ParkingEye NtKs are never FULLY compliant with ALL the requirements of PoFA. I already spelled out why and how you should make every effort to educate the POPLA assessor why they should not ignore the point being made. I reproduce it hear for use in your response to the operators evidence pack:
SO, you need to convince a POPLA assessor that the Notice to Keeper (NtK) was not PoFA compliant. Technically, it wasn't because PE NtKs fail to comply with Paragraph 9(2)(e)(i) of PoFA.
However, convincing a POPLA assessor that it isn't compliant requires a lot of descriptive effort. We have yet to see one accept this argument, not because it is not a valid argument but because POPLA assessors conveniently ignore the point.
This is a point made in a very recent response to an operators evidence where they ignored the point raised about PoFA 9(2)(e)(i). It's adapted slightly here:
The operator has failed to comply FULLY with ALL the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), specifically paragraph 9(2)(e)(i). The operator has not adequately address this point, and their generic assertion that the Notice to Keeper (NtK) complies with PoFA is insufficient. It is essential for the POPLA assessor to consider this carefully, as partial or even substantial compliance with PoFA is not sufficient to establish Keeper liability.
The legal requirements of paragraph 9(2)(e) are clear. The NtK must:
“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”—
“TO PAY THE UNPAID PARKING CHARGES” (as per subparagraph (i)).
It is a common error for POPLA assessors to overlook the importance of the last three words of paragraph 9(2)(e), which are "INVITE THE KEEPER", and fail to properly link them to the next requirement in subparagraph (i): "TO PAY THE UNPAID PARKING CHARGES". This distinction is vital, as the requirement to INVITE THE KEEPER is explicit in the legislation and cannot be ignored. POPLA assessors must carefully check whether the NtK explicitly fulfills this requirement, as otherwise they are failing in their duty to impartially assess the operator’s compliance with PoFA.
The operator’s NtK fails to explicitly INVITE THE KEEPER to pay the unpaid parking charges, as required by paragraph 9(2)(e)(i). Whilst the word "INVITE" itself does not have to be used, there must at least be a synonym or clear equivalent that serves to INVITE THE KEEPER. Simply inferring that the Keeper must be invited by the fact that the PCN is addressed to them does not satisfy the requirement of the Act. This omission constitutes a failure to comply with ALL the requirements of PoFA.
The law is clear that FULL compliance with PoFA is necessary for Keeper liability to apply. Partial or even substantial compliance does not suffice. Any failure to meet ALL the requirements renders the NtK non-compliant and prevents the operator from transferring liability from the driver to the Keeper. The operator’s assertion that their NtK is compliant with paragraph 9(2)(b) (which concerns the amount of the charge) does not address their failure to comply with paragraph 9(2)(e)(i). Compliance with SOME provisions of PoFA does not equate to compliance with the ENTIRETY of Schedule 4.
As the operator has failed to comply FULLY with PoFA, they cannot hold the Keeper liable for the alleged parking charge. The operator does not rebut this point, nor does it provide any explanation for their failure to INVITE THE KEEPER to pay the charge as required by paragraph 9(2)(e)(i).
The operator’s NtK is not FULLY compliant with PoFA because it fails to meet the requirements of paragraph 9(2)(e)(i). The operator cannot transfer liability to the Keeper unless they meet ALL the requirements of PoFA. Their failure to do so means that the Parking Charge Notice is unenforceable against the Keeper.
I don't know how more exhaustive you can be to make this point to a POPLA assessor.
I would try a different approach.
As the breach occurred on 29 Sept. the previous Code of Practice applies. I would therefore refer the assessor to the following:
Para. 21.11
The Notice to Keeper serves three purposes:
* it invites the keeper to pay the unpaid parking charge;
* if the keeper was not the driver it invites them to tell you who the driver was;
* it starts the 28-day time period after which the driver may become liable to pay the unpaid parking charge.
Schedule 4 to the Protection of Freedoms Act 2012 (POFA) puts the above in legal terms and expands upon a NTK's requirements, some of which are quite detailed. It may therefore happen, as in this case, that the importance of simple phrases may be overlooked and almost relegated in their importance by creditors in their NTKs. It is one of the duties of POPLA to ensure that such actions- effectively to rewrite the Code and treat para. 9 of POFA as a menu of optional, rather than mandatory, requirements - are not condoned by upholding appeals made on such grounds.
