SO, you need to convince a POPLA assessor that the Notice to Keeper (NtK) was not PoFA compliant. Technically, it wasn't because PE NtKs fail to comply with Paragraph 9(2)(e)(i) of PoFA.
However, convincing a POPLA assessor that it isn't compliant requires a lot of descriptive effort. We have yet to see one accept this argument, not because it is not a valid argument but because POPLA assessors conveniently ignore the point.
This is a point made in a very recent response to an operators evidence where they ignored the point raised about PoFA 9(2)(e)(i). It's adapted slightly here:QuoteThe operator has failed to comply FULLY with ALL the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), specifically paragraph 9(2)(e)(i). The operator has not adequately address this point, and their generic assertion that the Notice to Keeper (NtK) complies with PoFA is insufficient. It is essential for the POPLA assessor to consider this carefully, as partial or even substantial compliance with PoFA is not sufficient to establish Keeper liability.
The legal requirements of paragraph 9(2)(e) are clear. The NtK must:
“state that the creditor does not know both the name of the driver and a current address for service for the driver AND INVITE THE KEEPER”—
“TO PAY THE UNPAID PARKING CHARGES” (as per subparagraph (i)).
It is a common error for POPLA assessors to overlook the importance of the last three words of paragraph 9(2)(e), which are "INVITE THE KEEPER", and fail to properly link them to the next requirement in subparagraph (i): "TO PAY THE UNPAID PARKING CHARGES". This distinction is vital, as the requirement to INVITE THE KEEPER is explicit in the legislation and cannot be ignored. POPLA assessors must carefully check whether the NtK explicitly fulfills this requirement, as otherwise they are failing in their duty to impartially assess the operator’s compliance with PoFA.
The operator’s NtK fails to explicitly INVITE THE KEEPER to pay the unpaid parking charges, as required by paragraph 9(2)(e)(i). Whilst the word "INVITE" itself does not have to be used, there must at least be a synonym or clear equivalent that serves to INVITE THE KEEPER. Simply inferring that the Keeper must be invited by the fact that the PCN is addressed to them does not satisfy the requirement of the Act. This omission constitutes a failure to comply with ALL the requirements of PoFA.
The law is clear that FULL compliance with PoFA is necessary for Keeper liability to apply. Partial or even substantial compliance does not suffice. Any failure to meet ALL the requirements renders the NtK non-compliant and prevents the operator from transferring liability from the driver to the Keeper. The operator’s assertion that their NtK is compliant with paragraph 9(2)(b) (which concerns the amount of the charge) does not address their failure to comply with paragraph 9(2)(e)(i). Compliance with SOME provisions of PoFA does not equate to compliance with the ENTIRETY of Schedule 4.
As the operator has failed to comply FULLY with PoFA, they cannot hold the Keeper liable for the alleged parking charge. The operator does not rebut this point, nor does it provide any explanation for their failure to INVITE THE KEEPER to pay the charge as required by paragraph 9(2)(e)(i).
The operator’s NtK is not FULLY compliant with PoFA because it fails to meet the requirements of paragraph 9(2)(e)(i). The operator cannot transfer liability to the Keeper unless they meet ALL the requirements of PoFA. Their failure to do so means that the Parking Charge Notice is unenforceable against the Keeper.
I don't know how more exhaustive you can be to make this point to a POPLA assessor.
IMO, it is the creditor's burden to prove to the assessor that they have such authority (as they would be obliged to do in court) not the keeper's to assert(without any proof) that they do not*. IMO, a keeper does not - and IMO should not without proof- need to assert this in their primary grounds of appeal which should focus on facts as known to them, but they may and should check the creditor's evidence for this proof.Whilst this is true in theory, in practice a POPLA assessor will often not consider something if it is not presented as a ground in the appeal, regardless of what should happen, or where the burden of proof may rest.
On matters of PoFA and compliance with the BPA CoP, the assessor should check the creditor's proof and not pass the burden to the keeper. They're supposed to be the professionals.If only.
No evidence of landholder authority
The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator. It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.
There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.
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 “relevant 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). 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 information such as the land boundary and bays where enforcement applies/does not apply.
Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and, of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement). Paragraph 7 of the BPA Code of Practice 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
The operator has failed to comply FULLY with ALL the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), specifically paragraph 9(2)(e)(i). The operator has not adequately address this point, and their generic assertion that the Notice to Keeper (NtK) complies with PoFA is insufficient. It is essential for the POPLA assessor to consider this carefully, as partial or even substantial compliance with PoFA is not sufficient to establish Keeper liability.
The legal requirements of paragraph 9(2)(e) are clear. The NtK must:
“state that the creditor does not know both the name of the driver and a current address for service for the driver AND INVITE THE KEEPER”—
“TO PAY THE UNPAID PARKING CHARGES” (as per subparagraph (i)).
It is a common error for POPLA assessors to overlook the importance of the last three words of paragraph 9(2)(e), which are "INVITE THE KEEPER", and fail to properly link them to the next requirement in subparagraph (i): "TO PAY THE UNPAID PARKING CHARGES". This distinction is vital, as the requirement to INVITE THE KEEPER is explicit in the legislation and cannot be ignored. POPLA assessors must carefully check whether the NtK explicitly fulfills this requirement, as otherwise they are failing in their duty to impartially assess the operator’s compliance with PoFA.
The operator’s NtK fails to explicitly INVITE THE KEEPER to pay the unpaid parking charges, as required by paragraph 9(2)(e)(i). Whilst the word "INVITE" itself does not have to be used, there must at least be a synonym or clear equivalent that serves to INVITE THE KEEPER. Simply inferring that the Keeper must be invited by the fact that the PCN is addressed to them does not satisfy the requirement of the Act. This omission constitutes a failure to comply with ALL the requirements of PoFA.
The law is clear that FULL compliance with PoFA is necessary for Keeper liability to apply. Partial or even substantial compliance does not suffice. Any failure to meet ALL the requirements renders the NtK non-compliant and prevents the operator from transferring liability from the driver to the Keeper. The operator’s assertion that their NtK is compliant with paragraph 9(2)(b) (which concerns the amount of the charge) does not address their failure to comply with paragraph 9(2)(e)(i). Compliance with SOME provisions of PoFA does not equate to compliance with the ENTIRETY of Schedule 4.
As the operator has failed to comply FULLY with PoFA, they cannot hold the Keeper liable for the alleged parking charge. The operator does not rebut this point, nor does it provide any explanation for their failure to INVITE THE KEEPER to pay the charge as required by paragraph 9(2)(e)(i).
The operator’s NtK is not FULLY compliant with PoFA because it fails to meet the requirements of paragraph 9(2)(e)(i). The operator cannot transfer liability to the Keeper unless they meet ALL the requirements of PoFA. Their failure to do so means that the Parking Charge Notice is unenforceable against the Keeper.
Without knowing what you original appeal to PE contained [...] it is difficult to provide further advice at this stage,We could do with seeing what you put in your appeal in order to advise on next steps.