Author Topic: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving  (Read 490 times)

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titusandronicus

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Hi There, we recently got a notice to keeper PCN for an excel private car park, essentially my wife arrived and had to pacify our screaming baby by breast feeding before buying the ticket - this took 22 minutes (2 minutes over the specified 'consideration period'). I appealed using their online appeals process and the template response I found on the MSE forum which doesn't admit who was driving. They've rejected that. What's my next step? wait and see if they take me to court? The ticket my wife did buy and the letter they sent us show she stayed less than the 3 hours she paid for.

Thanks for any advice!

Pics of ticket here -

« Last Edit: February 07, 2024, 05:11:06 pm by DWMB2 »

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Nosy Parker

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #1 on: February 07, 2024, 08:10:50 am »
This should be beatable but you’ve withheld the back of the ticket. It’s like asking us to work out whodunnit but removing the final chapters of the book.

Please delete the image you’ve posted which is eating up scarce space and replace with links to externally hosted links to the front and back of the ticket at a site such as www.imgur.com

titusandronicus

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #2 on: February 07, 2024, 09:32:14 am »
thanks, I've added a pic of the back and removed attachment

Nosy Parker

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #3 on: February 07, 2024, 10:16:07 am »
We're getting there but this time you've cut off part of the left side of the front page - and the part you've cut off contains the wording that might show you have a technical defence based on Excel's failure to properly invoke the statutory mechanism for transferring the liability (if any) of the driver (whose name and address they don't know) to the keeper (whose name and address they do know). 

So let's keep that point under wraps till you unwrap page 1 of the mystery. Anyway, you have a really strong case on other grounds.

Excel is a member of the bottom-feeding IPC and will most likely reject your appeal and offer you an opportunity to make a second appeal to the IPC's so-called 'Independent Appeals Service' (IAS).  Many experts advise that it's not worth appealing to IAS because it's a kangaroo court that is biased against motorists and anything but independent. 

In your shoes, I would go through the motions of internal and IAS appeals because a loss at IAS is not legally binding on the motorist. Even if you lose at IAS, Excel will still need to take civil court proceedings and win the case in order to enforce this ticket, and if they're mad enough to do that you should have an easy win. Your case is so strong that even Excel or IAS should see it. Try the following initial appeal to Excel and come back when you hear from Excel - whether it's to report success or ask for advice on the next step:

I appeal against this charge on 2 grounds (each of which is alone sufficient to require cancellation):

1.  The term you are seeking to invoke concerns failing to pay for parking within 20 minutes of arrival. Payment was made in full, there was no overstay and the correct VRM was entered.  The parking charge is therefore an unenforceable penalty that is not saved by the Supreme Court decision in the Beavis case as there is no commercial justification for imposing a time limit for payment that expires before the end of the period of parking.

2.  The payment was made 2 minutes after the end of the arbitrary and unenforceable 20-minute parking period. This delay was entirely due to the fact that the driver needed to stay a few minutes longer in the car in order to pacify a screaming child by breastfeeding and you are legally obliged by the Equality Act to make a reasonable adjustment to the 20-minute payment deadline to accommodate this. 

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titusandronicus

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #4 on: February 07, 2024, 02:47:22 pm »
thanks so much! I'll try the appeal and update with how it goes. Much appreciated!

b789

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #5 on: February 07, 2024, 05:08:31 pm »
OP, your image of the NtK is not sufficiently redacted as the PCN number and VRN are easily discernible under the feeble attempt to obscure them. I have managed to log onto the PPCs website with those details. If I can do it, anyone can. Not everyone will have good intentions and could easily cause you problems. You are advised to re-edit the images of the NtK you have provided and redact them properly.



You state the "we" received an NtK and that your wife "arrived". In whose name is the NtK? In other words, who is the registered keeper (RK)? You say "I'll try the appeal". Only the RK can appeal unless the RK wants to deny being the driver and transfers liability.

Without being able to fully see the page of the NtK that may or may not contain a valid PoFA statement, it may be worthwhile for only the RK to make the appeal.
« Last Edit: February 07, 2024, 05:10:03 pm by b789 »

DWMB2

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #6 on: February 07, 2024, 05:11:45 pm »
I've removed the Imgur links for now until the OP can upload better redacted versions.

titusandronicus

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #7 on: February 07, 2024, 06:55:25 pm »
thanks everyone, sorry for the tech fails, I'll post back when I've heard back from the IAS

DWMB2

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #8 on: February 07, 2024, 07:52:22 pm »
Can you show us what you plan to submit to the IAS?

titusandronicus

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #9 on: February 07, 2024, 08:45:23 pm »
Can you show us what you plan to submit to the IAS?

