Author Topic: Compliance - Protection of Freedoms Act  (Read 177 times)

0 Members and 0 Guests are viewing this topic.

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Compliance - Protection of Freedoms Act
« on: January 12, 2025, 11:27:23 am »

I lease my car through Hyundai (HCF) and recently received an e mail from them to advise they were notified of a private parking charge and had paid the fine in the sum of £60.00, which they would recharge to me together with an admin fee of £30.00.  HCF claim their T&Cs enable them to do this without first informing me of the charge. I view differently and at some point I will refer to the Ombudsman for a decision. Taking that aside my query is whether or not the parking company and/or HCF have complied with the rules set out in the Protection of Freedoms Act relating to parking fines.

My car was parked on private land and  displayed a valid parking ticket; however the fine related to the allegation it was not parked correctly within the markings of a bay or space.  This may be correct, but at time of parking there was only one space available, at the entrance to the car park, and my car was parked appropriately in line with the neighbouring vehicle and did not prevent any other vehicle from parking.  At the time of the alleged contravention the car park had emptied out, which is why photograph displays a single parking bay line. The area is not covered by ANPR and a fixed penalty notice was not placed on the car.  Instead, the parking company obtained keeper details from DVLA and sent a notice to keeper to HFC. My interpretation of PoFA is, unless there is ANPR used, the parking company should issue a ticket and must wait at least 28 days before applying to DVLA for keeper details.  Neither of these happened.  It is also my contention that HCF should be aware of these rules and had a legal responsibility to notify me before making a payment, and provide the parking company with the relevant information as detailed in sch 4(14) of PoFA, which they failed to do.  Am I correct in this interpretation?

A further issue being that once aware of the fine by HCF I returned to the car park to check and photograph signage and markings.  There was sufficient signage; however, although  there are no cameras, the signage states ANPR may be in use and no T&Cs are displayed, despite the fact the company website states T&Cs will be on display.  Would this have a bearing on the legitimacy of the fine.  I will further add that I have made second visit to the car park and notices have been replaced with new signage that includes T&Cs!  I have photographs of before and after.

At this point I have not approached the parking company, and am reluctant to do so following searches made at Companies House, which give me some concern regarding principals of the company.

Share on Bluesky Share on Facebook


b789

  • Hero Member
  • *****
  • Posts: 3475
  • Karma: +153/-5
    • View Profile
    • GullibleTree
Re: Compliance - Protection of Freedoms Act
« Reply #1 on: January 12, 2025, 01:16:38 pm »
Welcome. You are not correct in all your assumptions. However, you should take note of certain factors that mean you are not liable for the charge.

Firstly, no "fine" was issued and HCF referring to it as such indicates that they have breached the terms of your contract with them. A Parking Charge Notice (PCN) whether issued as a Notice to Driver (NtD) or as a postal Notice to Keeper (NtK) issued by an unregulated private parking company is not and can never be a "fine". It is nothing more than a speculative invoice for an alleged breach of contract by the driver.

GXS is not an authority that can issue "fines". They are a private company of ex-clamper thugs who operate at the fringe of lawfulness.

Please show us the relevant section of your lease agreement that deals with "fines" and differentiates between a statutory fine and an invoice from a private company. I think it is highly likely that HCF have moronically grouped together any form of charge as a fine, in breach of the terms of your vehicle lease.

As the PCN was from an unregulated private parking company, all HCF had to do was to comply with the requirements of PoFA Paragraph 13(2) and 13(3). If they have complied with that, then liability is transferred to you, the Hirer of the vehicle. GSX cannot later go back to HCF and make any more demands.

Was you have shown us is a copy of the NtK that was sent to HCF. How did you obtain that?

Once HCF have transferred liability to the Hirer, the creditor, GSX, is required to send you, the Hirer, a Notice to Hirer (NtH) together with copies of the documents that should have been provided to them by HCF. I will place money on the fact that GSX have not included copies of the documents as required under PoFA, in order to be able to hold you liable as the Hirer.

