPLA codes and could still appeal these (assuming they do not get paid by the rental company). Does anyone have any advice on next steps. Should we try to appeal the remaining five? NCP has also given us a discount option of £20 per PCN, but given the admin fees I'm inclined to try and appeal if our case described in my first post is strong enough. My worry is there are now signs in the car park saying auto-pay is not working. I don't know when these were put up but my wife thinks it was after the events, but we cannot prove this. 

So the case then hinges on whether the signage was sufficient given my wife was accustomed to paying by auto-pay may not have been 'looking out' for signs.

nopcns

You need to carefully read the lease agreement on the hire car. Unless it specifically states the you are liable for invoices from private parking companies, they had no right to pay the charges and deny you your right to appeal. Most lease/hire agreements only mention fines and penalties issued by authorities. A Pan from an unregulated private parking company is nothing but a speculative invoice for an alleged breach of contract and has nothing to do with "fines or penalties".

Tell us what it says in your lease/hire agreement about parking charges from private companies. You probably have a good case to either get your credit card company to charge back the funds or sue the lease company for breach of contract.

Coupon-mad

All POPLA appeals are won re leased/hired vehicles - 100% - as long as you didn't say you were driving in that first appeal x 5. 

christopher101

Unfortunately her appeal letter covered all PCNs and named her as the driver. Thanks @nopcns. I’ve looked through the contract and the relevant statements are as follows:

The Hirer shall accept responsibility for costs for any damage or repairs arising from misuse/neglect, also statutory traffic

offences, including any administration charges for any work involving dealing with statutory traffic offences dealing for and on

behalf of the offender. Administration Charges are charged at £55.00 (Fifty-Five Pounds) Plus VAT for damage and £25.00

(Twenty-Five Pounds) plus VAT for fuel / traffic fine. All such charges will be automatically debited from any card on file and/or

taken from any deposit/balance.

The Hirer agrees that the nominated credit/debit card can be debited on the Due Date for miscellaneous Invoices which include admin, fuel, excess mileage, damage and any other miscellaneous charges if they remain unpaid after such time or unless the card is on file for automatic debit payment.

nopcns

So, speculative invoices from private companies are not covered by the lease agreement. There is nothing remotely "statutory" "offence" or even "traffic" about a ParkingCharge Notice from a private company. Only the police or an "authority" can issue a "fine" for an "offence" that is "statutory".

You should tell your credit card company that the funds have been taken from your card in breach of the contract between you and the lease company. You should inform the lease company that should they dispute it, you will make a claim in the county court (small claims) for breach of contract.

The lease company only had to inform the PPC that you were the hirer/lessee of the vehicle at the time and you would then have been able to appeal/defend against the charge which was for an alleged breach of contract under civil law and had nothing to do with any traffic offences or fines. Had they done that, you would have been able to get the PCNs cancelled because we have yet to ever see a PPC correctly follow the requirements of PoFA to hold a hirer/lessee liable for the charges.

Can you check to see if the lease company is a member of the BVRLA?

christopher101

Thank you again @nopcns. Unfortunately my wife paid by debit card. But the lease company are a member of the BVRLA, and so is the rental company that the lease company is using for our current short-term rental. 

nopcns

Any PCNs you paid directly are not being discussed here. That was a mistake and you have almost zero chance of getting your money back on those. Had you discovered this forum before then, you wouldn't have been paying a penny.

However, all PCNs that were paid by the  lease company were breach of the terms of your lease and are recoverable. Any other PCNs should be dealt with in the correct manner by the lease company by transferring liability to you as the hirer and then it is up to the PPC to screw up their sending of the NtH and you defeating it on PoFA failure grounds.

As both companies are BVRLA members, they have failed to adhere to their own ATA rules. Page 10 of the BVRLA guidance says:

Paying and recharging

Rental and leasing companies that choose to pay a private parking charge notice and recharge it to their customer should ensure that their rental/leasing agreement allows them to do this.

A sample clause, which would allow you to pay and recharge, is: “You will be responsible for paying the following charges:

All charges and legal costs for any congestion charge, road traffic offence parking offence or parking notice, or any other offence involving the rental vehicle, including from the vehicle being clamped, seized or towed away.”

