Notice to Hirer - Total Parking Solutions

Mahone1302 · 1 November 2024 at 11:12AM

A few days ago a friend has received a Notice to Hirer from Total Parking Solutions (TPS) and has asked for my help - there was no PCN placed on the vehicle. The NtH is all that they have received, no further documents were enclosed. I've already read the various stickies etc however I've got a few queries. Please forgive me - I do have previous knowledge having fought a few tickets before and even won one at court, however this was back in 2019 and I've never dealt with one where the vehicle is hired.

I'm fairly certain that the NtH is non-compliant because:

1) TPS have not provided the Hirer with the documents specified under POFA Sch4 S13(2) - i.e. confirmation that from hire company that the vehicle was hired, copy of hire agreement and a copy of statement of liability signed by hirer (as per POFA Sch4 S14(2))
2) TPS have not provided the Hirer with a copy of the original NtK (as per POFA Sch4 S14(2))

Would be somebody be so kind as to confirm that I am understanding this right please? The one thing I am struggling to get my head around with this, is the dates & timescales. Could it be expected that TPS send out these missing documents at a later date, still within a certain timescale and thus making them compliant?

If all seems well and TPS have indeed issued a non-compliant NtH, I shall go for the standard appeal and request of a POPLA code, with a little bit of tweaking of a letter I have seen written by Edna_Basher (on thread https://forums.moneysavingexpert.com/discussion/comment/69859059#Comment_69859059)

Fruitcake · 1 November 2024 at 11:26AM

To answer your question about timescales, yes, TPS could later issue the documents required by paras 13 and 14 of the PoFA along with a replacement/new NTH in an attempt to make them PoFA compliant.

For this reason, the appeal should be delayed until the last possible moment, a day or two before the deadline, to ensure they can't provide anything by that deadline.

You have a very good understanding of the process, and yes, a tweak of the relevant edna basher letter should do the trick, or at least result in a PoPLA code allowing a win at the second stage of the process to be achieved. Just make sure the name of the PPC is changed to the correct one.

However, Plan A, a complaint to the landowner and the hirer's MP should always be attempted first.

Mahone1302 · 1 November 2024 at 11:37AM

Fruitcake said:

To answer your question about timescales, yes, TPS could later issue the documents required by paras 13 and 14 of the PoFA along with a replacement/new NTH in an attempt to make them PoFA compliant.

For this reason, the appeal should be delayed until the last possible moment, a day or two before the deadline, to ensure they can't provide anything by that deadline.

You have a very good understanding of the process, and yes, a tweak of the relevant edna basher letter should do the trick, or at least result in a PoPLA code allowing a win at the second stage of the process to be achieved. Just make sure the name of the PPC is changed to the correct one.

However, Plan A, a complaint to the landowner and the hirer's MP should always be attempted first.

Thanks Fruitcake, all makes sense. Pointless in this case doing a complaint to landowner, as the landowner are more than happy with TPS doing what they're doing in this case, the land is purely there for permit-only parking and serves no other purpose; i.e. it's not parking for a specific retail premises or venue etc.

Coupon-mad · 1 November 2024 at 1:20PM

OK so your plan is good.

Edna Basher version of appeal and tell the friend NOT TO TICK 'DRIVER'!

Mahone1302 · 19 November 2024 at 10:50AM

So my proposed response is:

Dear Sir,

Parking Charge Notice [0123456789]: Vehicle Registration [AA11ABC]

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by Total Parking Solutions (“TPS”) as a Notice to Hirer. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why TPS’s Notice to Hirer did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.

1) TPS have not provided the Hirer with the three documents specified under POFA Sch4 S13(2) - i.e. confirmation that from hire company that the vehicle was hired, copy of hire agreement and a copy of statement of liability signed by hirer (as per POFA Sch4 S14(2))
2) TPS have not provided the Hirer with a copy of the original NtK (as per POFA Sch4 S14(2))

The only document that the Hirer has received is the Notice to Hirer dated [xxxxxx]. Given that TPS has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

Thank you for your cooperation and I look forward to receiving your response within the relevant timescales specified under the British Parking Association Ltd Code of Practice.

