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

Coupon-mad

You could add:

Reference to a Previous POPLA Decision:
I would also like to draw POPLA’s attention to a recent decision regarding a similar case involving Horizon Parking (POPLA code 3762434330, decision date 17/12/2024), which was allowed on the basis of the same non-compliance with PoFA. The assessor in that case ruled as follows:

POPLA Assessor’s Rationale:
“The appellant has presented a technical challenge to the parking operator’s application of PoFA. The parking operator is reliant on the correct application of PoFA in this case as driver liability cannot be established. As such, in respect of the 28-day period given for the PCN to be paid or for the driver’s details to be provided, I must note that Notice to Keeper in this case does state: ‘the period of 28 days from the second working day after the date of this Parking Charge’. However, PoFA stipulates (at paragraph 9 subparagraph (2)(f)) that this period must be given from: ‘the period of 28 days beginning with the day after that on which the notice is given’. In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: ‘A notice sent by post is to be presumed…to have been delivered (and so ‘given’ for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted’. As such, I must uphold the appellant’s grounds in respect of the wording used by the parking operator in this case, as this sets the 28-day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after. Accordingly, I must allow this appeal.”

This case is almost identical to mine in terms of the non-compliant wording used in the NtK, and I respectfully ask that POPLA consider this previous decision when reviewing my complaint about the horrible error in my case.

Given the fact that ALL Horizon cases now involve this same, fairly new but clearly wrong, wording (until they correct it) surely POPLA needs a definitive Sector Expert finding to help retrain your assessors to avoid the unfairness and inconsistency for keeper appellants of having to face this 'assessor lottery'.

Kindly do the necessary retraining as a priority, before you rush to chat to Horizon and the BPA to help them out. Isn't POPLA's supposed impartiality meant to include a first duty of fairness to the consumer who relies on proper decisions from a professional body, and only secondly to inform and 'coach' your paymasters? I am incensed to say the least, that my first experience of putting my trust in POPLA has been your service's failure to understand the one law you are tasked to apply.

andromeda24

1505grandad said:

"Paragraph 9(6): The notice is deemed ‘given’ on the second working day after the issue date."

A pedantic observation  -  the word "issue" does not appear anywhere in PoFA para 9  -  the word "posted" is used:-

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/paragraph/9
(Protection of Freedoms Act 2012, Paragraph 9 is up to date with all changes known to be in force on or before 22 January 2025.)

"(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted;...."

Fair shout, I'll update. 

andromeda24

Coupon-mad said:

Looks fine.

It's likely to be complaints@ which is what the POPLA Website tells you, I seem to recall?

No complaints address that I could see, just an online form. (And I don't want to use that because I presume it will remove paragraphing/formatting which I feel this needs to help break things down for them.) 

Thanks for your help everyone. I will post an update when I have one.

andromeda24

Coupon-mad said:

You could add:

Reference to a Previous POPLA Decision:
I would also like to draw POPLA’s attention to a recent decision regarding a similar case involving Horizon Parking (POPLA code 3762434330, decision date 17/12/2024), which was allowed on the basis of the same non-compliance with PoFA. The assessor in that case ruled as follows:

POPLA Assessor’s Rationale:
“The appellant has presented a technical challenge to the parking operator’s application of PoFA. The parking operator is reliant on the correct application of PoFA in this case as driver liability cannot be established. As such, in respect of the 28-day period given for the PCN to be paid or for the driver’s details to be provided, I must note that Notice to Keeper in this case does state: ‘the period of 28 days from the second working day after the date of this Parking Charge’. However, PoFA stipulates (at paragraph 9 subparagraph (2)(f)) that this period must be given from: ‘the period of 28 days beginning with the day after that on which the notice is given’. In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: ‘A notice sent by post is to be presumed…to have been delivered (and so ‘given’ for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted’. As such, I must uphold the appellant’s grounds in respect of the wording used by the parking operator in this case, as this sets the 28-day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after. Accordingly, I must allow this appeal.”

This case is almost identical to mine in terms of the non-compliant wording used in the NtK, and I respectfully ask that POPLA consider this previous decision when reviewing my complaint about the horrible error in my case.

Given the fact that ALL Horizon cases now involve this same, fairly new but clearly wrong, wording (until they correct it) surely POPLA needs a definitive Sector Expert finding to help retrain your assessors to avoid the unfairness and inconsistency for keeper appellants of having to face this 'assessor lottery'.

Kindly do the necessary retraining as a priority, before you rush to chat to Horizon and the BPA to help them out. Isn't POPLA's supposed impartiality meant to include a first duty of fairness to the consumer who relies on proper decisions from a professional body, and only secondly to inform and 'coach' your paymasters? I am incensed to say the least, that my first experience of putting my trust in POPLA has been your service's failure to understand the one law you are tasked to apply.

Ahh, I didn't see this before I sent! Damn.

Coupon-mad

Send it when a human acknowledges the complaint.

andromeda24

As suspected, POPLA acknowledged the error, but didn't want to know beyond that. They also didn't pass it onto the fella I requested  

Dear XXXXX

Your complaint about POPLA case XXXXXXXX

Thank you for your email, which was passed to me by POPLA team as I am responsible for responding to complaints.

I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Horizon Parking.

It is important to explain that POPLA is a one-stage process, and we would not change a decision because either party disputes the assessor’s decision. However, we may consider an appeal if there has been a procedural error, for example – if we failed to allow a motorist to comment on a parking operator’s evidence pack. My role as a complaints handler is to determine whether a procedural error has occurred during the assessment of your appeal.

