3. ECP Supermarket Charge Attempt
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ECP Supermarket Charge Attempt
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Hi

I am confident in how to proceed in general, but would appreciate clarifications / opinions on a few items:

1) I believe it is suggested that the driver not be named - correct?

2) I don't fully understand PoFA in regards to these.  As it looks like PoFA is front and centre for this template, how does it affect strategy or likely outcome?

3) The observation time seems to be 2 seconds, is this of value?

4) The letter says "parking in a parent and toddler bay......without being accompanied by a toddler", however the sign at he location says "parking in a parent and child bay.....without being accompanied by a child up to the age of 12".  That's quite different, any use?


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Re: ECP Supermarket Charge Attempt
« Reply #1 on: »
You haven't mentioned that a Notice to Driver (NtD) was affixed to the vehicle. Was any appeal made before the Notice to Keeper (NtK) was sent?

The NtK is not fully complaint with PoFA and so the driver should not be identified by the keeper. The NtK does not fully comply with all the requirements of PoFA 8(2)(e)(i) as there is no invitation, not any synonym of the word, for the keeper to pay the charge. Partial or even substantial compliance is not sufficient.

What was the reason for parking in a parent and toddler bay without a toddler or child under 12 years of age? Have you asked Sainsbury's to get this cancelled as you were a patron of the store? That should be your first plan of action.

What evidence do they have that the driver was not accompanied by a "toddler"?

If you have to explain to a POPLA assessor why the keeper cannot be liable due to the PoFA non-compliance, this is how you do so:

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PoFA 8(2)(e)(i) failures

Schedule 4, Paragraph 8(2)(e)(i) of PoFA 2012

This paragraph mandates that for a parking operator to hold the vehicle's registered keeper liable for a parking charge, the Notice to Keeper (NtK) must include:

An "Invitation to Pay": The notice must explicitly invite the keeper to pay the unpaid parking charges.

Exact Wording: The wording must clearly convey this invitation and mere implication or indirect suggestions are insufficient. The act requires strict compliance, meaning that any failure to fully incorporate this invitation renders the notice non-compliant with the requirements of PoFA 2012.

Non-Compliance Issue

If the NtK fails to include a clear "invitation to pay", or any synonym of the word "invitation", this omission is a breach of Schedule 4, Paragraph 8(2)(e)(i). Even if the notice suggests that payment is required, without an explicit invitation directed towards the keeper to settle the charge, the notice does not meet the exacting requirements of PoFA 2012.

Significance of Full Compliance

Strict Liability: The law mandates full and exact compliance with the specified wording and content outlined in PoFA 2012.

Partial or Substantial Compliance Insufficient: Even if the notice largely complies with other requirements, the absence of a clear invitation to the keeper to pay is a significant flaw. The operator cannot rely on partial or even substantial compliance — every element as specified in the legislation must be present and correct.

Consequences for the Operator

Challenge Basis: If the notice is found to lack this crucial element, it can be used as a basis to challenge the parking charge.

Keeper Liability: The operator cannot transfer liability to the keeper, which significantly weaken their case if the notice to the driver or other requirements are also flawed or if the driver is unknown.

Conclusion

In summary, a PCN that does not include an explicit "invitation" for the keeper to pay the charge is not fully compliant with Schedule 4, Paragraph 8(2)(e)(i) of PoFA 2012. Since the law demands strict adherence, any omission, even if minor, invalidates the notice and relieves the keeper of any obligation to pay. This should be raised in any appeal or legal response to the charge.
« Last Edit: August 19, 2024, 11:40:25 am by b789 »
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Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain
Re: ECP Supermarket Charge Attempt
« Reply #2 on: »
You haven't mentioned that a Notice to Driver (NtD) was affixed to the vehicle.

One was


Was any appeal made before the Notice to Keeper (NtK) was sent?

No


What was the reason for parking in a parent and toddler bay without a toddler or child under 12 years of age?

For the driver to enter the supermarket, meet up with passengers including a child up to 12 years of age and leave with them



What evidence do they have that the driver was not accompanied by a "toddler"?

A SAR explicitly requesting this has been submitted


Are the 2 seconds observation and the difference in signage and stated contract breach of no value then?

Appreciate the PoFA confirmation
« Last Edit: August 19, 2024, 12:07:11 pm by dave-o »
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Re: ECP Supermarket Charge Attempt
« Reply #3 on: »
Then appeal with the following:

Quote
I am the keeper 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.

Your Notice to Keeper (NtK) alleges that the vehicle was parked in a "Parent & Toddler bay without being accompanied by a toddler". You have provided no evidence to support the allegation. The driver was, in fact, picking up a passenger who was accompanied by a child under the age of 12 and had every right to use the bay.

Also, as your NtK does not fully comply with ALL the requirements of PoFA 2012, namely paragraph 8(2)(e)(i), you are unable to hold the keeper 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. ECP has relied on contract law allegations of breach against the driver only.