Yours faithfully,

Coupon-mad · 20 November 2024 at 1:07AM

Looks good.

Mahone1302 · 13 December 2024 at 12:19PM

Predictably they have replied declining the appeal, along with some nonsense about the terms and conditions of the car park. Despite this, they have now (along with this appeal response) provided the missing documents, however this will be clearly out of time for them.

On to POPLA!

Coupon-mad · 14 December 2024 at 12:39AM

It might be out of time (yes) but by including the documents in their POPLA evidence (as they now will) they will be no doubt hoping to mislead POPLA re those docs being served in time.

You'll have to spell it out to POPLA.

Mahone1302 · 3 January at 11:42AM

Would anybody be kind enough to check over the POPLA appeal please? We're hoping to get it sent off over the next couple of days, the deadline is sometime next week. Thanks.

Dear POPLA

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as

hirer of a vehicle, in respect of an alleged breach of terms & conditions at xxxxxxxxx on 31st August 2024.

I appeal to you that I am not liable for this parking charge on the basis of the below points:

1) TPS’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.

2) TPS has not shown that the individual who it is pursuing is in fact liable for the charge.

3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

1) TPS’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (TPS) to have the right to recover any unpaid parking charges from the hirer of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 13 and 14. It is

my belief that TPS have failed to fulfil the conditions of paragraph 13 and 14; which states that TPS must have provided myself as the hirer with a notice in accordance with paragraph 13 and 14.

Paragraph 13 states:

“(2)The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b)a copy of the hire agreement; and

(c)a copy of a statement of liability signed by the hirer under that hire agreement.

(3)The statement of liability required by sub-paragraph (2)(c) must—

(a)contain a statement by the hirer to the effect that the hirer acknowledges responsibility for any parking charges that may be incurred with respect to the vehicle while it is hired to the hirer;

(b)include an address given by the hirer (whether a residential, business or other address) as one at which documents may be given to the hirer;

(and it is immaterial whether the statement mentioned in paragraph (a) relates also to other charges or penalties of any kind).”

Paragraph 14 states:

“14(1)If—

(a)the creditor is by virtue of paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and

(b)the conditions mentioned in sub-paragraph (2) below are met,

the creditor may recover those charges (so far as they remain unpaid) from the hirer.

(2)The conditions are that—

(a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b)a period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and

(c)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3)In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.”

1) The Notice to Hirer / PCN sent to me 24/10/2024 consisted solely of a double sided A4 page, with no additional documentation attached. The requirements above under Paragraph 14(2)(a) are quite clear that four documents must also be provided to the hirer as keeper alongside the PCN: a) confirmation that from hire company that the vehicle was hired, b) copy of hire agreement, c) a copy of statement of liability signed by hirer, and d) a copy of the original Notice to Keeper.

2) The timescale to provide these is covered in Paragraph 14(3) and states the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

3) These documents were only provided to myself by TPS on 13/12/2024 as part of their rejection of my appeal to them. The documents show as being sent to TPS by Enterprise Rent-a-Car on 16/09/2024, with a stamp “RECEIVED 15/10/2024” at the top of the document. Even allowing for the latter date of 15/10/2024, the documents would have to be provided to me by 05/11/2024. As stated above, the documents were not provided to me until 13/12/2024 and as such significantly outside of the window allowed by POFA Sch 4 Paragraph 14.

To confirm, the only document that the Hirer received pre-appeal and within any of the relevant POFA 2012 timescales, was the Notice to Hirer / PCN only. This is a clear and strict requirement under the relevant legislation that TPS have not complied with and as such cannot rely upon to hold me liable as hirer.

