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IAS parking charge appeal failed.....please HELP me!

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IAS parking charge appeal failed.....please HELP me!

13 replies 965 views
motanumotanu Forumite
6 posts
Hi there, been reading this forum and followed steps but unfortunately the parking firm plays hard.
Got a parking ticket (via post ) because my car ( I am the registered keeper) was in the North Middlesex Hospital car park for about 35 minutes and haven't paid parking. The driver (not myself) took a pregnant lady to hospital and ended chatting for a bit before leaving. The car was not parked at any point.
Ticket came and appealed with this letter:
Date:13.11.2018
Re PCN number: xxxxxxxx
This letter is a formal challenge to the issue of your Parking Charge Notice - Notice to Keeper as set out in the current BPA Ltd AOS Code of Practice B.22

I dispute your 'parking charge', as the keeper of the vehicle (xxxxxx). I deny any liability or contractual agreement and I will be making a formal complaint about your predatory conduct to your client landowner and to my MP.

There will be no admissions as to who was driving and no assumptions can be drawn.
The PCN- Notice to Keeper does not comply with the Protection of Freedoms Act 2012 Schedule 4, & therefore there can be no transfer of liability from the driver to the registered keeper. Please remove my details from your database. Further usage of same by yourselves will be a breach of my Data Protection rights. (the alleged contravention occurred on 27.11.21018 and the PCN-Notice to keeper arrived in the post on 13.12.2018 which puts it outside the required 14 days in which the registered keeper must name the driver).
Please explain and provide photographic evidence of how : “ vehicle was parked in a manner whereby the driver became liable for a parking charge” as all you provided were 2 dark photographs (only one legible number plate which looks doctored) with the vehicle entering/exiting ( I assume) the car park. I do not see any evidence of the vehicle being parked anywhere and the photos are taken at night without any surrounding or identifiable location so could have been taken from any camera anywhere.
I should be grateful for specific answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.
Since your PCN is a vague template, I require ALL photos taken and an explanation of the allegation and your evidence as well as the following:
1. Your parking charge amount claim.

Please explain on which of the following grounds your claim is based:

(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum
2. Your loss.

If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages; please give me a full breakdown of the actual losses which evidences that this parking charge is a true reflection of the damages caused solely by the alleged parking contravention.


3. Your status – the creditor.

Your Parking Charge Notice - Notice to Keeper simply mentions: UK-CPM . Please tell me who is the actual creditor making this £100 parking charge demand. I need to know exactly who is making the claim and in what capacity.


4 . Ownership of premises.

Please tell me who owns the car park as I wish to send them a copy of this letter.
5. Contractual Authority (as required by BPA Ltd AOS CoP B.7)

Please provide me with a copy of the contract between your company and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of your Parking Charge Notice - Notice to Keeper.

6. Signage.

If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner (illuminated if car park operates at night). Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.
I look forward to receiving your acknowledgement within 14 days and as there are no ‘exceptional circumstances’ your comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8).
If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information so that I may immediately refer the matter further to the IAS for their decision.
If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.
Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.


Yours faithfully,
xxxxxx

They dismissed it and had to appeal to IAS adjudicator .
I have done so sending this:


A notice to keeper was issued on 6th December 2018 and received by me, the registered keeper of xxxxx for the alleged contravention of ‘Breach of terms and conditions’’ at North Middlesex University Hospital . I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1) Non-compliance with requirements set out in Schedule 4 of POFA 2012
2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4) Insufficient evidence of the alleged contravention
5) Site Signage not compliant with Schedule 1 of the IPC Code of Practice (COP).


1) Non-compliance with requirements set out in Schedule 4 of POFA 2012
If CPM Parking Services wish to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 the Notice to Keeper must meet the strict requirements set out in Schedule 4 of POFA 2012
Section 9 paragraph 5 states clearly that : “The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”. (date of alleged contravention : 27 November 2018 and date of receiving the NTK is : 13 December 2018)
Due to the omission of this detail the notice to keeper does not comply with Schedule 4 paragraph 6 of POFA 2012 and means that myself, the registered keeper of the vehicle cannot be held to account for the alleged debt of the driver.

