Smart have a habit of not sending out appeal rejection letters with a POPLA code when they know they have little chance of success. However, there's little you can actually do about it except to make an official complaint to them and then to the BPA.
Unfortunately, it is your company who are now receiving the debt collector letters, not you. You are going to have to explain to them that Smart have abused the process and not responded to the appeal and therefore you have not had an opportunity to make an appeal to POPLA.
You are also going to have to persuade your company that they should simply ignore all debt collector letters about this PCN. Explain that they are powerless to do anything and they can be safely ignored. How your company decide to take that advice, is up to you.
When you appealed, did you appeal in the company name but using your own name to sign off?
An immediate complaint to Smart is required, demanding that they call off their DRAs, provide a reason for rejecting the appeal and a new POPLA code.
Dear Sir/Madam,
Formal Complaint Regarding PCN [Reference Number]
I am writing to make a formal complaint regarding your failure to properly respond to the appeal submitted in relation to the above Parking Charge Notice (PCN), which was issued to [Company Name] as the hirer of the vehicle.
No Appeal Rejection or POPLA Code: Despite submitting an appeal as the hirer, no formal appeal rejection or POPLA code has been received, in breach of your obligations under the British Parking Association’s (BPA) Code of Practice. This has deprived us of the opportunity to escalate the matter to POPLA.
Proof of Communication: If you claim to have sent an appeal rejection, simply showing a copy of the response is not proof of sending or delivery. I require:
Proof of Posting: If the response was sent by post, please provide a copy of the "proof of posting" certificate or a signed-for delivery receipt.
Email Evidence: If the response was sent by email, provide a copy of the email including all headers, unredacted. This is the only acceptable evidence of the email being sent and delivered.
Suspension of Debt Recovery: Given that you have not provided any response to the appeal, I expect that you immediately suspend all debt recovery activity related to this PCN. You must provide the reason for rejecting the appeal and issue a new POPLA code, giving 28 days for an appeal to be submitted. Continuing debt recovery without properly resolving the appeal is unfair and unreasonable.
Pattern of Behaviour: Smart Parking has a reputation for failing to send appeal rejection notices when appeals are likely to succeed, particularly when there is little chance of success at POPLA or in court. I am gathering evidence to demonstrate that this is part of a wider pattern of behaviour, which shows habitual non-compliance with the BPA Code of Practice.
Next Steps: I expect a full and satisfactory response within 14 days, including the requested evidence of communication and a new POPLA code. Failure to do so will result in this complaint being escalated to the BPA, as well as further action to hold Smart Parking accountable for improper conduct.
I expect that you will address this matter promptly and properly.
Yours faithfully,
[Your Name]
For and on behalf of [Company Name] (Hirer)
As for the company, I suggest you put in writing whoever you deal with in the company over this matter, the following, which explains the required process and how there can be no liability for the company:
Why [Company Name] Is Not Liable for the PCN and Should Allow [Your Name] to Handle This Matter
Background
A Parking Charge Notice (PCN) was issued to [Company Name] as the hirer of a vehicle leased from [Lessor’s Name]. The original PCN was sent to the lessor, who transferred liability to the company, and a Notice to Hirer (NtH) was issued by Smart Parking. As the day-to-day keeper of the vehicle, I have been authorised to deal with this matter on the company’s behalf.
Below is a detailed explanation of why the company is not liable for the PCN, why I should handle this, and why the company should ignore all further communication from debt recovery agents (DRAs).
1. The Company Cannot Be Liable
Failure to Rely on PoFA: Smart Parking has not relied on the Protection of Freedoms Act (PoFA) to hold the hirer (the company) liable. This means that they cannot pursue the company for this charge unless specific requirements are met, which they have not done. Since liability has not been established, the company has no legal obligation to pay the charge.
No Driver Identification: As is legally permitted, I declined to identify the driver of the vehicle. Without identifying the driver, Smart Parking cannot transfer liability to the company unless they follow PoFA—which they have chosen not to do. Therefore, there is no legal foundation for holding the company liable for the PCN.
2. I Should Handle This Matter
Declining to Identify the Driver: I have deliberately declined to identify the driver, as I am not legally obliged to do so for an unregulated private parking company such as Smart Parking. Under the Protection of Freedoms Act 2012 (PoFA), the company can only pursue the hirer (the company) if they meet specific requirements. Since Smart Parking has not complied with these requirements, there is no legal obligation for either myself or the company to identify the driver. The decision not to name the driver is both legally sound and strategically important, as it protects the company from unnecessary liability.
Smart Parking’s Track Record: Smart Parking is known to have a poor reputation for responding to appeals, particularly when they know they have little to no chance of success at POPLA (Parking on Private Land Appeals). Their failure to provide an appeal rejection or a POPLA code in this instance is consistent with this pattern of behaviour. They are likely avoiding further scrutiny because they recognise that their case is weak, which further underscores the importance of not admitting liability or making any payment without a proper resolution. I am prepared to continue handling this matter, ensuring that Smart Parking is held accountable and that the company does not face unwarranted charges.
3. Why the Company Should Ignore Debt Recovery Letters
Debt Recovery Agents (DRAs) Are Powerless: DRAs have no legal authority to collect the debt and are not a party to the contract allegedly breached. They are simply a third party with no enforcement power. Their sole purpose is to pressure people into paying by inflating the charge with an additional £70 fee, but they cannot legally take any action.
Paying Admits Liability: If the company pays the DRA, it implies that liability is accepted, which is not the case. This could also set a dangerous precedent for future cases, as it signals that the company is willing to pay such charges without challenging their validity. Payment also prevents any further action in contesting the PCN or appealing to POPLA.
Unfair to Charge the Day-to-Day Keeper: If the company pays the charge and then charges the cost back to me as the day-to-day keeper of the vehicle, it would be unfair and unlawful, as I have not been given the opportunity to deal with the matter properly. By paying the DRA, the company would undermine my ability to fully defend against the PCN and avoid unnecessary financial loss.
Conclusion and Next Steps
Recommendation: The company should allow me to continue handling this matter on its behalf. By doing so, the company avoids any liability and allows me to work towards getting the PCN cancelled or further appealed through the appropriate channels.
Ignore DRA Letters: The company should ignore any communication from DRAs, as they have no legal standing and no power to enforce payment. Passing all future communications from the DRA or Smart Parking to me will ensure that this matter is dealt with correctly.