I did it this afternoon, just copy and pasted the suggestion from above and sent it to the IAS using the online form. --- this one ---

I appeal against this charge on 2 grounds (each of which is alone sufficient to require cancellation):

1.  The term you are seeking to invoke concerns failing to pay for parking within 20 minutes of arrival. Payment was made in full, there was no overstay and the correct VRM was entered.  The parking charge is therefore an unenforceable penalty that is not saved by the Supreme Court decision in the Beavis case as there is no commercial justification for imposing a time limit for payment that expires before the end of the period of parking.

2.  The payment was made 2 minutes after the end of the arbitrary and unenforceable 20-minute parking period. This delay was entirely due to the fact that the driver needed to stay a few minutes longer in the car in order to pacify a screaming child by breastfeeding and you are legally obliged by the Equality Act to make a reasonable adjustment to the 20-minute payment deadline to accommodate this.

DWMB2

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #10 on: February 10, 2024, 01:59:54 pm »
Quote
Yes they can. You might ask them not to, but it's their decision.
What would be the commercial justification for requiring payment within 20 minutes, in a car park managed entirely by ANPR?

A contract term is not a fair one just because a parking company decide it is and print it on a sign.

b789

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #11 on: February 10, 2024, 03:04:13 pm »
Let’s not forget that, at this stage, this is only an appeal to IAS and is likely to be refused anyway. The only recourse after this stage is Plan D… letting a judge decide.

The arguments about whether a term was enforceable or whether it was a penalty would need to be argued in much more detail than the way it was simply quoted in the IAS appeal. The CRA would cover much of the argument so far.

As for the argument about discrimination, that is unlikely to hold any sway. The Equality Act 2010 does not explicitly mention breastfeeding mothers. whilst the Act does prohibit discrimination on the basis of sex, which could cover issues related to breastfeeding, it may be a stretch to apply it in this context.

Nosy Parker

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #12 on: February 10, 2024, 10:46:46 pm »

As for the argument about discrimination, that is unlikely to hold any sway. The Equality Act 2010 does not explicitly mention breastfeeding mothers. whilst the Act does prohibit discrimination on the basis of sex, which could cover issues related to breastfeeding, it may be a stretch to apply it in this context.

The Equality Act does mention breastfeeding mothers - but only for 26 weeks after giving birth. See subsections 17(3) and (4):-

(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.
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titusandronicus

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #13 on: February 13, 2024, 06:24:19 am »
Hi Everyone,

here is the reply from the IAS - I need to reply to this in the next 5 days -- shortly I'll post proper pictures of the original NTK (baby asleep in the room where I left it). Just to clarify, I'm the keeper, my wife was the driver, the fine was sent to me but I haven't officially said it was my wife driving although I have mentioned the breast feeding so it's probably pretty clear to them.

The operator made their Prima Facie Case on 12/02/2024 10:18:23.

The Operator Reported That...
The appellant was the driver.
The appellant was the keeper.
The operator is seeking keeper liability in accordance with PoFA..
ANPR/CCTV was used.
The Notice to Keeper was sent on xyz.
A response was received from the Notice to Keeper.
The ticket was issued on xyz.
The Notice to Keeper (ANPR) was sent in accordance with PoFA.
The charge is based in Contract.

The Operator Made The Following Comments...
1. The Parkgate Car Park Darlington Tyre & Auto Care is private land and motorists are allowed to enter to park their vehicle provided that they abide by any displayed conditions of parking.

2. The signage (supplied) in this area states ‘After a vehicle has entered the car park, a maximum period of 5 minutes is allowed to purchase the required parking tariff.” and “You must ensure the FULL & ACCURATE VEHICLE REGISTRATION MARK (VRM) of the vehicle on site is provided when making payment”. Further to this the signage clearly states: ‘Parking Charge Notices will be issued for the following…Failure to make payment within 5 minutes following entry to the car park/private land‘'

3. Site photographs supplied show that the signage can be seen throughout the car park. The adjudicator will note that the EPS signage onsite, including its wording (which includes the 5 minutes consideration period) and positioning has been audited by the IPC, has passed audit, complies with the IPC Code of Practice and is deemed fit for purpose.

