Biting back with a vengeance

Gr1pr

Lynnzer said:

And hey guys 'n gals, 

One of the reasons I have been off the forum for so long is that my email address that is registered is no longer the one I use and I couldn't access my account.

Is there any way I can change my account email address?

You should message the forum admins if you want to change details etc, an admin could change the personal database details should it be necessary or useful 

Good luck in your quest 

Lynnzer

The appeal is now with POPLA as described in my previous posts.
However, I'm not totally happy that that should be the end of the matter even if I get the result I want, which may take a few more days. Id' be equally as happy if I don't win the appeal though and would progress to court if needed. 
I'm doing this as the situation remains the same, ie no entry sign, thus many more people may have had PCN's issued without due cause.
I have now sent a notice to the Data Protection team at ParkingEye claiming damages for the breach, as follows: 

:PCN - Ref 23******

I am aware that a Data Breach has occurred in relation to the above Parking Charge Notice and am seeking appropriate compensation as I am entitled to.

ParkingEye has breached the Data Protection Act in obtaining my details from the DVLA in order to issue a Penalty Charge Notice to myself as the registered keeper of vehicle ********

I base my claim on the fact that my details were obtained without reasonable cause and refer to the case of ParkingEye v Beavis at the Supreme Court. - Para 95: “..........Where a motorist becomes liable by contract for a “sum in the nature of a fee or charge” or in tort for a “sum in the nature of damages”, there is a right under certain conditions to recover it: Schedule 4, paragraph 4. One of those conditions is that the keeper’s details must have been supplied by the Secretary of State in response to an application for the information:ibid, para 11. The Secretary of State’s functions in relation to the provision of this information are performed by the DVLA.

Under article 27(1)(e) of the Road Vehicles (Registration and Licensing) Regulations 2002 (SI 2002/2742), the Secretary of State is empowered to make available particulars in the vehicle register to anyone who “has reasonable cause for wanting the particulars to be made available to him”.

Since 2007, the policy of the Secretary of State has been to disclose the information for parking enforcement purposes only to members of an accredited trade association. The criteria for accreditation were stated in Parliament to include the existence of “a clear and enforced code of conduct (for example relating to conduct, parking charge signage, charge levels, appeals procedure, approval of ticket wording and appropriate pursuit of penalties”

The underlying context of my complaint is that ParkingEye obtained my details when it was in default of the compulsory conditions set by the British Parking Association's Code Of Practice. (COP) by failing to have an entry sign into the road system of the hospital location.

It is now known that the entry and exit into the roadway has been changed in recent weeks. While the ANPR cameras have been relocated to monitor incoming and exiting vehicles, the Entry sign has not been erected at the new entry point, thus leading to a breach of the BPA Code of Practice and a direct contravention of the conditions set by the Secretary of State.

Furthermore, the same case of ParkingEye v Beavis also resulted in the Honourable Law Lords making it quite clear that compliance to the BPA Code of Practice is mandatory in para.11 of the findings, I quote the text : “......... while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced. “

The Supreme Court made it known that compliance to the COP was mandatory. The Court made it clear that in order to obtain a registered keeper's details, it had to be in compliance with the COP.

Since the DVLA has to release the keeper's details based upon the mandatory membership and compliance to the BPA Code of Practice, which they are unable to actually monitor and therefore object to, it is critical that the mandatory Code of Practice rules are followed.

Since those rules have been broken by the lack of signage, ParkingEye has thus obtained my details without due cause.

I fully expect a response telling me where all the signs are at the location, as were submitted to POPLA as evidence you wished them to consider,. If so I take issue with that, inasmuch that no mandatory entry sign was shown. Signage further into the location had little relevance without the entry sign, and it's possible that travelling within the roadway system may even have resulted in no further sign being passed.

As I have now had to spend a fair amount of time in fighting the resulting PCN, I now claim the amount wrongly claimed against myself as reasonable compensation.

I expect the sum of £60 to be paid within 30 days from date of receipt of this notice, as will be the date shown on the email. Failure to make this payment will result in the charge increasing to £120 which will be held for a further 21 days.