I refer the assessor to the NTK in this case. Nowhere is the keeper invited to pay, however the driver's liability for the charge is made clear as is the fact that service of the NTK starts the 14-day time period during which the parking charge may be paid at the reduced rate. This is not a mandatory requirement of POFA but one imposed on creditors under the Code and which applies once only i.e. it is triggered by service of the NTK.
It therefore follows, not that further elaboration or explanation of the reasons why 'invite the keeper to pay' is a fundamental component of a NTK, that once the 14-day reduced payment offer has lapsed the keeper's prospective liability would be for the FULL parking charge.
The simple but essential phrase 'invite the keeper to pay' makes the keeper aware that what is otherwise described and stressed as being the driver's liability may be discharged by the keeper should they wish to do so and that the 14-day reduced amount applies to them equally as it does to the driver. Without this phrase there is nothing in the NTK to alert the keeper to the fact that they may assume responsibility for the driver's liability.
Or something similar.
Thanks will see how it goes
POPLA has come back rejected. Here is the case below
what would my next steps be?
Assessor summary of your case
The appellant has raised the following points from their grounds of appeal.
• The notice to keeper (NTK) does not comply with the Protection of Freedoms Act (PoFA) 2012, Schedule 4. Specifically it has failed to invite the keeper to pay. The absence of an explicit invitation to pay renders the NTK non-compliant, and as a result, the operator cannot establish keeper liability.
• The NTK also fails to identify the creditor clearly, which is another fundamental non-compliance with PoFA. Since the operator has not fulfilled the statutory requirements, keeper liability cannot be established, and the PCN is unenforceable against them as the registered keeper.
• There is a lack of landowner authority, and they have referred to the British Parking Association (BPA) Code of Practice, Section 7. They have detailed the information a landowner contract must contain.
• The signage at the location is inadequate and fails to meet the standards set by the BPA Code of Practice. The signs were not clearly visible from all parking bays or the entrance. The terms and conditions were not prominently displayed or legible. A motorist cannot be deemed to have entered into a contract if they are not made aware of the terms. After reviewing the operator’s evidence, the appellant has reiterated their case. They have said as the parking breach occurred on 29 September, the operator must adhere to the BPA Code of Practice Paragraph 21.11 in effect at that time. In this case the NTK issued by the operator fails to invite the keeper to pay the unpaid parking charge. While the NTK makes the driver’s liability clear, it does not alert the keeper that they may assume responsibility for the charge. Additionally, the NTK refers to a 14-day reduced payment period, but this is not a PoFA requirement and serves only to confuse the issue further by failing to explicitly invite the keeper to pay the full charge after the 14-day period has passed. They request that their appeal is upheld, as the operator has failed to meet the mandatory standards required for transferring liability to the keeper.
Assessor supporting rational for decision
In this case, I am not satisfied that the driver at the time in question has been identified. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper if the driver or hirer is not identified. Parking operators must follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver and by issuing the PCN to be received within the required timescale. In their appeal, the appellant has said the notice to keeper (NTK) issued does not comply with (PoFA) 2012, Schedule 4, as it has failed to invite the keeper to pay. The appellant has said, while the NTK makes the driver’s liability clear, it does not alert the keeper that they may assume responsibility for the charge. They have said the operator must adhere to the BPA Code of Practice Paragraph 21.11 and this states, The NTK serves three purposes. 1. To invite the keeper to pay the unpaid parking charge. 2. To invite the keeper to identify the driver if they were not the one driving. 3. To start the 28-day time period after which the driver may become liable to pay the unpaid parking charge. The appellant has also said the NTK also fails to identify the creditor clearly. I do not agree with this. From the evidence provided, I can see that on the second page of the NTK it states, “You are notified under paragraph 9(2)(b) of schedule 4 of the Protections of Freedom Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full. As we do not know the driver’s name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them”. It also states, “You are warned that if, after 29 days from the date given (which is presumed to be the second working day after day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you”. I can also see that the NTK issued is addressed to Mr Nima Barani, and this is who is listed with the DVLA as being this vehicle's registered keeper. Therefore ‘you’ in the above statement refers to the registered keeper, Mr Nima Barani. The NTK also states it has been issued by Parking Eye. The Parking Eye logo is at the top of the first page of the NTK, and the website and address given relating to payment states it is Parking Eye the payment is for. Therefore I am satisfied the name of the creditor is clear. In this case, the PCN in question has the necessary information and it was issued to be delivered within the relevant period and therefore the parking operator has successfully transferred the liability onto the registered keeper. POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal. The signage in place sets out the terms and conditions. The signage at this site states there is a 90-minute maximum stay. It also states if the terms and conditions are breached a PCN for £90 can be issued. The parking operator has provided details from its system to show the appellants vehicle was on site for 2 hours and 45 minutes. I acknowledge the appellant has raised landowner authority in their appeal. