POPLA Complaint - Procedural error and mishandling of PCN Appeal.
Original POPLA Code -
Assessor Name Rachel Hankinson
Dear Lead Assessor,
I recently received an appeal response from POPLA regarding a PCN issued by Euro Car Parks (ECP).
The response contains a clear procedural error - namely; that the assessor incorrectly establishes keeper liability under PoFA when the NtK clearly omits elements of required mandatory information.
My initial POPLA appeal centred on a number of appeal points but this complaint purely relates to the assessor's incorrect assertion of keeper liability.
In my appeal, I clearly raised the issue of the operators non compliant NtK and, in particular, the omission of both the mandatory wording and the subsequent two limbed legal choice which the operator is required to present to the keeper by Schedule 4 Paragraph 9(2)(e).
In very simple terms, as I am sure you will be aware, Paragraph 9(2)(e) requires that the NtK state a prescribed sentence of mandatory wording immediately followed by a direct invitation to the vehicle keeper to either pay the unpaid parking charges themselves or to provide alternative driver details.
If you examine the NtK from ECP you will see that the notice contains no such prescribed wording and, subsequently, no two limbed mandatory legal choice is ever presented to the keeper in the manner set out in the Schedule.
It is clear that my POPLA appeal document adequately drew the assessor's attention to this specific point.
However, the assessor's comments appear to demonstrate that she is not adequately familiar with the precise requirements of PoFA Keeper Liability - instead of working through the matter objectively, examining the precise requirements of PoFA term by term, she appears to make a highly subjective judgement which, unfortunately, bears absolutely no resemblance to the actual objective requirements of the relevant legislation.
In her appeal response she states, "The appellant says that the Notice to Keeper is not compliant with PoFA 2012 as it omits the mandatory invitation to the keeper to pay the unpaid parking charges. However, the Notice to Keeper makes it clear that the keeper may be pursued for any parking charge amount that remains unpaid and failure to make payment may result in additional costs."
In simple terms, and based on what she has written, the assessor appears to broadly understand my appeal point, namely; it's clearly an NtK with no mandatory wording and no invitation to keeper to pay the unpaid charges or nominate another driver.
This appeal point would obviously constitute a clear failure to meet the requirement of Paragraph 9(2)(e) - however, and rather oddly, the assessor then goes on to say, "However, the Notice to Keeper makes it clear that the keeper may be pursued for any parking charge amount that remains unpaid."
This is a procedural error since the wording referred to by Rachael Hankinson (in her reasoning) is actually the mandatory wording requirement of Paragraph 9(2)(f), and not that of 9(2)(e).
Critically, at no point does the assessor actually refer to the precise requirements of 9(2)(e) - if the required wording (and legal choice) was present on the NtK then she would surely point this out rather than trying to vaguely imply compliance by referencing the mandatory wording from a different term, namely; that of 9(2)(f)?
In essence, the assessor appears to try and 'dig the parking operator out of a hole' by stating that the mandatory wording of 9(2)(f) somehow satisfies both the legally required mandatory wording and two limbed choice required by 9(2)(e) - to be blunt, this is legally illiterate.
(I would also point out the following; that if her stated wording is deemed to satisfy the requirements of 9(2)(e) then the requirements of 9(2)(f) would now be left unsatisfied by the NtK since each term of 9(2) requires its own wording.)
The assessor then moves on with her findings and never attempts to deal with the missing information / choices required by 9(2)(e) - this gives the impression that the assessor is deliberately avoiding both clarity and accruacy on the issue since such clarity and accruacy would leave her in a position where she had to admit that the NtK was not compliant.
To be absolutely clear at this point; nothing in my POPLA appeal ever suggested that the ECP NtK failed to comply with 9(2)(f) - I acknowledge that the mandatory 'warning to the keeper' required by 9(2)(f) (and referred to by Rachael Hankinson when rebutting my appeal point) is indeed present in the operators NtK - however, the presence of this wording does not somehow negate the operators requirement to additionally satisfy the terms of 9(2)(e) in order to produce a PoFA compliant NtK.
The absence of the required mandatory wording and two limbed legal choice is fatal to the parking operators reliance on PoFA to establish keeper liability.
The terms of PoFA are very legally tight and total compliance with Schedule 4 Paragraph 9(2)(a to i) are required in order to invoke PoFA keeper liability - as I am sure you are aware, there is no such thing as partial compliance - 9(2) states that "The notice MUST" contain the listed requirements.
For the purposes of total clarity;
In order to be compliant the NtK must contain specific mandatory text and legal choices as specified by Schedule 4 of PoFA.
In this instance, the requirements of Schedule 4 Paragraph 9(2)(e) are not satisfied by the operators NtK.
To be compliant, the requirements of 9(2)(e) can only be met if a specific paragraph is placed in the NtK which should read as follows;
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At the current time, Euro Car Parks (the creditor) does not know both the name and a current address for service for the driver.
The keeper is therefore INVITED TO PAY THE UNPAID PARKING CHARGES
Or
If the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass this notice onto the driver.
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The required paragraph is clearly missing from the operators NtK.
The information must be presented in this manner to be compliant ie in one paragraph. Compliance cannot be achieved by, for example, placing the information at random points throughout the NtK since this would not present the keeper with the text followed by the legal choice which 9(2)(e) requires - this point is clearly backed up by the precise wording of 9(2)(e) - the mandatory text which must be immediately followed by the invitation to the keeper to pay the charges or nominate another driver.
In this particular instance;
The Euro Car Parks NtK never states the essential mandatory wording required by para. 9(2)(e).
The Euro Car Parks NtK never 'invites the keeper to pay the unpaid parking charges'.
The Euro Car Parks NtK never uses the required mandatory word "or" to connect the two required limbs of the legal choices.
The Euro Car Parks NtK never presents the two limbed legal invitation which para. 9(2)(e)(i) and 9(2)(e)(ii) requires.
The wording (warning to the keeper) mentioned by Rachael Hankinson is irrelevant to the requirements of 9(2)(e) and, instead, is actually a clear reference to the wording requirements 9(2)(f).
It is also important to note, that the warning given in 9(2)(f) is made in clear reference to the operators ability to transfer liability for the charges, onto the keeper, after a period of 28 days.
The requirement of 9(2)(e) is completely different as it deals specifically with an invitation to the keeper (to pay or nominate) which is made, by the operator, within that initial 28 day period - at that point in time, the legal liability for the charge actually lies with the unknown driver and not with the keeper - as such, the legislation requires that operator invites the keeper to pay (or nominate) regardless of the fact that they may not actually be legally liable at that precise point in time.
I look forward to your carefully considered response in this matter.
Best wishes,
xxxxxxx xxxxxxxxxx.