The registered keeper 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. ECP have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
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Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain
Re: ECP Supermarket Charge Attempt
« Reply #4 on: »
An update for those interested.  I haven't had a reply yet, but have been a busy bee nonetheless.

I have been in contact with the store manager.  Sainsbury's don't make email addresses public, but you can look up the store manager here : https://stores.sainsburys.co.uk/.  Their email syntax is [firstname].[surname]@sainsburys.co.uk.  So if you were to look up the general manager and find out it was Joe Bloggs, the email would be joe.bloggs@sainsburys.co.uk.

The manager was quite helpful, and eventually did help (I did harangue him somewhat, apologies...) in getting them to cancel, and asking them to stop ticketing people for being in parent/child bays unless the child is clearly over 12.  Also to get on with processing my damn SAR.  If people get Sainsbury's tickets, please do contact the manager, hopefully this will be such a nuisance they stop using ECP, or at least tell them to stop issuing PCNs by hand.

There are two ongoing things:

1) The refusal to comply with a SAR despite a photo driving licence with address being given as ID.  They want a V5C, which is nonsense as there are many reasons someone may not have this, and anyway a SAR is a request for details about a person, not a vehicle!  I have started a complaint to the ICO and if anyone else reading this comes up against their ludicrous V5C requests, please do the same.  I have noticed that Parking Eye also state on their website that they ask for a V5C for SARs.

2) What I asked the manager for was not to get them to check the ages of children, but to stop them ticketing people for "not being accompanied by a toddler" when the signs (i.e. contract) state "child up to the age of 12".  I think this is a big deal, as if we consider a toddler to be between 2 and 4, they are currently ticketing people who are quite legitimately parking there while with a child between 5 and 12 (or a baby!) - i.e. probably the majority of parents.  I am wondering whether to take this further, perhaps contacting someone as high up as possible at Sainsbury's.  I would love to make it so that they are prevented from issuing in person.

Any thoughts?
« Last Edit: September 25, 2024, 10:54:27 am by dave-o »
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Re: ECP Supermarket Charge Attempt
« Reply #5 on: »
Why on earth would you provide photo ID to a scammer? Never, ever, ever, provide a drivers licence or passport as ID for a SAR. Of course you can provide the V5C as that is where they got your details from in the first place. If you insist on providing a drivers licence or passport, redact the photo, signature and licence number (they can get your DoB from that).

The only thing they need is proof of a name associated with the address.

Giving them a photo and a signature is way beyond any means of ID they need. Just report them to the ICO, for what it's worth. Nothing will happen to them.

If the manager at the Sainsbury's has not done anything about cancelling the PCN, go to the top of the management food chain, the CEO. It will then be delegated to someone, probably higher up tan the local store manager.
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Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain
Re: ECP Supermarket Charge Attempt
« Reply #6 on: »
Agreed Re #1 - what's done is done, but for other posters reading this, I would absolutely advise sending a copy of the V5C and not a driving licence. There's no good reason to send a parking company your photo and date of birth.

Of course, they should process the SAR off the back of the information you have sent. Feel free to pursue with the ICO. Again, for other posters reading this, there's an element of principle vs pragmatism involved here, if a company is asking to an alternative document to verify your identity.

If it's not particularly important that you get a prompt respond to your SAR, then by all means dig your heels in and pursue complaints. If you urgently need the information a SAR would contain, then it may be wise to consider sending the info they ask for.
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Re: ECP Supermarket Charge Attempt
« Reply #7 on: »
Hi chaps, perhaps you missed the para in which I stated the manager did get them to cancel.

This is really just an FYI post in case other users come here with similar issues.
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Re: ECP Supermarket Charge Attempt
« Reply #8 on: »
I saw that, my point was more for others who may read this when in similar situations.
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Re: ECP Supermarket Charge Attempt
« Reply #9 on: »
Good that the manager did get it cancelled. Do you have it in writing?

Plan A is always the easiest.

BTW, this is what I would send if a copy of the drivers licence was requested:

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Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain
Re: ECP Supermarket Charge Attempt
« Reply #10 on: »
Quote
this is what I would send if a copy of the drivers licence was requested
You forgot to redact your photo  ;)
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Re: ECP Supermarket Charge Attempt
« Reply #11 on: »
For what it's worth, the DL was provided because that is stated as a suggested form of ID by the ICO.  The ICO I believe are the official body for SAR oversight, so it made sense to me that if I am claiming they are not following ICO guidance then my ID should be one suggested by the ICO.  Fair point about redacting the photo and DOB though.

I am not remotely bothered about actually getting the SAR in truth.

The confirmation is an email, which I believe counts as "in writing".
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Re: ECP Supermarket Charge Attempt
« Reply #12 on: »
Email is "in writing". Too many people come here and tell us that they "phoned" so and so and they said they'd get the PCN cancelled and then come back later, surprised that it has not been cancelled and come to the realisation that a phone call is not worth the paper it is wrote on!!!  ::)
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Never argue with stupid people. They will drag you down to their level and then beat you with experience” - Mark Twain
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