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the operator has provided a copy of its agreement with the landowner. This states Parking Eye Ltd has the authority to undertake parking management, control and enforcement at the sites listed and this list includes the site in question, Lidl Epsom. This is a letter of authority and therefore is not required to contain all of the details a contract would. From this, I am satisfied that the operator had sufficient authority at the site on the date of the parking event. I also acknowledge the appellant has said the signage on site is not sufficient. When parking on private land, the parking contract is between the motorist and the operator through the terms on its signs. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. The signs do not need to be placed directly in the position where parked, they simply must be placed throughout the site so that drivers are given the chance to read them. Section 19.2 of the BPA Code of Practice states parking operators need to have entrance signs that make it clear a motorist is entering onto private land, and Section 19.3 says parking operators need to have signs that clearly set out the terms within the site. In this case the parking operator has provided a site map and images which shows there are signs situated throughout the site, including at the site entrance. The evidence provided shows the entrance sign states, “PRIVATE LAND…controlled parking area…Terms & conditions apply, see notices for details”. I am satisfied that as a motorist passes this when entering the site, this is sufficient to make them aware they are entering private land and parking restrictions apply. It is then their responsibility to seek out the signage within the site to read the terms and conditions that apply. The terms on the signs within this site signs clearly state there is a 90-minute maximum stay. As it has not been shown otherwise, I am satisfied the terms were clearly demonstrated throughout the site at the time in question and that the driver was afforded the opportunity to read these. I note the appellant has also said the NTK refers to a 14-day reduced payment period, but this is not a PoFA requirement and serves only to confuse the issue further. When a PCN is issued, the parking operator allows a period of time in which a reduced amount can be paid in settlement. This is because if prompt payment is made, the parking operator incurs less costs and they must reflect this in the charge amount. This is stated in Section 20.7 of the BPA Code of Practice, where is says, “If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost must be by at least 40% of the full charge”. Ultimately, it is the driver’s responsibility to ensure that the vehicle is parked in accordance with the terms and conditions of that site. After considering the evidence from both parties, the driver remained at the car park for longer than the stay authorised, and therefore they did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal. Any questions relating to payment of the charge should be directed to the operator.
I’m not reading that.
Others might, but you might want to think about reformatting it so it’s more readable?
Sorry youre right ive broken it up a bit
Assessor supporting rational for decision
In this case, I am not satisfied that the driver at the time in question has been identified. The Protection of Freedoms Act (PoFA) 2012 is a law that allows parking operators to transfer the liability to the registered keeper if the driver or hirer is not identified. Parking operators must follow certain rules including warning the registered keeper that they will be liable if the parking operator is not provided with the name and address of the driver and by issuing the PCN to be received within the required timescale. In their appeal, the appellant has said the notice to keeper (NTK) issued does not comply with (PoFA) 2012, Schedule 4, as it has failed to invite the keeper to pay. The appellant has said, while the NTK makes the driver’s liability clear, it does not alert the keeper that they may assume responsibility for the charge.
They have said the operator must adhere to the BPA Code of Practice Paragraph 21.11 and this states,
The NTK serves three purposes.
1. To invite the keeper to pay the unpaid parking charge.
2. To invite the keeper to identify the driver if they were not the one driving.
3. To start the 28-day time period after which the driver may become liable to pay the unpaid parking charge. The appellant has also said the NTK also fails to identify the creditor clearly.
I do not agree with this. From the evidence provided, I can see that on the second page of the NTK it states, “You are notified under paragraph 9(2)(b) of schedule 4 of the Protections of Freedom Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full. As we do not know the driver’s name or current postal address, if you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them”.
It also states, “You are warned that if, after 29 days from the date given (which is presumed to be the second working day after day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you”.
I can also see that the NTK issued is addressed to Mr Nima Barani, and this is who is listed with the DVLA as being this vehicle's registered keeper. Therefore ‘you’ in the above statement refers to the registered keeper, Mr Nima Barani. The NTK also states it has been issued by Parking Eye. The Parking Eye logo is at the top of the first page of the NTK, and the website and address given relating to payment states it is Parking Eye the payment is for.
