APCOA / Southeastern Penalty Notices and Blue Badges

skizz_b

Mozart57 said:

Coupon-mad said:

Also, could you kindly help this new poster (maybe by pm), who has come here for help today and is less confident than you on the illegality:

https://forums.moneysavingexpert.com/discussion/6612576/apcoa-pn-issued-at-southeastern-rail-car-park-blue-badge-not-registered-at-blue-badge-portal#latest

Skizz_b: I've just been issued issued with exactly the same PN and this thread is proving to be most helpful. I've started my on thread on this, but I did want to ask here if you might be willing to share with me your original appeal  to the parking company (not the complaint you made)?

Hi there - very sorry to come back on this late!

Here is the original appeal. This was submitted both through APCOA's appeal portal and to the MD at Southeastern, if you would like this to be submitted as a formal complaint (which it is absolutely worth doing, as APCOA stated they were told by Southeastern to cancel the ticket). I hope others find this useful too.

_________________

As the recipient and appellant, I dispute your ‘Penalty Notice’ number XXX as the registered keeper of the vehicle and I deny any liability or contractual agreement with yourselves. This appeal should also be regarded as a formal complaint which will be copied to Southeastern Railway and Transport Focus.

Please be aware that the driver will not be identified, and per your ‘Penalty Notice’ the location of the alleged contravention is covered by Railway Byelaws. Contrary to this document, under the Protection of Freedoms Act (PoFA) 2012 state that land governed by Railway Byelaws is considered ‘not relevant land’ - therefore not only am I not legally obligated to identify the driver, the registered keeper of the vehicle is also not automatically liable for any ‘Penalty Notice’. Any further attempts to identify the driver will result in an additional complaint being submitted to the British Parking Association.

You will also be aware Section 4 Paragraph 7 of PoFA 2012 stipulates the mandatory information that must be included on any Notice to Keeper, and the ‘Penalty Notice’ is not compliant in several areas which renders the notice unenforceable. This includes stating the period the vehicle was parked and providing suitable evidence - stating a contravention occurred at a set time does not make this fact and there is no evidence to suggest the vehicle was parked for less than the 20 minute grace period.

My appeal is being submitted in detail as I believe both APCOA Parking and Southeastern are currently contravening the Equality Act (“the Act”) 2010 and the Unfair Terms in Consumer Contracts Regulations (UTCCR) 2019. One of the occupants of the vehicle at the time of the alleged contravention is disabled and has protected characteristics under the Act. This includes a legal right to equal access to services - in this case parking provision at the station - and a legal right to access any ‘reasonable adjustments’ provided by any landholder, client or operator to remove barriers to accessing said services - in this case general parking provision and in particular blue badge bays. 

I note APCOA and Southeastern have recently stipulated that disabled passengers MUST be registered on a new internet portal to access free parking. I am aware that the Blue Badge scheme does not lawfully apply in private car parks, but the previous contractual arrangement stated that parking in a bay and leaving said blue badge in the vehicle was an acceptable means of accessing this service. It is crucial to note that at the time of the alleged contravention the vehicle was parked in a blue badge bay with a valid blue badge from one of the occupants, and evidence of this is attached. 

This would have met the terms of the contract and did so for many years, but I am of the view these new arrangements were not only not properly highlighted where the contravention allegedly occurred (putting up new signage and expecting people who have parked there for years to read small print is not appropriately highlighting a significant change), but also contravene both the Act and UTCCR. You should be reminded that the law relating to the Act takes precedence and grants unequivocal rights which cannot be removed, restricted to certain groups within protected characteristics, or unilaterally changed on a whim to benefit companies.

The Act states under Section 20 that service providers - in this case APCOA and Southeastern - have a duty to make ‘reasonable adjustments’ to ensure disabled people - a protected characteristic - are not disadvantaged compared to other groups. This means taking steps to remove barriers that prevent disabled individuals from accessing services on an equal basis to others, and failure to do so gives rise to an argument that APCOA and Southeastern are discriminating against disabled users. 

