Is there anything in POFA which would indicate that the keeper is not responsible in this instance?
Yes... PoFA 9(2)(e)(i) has not been complied with. Here is the reason:
Paragraph 9(2)(e)(i) of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) states that the Notice to Keeper (NtK)
must include a specific invitation to the keeper to pay the charge. This requirement serves to ensure that the keeper understands their liability and has a clear course of action.
They cannot simply rely on the fact that the Parking Charge Notice (PCN) is addressed to the Keeper to satisfy PoFA paragraph 9(2)(e)(i). The law explicitly requires a clear and specific invitation for the keeper to either:
• Pay the parking charge, or
• Provide the name and address of the driver (if the keeper was not the driver).
This is not an "implied" requirement; it
must be explicitly stated. Merely inferring that the keeper is invited to pay because the notice is addressed to them does not meet the strict wording requirements of PoFA.
PoFA compliance requires specific wording. The law’s intention is to make the responsibilities of the Keeper clear and unambiguous. Phrases like "you are invited to pay this parking charge" or "you are required to do X, Y, Z" are examples of wording that PoFA expects.
If the notice only says, for example, "the charge must be paid" or "payment is required" without directly inviting the keeper to pay, this is insufficient under PoFA. The wording must link the keeper directly to the payment obligation in an unambiguous way.
The parking company cannot claim keeper liability under PoFA if they fail to meet the explicit requirements of 9(2)(e)(i). This is a valid appeal (and defence) point, as courts and independent adjudicators should not rely on implied obligations instead of explicit compliance with statutory requirements.