Parking charge for failing to display Blue badge

vip_bargain

I'd be most grateful for some advice on whether I should contest a parking charge issued for failing to display a blue badge. It was a genuine oversight - a disabled passenger suffers with incontinence following a stroke and in our rush to get to the nearest toilets we forgot to display the blue badge.

A notice to keeper from the parking enforcement company was received in the post which we appealed against unsuccessfully:

Your appeal has been reviewed along with all evidence gathered at the time of the breach of the site rules. Conditions of parking at this site stipulate that vehicles parked in a disabled bay must clearly display a valid Blue Badge in line with the Blue Badge scheme. It is the driver's responsibility to ensure that their badge is both valid and clearly on display before leaving their vehicle. The vehicle in question was observed to contravene this condition. There are prominently displayed signs clearly stating the conditions of parking and that any breach of these conditions will lead to the issuance of a Charge. We are therefore unable to cancel the charge as it was issued correctly. You have now reached the end of our internal appeals procedure and must choose to do one of the following: Pay the charge at the prevailing rate of £60.00 within 14 days. Please note that after this time the discounted rate will no longer apply and the Charge will rise to £100.00. You can submit a further appeal to the Independent Appeals Service, POPLA (Parking on Private Land Appeals) using the POPLA code provided above, any appeal to POPLA must be made within 28 days. 

 Do we have any chance with an appeal to POPLA or do we just bite the bullet and pay the reduced parking charge of £60?

 If we should appeal, on what grounds? Looking at the newbie and other threads on MSE should an appeal to POPLA for this type of case be centered around:

1. Breach under the EQUALITY ACT 2010
2. The amount demanded/charge is not a Genuine Pre-estimate of loss

Thank you in advance.

Half_way

The blue badge is not valid on private land, so it's impossible to display a valid blue badge.

The equality act trumps the blue badge scheme on private land, so if an occupant of the vehicle had a protected characteristic (disability) the land owner needs to make reasonable adjustments.

Get back to the parking company and tell them that the driver was using the adjustments made as an occupant has a protected characteristic under t the e equality acct, and they must cancel the parking charge charge notice in order to prevent the possibility of  any action being taken against them and/ or the landowner for a breach of the equality acct/ disability discrimination

Gr1pr

Name the parking company and location 

Complain to the managing agent or to the CEO of the location or the business as soon as possible, if necessary complain about the PCN to the actual landowner and insist on a cancellation under the Equality Act 2010

The blue badge is just a physical indicator of a disability, so the signs may insist on displaying a blue badge that is current, but its the law that applies to the landowner as well as the parking company 

We know that the parking company is a BPA AOS member but sadly we don't know who they are or where it happened, so not enough information 

Fruitcake

As already advised, Plan A is always a complaint to the landowner and your MP. Plan B is to appeal to the PPC, which you have already done.
Plan C (for BPA members only) is to make a second stage appeal, so yes, you should appeal to PoPLA.

Use all the points available to you from the third post of the sticky Announcement for NEWBIES and post your draft here for checking before you submit it. Note that PoPLA codes last for at least 32 days, but do not miss the deadline.

Your complaints should include, failing to anticipate the needs and making reasonable adjustments for disabled people with protected characteristics, which is not only a breach of the EA 2010, it is indirect discrimination which is a criminal offence.
Continuing to pursue the motorist once the PPC has been made aware that an occupant of the vehicle has protected characteristics is a further breach of the act, direct discrimination, and an additional criminal offence. The landowner needs to be made aware that they are jointly and severally liable for the criminal activities of their parking agent.

Not only does the BB scheme not apply on private land, it is an offence to use it where it is not applicable. Theoretically, the BB owner could face a severe penalty for using the badge on private land.

A BB is not the only indicator of a disability, and an absence of a BB does not mean an absence of disability. The parking industry has had fourteen years to come up with an alternative method to the BB scheme of dealing with motorists who have a disability and a right to uses accessible parking spaces, but have steadfastly refused to do so. Only accepting the display of BB as an indicator of someone's protected characteristics means they increase their ability to issue parking charge notices for their made up terms and conditions, meaning they make more money by ignoring the law.

Your PoPLA appeal should include where applicable, but not be limited to,

Breach of the EA 2010 (Indirect and direct discrimination, failure to anticipate the needs of a person with protected characteristics, criminal offence etcetera). This covers people with cognitive disabilities such as forgetting to display a BB as well as physical issues. 
BB scheme not applicable. BB scheme actually prohibits the use of a BB on private land (look up and quote the relevant parts of the scheme)
Unfair contract terms. Forcing someone with protected characteristics to do something (display a badge that does not apply on private land) that an able bodied person is not required to do. The Consumer Rights Act 2015 applies
Inadequate signage
Frustration of contract (no such thing as a valid BB as explained by Half-way)
Not the landowner
No standing to issue charges in their own name
Non -PoFA compliant NTK, keeper not liable (as long as the driver's identity was not revealed during the initial appeal).
Anything else relevant.

Coupon-mad

 Do we have any chance with an appeal to POPLA or do we just bite the bullet and pay the reduced parking charge of £60?

Definitely neither.  The retail park will cancel it thus week if you cite the Equality Act 2010.

vip_bargain

Thank you all for your helpful comments.