This is the plainly the case here where people are able to access the paid-for parking service by visiting a website, using an app, calling a telephone number, texting another service or by using ticket vending machines at stations - but for disabled users seeking to access free parking provision they are only able to access the service through a single website and there is no in-person provision. This is discriminatory because in addition to internet options some users are able to access parking services in-person, but disabled people are not able to do the same - the option to simply use a blue badge to access a service disabled people are equally entitled to has been removed and no alternative has been established in its place. 

I must also make clear that there is no provision of service at the point of arrival which is also discriminatory - all signage states users must register on the portal and there is no alternative. If a disabled driver or occupant of the vehicle arrives at the station to park and they do not have any access to a telephone or the internet, they have no means to access the service whereas others have the option to simply use a ticket vending machine. It is my view that these new arrangements are therefore discriminatory and contravene the law under the Act by excluding people with a protected characteristic from accessing a service without putting reasonable adjustments in place. The effect of these new arrangements is that they deny a disabled person their statutory right to access a service and use a reasonable adjustment without penalty, and the evidence is this ‘Penalty Notice’.

Relevant elements of the Act:

142 Unenforceable terms

(1) 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.

144 Contracting out

(1) 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.

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.

I am aware that APCOA do not own this car park and you are merely acting as agents for the owner/occupier, hence this complaint also being copied to Southeastern. I should also stress the point that in addition to the above you are now aware of the disability of one of the occupants of the vehicle and are now legally required to make reasonable adjustments in this knowledge - in Excel v Greenwood Case Number 3QT60496 (4/10/2013) which was about a forgotten blue badge, the Judge found that the Excel should have made reasonable adjustments once they knew about a disability.

As a result, I therefore expect 

1. This ‘Penalty Notice’ to be cancelled and for confirmation of the same

2. Any further ‘Penalty Notices’ related to this vehicle to be cancelled - any further correspondence related to other alleged contraventions will be treated as harassment until the issues raised are resolved. You should also be aware harassment is also a specific breach of the Act, so please carefully consider further responses.

3. APCOA as the operator and Southeastern as the responsible land owners should formally respond to the allegations above, and set out how reasonable adjustments will be made to allow for any occupant who is classed as disabled to access free of charge park at any Southeastern station without the requirement of signing up for the portal, in any vehicle where their blue badge is presented.

Please be aware this should be considered a formal complaint and a reference number should be provided.

Regards

skizz_b

Timely reminder to update on the other correspondence - This brings you up to date on the latest. First, my response to Southeastern dated 9 June.

Dear XXX

Thank you for your response to my complaint. It is unfortunate that this mostly explains Southeastern’s policy rather than responding to the specific issues raised.

 

As of now, my view remains that you are not currently complying with your legal duties under the Act and the information below does not change my view, particularly the elements that reinforce why the ANPR system has caused these problems and the fact no mitigation or reasonable adjustment has been put in place.

 

It might be helpful to restate the questions I would like your response to. It is worth noting that prior to submitting my complaint I reviewed the Equalities Impact Assessment published by Southeastern, and I point to specific areas where there are gaps in the below – it may be there is a more detailed version of this beyond what has been published online and I would welcome a copy if possible.

 

First, the move to an ANPR camera system has erected unnecessary barriers to accessing a provision you note you are obligated to provide under the Act, specifically dedicated disabled parking bays. I cannot see this issue or consequence referenced in the EIA and these barriers did not exist prior to ANPR being put in place, as manual checks took place on these badges as you note.

 

The Act requires you to not erect barriers to disabled people accessing services (which is what has happened here), and you are also compelled to take steps to remove barriers that prevent people accessing services on an equal basis to others and failure to do so could constitute unlawful discrimination.

 

Your previous correspondence and EIA notes manual checks still take place on blue badges to ensure those parking in these spaces have the entitlement to do so. Forcing a disabled person to register on an online portal to mitigate an functional gap in the system APCOA and Southeastern agreed to install – specifically that ANPR cannot replicate in-person checks for Blue Badges – is not a justification for this and does not succeed the law as stated in the Act.

