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First Parking PCN - disabled passenger

Hi all,

Thank you very much for all the information you have posted in this forum. It has been incredibly helpful to read through the threads and understand how to draft this below appeal!

Context: First Parking company NTK (compliant with PoFA) posted to registered keeper for 'overstay' in a private residential area with public access, whereby the time limit allowed is 5 minutes, and the period stayed was 8 minutes (i.e., they are claiming a 3 minute overstay), thus issuing a PCN of £100 or £60 if paid within the next few days.

Below is the appeal I would like to send to the company to get this PCN cancelled early. I would sincerely appreciate any feedback and help, as the reason for the 'overstay' was a disabled passenger.

Many thanks,
Cute_Doggos



Dear Sir/Madam,

 

 

I am writing as the registered keeper of the vehicle in relation to the above Parking Charge Notice (PCN). I dispute the validity of this charge and deny any liability or contractual agreement, exercising my right under Section 8.4 of the BPA Code of Practice to appeal to yourselves and to POPLA, should you reject this challenge. Additionally, I will be raising a formal complaint about your conduct with your client landowner and my Member of Parliament.

 

The issuance of this notice is unlawful and unenforceable, and therefore void, due to your failure to comply with lawful regulations including but not limited to the Equality Act 2010 and the Unfair Terms in Consumer Contracts Regulations 1999.

 

 

Unlawfulness Under the Equality Act 2010: Direct Discrimination, Indirect Discrimination and Harassment

Your actions in issuing this PCN are in violation of the Equality Act 2010, which mandates service providers to make reasonable adjustments for disabled individuals to ensure non-discriminatory access. A disabled passenger who requires reasonable adjustments, qualifying as a person with protected characteristics under the Act, was present in the vehicle. For avoidance of doubt, attached is a copy of the Blue Badge for you to swiftly cancel this harassment. Additionally, it is necessary to emphasise that the Equality Act 2010 applies regardless of the presence of a Blue Badge, which is not a legal requirement in private areas.

 

Below are sections of the law and how your signage terms and actions are affected by it.

 

Duty to make reasonable adjustments (Section 20): As a service provider, you are legally obligated under the Equality Act 2010 to avoid discriminatory practices and harassment, particularly those that subject disabled persons to detriment due to their protected characteristics. Under the Act, you are required to anticipate the needs of disabled individuals and provide reasonable adjustments.

 

Prohibition of discrimination in services (Section 29): ‘Provision of services:

(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—

(a) as to the terms on which A provides the service to B;

(b) by terminating the provision of the service to B;

(c) by subjecting B to any other detriment.

(3) A service-provider must not, in relation to the provision of the service, harass—

(a) a person requiring the service, or

(b) a person to whom the service-provider provides the service.

(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—

(a) as to the terms on which A provides the service to B;

(b) by terminating the provision of the service to B;

(c) by subjecting B to any other detriment.’

 

As a company, First Parking has specifically breached their legal duties under the EHRC Equality Act Code of Practice for Service Providers, established in law since 2011. Service providers must not discriminate against disabled individuals by subjecting them to detriment in how services are provided. ‘Service provider’ is a term loosely associated with First Parking and certainly applies to your landowner or occupier client on this land, who will be thoroughly informed regarding this matter.  As a service provider, you are legally obligated to take steps to avoid putting disabled persons at a disadvantage. Imposing and enforcing this PCN without reasonable accommodation for a disabled passenger constitutes such detriment.

 

Definition of discrimination (Sections 13, 19, 26):

1.      Indirect discrimination (Section 19): Imposing a penalty due to additional time required by a disabled passenger disproportionately disadvantages disabled individuals without justification. This constitutes a form of indirect discrimination and is unlawful under the Act, thereby comprising a breach of the Act.

2.      Direct discrimination (Section 13): Failure to cancel this PCN upon notification of the passenger’s disability constitutes direct discrimination and thus a second breach of the Act.

3.      Harassment (Section 26): Should First Parking decide to continue engage in unwanted conduct relating to protected characteristics of disability, this will constitute a form of harassment and therefore comprise a third breach of the Act. Note that all correspondence will be kept to demonstrate the company’s unlawful behaviour if required at POPLA and in court, should a code be sent instead of a direct cancellation.