After the expiration of both periods, I will pass the complaint to the ICO for them to take necessary action.

I add here the images of the entry to the hospital system so you can see the breach for yourself, and if you require further proof of there being no entry sign, all you need do is to contact the hospital's on site parking monitor.

Sincerely

Lynnzer

As expected - DENIAL Now to draft up a complaint to the ICO.
:
Thank you for your email. 

Please note, it is Parkingeye’s position that this charge was issued following a contractual breach of the terms and conditions in operation onsite, and that we had reasonable cause to request the Registered Keeper’s details from the DVLA. Parkingeye acknowledge your points raised in relation to obtaining your personal information without consent, (my bold) however please note that our lawful bases for processing data are Performance of a Contract and Legitimate Interests. Parkingeye do not rely on Consent as a legal basis for processing data when issuing and pursuing the payment of outstanding Parking Charges. We are registered with the ICO to collect and process data for the purpose of car park management, which includes dealing with appeals and any subsequent recovery action required.

 The signage on site states that, ‘Certain parking terms and conditions apply, which are set out within this notice (the "Parking Contract"). By parking, waiting or otherwise remaining within this car park, you agree to comply with the Parking Contract, including making payment as required and entering your vehicle registration details via the payment and/or terminals. If you fail to comply with the Parking Contract, you will become liable to pay the sum specified on this notice (the "Parking Charge").’

 The signage clearly conveys that by remaining within the car park, the motorist becomes bound by the terms and conditions of parking. Parkingeye operates a consideration period on all sites, which gives the motorist time to enter a car park, park, and establish whether or not they wish to be bound by the terms and conditions of parking. These consideration periods are sufficient for this purpose.

 Whilst we note your request for the sum outlined in your correspondence, we must confirm that all invoices issued to Parkingeye by motorists, whether they concern an alleged loss, cost, or expense, are rejected as you have not formed a legally binding contract with Parkingeye under which you have acquired any right to invoice Parkingeye and/or seek payment for goods or services. 

 Please note that the UK General Data Protection Regulation provides the following further rights:

•             The right to request from Parkingeye rectification or erasure of your personal data;

•             The right to request from Parkingeye restriction of processing of your personal data;

•             The right to object to the processing of your personal data.

Please note that some of these rights are not absolute and will only apply in certain circumstances. We will review each request we receive in respect of these rights. We do not have to agree with a request but if we refuse, we will still contact the data subject within one month to explain why. You also have the right to lodge a complaint with the Information Commissioner’s Office (ICO). For further information, please refer to the ICO website, www.ico.org.uk. You may also seek a judicial remedy.

Lynnzer

Further email to them.

I am writing further to your recent response to my email about my information rights complaint because I would like further clarification.

I note your comment that Parkingeye acknowledge my points raised in relation to obtaining my personal information without consent, and that you state your lawful bases (sic) for processing data are Performance of a Contract and Legitimate Interests. You then state that Parkingeye does not rely on Consent as a legal basis for processing data when issuing and pursuing the payment of outstanding Parking Charges.

This response is in need of an explanation. You acknowledge my points about the access to the DVLA for my personal information. There is no doubt that in normal circumstances, this is as would be expected. However your acceptance of my points of access without reasonable cause due to non compliance to the BPA Code Of Practice, shown to be a mandatory practice by the Supreme Court for obtaining such data has not been fulfilled.

Please explain why such a legal basis for the initial access to my details falls outside of the Supreme Court's decision.

I make it clear that I am not asking you to address the formal process of contractual agreements. I am not asking for comments on how to appeal points in any PCN, nor what legal authority you have with landowners to take action against drivers on the monitored property. I also do not need comments on the wording of signage on site, nor any other matter beyond the initial access to my personal data when you have failed to uphold the basis for such access set by the Supreme Court.

Before I pass this complaint to the ICO in the case that you still fail to respond adequately, and to provide a sum in compensation for your unlawful access, I give you the chance to rectify the response by answering the further points raised in order to clarify the situation.

I understand that before reporting my complaint to the Information Commissioner I should give you the chance to provide a full explanation.

If, when I receive your response, I would still like to report my complaint, I will give them a copy of your response to consider.