 

I cannot find any reference in the EIA to the fact the ANPR system creates a new, additional requirement for disabled people to have to take extra steps (literally and metaphorically) to access a provision they were simply able to access by presenting a blue badge, or how this has been addressed.

 

As noted previously, in my view this contravenes the Act both because it creates barriers, but also because it means disabled people – who would not have had to do anything beyond displaying their Blue Badge previously and may not have read (or have the capacity to read) about the need for a code – are more at risk of a Penalty Notice than those in non-protected groups. This does not comply with the Act’s requirement to avert disproportionate impacts for protected groups compared with non-protected groups.

 

My questions are as follows:

• Was this impact considered in developing the EIA?
• Were any mitigations or reasonable adjustments put in place in response? If so, where are they referenced in the EIA?
• Is Southeastern’s view that they remain compliant with the Act despite the above, and if so how?
• What – if any – what action will be taken to mitigate the impacts that have been highlighted and are already being experienced?

 

Second, you recognised there is no in-person service provision to make use of disabled bays – referencing the need to either register through a mobile device or home computer, or via phone, email or post.

 

As things stand:

• Southeastern and APCOA have erected further barriers to access a reasonable adjustment by forcing disabled people to register on an online portal to access a provision they are compelled to offer under the Act. This is not compliant with the Act.
• Southeastern and APCOA have disadvantaged disabled people compared with those from non-protected groups as those in the latter group do not have to undertake any online registration and can access services in person, which is not the case for disabled people. This is not compliant with the Act.
• Southeastern and APCOA have not put any reasonable adjustment in place to enable disabled people to access this mandated provision in-person. This puts a disabled person at a disadvantage compared with someone from a non-protected group as there are several circumstances where they would not be able to register online – for example if they do not have access to the internet or a mobile phone, or if they have a disability which prevents them being able to register. This means they will either receive a Penalty Notice for accessing the provision, or they will not be able to access the service at all, and this is not compliant with the Act.

 

Your response states you are not obligated to offer free or parking at a reduced price is of interest – but given the provision of disabled parking bays is offered in the context of the Act it must be considered equitably with a person from a non-protected group accessing parking services whether paid for or otherwise. You will be aware you are legally required under the Act to make reasonable adjustments to ensure disabled people have equitable access to services, that they are not disadvantaged compared to other groups, and that they can access these reasonable adjustments without unnecessary barriers being erected.

 

My questions are as follows:

• Was this impact considered in developing the EIA?
• Were any mitigations or reasonable adjustments put in place in response? If so, where are they referenced in the EIA?
• What – if any – what action will be taken to mitigate the impacts that have been highlighted and are already being experienced?
• Is Southeastern’s view that they remain compliant with the Act despite the above, and if so how?
• Assuming Southeastern’s view is that they are compliant, how can this be the case if the T&Cs impose conditions on a group with protected characteristics (i.e. the requirement to register to access a mandated reasonable adjustment) but not on those within the non-protected group (who have no obligation to do so)

 

It is worth noting precedent exists where other service providers have managed to make in-person provision with ANPR systems. This most commonly comes in the form of a disabled person scanning their Blue Badge at a machine when they reach the end of their stay which confirms they are eligible for free parking. This constitutes a reasonable adjustment and sets a precedent for parking service providers recognising this need – the question is therefore why neither Southeastern or APCOA feel the same is required.

 

There are a couple of other questions I would like to raise.

 

First, could you confirm if the contract APCOA is operating under allows them to issue Penalty Notices under Railway Byelaw 14 and to prosecute in the Magistrates Court under Railway Byelaw 24 (1), or if the contract authorises them to issue Parking Charge Notices under civil contract law for breach of Terms and Conditions.