2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge. (ref POPLA case Carly Law 6061796103)

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA/ IAS 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and 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 keeper 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 because the fact remains I am only the keeper 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, because they cannot use the POFA in this case, 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.
The operator made this claim several times in the rejection letter of my appeal to them: “You have failed to pay for the full duration of your stay.” , “As you did not pay for the full duration of your stay you were in breach of the terms and conditions and subsequently issued with a parking charge notice.” , “Please note. You now have 14 days from the date of this letter to make payment at the reduced fee of £60.00. If payment is not received within 14 days, the fee will increase to the full amount of £100.00.” (when in fact I wasn’t the driver)

Furthermore, the vital matter of full compliance with the POFA 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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."

The same conclusion was reached by POPLA Assessor Steve Macallan, quoted in appeal point 5 above.

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 including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. 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 also authorised 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).

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
4) Insufficient evidence of the alleged contravention
The evidence provided by CPM Parking Services for the alleged “breach of terms and conditions” stated as “terms and conditions for parking” and allegation that : “ vehicle was parked in a manner whereby the driver became liable for a parking charge” cannot be used as evidence as such. Two photos of the car in question entering and exiting one barrier/zone does not account for parking. There is no photographic evidence or any other evidence that the car was parked in any way shape or form at any time therefore no breach.
5. Site Signage not compliant with Schedule 1 of the IPC Code of Practice (COP).

a. The site signs fails to comply with point (1) of the ‘Other Signage’ section of Schedule 1; specifically it fails use the required language to identify CPM as ‘the creditor’
b. The sign fails to comply with the ‘Contrast and Illumination’ section of Schedule 1; specifically it is inadequately lit (in fact, not lit at all) and not made of retro reflective material. This makes it very difficult to acknowledge or read on a dark, rainy evening as the one when the alleged contravention occurred (see photographs).
c. Site signage not compliant with IPC required standard wording in Schedule 1 of the COP; none of the phrases from Group A are present on the sign when a minimum of one is required.
d. Site Signage and position not compliant with the ‘Text Size’ requirement of Schedule 1. The sign was not positioned within 10 degrees of the site entrance.

The operator ignored all the valid points exposed above and rejected my appeal. The points raised must be addressed.

I therefore request that POPLA/IAS uphold my appeal and cancel this PCN/NTK.

They have decided the operator is right an i have to prove that I wasn't driving and not the other way around......
This is what I have received today:


Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

"The Appellant should understand that the Adjudicator is not in a position to give legal advice to either of the parties but they are entitled to seek their own independent legal advice. The Adjudicator's role is to consider whether or not the parking charge has a basis in law and was properly issued in the circumstances of each individual case. In all Appeals the Adjudicator is bound by the relevant law applicable at the time and is only able to consider legal challenges and not factual mistakes nor extenuating or mitigating circumstances. Throughout this appeal the Operator has had the opportunity consider all points raised and could have conceded the appeal at any stage. The Adjudicator who deals with this Appeal is legally qualified and each case is dealt with according to their understanding of the law as it applies and the legal principles involved. A decision by an Adjudicator is not legally binding on an Appellant who is entitled to seek their own legal advice if they so wish.

The Operator has provided evidence of the signs at the site, which make it clear any driver parking without registering their full accurate registration, will be issued with the parking charge notice.

The Appellant raises a number of common and popular arguments against this charge. I have responded to the numbered points below.

1. The date the Appellant is received is not relevant. It is the date after the day after it was issued; otherwise the Appellant could simply state the notice was received outside the deadline. No one has provided the notice so I do not know when it was issued.