The alleged transgression took place at Teesside retail park. According to Google, the owners are "British Land" company.  If this is correct I will direct a complaint to them citing the Equality Act 2010 ASAP.

I would be grateful for any comments/suggestions on my draft appeal letter below.
It's quite long - perhaps too long.

I, the registered keeper of this vehicle, received a letter dated .... active as a notice to the registered keeper. My appeal to the operator – Minster Baywatch – was submitted and acknowledged but subsequently rejected by a letter dated...

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:

1. Equality Act 2010 - Indirect and direct discrimination, failure to anticipate the needs of a person with protected characteristics which is a criminal offense.

2. Inadequate signage

3. No evidence of Landowner Authority

4. The operator has not shown that the individual it is pursuing is the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

5.  The amount demanded is not a Genuine pre-estimate of loss

 

For the avoidance of doubt, a passenger of the vehicle .... at the time of the alleged parking contravention has mobility issues following a stroke and I attach a copy of the Blue Badge as proof so please consider cancelling this parking fine.

1.      Breach of the EA 2010 (Indirect and direct discrimination, failure to anticipate the needs of a person with protected characteristics.) This covers people with cognitive disabilities such as forgetting to display a Blue Badge (BB) as well as physical issues. 

The BB scheme is not applicable as the scheme actually prohibits the use of a BB on private land (need to quote the relevant parts of the scheme...)
Forcing someone with protected characteristics to do something (display a badge that does not apply on private land) that an able-bodied person is not required to do is a breach of The Consumer Rights Act 2015.Failing to anticipate the needs and making reasonable adjustments for disabled people with protected characteristics, is not only a breach of the EA 2010 but it is indirect discrimination which is a criminal offence.

Continuing to pursue the motorist once the PPC has been made aware that an occupant of the vehicle has protected characteristics is a further breach of the act, direct discrimination, and an additional criminal offence. 

I will also be informing the landowner that they are jointly and severally liable for the criminal activities of their parking agent.

 Not only does the BB scheme not apply on private land, but it is also an offence to use it where it is not applicable. A BB is not the only indicator of a disability, and an absence of a BB does not mean an absence of disability. The parking industry has had fourteen years to come up with an alternative method to the BB scheme of dealing with motorists who have a disability and a right to uses accessible parking spaces, but have steadfastly refused to do so

 A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

 This is not a case of mitigating circumstances, this is primary disability law which takes precedence and which grants unequivocal rights which cannot be removed, nor restricted to certain groups, nor unilaterally changed or charged for on a whim, for your profit.

 One passenger is disabled following a stroke with 'Protected Characteristics' under the Act). They have the legal right to use any 'reasonable adjustment' provided by any landholder/client/operator when visiting a customer-facing environment, including car parks.

 Any term that Minster Baywatch may have on your signs to the effect 'Blue Badges only' is wholly unreasonable and therefore null and void, if the effect is to deny a disabled person their statutory right to use a reasonable adjustment without penalty.

 As a company, Minster Baywatch have specifically breached their legal duties under the 'EHRC Equality Act Code of Practice for Service Providers' which has been law since 2011.

 'Service Provider' is a term loosely associated with Minster Baywatch and certainly applies to the landowner/occupier client of the car park, who will be hearing about this matter from me, if this ticket is not cancelled within 10 days.

Minster Baywatch do not own this car park and  are merely acting as agents for the owner/occupier

I cite the following cases in my defence, UKCPS v Murphy (April 2012 finding that  charge was a penalty) and Excel v Greenwood, Case Number 3QT60496 (4/10/2013) about a forgotten Blue Badge, where the Judge found that the Excel should have made reasonable adjustments once they knew about the disability.

  

2.      Inadequate signage

The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

 I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

 ''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

 There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

 http://imgur.com/a/AkMCN

 In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

 Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

 http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking+sign_001.jpg

 This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

 It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

 This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

 From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

 The letters seem to be no larger than .40 font size going by this guide:

 http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

 As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

 ''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2' letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3' or even larger.''

 ...and the same chart is reproduced here:

 http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

 ''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

 So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

 Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a '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.

 The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

 This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

 http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

 This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

 So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

  

vip_bargain

.   

 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 i  No evidence of Landowner Authoritys 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

 

4.      No registered keeper liability (ref POPLA case Steve Macallan 6062356150)

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. 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 parking charge cannot be enforced against a keeper without a valid NTK.

 As the keeper 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 keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper 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 keeper 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."

 The same conclusion was reached by POPLA Assessor Steve Macallan

 

5.The amount demanded is not a Genuine pre-estimate of loss

The wording on their letter appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowiing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by the Operator that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.
It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

KeithP

vip_bargain said:

 ...and the same chart is reproduced here:

 http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

No it isn't.
Have you checked any of the links you are using?

vip_bargain

Thanks for flagging - I will go back and check all the links. 

Gr1pr

Looks like a very, very old popla appeal to me, especially with number 5 , thats not been used in well over 5 years, nearer 10 years 

 I wouldn't use anything posted before January 2020, preferably something wihin the last 2 years , for example 

Coupon-mad

You can't use that out of date argument about no GPEOL. DO NOT DO POPLA ANYWAY.

The retail park will cancel it this week, if you cite the Equality Act 2010 ... UNLESS you try POPLA which will stop them being able to cancel.