POPLA Complaint - Clear Procedural Error.
POPLA Code -
POPLA Assessor - Nazia Mohammed.
FAO Lead Assessor,
This is a complaint relating to the incorrect assertion of Keeper Liability under PoFA 2012 by your Assessor Nazia Mohammed.
Unfortunately, in their assessment, Nazia wrongly establishes keeper liability when the required mandatory wording / choices are not present in the parking operators NtK.
To make things simple (and totally objective) this complaint purely relates to the assessor's error when examining the NtK for compliance under PoFA 2012 Schedule 4 Paragraph 9(2)(e).
You will see from my submitted appeal that I specifically raised the non compliance with this paragraph in my statement.
As you will be aware, the wording of PoFA is legally very tight and total compliance with 9(2) is needed in order for a parking operator to transfer liability onto a Registered Keeper.
Schedule 4 Paragraph 9(2)(e) states the following;
The notice MUST
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver AND invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)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 the notice on to the driver;
So, in order to be compliant with 9(2)(e) we must examine the precise wording of the operators NtK - in the case of the mandatory requirements of 9(2)(e), 9(2)(e)(i) and 9(2)(e)(ii) we are looking for a section of mandatory wording immediately followed by the presentation of a two limbed legal choice which must be directed to the vehicle keeper (and not the driver).
This should therefore be something along the lines of the following;
==============================================
At the current time, Group Nexus (the creditor) does not know both the name and a current address for service for the driver.
The keeper is therefore invited to
(i) PAY THE UNPAID PARKING CHARGES
or
(ii) 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.
==============================================
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 two limbed 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.
So you will see, from the examination of the operators NtK, that there is no 'invitation to the keeper to pay the unpaid parking charges' and nor is there a two limbed legal choice correctly setting out the keepers options as required by 9(2)(e).
As a result the NtK is clearly not compliant with the requirements of PoFA and liability cannot be transferred to the keeper.
I notice in the assessor's response that the assessor is very careful to avoid the issue of this missing wording - it appears that clarity on the precise requirements of 9(2)(e) is deliberately avoided since such clarity would not favour the parking operator.
I understand from various consumer groups (on the internet) that POPLA have recently stated that assessors were to undergo "further intense training in an effort to avoid future failures when assessing keeper liability under PoFA" - Can you please explain why such basic errors (such as this one) are still being made?
I look forward with interest to your views.
Best wishes,
xxxxxx xxxxxxx
Topic: GroupNexus NtK - Overstay - Purley Way Retail Park (Read 2680 times)