2. This is reliant on ground one having been successful and my having agreed the Operator cannot pursue the keeper. However, whilst it is true that the Appellant does not have to name the driver I am also entitled to infer they were the driver from their refusal to do so. The Appellant accepts that he was the keeper of this vehicle. In the case of ELLIOTT v LOAKE in 1982 the principle was established that in the absence of sufficient evidence to the contrary the keeper of a vehicle is assumed to be the driver of that vehicle at the time of an incident such as arises in this Appeal. The burden of proof is then on the keeper of the vehicle to prove on the balance of probabilities that they were not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that they were not the driver and therefore this Appeal is dismissed.

3. The Operator's relationship with the landowner has no bearing on the driver's ability to enter freely into a contract with the Operator.

4. I am entitled to infer from the images and the time the vehicle was in the car park that the vehicle was parked for part of that time. I do draw that inference.

5. There is no evidence to support any of these claims.

The Operator has provided photographic evidence of the Appellant's vehicle leaving the land they manage more than thirty minutes after it arrived, and evidence the vehicle registration was not entered. The appeal is dismissed.
"

As your appeal has been dismissed, the Independent Adjudicator has found, upon the evidence provided, that the parking charge was lawfully incurred.

As this appeal has not been resolved in your favour, the IAS is unable to intervene further in this matter.

You should contact the operator within 14 days to make payment of the charge.

Should you continue to contest the charge then you should consider obtaining independent legal advice.

Yours Sincerely,
The Independent Appeals Service

PLEASE HELP!!!!
This surely is wrong, what is the next step as I strongly refuse to give them the money! it is not a fortune but the whole point of keeping to blame me for it, really infuriates me and sincerely I am willing to pay someone else that money to get it dismissed than pay the operator.
Please advise me to what my options are.
Your help is highly appreciated:(
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Replies

  • edited 9 February 2019 at 8:19AM
    Guys_DadGuys_Dad Forumite
    11K posts
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    edited 9 February 2019 at 8:19AM
    Now if you had a thread headed " IAS parking charge appeal succeeded" that would be a novelty.

    However, the following is absolutely scandalous

    The Appellant raises a number of common and popular arguments against this charge. I have responded to the numbered points below.

    1. The date the Appellant is received is not relevant. It is the date after the day after it was issued; otherwise the Appellant could simply state the notice was received outside the deadline. No one has provided the notice so I do not know when it was issued.

    2. This is reliant on ground one having been successful and my having agreed the Operator cannot pursue the keeper. However, whilst it is true that the Appellant does not have to name the driver I am also entitled to infer they were the driver from their refusal to do so. The Appellant accepts that he was the keeper of this vehicle. In the case of ELLIOTT v LOAKE in 1982 the principle was established that in the absence of sufficient evidence to the contrary the keeper of a vehicle is assumed to be the driver of that vehicle at the time of an incident such as arises in this Appeal. The burden of proof is then on the keeper of the vehicle to prove on the balance of probabilities that they were not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that they were not the driver and therefore this Appeal is dismissed.

    3. The Operator's relationship with the landowner has no bearing on the driver's ability to enter freely into a contract with the Operator.
  • It is unbelievable. How can they do that? Can I present my case to a higher authority? As far as I am aware and ot would be common sense, if they are asking for money it is their responsability to send the notice via some sort of recorded delivery to be able to prove it was received on time and also it os up to them to prove who was driving not to me. Apparently it is not " innocent until proven guilty " in their disturbed perception it is the other way around.
    Can someone with experience (legal if possible) help me!!!
    :wall::wall:
  • waamowaamo Forumite
    9.4K posts
    Seventh Anniversary 1,000 Posts Name Dropper
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    Appeals to the IAS are futile and generally designed to make you panic into paying up.

    You will now be bombarded with debt collectors letters. Amazingly it is safe to ignore these. They sound scary but if you actually read them they are full of ifs buts and maybes. The problem is nobody actually reads them and they panic into paying.

