POPLA Complaint.
POPLA Code -
POPLA Assessor - Mohsin Hussain.
Dear Lead Assessor,
I am writing to formally complain about the incorrect assessment carried out by Mohsin Hussain.
In his assessment, Mohsin clearly attempts to establish PoFA 'keeper liability' in a circumstance where such liability can never occur.
This complaint purely relates to the keeper liability issue and not the final outcome - I say this as the final outcome is not binding on myself.
Background-
The basis of my original appeal was that the NtK issued by the operator was not PoFA complaint since is omitted a significant section of mandatory information required by Schedule 4 Paragraph 9(2)(e).
POPLA Assessor's have consistently stated that total compliance with all conditions relating to paragraph 9(2) is required in order to invoke keeper liability.
Mistakes-
In his assessment, Mohsin Hussain makes a number of critical errors which demonstrate they he does not correctly understand the requirements of PoFA Schedule 4.
In my appeal I pointed out that the required mandatory wording and two limbed 'invitation to the keeper' was not set out - this is the specific requirement of 9(2)(e).
The parking operator was not able to rebut my appeal because the wording is simply not present.
However, Mohsin steps in and immediately starts to advocate on the parking operators behalf.
Mohsin states, "While the appellant submits that the notice does not reproduce the wording of Paragraph 9(2)(e) exactly, PoFA does not require the statutory wording to be reproduced verbatim." - I should point out that I have never suggested that 'exact' verbatim replication was required - I have simply specified (in my appeal) exactly what the legislation states word for word - it is Mohsin who has jumped to the conclusion that the legislation is demanding 'verbatim wording' in terms of 9(2)(e).
I accept that verbatim wording is not required.
However, what is legally required is what is known as 'correct construction' - Correct construction is the construction of a sentence which exactly replicates the requirements of the sentence set out in the legislation - it is notable that Mohsin never attempts to convey the requirements of 'correct construction' in his assessment since conveying this information would be damaging to the parking operators position.
The parking operators NtK contains no wording which meets the requirements of 9(2)(e) verbatim or otherwise - their NtK simply skips over the requirements of 9(2)(e).
As such, the verbatim wording argument put forward by Mohsin Hussain is irrelevant since no alternative wording is present on the NtK.
It is therefore obvious that Mohsin is attempting to use the verbatim wording argument to imply that the operator does not have to meet the requirements of 9(2)(e).
This is a massive error since the verbatim wording argument does not invalidate the requirement that any alternative wording must meet the rules of correct construction - most critically, no alternative wording is mentioned by Mohsin as no alternative wording is present on the NtK.
Secondly, having stated that verbatim wording is not required, Mohsin states, "The relevant consideration is whether the notice substantially conveys the information required by Schedule 4" - this is a blatant misrepresentation of the requirements of PoFA Schedule 4 since the legislation specifies that compliance is required with ALL conditions of the Schedule.
Paragraph 9(1) specifies;
A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met - condition 9(2)(e) is one of those requirements.
This is then reinforced by Paragraph 9(2)(f) which specifies;
the creditor will (IF ALL APPLICABLE CONDITIONS UNDER THIS SHEDULE ARE MET) have the right to recover from the keeper so much of that amount as remains unpaid - the key word there is "ALL" - partial or even substantial compliance is clearly not compliance with ALL CONDITIONS.
In very simple terms, it is entirely obvious that Mohsin is attempting to apply a reasoning which introduces considerable subjectivity to the requirements of the Schedule in a circumstance where he recognises that his Client's NtK is not complaint - Mohsin introduces his subjective wording because he recognises that the wording of the Schedule is totally objective and would leave no such room to manoeuvre.
Thirdly, Mohsin then runs through just a few of the conditions set out in paragraph 9(2) - he ticks several of the conditions off - however, and most notably, he deliberately avoids a demonstration of compliance with my specific appeal condition, namely; 9(2)(e) - this is because he still cannot meet the condition of 9(2)(e) - the wording and two limbed invitation to the keeper is simply not present in any guise.
At the end of the day, it is clear from the outset that the Assessor recognised that the NtK was not totally compliant - if it was in fact compliant he would have simply quoted the required wording directly from the NtK. However, instead of simply acknowledging its non-complaint nature, Mohsin took it on himself to bend or ignore as many requirements as needed in order to make his Client's NtK seem compliant.
The NtK does not meet the requirement of condition 9(2)(e) and there for it cannot be said that 'all the applicable conditions under this section have been met' - keeper liability cannot therefore occur.
I would also point out that Mohsin's comments on 'substantial compliance' completely contradict hundreds of POPLA assessments which are posted online where POPLA Assessors consistently state that 'total compliance is required'.
I look forward to your considered response.
Many thanks,
xxxxx xxxxxxxxx