Having read your email, I have noted the crux of your complaint is that the assessor has not properly considered the Protection of Freedoms Act 2012 (PoFA 2012). I have done a thorough review of the case and will set out my findings below.

The basis of your appeal is that the operator did not allow sufficient time for you to provide a name and serviceable address for the driver of the vehicle.

Paragraph 9(2)(f) states that the notice to keeper must: “(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given”…“the creditor does not know both the name of the driver and a current address for service for the driver, 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.”

Paragraph 9(6) then defines the given date as: “the second working day after the day on which it is posted”.

As the notice was issued on 3 October 2024, the given date is Monday 7 October. As PoFA 2012 states that motorists must be given 28 days from the day after the notice is given, you are correct in stating that the 28 days should have begun from 8 October.

I acknowledge that the assessor has incorrectly stated that the given date is 4 October and I would like to apologise for this error within their response. I will endeavour to provide the relevant feedback for training and quality purposes going forwards.

Having done a thorough review of the appeal, I can only be satisfied that all of the evidence was considered and therefore a procedural error has not occurred. Again, I would like to apologise for the misinterpretation of PoFA 2012, but as POPLA is a one-stage process, the appeal will not be reassessed.  

In closing, I am sorry that your experience of using our service has not been positive. We have reached the end of our process and my response now concludes our complaints procedure. I trust you will appreciate that there will be no further review of your complaint and it will not be appropriate for us to respond to any further correspondence on this matter.

As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

Yours sincerely,

XXXXX

POPLA Complaints Team

Fruitcake

This statement is patently not true,

"Having done a thorough review of the appeal, I can only be satisfied that all of the evidence was considered and therefore a procedural error has not occurred."

All the evidence was obviously not considered.

You should keep that response safe in case the operator tries to issue a court claim in the next six years.
You could send a copy of that response to Horizon warning them not to try court.

In any case, you should complain to your MP that the non-independent second stage appeal process has been mismanaged by amateurs funded by the unregulated parking industry, and ask when the mandatory government code of practice and truly independent appeals process operated by legally trained assessors is going to be introduced to stop this abuse by the unregulated private parking industry.
Stress that you are not asking about the recently introduced joint IPC/BPA code of practice that has been produced (in my opinion) to confuse motorists and trick MPs into thinking it is the government CoP to support the 2019 parking bill. It is not.

andromeda24

Thinking of this as a reply: 

XXXXX, 

How can the evidence being 'considered' and applied incorrectly not be a procedural error?

Please can this be reviewed by the person I requested? The law simply has not been followed by Horizon or yourselves thus far, so this matter does require further investigation. 

 

Furthermore, I would like to draw POPLA’s attention to a recent decision regarding a similar case involving Horizon Parking (POPLA code 3762434330, decision date 17/12/2024). This appeal was allowed on the basis of the same non-compliance with PoFA. The assessor in that case ruled as follows:

POPLA Assessor’s rationale
“The appellant has presented a technical challenge to the parking operator’s application of PoFA. The parking operator is reliant on the correct application of PoFA in this case as driver liability cannot be established. As such, in respect of the 28-day period given for the PCN to be paid or for the driver’s details to be provided, I must note that Notice to Keeper in this case does state: ‘the period of 28 days from the second working day after the date of this Parking Charge’. However, PoFA stipulates (at paragraph 9 subparagraph (2)(f)) that this period must be given from: ‘the period of 28 days beginning with the day after that on which the notice is given’. In respect of the presumed date of issue, paragraph 9 subparagraph (6) of PoFA advises: ‘A notice sent by post is to be presumed…to have been delivered (and so ‘given’ for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted’. As such, I must uphold the appellant’s grounds in respect of the wording used by the parking operator in this case, as this sets the 28-day timescale from the presumed date of issue, whereas PoFA stipulates this must begin from the day after. Accordingly, I must allow this appeal.”

This case is almost identical to mine in terms of the non-compliant wording used in the NtK, and I respectfully ask that POPLA consider this previous decision when reviewing my complaint about the horrible error in my case.

Car1980

Fraud Act 2006

Fraud by false representation

(1)A person is in breach of this section if he—

intends, by making the representation—to cause loss to another or to expose another to a risk of loss.

A representation is false if—

(a) it is untrue or misleading, and

(b )the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

andromeda24

Fruitcake said:

This statement is patently not true,

"Having done a thorough review of the appeal, I can only be satisfied that all of the evidence was considered and therefore a procedural error has not occurred."

All the evidence was obviously not considered.

You should keep that response safe in case the operator tries to issue a court claim in the next six years.
You could send a copy of that response to Horizon warning them not to try court.

In any case, you should complain to your MP that the non-independent second stage appeal process has been mismanaged by amateurs funded by the unregulated parking industry, and ask when the mandatory government code of practice and truly independent appeals process operated by legally trained assessors is going to be introduced to stop this abuse by the unregulated private parking industry.
Stress that you are not asking about the recently introduced joint IPC/BPA code of practice that has been produced (in my opinion) to confuse motorists and trick MPs into thinking it is the government CoP to support the 2019 parking bill. It is not.

I find it utterly bonkers to admit something was wrong without then thinking that might have prejudiced the ruling. 

Sadly, I don't think I've got enough left in the tank to go down the MP route. My dad passed recently, and I'm in the middle of another big claim for a 40-hour travel delay getting home for his funeral. It's all just a lot!