 

Per my previous correspondence, the ‘Penalty Notice’ that was listed contained a number of statements that were either untrue (e.g. the statement that the registered keeper is legally liable for the offence as the owner even if they were not the driver at the time – this is factually inaccurate) or misleading (e.g. Penalty Notices normally refer to a criminal or statutory fine payable in full, when the notice states it is an opportunity to settle before the Magistrates Court takes action which indicates it is a matter of contract). Please could Southeastern or APCOA therefore confirm:

 

• Whether their ‘Penalty Notices’ are issued as a statutory matter or a civil matter
• The legal basis under which ‘Penalty Notice’ payments are collected and retained
• If applicable, whether ‘Penalty Notices’ are issued under contract law

 

Please also share any other relevant background information as to why APCOA is able to issue ‘Penalty Notices’ instead of Parking Charge Notices, and a specific response to my question on why APCOA have stated I as the owner was legally liable for the alleged offence the ‘Penalty Notice’ was issued for when this does not apply to claims brought under the Railway Byelaws (see previous correspondence).

 

You may be aware the IPO has previously raised concerns regarding data handling with regard to ANPR systems. Please could you therefore share any Data Protection Impact Assessment relating to the ANPR system and the requirements that have been imposed on disabled people, whose data is classed as ‘special category data’ and requires significant justification above and beyond ‘legitimate interest’ to remain compliant with the Act, the Data Protection Act 2018 and the ICO’s Surveillance Camera Code of Practice.

 

Finally, I understand Southeastern and APCOA’s position on why the ANPR system has been installed and the policy itself. This however is not lawful justification for burdening your most vulnerable users with having to take unexpected steps to exempt themselves particularly when precedent exists elsewhere.

 

I look forward to your response.

skizz_b

Response from Southeastern today - it is being taken seriously at least.

Thank you for contacting us on 9 June further to your complaint about the introduction of ANPR and how it relates to Blue Badge holders.

We're writing back to confirm receipt of your complaint. Due to the nature of the issue, the case has been passed to our Legal team, which is connected to our owning group, the DFTO. They've confirmed that they'll be handling the case, and so you should expect a response from them in due course.

Once again, thank you for taking the time to get in touch to raise this complaint.

Kind regards

Coupon-mad

This is good.

Mozart57

Thank you for sharing. Excellent.

fisherjim

skizz_b said:

I've had a response from Southeastern. It is essentially a very long explanation of the existing policy, but the issues raised are not addressed. I shall be responding. 

 The parking enforcement at all of our car parks is a regulated process, which includes a statutory independent appeals process and this process has been followed in full. We have been advised that an appeal has been received by APCOA and this will be processed in due course.


 The landowner is responsible for setting the terms and conditions for parking on their land. Southeastern like many other train operators, as well as local authorities such as the NHS offer this registration scheme to customers holding a Blue Badge.

I think their car park contract manager needs retraining:

The parking enforcement in private car parks is not "a regulated process".

There is no "statutory independent appeals process" (eg. how can the same person be director of an parking ATA and an "independent" appeals service?

The NHS is an organisation or public body not an authority, if it was an authority the government would ban the use of ANPR in its car parks and they would be subject to Traffic Orders.

Dimwits!

Half_way

Ask them who/ what the regulatory authority (the regulator) is, and for the statutory independent appeals service details, and under what statute they are empowered by

skizz_b

Response received from Southeastern today - I shall again be responding as this does highlight some gaps that need to be addressed.

Thank you for your response to our previous correspondence. We acknowledge and appreciate the time you have taken to articulate your concerns and highlight areas where you feel Southeastern may be falling short of its legal duties under the Equality Act 2010, as well as other relevant legislation and guidance.

 

We take our responsibilities to all customers extremely seriously, and your comments have prompted further review and discussion. We would like to respond to each of your main points and questions, including those around the Equality Impact Assessment (EqIA), reasonable adjustments, the nature of Penalty Notices, and Data Protection.

 

Equality Impact Assessment

 

An Equality Impact Assessment is a way of looking at decisions, policies and practices systematically to understand any disproportionate impact and how they could potentially affect groups of people sharing the same protected characteristic.

 

At Southeastern Railway, we see EqIAs as so much more than filling in a form. The process is designed to create an inclusion mindset that can impact the way decisions are made within our organisation. To ensure inclusion and equality are considered in every aspect of our organisation.

 

The EqIA recognised that the introduction of ANPR at station car parks would require Blue Badge holders to register their vehicle(s) through the APCOA Blue Badge Portal, as the system identifies vehicles by number plate rather than physical badges. It was acknowledged that this represents a new requirement for Blue Badge holders, given that Blue Badges are issued to individuals and not tied to specific vehicles.