2) TPS has not shown that the individual who it is pursuing is in fact liable for the charge.

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.

In this case, no other party apart from an evidenced driver can be told to pay. 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 hirer 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains, I am only appealing as the hirer 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 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 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 cannot transfer the liability for the charge using the POFA.

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.''

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed. A non-POFA compliant PCN/Notice to Hirer is absolutely fatal to a case where the driver's identity remains unknown.

Thus, in this situation, there is no 'keeper liability' nor 'driver liability' possible and the PCN must be cancelled.

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 is 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.

Fruitcake · 3 January at 11:58AM

Don't say, "it is my belief that". Just state that TPS failed to comply with the PoFA. Do highlight the fact that although TPS provided some documents at a later date, they did not provide them with the NTH, nor within the PoFA timescales, therefore the NTH was not PoFA compliant and therefore the hirer cannot be held liable.

In para 1) 3) the word "only" is repeated in the same sentence.

To confirm, the only document that the Hirer received pre-appeal and within any of the relevant POFA 2012 timescales, was the Notice to Hirer / PCN only.

As C-m said, you have to spell it out for PoPLA assessors as it has been proven that some of them can't even count to fourteen.

Other than that, it looks okay to me.

Did the hirer complain to their MP as advised? There is now a group of around eleven MPs who are trying to get the government to act in regard to the unregulated private parking industry, and get the mandatory government Code of Practice (CoP) introduced. Details can be found in this post.

Parking stories in the News/media - Page 220 — MoneySavingExpert Forum

Make sure the hirer's MP understands that the new combined BPA/IPC Code of Practice is not the mandatory government CoP and was deliberately (in my opinion) introduced to cause confusion on this subject, to support the unregulated private parking industry, and increase profits for the parking companies that funded this new CoP.

Please sign the petition linked in the post below, and ecourage everyone you know to do the same.

Parked in a disabled Bay, no ticket - Page 3 — MoneySavingExpert Forum

Mahone1302 · 3 January at 5:54PM

Thanks. Section 1 has now been changed, in particular the order of the information but also some clarification. I think this reads better and helps spell things out better.

1) TPS’s Parking Charge Notice is not compliant with the Protection of Freedoms Act 2012.

Under schedule 4, paragraph 4 of the Protection of Freedoms Act 2012, for the creditor (TPS) to have the right to recover any unpaid parking charges from the hirer of the vehicle (myself), certain conditions must be met as stated in schedule 4, paragraphs 13 and 14. This is known as ‘keeper liability’ and can be used by parking operators where they have failed to identify the driver. TPS have failed to fulfil the conditions of paragraph 13 and 14; which states that TPS must have provided myself as the hirer with a Notice to Hirer in accordance with paragraph 13 and 14.

1) The Notice to Hirer / PCN sent to me dated 24/10/2024 consisted solely of a double sided A4 page, with no additional documentation attached. The requirements cited above (and detailed below) under Paragraph 14(2)(a) are quite clear that four documents must also be provided to the hirer as keeper alongside the PCN. These are:

a) confirmation that from hire company that the vehicle was hired,

b) copy of hire agreement,

c) a copy of statement of liability signed by hirer, and

d) a copy of the original Notice to Keeper.

2) The timescale to provide these is covered in Paragraph 14(3) and states the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

3) These documents were only provided to myself by TPS on 13/12/2024 as part of their rejection of my appeal to them. The documents show as being sent to TPS by Enterprise Rent-a-Car on 16/09/2024, with a stamp “RECEIVED 15/10/2024” at the top of the document. Even allowing for the latter date of 15/10/2024, the documents would have to be provided to me by 05/11/2024 (21 days from 25/10/2024, the day after the PCN was issued).

4) As stated above, the documents were not provided to me until 13/12/2024, being 49 days from 25/10/2024 thus 28 days too late, and as such significantly outside of the window allowed by POFA Sch 4 Paragraph 14.