GSX (and HCF) have no idea who the driver is. Unless you, the Hirer, blab it to them, inadvertently or otherwise, they cannot hold you liable as the Hirer because they have not complied with all the requirements of PoFA.

There is no legal obligation on the Hirer (or the Keeper) to identify the driver to an unregulated private parking company. If GSX do not know the identity of the driver and the Hirer declines to identify the driver, they cannot do anything about this.

Unfortunately for you, or at least for HCF for having paid a speculative invoice from an unregulated private parking company, you and/or they are going to be out of pocket whilst GSX laugh all the way to the bank. You will have to check your lease agreement (please show us the relevant section) about admin fees. If HCF have breached the agreement by paying an invoice as opposed to a "fine" or a "penalty" that is issued under statutory law, then you will have to complain/sue HCF to repay the admin fee.

For now, you cannot deal with the PCN from GSX until you receive an NtH in your own name. When you do, you simply appeal with the following:

Quote
I am the Hirer of the vehicle and I dispute your 'parking charge'. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

As your Notice to Hirer (NtH) does not fully comply with ALL the requirements of Paragraphs 13 and 14 PoFA 2012, you are unable to hold the Hirer of the vehicle liable for the charge. Partial or even substantial compliance is not sufficient. There will be no admission as to who was driving and no inference or assumptions can be drawn. GSX has relied on contract law allegations of breach against the driver only.

The Hirer cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtH can only hold the driver liable. GSX have no hope at IAS, so you are urged to save us both a complete waste of time and cancel the PCN.

Please show us the relevant terms of your lease agreement so that we can confirm whether you are liable for the admin fee.

Edited to add: If HCF have stupidly paid the PCN, you will never receive any further correspondence from GSX (while the laugh all the way to the bank) and so you will not have any opportunity to appeal the PCN. HCF have unlawfully deprived you of your right to appeal the PCN.
« Last Edit: January 12, 2025, 01:22:11 pm by b789 »
Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #2 on: January 13, 2025, 10:08:32 am »
Thank you for the prompt  reply.

The terminology “fine” is certainly used by HCF, as noted in the attached documentation; although not entirely sure if this breaches their terms of contract.  My primary issue with HCF is the disagreement on interpretation of the T&C wording.  HCF state this allows them to pay charges without first notifying me; whereas I consider the clear implication is that I will be informed of the charge and take responsibility. 

At the very least their T&Cs are ambiguous , and as such I believe I am protected by the Consumer Protection Act that includes a requirement for  a test of fairness.  FYI, I currently have an ongoing  dispute with HCF for a drop off charge at Gatwick, which is currently with the Ombudsman. I am happy to provide you with a summary of that matter if you consider it would be helpful.

I am also of the view that GSX, having failed to place a PCN on the vehicle, and immediately obtaining keeper details from DVLA  have not complied with the legislation, and if so dose this invalidate the PCN?

b789

  • Hero Member
  • *****
  • Posts: 3475
  • Karma: +153/-5
    • View Profile
    • GullibleTree
Re: Compliance - Protection of Freedoms Act
« Reply #3 on: January 13, 2025, 10:30:11 am »
I'll respond to the rest of this in a short while. However, what is this dispute about a Gatwick drop off PCN?

they are the easiest of all PCNs to get disposed of. All HCF had to do was transfer liability to the Hirer and then you would have received a Notice to Hirer (NtH) in your own name which would have been appealed with the following and then dismissed:

Quote
I am the Hirer. NCP cannot hold a Hirer liable for any alleged contravention on land that is under statutory control. As a matter of fact and law, NCP will be well aware that they cannot use the PoFA provisions because Gatwick Airport is not 'relevant land'.

If Gatwick Airport wanted to hold owners, keepers or hirers liable under Airport Bylaws, that would be within the landowner's gift and another matter entirely. However, not only is that not pleaded, it is also not legally possible because NCP is not the Airport owner and your 'parking charge' is not and never attempts to be a penalty. It is created for NCP's own profit (as opposed to a bylaws penalty that goes to the public purse) and NCP has relied on contract law allegations of breach against the driver only.