 

The assessment considered this approach in line with common practice at other ANPR-operated car parks and noted it as an effective way to maintain free parking access while preventing misuse.

 

To support this process, the EqIA highlighted:

 

• Registration allows up to 10 vehicles per badge holder;
• Blue Badge holders should continue to display their badge in addition to registering;
• APCOA patrols still check Blue Badges physically on-site;
• Displaying the badge serves both enforcement and deterrence of abuse by non-eligible users.

 

At the beginning of the contract with APCOA, Southeastern collaborated with them to support Blue Badge holders, ensuring the portal was designed to be as accessible and inclusive as possible. Our comms plan and EqIA remain flexible and open to feedback to ensure we consider the needs of our customers in all areas we can. We have modified our approach to roll out to make sure it takes place after the installation is complete making it more straightforward for our customers. We have taken care to provide a wide range of different payment channels including providing a cash option at Ticket Vending Machines where this facility currently exists. ANPR cameras can encourage more considerate parking which reduces obstacles and potential accidents.

 

Compliance with the Equality Act 2010

 

As explained previously, Southeastern are obliged to provide dedicated disabled parking bays, and to have a certain number per car park, based on the size of the car park. These bays are available at all Southeastern stations with a dedicated car park. However, there’s no obligation to provide free or reduced-price parking – although we do allow free parking for Blue Badge holders.

 

The scanning of Blue Badges in the way you suggest would require some degree of retrofitting of our car park equipment, which would be costly and disproportionate. Southeastern do not consider this a reasonable adjustment which it can facilitate, but we are committed to supporting customers in registering their Blue Badge through our ANPR system. We alongside APCOA will provide assistance for customers to register.

 

Legal Basis for Penalty Notices

 

The notices issued by APCOA at Southeastern stations under ANPR are Penalty Notices issued pursuant to Railway Byelaw 14, not Parking Charge Notices (PCNs) issued under civil contract law. APCOA are authorised by Southeastern to issue Penalty Notices pursuant to a contract between Southeastern and APCOA. A Penalty Notice issued under the Byelaws is issued to the owner of the vehicle, even if they weren’t the driver at the time, therefore the information provided by APCOA in their Penalty Notice is correct.

 

Data Protection and Use of ANPR

 

We note your observations regarding the ICO’s guidance on ANPR systems. As APCOA, not Southeastern, are the Data Controller for ANPR data, conducting a Data Protection Impact Assessment on the same is a matter for APCOA, rather than Southeastern. Southeastern have installed ANPR systems at our car parks to protect the public purse, and to ensure that disabled car parking spaces are only used by disabled customers.

 

Thank you once again for your thorough engagement on this matter.

Umkomaas

The notices issued by APCOA at Southeastern stations under ANPR are Penalty Notices issued pursuant to Railway Byelaw 14, not Parking Charge Notices (PCNs) issued under civil contract law. APCOA are authorised by Southeastern to issue Penalty Notices pursuant to a contract between Southeastern and APCOA. A Penalty Notice issued under the Byelaws is issued to the owner of the vehicle, even if they weren’t the driver at the time, therefore the information provided by APCOA in their Penalty Notice is correct.

Ask them to confirm that APCOA passes on the proceeds of the Penalty Charge to the Exchequer.

Castle

Umkomaas said:

The notices issued by APCOA at Southeastern stations under ANPR are Penalty Notices issued pursuant to Railway Byelaw 14, not Parking Charge Notices (PCNs) issued under civil contract law. APCOA are authorised by Southeastern to issue Penalty Notices pursuant to a contract between Southeastern and APCOA. A Penalty Notice issued under the Byelaws is issued to the owner of the vehicle, even if they weren’t the driver at the time, therefore the information provided by APCOA in their Penalty Notice is correct.

Ask them to confirm that APCOA passes on the proceeds of the Penalty Charge to the Exchequer.

SE Trains Ltd t/a Southeastern are subject to the FOIA.