Group Nexus PCN posted to keeper, but payment was attempted at the time and shows as Pending

akm2018

Hi all, wondering what I should do here.

Received today 9/8/2024 the attached (redacted) PCN dated 7/8/2024 about parking on 29/7/2024. It has photos, but they do not know who the driver was (and I'm not going to say). I am the registered keeper. I believe the letter is POFA compliant (to my layman's eye). I believe the car park to be owned by Nexus themselves so I don't know who the Client the letter refers to could be - I think there's no complaint to landowner stage involved?

Here's the thing though: I know that payment was attempted, during the parking session, on Nexus' parking app. The parking session does NOT show in the Nexus parking app, but the banking app for the card that made the payment shows the (dated and timed) payment as Pending, suggesting that a payment authorisation was sent by Nexus but was not correctly finalised by them; the bank automatically cancelled this hold on 6/8/2024.

I've seen a similar case mentioned on these forums https://forums.moneysavingexpert.com/discussion/comment/80138495/#Comment_80138495 where the payment was completed but inexplicably refunded; it looks like the person in that case appealed, was asked for evidence, none supplied, contacted the press, who made enough fuss that it was cancelled.

The site they mention for appealing (appealpcn.co.uk) *requires* the selection of one of these options before the appeal can be filled in:

Tick here to confirm that you were the driver and that the PCN you have received contains the correct information
Tick here to confirm that you were not the driver or that the PCN you have received contains incorrect information

but I know I should not make any comment on who was driving. I do want to appeal though, with the thrust of it being that it's their screw-up here. I was thinking of sending them redacted screenshots of the banking app, along with words like these:

Re PCN XXXXXXXX

I am the registered keeper of the vehicle, and I dispute your parking change. Payment for the parking session in question was made on your NexusPay app during the session, as required. Attached are screenshots from a banking app showing the initial authorisation at (date and time), and the later release of the hold at (date and time) when your payment system had failed to correctly settle based on the authorisation. I trust these details will be sufficient for you to find the 'record of a payment' in your payment systems.

I look forward to the cancellation of this PCN.


but I don't know the best way to go about this - should it be by post? This forum seems very down on the idea of appealing by post!

LDast

Wait for the appeal rejection and then appeal to POPLA pointing out that the NtK is not fully compliant with all the requirements of PoFA, namely 9(2)(e)(i) as there is no "invitation", nor any synonym of the word, for the keeper to pay the charge. Partial or even substantial compliance is not acceptable.

PoFA states at 9(2)(e)(i) as follows:

9(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must—

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—

(i) to pay the unpaid parking charges;

As GroupNexus state in their NtK: "This charge is given to you under Paragraph 9(2)(f) of Schedule 4 of PoFA 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that Act." They have not complied with 9(2)(e)(i) and so cannot rely on the Act to hold the keeper liable.

You then tell the POPLA assessor that, as the keeper, you decline to identify the driver as there is no legal obligation for you to do so to an unregulated private parking company and that the operator is put to strict proof that the person they are pursuing is the driver. Remind the assessor that the registered keeper cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency and there is ample persuasive case law to back that point up. 

 

akm2018

LDast said:

Wait for the appeal rejection and then appeal to POPLA

 

Thank you for that excellent insight LDast. It seems they've tried but not got it right! So would you suggest I appeal by post with my evidence as I proposed, or something else?

LDast

akm2018 said:

LDast said:

Wait for the appeal rejection and then appeal to POPLA

 

Thank you for that excellent insight LDast. It seems they've tried but not got it right! So would you suggest I appeal by post with my evidence as I proposed, or something else?

No one appeals by "post". Use email or in the worst case the operators webform, but keep a copy of anything submitted that way.

Coupon-mad

Clearly ticking this option is fine and IS NOT saying that you were or weren't driving:

Tick here to confirm that you were not the driver or that the PCN you have received contains incorrect information 

There is one important short word there... I have no idea why you wouldn't tick that box?

akm2018

Thank you all for your help. OK so on 3 Sep I appealed using their webform.

On 13 Sep they emailed this:

Thank you for your correspondence relating to your Parking Charge.
The representations stated in your correspondence have been noted and considered. Please forward to us the full name and address of the driver at the time this charge was incurred so that we can update our records accordingly.
We are placing this Charge on hold for 14 days from the date of this email to allow you to provide the details requested.

along with a read-back of their webform, which sneakily said that I'd filled in "Yes" on "Was Driver", which I hadn't.

On 26 Sep I replied, pointed out that error, and said

The details provided in my initial correspondence remain comprehensive and current. What you choose to put in your own records is, of course, entirely up to you.
I look forward to the outcome of my appeal, ideally resulting in the cancellation of this PCN.

On 3 Oct they replied with (my emphasis)

The Charge was issued and the signage is displayed in compliance with The British Parking Association’s Approved Operator Scheme Code of Practice and all relevant laws and regulations. While a parking fee was paid, the vehicle registration entered was incorrect preventing a valid permit from being generated for this vehicle. In light of this, on this occasion, your representations have been carefully considered and rejected.
In accordance with paragraph 17.4 of the BPA Code of Practice, which states that “It is appreciated that in issuing a PCN in these instances, the operator will have incurred charges including but not limited to the DVLA fee and other processing costs therefore we believe that it is reasonable to seek to recover some of these costs by making a modest charge to the motorist of no more than £20 for a 14-day period from when the keying error was identified”, on this occasion only we will accept the reduced amount of £20 in full settlement of this Charge to cover our costs in correctly issuing this Charge and we will hold the charge at this rate for 14 days from the date of this correspondence. If no payment is received within this period, and no further appeal to POPLA is made, the Charge will escalate and further costs may be added.
...
You have now reached the end of our internal appeals procedure. This correspondence represents our final stance on the matter and we will therefore not enter into any further correspondence.

plus a reference number for POPLA.

Since their parking app requires the user to set up the vehicle details in advance - at the time of parking you just pick from a list - the idea that the VRN was entered incorrectly is laughable.

So now I go to POPLA. I have two or three 'pillars' my appeal could rest on: 

- the PoFA violation that LDast pointed out to me up-thread

- the fact that payment was attempted at the time in the correct manner, and it is only the failure of their system that stopped them getting the money

- the fact that they admit "a parking fee was paid" but somehow haven't been able to tie up the VRN.

Obviously the PoFA violation should be enough alone; but does it help or hinder (or neither!) my appeal to mention (and supply evidence for) the other things?

Coupon-mad

You don't have grounds for POPLA and it is tenuous to suggest that NTK is non-PoFA. Clearly it is inviting the keeper to pay because it is asking for money. This case would be lost at POPLA. No point!

Just totally ignore GN now and tell them and their agents if you move house.

That is all.

Come back if you get a LBC from a law firm.

Don't tell us about the £170 threatograms which is a 'nothing' stage fully covered in the 4th post of the NEWBIES thread.

akm2018

Ok I see there are differing opinions. Can it hurt to go to POPLA? As in, would going to POPLA and losing make things worse for me?

Coupon-mad

You can try.  But that NTK isn't non-POFA.

akm2018

Thanks. On further reflection and having had a proper close look at section 9, I concur that their letter is technically fine. I will do nothing now and see what happens next. Honestly, I think if it comes to it they've kind of made my case for me by clearly saying "a parking fee was paid". But we'll see.