 

Unenforceable terms (Section 142): ‘A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.’ Any contractual term that facilitates or results in prohibited discriminatory treatment is unenforceable. This includes the failure to make reasonable adjustments for disabled individuals and the application of unreasonable penalties.

 

Contracting out (Section 144): ‘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.’

 

It is public knowledge that First Parking do not own this land and are acting merely as agents for the owner or occupier. If First Parking fund this POPLA appeal, they will be required, among their evidence,to demonstrate how their contract and ownership status differs from that in cases similar to VCS v Ibbotson, Case No 1SE09849 (16/5/2012), ParkingEye v Sharma, Case No. 3QT62646 (23/10/2013) and ParkingEye v Gardam, Case No: 3QT60598 (14/11/2013).

 

In the POPLA appeal will also be stated multiple cases of breach of the Equality Act, where the Judge ruled that the private parking company should have made reasonable adjustments upon being informed regarding a disabled passenger, including but not limited to UKCPS v Murphy (April 2012) and Excel v Greenwood, Case Number 3QT60496 (4/10/2013).

 

This is not a case of mitigating circumstances. This is primary disability law, which takes precedence and grants unequivocal rights which cannot be removed, nor restricted to certain groups, nor unilaterally changed or charged on a whim, for your profit. Failure to anticipate the needs of disabled persons and refusing reasonable adjustments violates the Equality Act 2010 and amounts to multiple counts of a criminal offence.

 

 

Breach of the Unfair Terms in Consumer Contracts Regulation (UTCCR) 1999

The terms and conditions applied in this instance, and the subsequent enforcement of this PCN, are deemed unfair and unenforceable under the UTCCR 1999. Below are sections of the law and how your signage terms and actions are affected by it.

 

Unfair terms (Regulation 5(1)): A contractual term is deemed to be unfair if it causes a significant imbalance in the rights and obligations of the parties to the detriment of the consumer. The time limit imposed on this car park is both arbitrary and disproportionately detrimental to the consumer, particularly given the presence of a disabled passenger. There is no valid justification for such an unreasonable rule.

 

Disproportionate penalties (Schedule 2, Paragraph 1(e)): Any contractual term requiring the customer to pay a disproportionate penalty for negligible terms are deemed to be inherently unfair. The penalty is grossly disproportionate to any actual loss incurred and, as such, it is an unfair and unenforceable penalty.

 

Unreasonable terms (Schedule 2, Paragraph 1(k)): Terms that bind consumers to obligations that are not reasonably feasible, especially in cases involving individuals requiring additional time due to disability, are deemed unreasonable and unfair. The time limit imposed fails to account for such reasonable needs.

 

The enforcement of these terms constitutes unfair practices and harassment, which are contrary to the UTCCR 1999, and are therefore void.

 

 

Action Required

In light of First Parking’s clear breaches of both the Equality Act 2010 and the UTCCR 1999, amongst other regulations, I demand the immediate cancellation of this PCN. Failure to comply will result in escalation to the BPA, POPLA, the landowner, and other relevant authorities.

 

 

Formal Notice

If you intend to pursue this matter through litigation, please be aware that service of legal documents by email is expressly not permitted. You are also not entitled to assume that the address provided in this appeal will remain valid for any future correspondence.

 

Note that, in the case that this PCN is not cancelled, this matter will be escalated further and appeals will be raised at the POPLA stage. In this case, take a formal note that First Parking will be charged for the time spent on this case at £22 per hour and reserved is the right to claim against you after the event, considering the remedy for a breach of the Equality Act 2010 is monetary damages with far more legal grounds than this unlawful PCN.

 

 

I trust this matter will be resolved promptly.

