Driver doesn't want to pay Horizon fine, but registered keeper does...

andromeda24

Coupon-mad said:

andromeda24 said:

Thanks for taking the time to write this out! I think I get it now, but let's check my understanding:

1. Notice is given on: October 3rd
2. The day after the notice is given: October 4th
3. Start counting the 28 days from October 4th

If we count 28 days from October 4th, the period ends on October 31st. According to the regulation, it is only after this period has concluded that liability can be transferred. Which would mean liability can be transferred from November 1st and not before then.

The way Horizon have worded it could be read like they're saying they can transfer liability from the October 31st, because of the use of 'from' in this sentence: ‘... after the period of 28 days from the second working day after the date of this Parking Charge.’ 

The only thing is... I feel like the 'after' at the start of the sentence might save them. 

No.

The notice was not deemed given on Oct 4th

Ahh okay, so it would be deemed given on October 7th as that's two working days later. And the 28-day period starts from the day AFTER that, on October 8th. 

andromeda24

LDast said:

Here is a way you could explain it to a dim witted POPLA assessor, for what its worth:

Under paragraph 9(2)(f), the Notice to Keeper (NtK) must include the following wording:

"The notice must 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 to pay the unpaid parking charges or, if the keeper was not the driver of the vehicle, to provide the name of the driver and a current address for service for the driver and to pass the notice on to the driver."

It must also state:

"(i) that the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; and

(ii) the period of 28 days beginning with the day after that on which the notice is given."

Hey LDast. Does it matter that this part isn't in the same order as it appears in 9(2)? I assume paraphrasing is allowed, but since my appeal will be entirely on the grounds of semantics, I don't want to risk misquoting anything!   

Coupon-mad

Order is irrelevant.

You are going to have to literally spell out that the 28 days period is misstated by one day. Less is more.

andromeda24

Okay, here's what I have so far. It's pretty much LDast's exact wording, with a few tweaks structurally.

Any notes?

POPLA reference number: XXXXXXX

Horizon Parking PCN: XXXXXXX

As the registered keeper, this is an appeal against the Parking Charge Notice issued by Horizon Parking for an alleged breach of the company's terms and conditions in Tesco Express Salford Quays car park, on 28th September 2024.

For the avoidance of doubt, the driver’s identity has not been provided and this statement remains purely from the registered keeper.

Summary of case

The Notice to Keeper (NtK) issued in this case is non-compliant with the requirements set out in schedule 4 of The Protection of Freedoms Act (PoFA) 2012. This is because the NtK incorrectly starts the 28-day period for transferring liability one day too early.

PoFA requirements

Under paragraph 9(2)(f), the NtK must include the following wording:

"The notice must 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 to pay the unpaid parking charges or, if the keeper was not the driver of the vehicle, to provide the name of the driver and a current address for service for the driver and to pass the notice on to the driver."

It must also state:

"(i) that the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; and

(ii) the period of 28 days beginning with the day after that on which the notice is given."

Under paragraph 9(6), the notice is deemed to have been 'given' to the keeper on the second working day after the date it was issued. The 28-day period then starts the day after that. 

For example:

1. The NtK was issued on Thursday 3rd October.

2. NtK is presumed to be 'given' to the keeper on Monday 7th October (the second working day).

3. The 28-day period should then begin on Tuesday 8th October (the day after the second working day).

Where the NtK's Wording is Non-Compliant:

The wording on the back of the NtK attempts to transfer liability to the keeper one day early by stating that 28-day period starts “from the second working day after the date of this Parking Charge", rather than the day after the second working day.

Why This Matters:

Incorrectly starting the 28-day period is significant because PoFA requires full and strict compliance with its wording to hold the registered keeper liable. By attempting to transfer liability one day too early, the operator has not met the legal requirements of PoFA, meaning that the keeper cannot be held liable for the parking charge.

The mistake in the NtK effectively cuts short the keeper’s response period and breaches PoFA’s clear requirements, which unfairly prejudices the keeper. POPLA must recognise that this premature attempt to start the liability transfer invalidates the notice, making it non-compliant with PoFA, and as a result, the parking charge should be cancelled.

In summary:

• PoFA states that the NtK is presumed 'given' on the second working day after issuance.

• The 28-day period to transfer liability then begins the day after the second working day.

• The NtK incorrectly starts the 28-day period from the second working day itself, which is one day too early.

• As PoFA requires exact compliance, this error invalidates the attempt to transfer liability to the keeper.

This is a crucial challenge that POPLA should uphold, as it directly affects the legality of the operator’s attempt to hold the keeper liable.

Coupon-mad

Yes I'd send just that. Nothing else.

andromeda24

Update: Horizon has responded to the POPLA appeal. Here is their rebuttal of the POFA wording aspect: 

"The appellant states -



And so it seems the appellant is confused, however the appellants evidence is that, of a compliant Notice to Keeper, containing the correct information and the correct date/start of the 28 day period. We will clarify this below. The contravention took place on 28/09/2024, a Parking Charge was issued to the appellant within the 14 day period on 03/10/2024, stating that – ‘You are advised that if, after the period of 28 days from the second working day after the date of this Parking Charge, the amount due has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the Parking Charge from you. This Parking Charge is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of that Act.’ This means that after the date of the Parking Charge, (which was the 03/10/2024) 04/10/2024, from the next second working day, which would be 08/10/2024, the 28 day period begins. We suggest the appellant revisits the Parking Charge as this is a compliant notice to keeper and does not remove from the fact, that the appellant did not adhere to the terms and conditions of parking on site."


Love the passive aggression of me being 'confused'  

Coupon-mad

Your comments should say:

The operator is confused and they are plainly wrong with their 28 day period.

POPLA Assessor, this is a new NTK for Horizon who are an operator which has never used the POFA before.  POPLA will now see this version NTK in future cases and you must get it right, with a definitive decision.

You must therefore uphold my appeal and Horizon can then put their wording right, to match Schedule 4 properly.

If the Assessor is confused (or after reading both accounts if you are minded to believe the operator) you are wrong.  This would be an error. I insist that this is escalated to the Sector Expert for review before the decision is made.

andromeda24

Coupon-mad said:

Your comments should say:

The operator is confused and they are plainly wrong with their 28 day period.

POPLA Assessor, this is a new NTK for Horizon who are an operator which has never used the POFA before.  POPLA will now see this version NTK in future cases and you must get it right, with a definitive decision.

You must therefore uphold my appeal and Horizon can then put their wording right, to match Schedule 4 properly.

If the Assessor is confused (or after reading both accounts if you are minded to believe the operator) you are wrong.  This would be an error. I insist that this is escalated to the Sector Expert for review before the decision is made.

Thanks, because I was wondering how I could even go about commenting without just regurgitating what I've already put.

Their explanation of the 28-day period doesn't change the fact it's worded non-compliantly in the NtK. 

fisherjim

Perhaps Horizon don't work Fridays

andromeda24

How does this sound? 

POPLA Assessor: 

The operator’s explanation of the 28-day period does not change the non-compliant wording in their NtK. They are plainly wrong in how they have worded their NtK, and this must be recognised. 

Furthermore, this is a new NtK for Horizon, who are an operator that has never used POFA before. POPLA will now see this version of the NtK in future cases, so you must get this right with a definitive decision.

You must uphold my challenge so Horizon can put their wording right and meet Schedule 4 properly.

If the Assessor is minded to side with the operator, I must insist that this is escalated to the Sector Expert for review before a final decision is made.