You should now initiate a complaint to the companies that have breached their contract and demand that you are refunded the amount. Failure to do so will lead to an official complaint to the BVRLA, highlighting their breach of the rules and a court claim.

Anyone who is fairly confident can claim as a litigant-in-person in Part 27 proceedings in the County Court (commonly but wrongly described as "the Small Claims Court").  Each party is responsible for their own legal costs whether they win or lose and a claim for up to £300 can be issued online for a fee of £35 at https://moneyclaimonline.gov.uk which also gives useful advice if you want to have a look at what is involved.  Your claim will automatically be listed as being for a total of £335 (or whatever amount being claimed up to £300), i.e. the successful party gets their Court fees back.

The OP has a good case to make a claim. All they have to do is send the lease company a Letter Before Claim(LBC) informing them they have 14 days in which to refund the sum they have charged or you will issue a County Court Claim. You can tell them in the letter that they are in breach if the contract because they have misinterpreted the section that states the hirer is liable for any "parking offences" and also breached their own ATA's Code of Practice.

Unless the parking operator (PPC) is a statutory authority, which we all know they aren't, then no "offence" can have been committed. The lease company has gone beyond its remit and breached the contract by paying a speculative invoice from an unregulated private parking company, which is not one of the conditions of the contract.

The LBC does not cost anything and is worth sending to see how they respond. If they are intellectually malnourished enough not to understand the issue and either do not respond or refuse to refund the money, then you can either have your bluff called or go ahead and make the claim for £35 and have some fun with them.

christopher101

Fantastic response @nopcns, so helpful! Just to clarify, we did not pay any PCNs directly, but I meant my wife paid an avoid for over £780 charged by the lease company to cover the costs of 3 (paid) PCNs, and 5 (unpaid) PCNS (with admin fees), with more charges imminent if and when the remaining 5 PCNs are paid. We have asked them not to pay these five.

Can I also clarify. As noted in my original post, my wife named herself as the driver. And also the PCNs do not use PoFA wording. Under these circumstances I assume I cannot use PoFA grounds for appeal? If this is the case, we will need to rely on the other circumstances I described, including the auto-pay being disabled without sufficient communication, the challenges my wife had in terms of paying using other methods while keeping her corporate discount rate, including efforts made to pay by phone and using the 'pay later' option on the website (which only retains parking events for 24 hours, and this time-window not being mentioned in the sign that notes the auto-pay feature is disabled). 

nopcns

For the PCNs that were paid by the lease company, it matters not that you wife has admitted to being the driver to the lease company. The PCNs are not what you need to respond to. An NtH is what should have been responded to by the hirer. The lease company has stupidly paid the PCNs (NtKs) and there is nothing they can do except try and sue the PPC back if they want to try and recover their money that they have stupidly wasted.

Your wife now needs to demand that her money is refunded as she has discovered that they have breached their contract with her. Se can easily sue them in court for the money. The fee for filing a claim depends on the amount being sued for. In this case, a claim for £780 would cost £80 which is added to the total claimed and is recovered when the clam is won.

The lease company and the PPC cannot have known who was driving. All they know is who is the registered keeper and/or the hirer. No assumptions or inference can be made as to who the driver was. They must provide strict proof (which they can't).

Your wife should also inform the lease company that they must not pay any further PCNs as that would be additional breaches of contract. She should educate them to the fact that their own ATA explains what needs to be in a lease agreement if they want the ability to pay PCNs and charge back to the customer. The current agreement does not allow that and therefore they should simply use the transfer of liability form on the NtK to transfer liability to the hirer on any unpaid PCNs. Once that has been done, the PPC should issue an NtH to the hirer and they can then appeal/defend the PCN (easily defeated).

Once the hirer receives the NtH from the PPC, they will have failed the requirements in PoFA para 14. We have yet to see any hirer receive the required documents that are stipulated in PoFA 13(2)(a), (b) and (c} and therefore the NtH cannot hold the hirer liable, only the driver and they have no idea who that is.

All the other stuff about the autopay can be left to a POPLA appeal should the PPC not cancel based on the PoFA failings.