 

 

Yours faithfully,

The Keeper

«134

Comments

  • Fruitcake
    Fruitcake Posts: 59,259 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Complain first to the landowner and/or landholder/managing agent and the keeper and the passenger's MP. Quote the requirements of the EA 2010, and that failing to anticipate the needs of a disabled person, and failing to make reasonable adjustments in anticipation of that person's needs (anticipating that a disabled person may need more time) is a indirect discrimination, a breach of the EA 2010, and a criminal offence.
    Failing to make reasonable allowances once a service provider has been made aware of a disabled persons needs is direct discrimination, a further breach of the Act, and a further criminal offence.


    Is the vehicle keeper or the passenger a resident of the site? If so, they should see what their lease/AST/residency agreement/ownership agreement says about parking, unregulated private parking companies, parking charge notices, paying parking companies, court, and a resident's right to quiet enjoyment. What it doesn't say is equally important.

    If a cancellation is not forthcoming then appeal. What you have showed is is far to long at the initial appeal stage.

    The keeper should send the template in blue text from the sticky Announcement for NEWBIES, and add the comments about the PPCs actions being a breach of the EA and a criminal offence.

    Save everything else for later.

    Note that The UTCCR has been replaced with the Consumer Rights Act 2015.

    If the passenger was being dropped off/picked up, then the persuasive appeal case of Jopson v Homeguard applies, where the judge stated that dropping off/picking up is not parkin.
    I married my cousin. I had to...
    I don't have a sister. :D
    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
  • Half_way
    Half_way Posts: 7,325 Forumite
    Part of the Furniture 1,000 Posts Name Dropper
    Also take a look at the Jopson vs Homeguard case that stated that loading/unloading is not parking.
     Loading/unloading can be for both passengers/occupants as well as goods , its also worth noting that  you can unload/load on double yellow lines on the public highway the only conditions is that you must be continuously  loading/unloading in an area with no other restrictions - usually shown by double yellow kerb/side blips and you take no more than 20 minutes.

    The responsibilities under the EA as well as the jopson vs homegaurd case is something that the parking companies and landowners should be well aware of so you have plenty of ammunition to fire at the landowner for allowing this to progress
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
  • Coupon-mad
    Coupon-mad Posts: 144,231 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Bin that appeal which is FAR too long.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Thank you all so much, sorry for the late response. I sent off an appeal with the edits you all suggested.

    I received a response a few days ago from the PPC demanding the driver to be named, despite having included the template from the sticky on my appeal (including the part about not identifying the driver and appealing as the keeper).

    Here is their response:
    'We acknowledge your appeal received for […]. Please provide the following information by […]:
    In this appeal you have not stated the driver at the time of contravention, therefore please provide us with a full name and serviceable address to enable us to pursue the driver. If you fail to provide this information within the required timeframe […] as stated on your Notice to Keeper dated […], the registered keeper will be liable for this PCN under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012.'

    I was thinking of re-sending them the bit on the appeal from the sticky around appealing as the keeper and not identifying the driver. Should I also include the part around complaining to Steve Clark at the BPA for this harassment? I would sincerely appreciate any advice - please and thank you :)
  • Coupon-mad
    Coupon-mad Posts: 144,231 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    Ignore that reply.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Completely ignore it? Wouldn't it be worth just resending the initial appeal to them on the email address they stated? I wouldn't want them to use me ignoring this as an excuse to ignore my appeal... Sorry if this is a silly question!
  • Completely ignore it? Wouldn't it be worth just resending the initial appeal to them on the email address they stated? I wouldn't want them to use me ignoring this as an excuse to ignore my appeal... Sorry if this is a silly question!
    Also, would me not replying impact anything to do with them putting the PCN on hold whilst they deal with the appeal?
  • Gr1pr
    Gr1pr Posts: 5,234 Forumite
    1,000 Posts Name Dropper
    edited 3 December 2024 at 4:57PM
    Just do as coupon mad said, Ignore the reply, wait for the decision, the ball remains in their court, your one time keeper appeal is already logged, nothing else will happen 
  • That response is to try and fish from the unsuspecting the identity of the driver......they have not formally responded to your appeal yet.  They just do this in the hope you feel pressured enough to name the driver and weaken your appeal position.

    As Coupon-mad says ignore it and then they should formally respond in due course.
  • Okay, thank you all very much :) sincerely appreciate the help!
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