Therefore I am satisfied the name of the creditor is clear. In this case, the PCN in question has the necessary information and it was issued to be delivered within the relevant period and therefore the parking operator has successfully transferred the liability onto the registered keeper. POPLA is a single stage appeal service, we are impartial and independent of the sector. We consider the evidence provided by both parties to assess whether the PCN has been issued correctly by the parking operator and to determine if the driver has complied with the terms and conditions for the use of the car park or site. Our remit only extends to allowing or refusing an appeal.
The signage in place sets out the terms and conditions. The signage at this site states there is a 90-minute maximum stay. It also states if the terms and conditions are breached a PCN for £90 can be issued. The parking operator has provided details from its system to show the appellants vehicle was on site for 2 hours and 45 minutes. I acknowledge the appellant has raised landowner authority in their appeal. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question.
This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the operator has provided a copy of its agreement with the landowner. This states Parking Eye Ltd has the authority to undertake parking management, control and enforcement at the sites listed and this list includes the site in question, Lidl Epsom. This is a letter of authority and therefore is not required to contain all of the details a contract would. From this, I am satisfied that the operator had sufficient authority at the site on the date of the parking event. I also acknowledge the appellant has said the signage on site is not sufficient.
When parking on private land, the parking contract is between the motorist and the operator through the terms on its signs. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. The signs do not need to be placed directly in the position where parked, they simply must be placed throughout the site so that drivers are given the chance to read them. Section 19.2 of the BPA Code of Practice states parking operators need to have entrance signs that make it clear a motorist is entering onto private land, and Section 19.3 says parking operators need to have signs that clearly set out the terms within the site. In this case the parking operator has provided a site map and images which shows there are signs situated throughout the site, including at the site entrance.
The evidence provided shows the entrance sign states, “PRIVATE LAND…controlled parking area…Terms & conditions apply, see notices for details”. I am satisfied that as a motorist passes this when entering the site, this is sufficient to make them aware they are entering private land and parking restrictions apply. It is then their responsibility to seek out the signage within the site to read the terms and conditions that apply. The terms on the signs within this site signs clearly state there is a 90-minute maximum stay. As it has not been shown otherwise, I am satisfied the terms were clearly demonstrated throughout the site at the time in question and that the driver was afforded the opportunity to read these.
I note the appellant has also said the NTK refers to a 14-day reduced payment period, but this is not a PoFA requirement and serves only to confuse the issue further. When a PCN is issued, the parking operator allows a period of time in which a reduced amount can be paid in settlement. This is because if prompt payment is made, the parking operator incurs less costs and they must reflect this in the charge amount. This is stated in Section 20.7 of the BPA Code of Practice, where is says, “If prompt payment is made (defined as 14 days from the issue of the parking charge notice) you must offer a reduced payment to reflect your reduced costs in collecting the charge. This reduction in cost must be by at least 40% of the full charge”.
Ultimately, it is the driver’s responsibility to ensure that the vehicle is parked in accordance with the terms and conditions of that site. After considering the evidence from both parties, the driver remained at the car park for longer than the stay authorised, and therefore they did not comply with the terms and conditions of the site. As such, I am satisfied the parking charge has been issued correctly and I must refuse the appeal. Any questions relating to payment of the charge should be directed to the operator.
Name of the moronic POPLA assessor? There are a few of them and I try to keep a log of the ones that need further education on POPLA and the law.
In this case, the assessor has not referred to the "invitation" clause in PoFA. There can be no implied obligation on the Keeper to pay. The Keeper must be invited to pay and no ParkingEye NtK has that invitation.
Never mind. The POPLA decision is not binding on you and does not affect anything going forward. You are under no obligation to pay. If you are prepared to fight this all the way, then let us know.
IMO, the inclusion of peripheral and, frankly, wrong lines of defence gave the assessor the opportunity to reject these at great length while skirting what IMO was the main issue i.e. the invitation to pay being omitted.
I don't necessarily disagree with your conclusion. You are more than welcome to suggest an appropriate POPLA appeal whenever you come across one. There are plenty already on the forum or about to require one.
Claire Brackenridge was the assessor
i'd be happy to continue fighting this. This would be small claims court? I currently have one case that is already in small claims court.
It would be in the small claims track of the county court. The odds of actually reaching a hearing are slim with the most likely outcome either a strike out or a discontinuation.
Cool. so just wait until parking eye send a court letter?
You can safely ignore everything except a Letter of Claim (LoC) and the actual N1SDT Claim Form from the CNBC.