The Hirer cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtK can only hold the driver liable. NCP have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #4 on: January 13, 2025, 11:00:58 am »
Again thanks for prompt reply.

Similar to GXS, it's about HCF paying charge without first informing me.  I have attached FYI details of what I have sent to the Ombudsman; albeit it might have helped if I had come across your site earlier :)

b789

  • Hero Member
  • *****
  • Posts: 3475
  • Karma: +153/-5
    • View Profile
    • GullibleTree
Re: Compliance - Protection of Freedoms Act
« Reply #5 on: January 13, 2025, 11:27:05 am »
Regarding the original post about the GSX PCN, your first action must be to inform HCF of their breach of the Hire Agreement and that you are not liable for their incompetence. I suggest the following letter to HCF and then see what response you get:

Quote
Hyundai Finance Contract Hire
Number One
Great Exhibition Way
Kirkstall Forge
Leeds
LS5 3BF.

By email to: contactus@hyundaifinancecontracthire.co.uk

[Date]

Subject: Unauthorised Payment of Private Parking Charge Notice (PCN) and Breach of Consumer Rights

Dear Sir/Madam,

I am writing to express my utter dismay and disappointment regarding your recent decision to pay a Parking Charge Notice (PCN) issued by GXS Services Ltd, an unregulated private parking company, on my behalf, without prior consultation or authorisation. Your actions in this matter demonstrate a fundamental misunderstanding of the nature of private parking charges and a glaring failure to follow a proper process as outlined in both your own policies and the Hire Agreement.

The charge in question is a Parking Charge Notice (PCN) issued as a postal Notice to Keeper (NtK), not a statutory "fine" or traffic "offence". It is a civil matter, issued by an unregulated private company under contract law, and as such, it was neither your responsibility nor within your authority to pay it on my behalf without first transferring liability to me as the Hirer. The correct procedure would have been to transfer liability to the Hirer, as allowed under Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). The NtK even explains how to do this if the vehicle is hired under an agreement. Instead, HCF chose to pay the charge outright and then invoice me for it, along with an arbitrary administration fee of £30.

Your own policy document states:

"All traffic offences and fines are your responsibility and should be paid immediately. If you fail to pay any fines, Hyundai Finance Contract Hire may pay them on your behalf and recharge you along with an administration charge. Where possible we will transfer liability for any fines or penalties direct to you."

Private parking charges do not fall under the definition of traffic offences or fines. They are not issued by an authority, and they carry no legal standing as penalties. Your failure to distinguish between statutory fines and civil parking charges is a glaring oversight, one that has caused unnecessary financial and procedural complications.

Furthermore, your own Hire Agreement states under Clause 5.1.5 that I am responsible for paying:

"...all licence fees, charges (including congestion charges, tolls etc), taxes and other sums due relating to the vehicle or its use. We may pay the amount of such charges for you. You will then repay that amount to us on demand together with such sum as we consider reasonable to cover our administration costs connected with the charge."

The ambiguity of the term "charges" notwithstanding, it is clear from the context that the clause refers to statutory charges and sums due to public authorities (such as congestion charges and tolls), not civil invoices from private companies. Applying this clause to a private parking charge demonstrates a lack of comprehension of its intended scope.

Had you followed the correct process and transferred liability to the Hirer, this matter would have ended there, as your involvement would no longer have been necessary. Your decision to bypass this straightforward solution and instead pay the charge unilaterally is both senseless and unjustifiable.

Moreover, your actions deprived me of the opportunity to challenge the PCN through the appropriate channels. Unregulated private parking companies frequently issue charges that are unenforceable, based on unclear or inadequate signage, or issued in error. By paying the charge without my consent, you have denied me the right to appeal, thereby undermining my consumer rights and exposing me to a financial burden that I may not have been liable for had I been given the opportunity to contest the charge.