    The only time you need to do anything is is you get a Letter Before Claim or court papers. A genuine LBC will contain financial information forms. A debt collectors letter dressed up to look like an LBC won't.

    If you get an LBC or court papers come back to this thread for further advice. Otherwise stop panicking and ignore the junk mail.

    There is nothing to be gained by doing anything else at this stage.

    One final thing which ppc is this?
    This space for hire.
  • bargepolebargepole Forumite
    2.7K posts
    Part of the Furniture 1,000 Posts Name Dropper Combo Breaker
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    motanu wrote: »
    Can someone with experience (legal if possible) help me!!!

    You obviously haven't read enough threads on this site.

    If you had, you would have realised that the owners of Gladstones Solicitors run the IPC, and appoint the adjudicators of the IAS. The whole setup is a kangaroo court, designed to keep the ££££ rolling in for their members.

    The only 'higher authority' is a County Court, which will be the next step for you when the parking company issues its Claim against you - filed by, yes you've guessed it, Gladstones.

    This will be easy to defend using recent examples of Defences which I and others have posted on other threads, and when it goes in front of a proper Judge in a real court, the extremely likely outcome is that the parking company's case will be kicked into the long grass.

    I have been providing assistance, including Lay Representation at Court hearings (current score: won 40, lost 11), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and am a Graduate member of CILEx, studying towards a Fellowship (equivalent to solicitor) in Civil Litigation. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.
  • UmkomaasUmkomaas Forumite
    28.2K posts
    10,000 Posts Seventh Anniversary Name Dropper Photogenic
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    You quoting the BPA Code of Practice hardly helped your appeal to an IPC company/IAS. Indicated that you were copying and pasting stuff with little understanding.

    This is rich:
    The Appellant should understand that the Adjudicator is not in a position to give legal advice .....

    Yet quotes:

    In the case of ELLIOTT v LOAKE in 1982 the principle was established that in the absence of sufficient evidence to the contrary the keeper of a vehicle is assumed to be the driver

    You say:
    The car was not parked at any point.
    What exactly do you mean please?
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • edited 9 February 2019 at 10:24AM
    The_DeepThe_Deep Forumite
    16.8K posts
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    edited 9 February 2019 at 10:24AM
    The car was not parked at any point.

    Unless it was in motion it was parked.

    the extremely likely outcome is that the parking company's case will be kicked into the long grass

    And the judge will award you a measly £100 - £110 for your time and trouble. However, get you MP on board now and the PPC may, (not will), consider their position.

    The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

    Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

    Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

    All five readings are available to watch on the internet, (some 7-8 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.
    You never know how far you can go until you go too far.
  • By not parked I mean the car wasn't parked in a space and left there. The driver dropped someone there and chatted by the car . Obviously not the best decision but still... and the first claim of the operator was: "the vehicle was parked in a manner that breaks the terms and conditions " or something like that.
  • waamo wrote: »
    Appeals to the IAS are futile and generally designed to make you panic into paying up.
    ...
    .....

    One final thing which ppc is this?

    I think they are called : UK CPM (UK Car Park Management Ltd).
  • UmkomaasUmkomaas Forumite
    28.2K posts
    10,000 Posts Seventh Anniversary Name Dropper Photogenic
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    motanu wrote: »
    By not parked I mean the car wasn't parked in a space and left there. The driver dropped someone there and chatted by the car . Obviously not the best decision but still... and the first claim of the operator was: "the vehicle was parked in a manner that breaks the terms and conditions " or something like that.
    That's parked!
    motanu wrote: »
    I think they are called : UK CPM (UK Car Park Management Ltd).

    UKCPM are presently the country's most litigious parking operator. Prepare for court proceedings. Read the NEWBIES FAQ sticky, post #2 to get ready.
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
  • UKCPM are presently the country's most litigious parking operator. Prepare for court proceedings. Read the NEWBIES FAQ sticky, post #2 to get ready.

    Given the above , what are my chances and what is the worst case scenario if it goes to court?
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