4. Management of the car park is conducted by ANPR cameras, which take photographs of vehicle registration numbers as vehicles enter and leave the car park. The VRM images are compared with tickets purchased at the P&D machines and any vehicle that remains on the car park for 5 minutes and fails to purchase a valid P&D ticket or make payment by phone is issued a Parking Charge Notice (PCN).

5. The ANPR cameras record the time of a vehicle's entry and exit from the car park and the images supplied show that the appellant's vehicle entered the car park at 10:22:44 and exited at 13:12:03 a parking duration of 2hr 49min 19sec.

6. A comprehensive search of the ticket Database, which is a record of all tickets (paper and virtual) supplied purchased at the Car Park and search of all P&D tickets purchased, shows that no ticket was purchased for the motorist's full and accurate VRM of VE10NRU on the date of the contravention during the 5 minutes consideration period granted to the appellant following their entry to the car park. The late purchased and therefore invalid ticket bought for the appellant's vehicle can be seen in the data; timed at 10:44.

7. As registered keeper, we are holding the appellant liable for the Charge Notice under Schedule 4 of the Protection of Freedoms Act 2012, details of which where explained in the formal Notice sent on xyz. We note that the appellant has also declined to name the driver of their vehicle at the time of the incident in question. It is important that we make the adjudicator aware that we will rely on the keeper liability provisions within Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) and as such, do not require those details.

8. A copy of our authority to manage parking on this site, including where the appellant parked their vehicle was supplied as part of the IPC audit process and is available solely to the Adjudicator for their perusal.

9. For the avoidance of doubt, the consideration period at this car park is 5 minutes; not 20.

10. The circumstances cited by the appellant, of which no evidence has been supplied, and the eventual purchase of a ticket for their vehicle do not nullify their liability for the charge. The contract between the appellant and EPS was formed when the motorist entered the car park. When entering this private land, a motorist freely enters into an agreement to abide by the conditions advertised in return for permission to enter. It is the motorist's responsibility to ensure that they abide by any clearly displayed terms and conditions. It is clear that the terms and conditions stated that a valid payment must be made with 5 minutes of entering the car park; otherwise the motorist would face liability for a Charge Notice. The adjudicator will note that the appellant had the opportunity to leave the site if they could not comply with the terms and conditions.

11. Motorists are allowed a sufficient Consideration Period so they may make an informed decision as to whether or not to enter or remain on the Private Land and therefore form a contract. Signage on site clearly provides the motorist with the Consideration Period allowed on site and allows the motorist to either comply with the offered contract to park or decline and remove their vehicle from the car park. The consideration period on this site is a fair and reasonable amount of time for any motorist to make an informed decision. If for any reason the motorist was unable to complete a valid payment via the app within the consideration period they had the option to pay at the machine, call the helpline number displayed on all signage on site or decline the offered contract and remove their vehicle from the car park prior to the expiry of the consideration period.

12. We maintain that our signs are clearly visible and meet the requirements set by the International Parking Community guidelines. As established members of the International Parking Community, we adhere to their Code of Practice. This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable. Once the presence of the signs is revealed, it is the motorist's responsibility to ensure that they have read the signs and are familiar with the Terms and Conditions before leaving their vehicle parked in situ.

13. The Equality Act 2010 says that providers of services to the public must make ‘reasonable adjustments' to remove barriers which may discriminate against disabled people. In this instance 'reasonable adjustments' to prevent discrimination are likely to include larger ‘disabled' parking spaces or amenities for disabled people whose mobility is impaired and could include lowered payment machines etc.

14. Ultimately, when entering this private land it was solely the responsibility of the appellant to fully comply with the clearly advertised contractual terms and conditions within the consideration period provided. By their failure to do so the appellant rendered themselves liable for the PCN, which was lawfully issued.

15. The appellant became liable for the Parking Charge Notice issued, as per the Terms and Conditions displayed by failing to make payment for the full and accurate VRM of their vehicle within the consideration period.

titusandronicus

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Re: Breast feeding fine - excel NTK - bought ticket 22 minutes after arriving
« Reply #14 on: February 13, 2024, 06:25:40 am »

As for the argument about discrimination, that is unlikely to hold any sway. The Equality Act 2010 does not explicitly mention breastfeeding mothers. whilst the Act does prohibit discrimination on the basis of sex, which could cover issues related to breastfeeding, it may be a stretch to apply it in this context.

The Equality Act does mention breastfeeding mothers - but only for 26 weeks after giving birth. See subsections 17(3) and (4):-

(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.


we could be in luck as our baby was roughly 8/9 weeks at the time