I do not accept liability for your mishandling of this matter. Your unilateral payment of the charge constitutes a breach of both the Hire Agreement and your obligations under the Consumer Rights Act 2015. Specifically:

1. Unfair Terms: The terms of the Hire Agreement are ambiguous and do not clearly give you the right to pay private parking charges without consultation.

2. Failure to Provide Adequate Notice: You failed to inform me of the PCN in a timely manner, denying me the right to challenge or mitigate the alleged contravention.

3. Unjust Enrichment: By charging me an administration fee for your own procedural failings, you have sought to profit from your mistake.

If you proceed with debiting my account for this unauthorised payment and administration fee, I will have no hesitation in taking further action to recover the funds and seek compensation for your procedural failings. This may include lodging a formal complaint with relevant consumer bodies, such as the Financial Conduct Authority (FCA) and the British Vehicle Rental and Leasing Association (BVRLA), and pursuing legal action if necessary.

To rectify this situation, I demand the following:

1. Immediate cancellation of any charges related to this PCN, including the administration fee.

2. Confirmation that you will transfer liability for any future PCNs to the Hirer, as per your stated policy.

3. Assurance that you will review your procedures to prevent such mishandling from occurring again.

I expect a written response within 14 days of the date of this letter. Failure to respond satisfactorily will result in further action.

Yours faithfully,

[Your Name]

I suggest starting a separate thread about the NCP PCN at Gatwick.
Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #6 on: January 13, 2025, 12:50:34 pm »
Again thank you for quick reply.

I have now sent letetr to HCF via email; slightly toned down :) , and will ensure you see their reply.

Also, sugested, I will set up a separate thread re the Gatwick charge.

b789

  • Hero Member
  • *****
  • Posts: 3475
  • Karma: +153/-5
    • View Profile
    • GullibleTree
Re: Compliance - Protection of Freedoms Act
« Reply #7 on: January 13, 2025, 12:53:18 pm »
No one suggested you "tone it down". The language used is specifically designed to get the point across and highlight their failings.

Fluffing it up, you may as well sign off with "love and kisses".
Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #8 on: January 13, 2025, 02:29:08 pm »
Appreciate your view, but IMO some of the terminolgy was a bit heavy.  We all have our own style of presentation and not a criticism of yours, but if I am communicating I will use my own.   I do have a degree of experience with small claims, tribunals and appeals; albeit a novice when it comes to parking regulations.  Certainly no love and kisses at the end; perhaps more succint, but same message. :)

mickR

  • Hero Member
  • *****
  • Posts: 590
  • Karma: +12/-1
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #9 on: January 13, 2025, 05:26:27 pm »
I have now sent letetr to HCF via email; slightly toned down :) ,
toned down how exactly?
and why?
Like Like x 1 View List

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #10 on: January 13, 2025, 05:42:26 pm »
See my earlier response, which is self explanatory!

mickR

  • Hero Member
  • *****
  • Posts: 590
  • Karma: +12/-1
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #11 on: January 13, 2025, 09:51:57 pm »
See my earlier response, which is self explanatory!
didn't see it.

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #12 on: January 13, 2025, 10:41:03 pm »
Appreciate your view, but IMO some of the terminolgy was a bit heavy.  We all have our own style of presentation and not a criticism of yours, but if I am communicating I will use my own.   I do have a degree of experience with small claims, tribunals and appeals; albeit a novice when it comes to parking regulations.  Certainly no love and kisses at the end; perhaps more succint, but same message. :)

mickR

  • Hero Member
  • *****
  • Posts: 590
  • Karma: +12/-1
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #13 on: January 14, 2025, 09:55:55 am »
it would be helpful to post what you actually sent so it can be evaluated in anticipation of their response

clintaugh

  • Newbie
  • *
  • Posts: 8
  • Karma: +0/-0
    • View Profile
Re: Compliance - Protection of Freedoms Act
« Reply #14 on: January 14, 2025, 10:25:23 am »
See attached; not materially different to original draft.