I respectfully disagree. BPA CoP section 23.23 specifically states the following:
Where you receive a complaint that you consider to
be or include an appeal against the validity of a parking
charge notice, you must also treat it as an appeal for the
purposes of applying the timescales in Clause 23.8, and
should inform the complainant as such unless and until it
is clear that the complaint is not relevant to an appeal or
the complainant informs you that they do not wish it to
be so handled.
It might not be immediately apparent that a complaint
served as such relates to one or more specific parking
charge notices, possibly by way of a clarification that
reveals that an appeal would be worthwhile, hence you
are advised to record and handle complaints as appeals
until they are found conclusively not to be so or patently
refer to matters not relevant to the validity of a parking
charge notice.
The primary concern in this case is the operator's unlawful handling of the keepers data. By focusing solely on a complaint about the misuse of the keepers data under GDPR, it emphasises the most critical issue: the operator’s breach of legal obligations by not manually checking the ANPR images and thereby misidentifying the wrong vehicle.
The operator's breach of the BPA Code of Practice (failure to manually check ANPR images as required under Section 21.5a) and the subsequent unlawful request for the keepers data from the DVLA should be the sole focus. By merging a complaint with an appeal, the main issue of data misuse could be diluted or lost.
Filing an appeal, even when separate from a complaint, could be perceived as engaging with the parking charge's legitimacy. This could inadvertently imply that there is a valid case to answer, which is contrary to the assertion that the vehicle is not the keepers.
An appeal suggests that the alleged parking contravention has some basis for discussion. By appealing, the keeper may inadvertently signal that there is a legitimate issue to address, which could weaken their position that the parking charge is entirely unfounded due to a fundamental identification error.
Maintaining a consistent stance that the parking charge is completely irrelevant to the keeper because the vehicle in question is not theirs is crucial. A separate appeal could create mixed messages or confusion regarding their position.
To remain consistent, it is important to only address the issue of unlawful data handling. If the keeper appeals separately, it could create ambiguity about their position and suggest a willingness to engage with a process that they believe is fundamentally flawed due to the misidentification.
Separating a complaint and an appeal could provide the operator with multiple opportunities to argue their case. They might use any response to an appeal to bolster their procedural stance, rather than focusing on their failure to adhere to the BPA Code of Practice and data protection laws.
A separate appeal could give the operator a chance to frame the situation as a standard parking dispute rather than addressing the core issue of their procedural failures and data misuse. By focusing only on a complaint about unlawful data handling, the keeper forces the operator to directly address their compliance failures rather than deflecting to the merits of a parking charge.
Data protection laws, particularly GDPR, have significant legal weight. Emphasising a complaint based on GDPR breaches is be more powerful and more likely to result in meaningful repercussions for the operator than a standard appeal process.
GDPR violations are taken very seriously and can result in substantial penalties for the offending party. By focusing the keepers efforts on a data protection complaint, thy highlight the operator's severe misconduct and increase the likelihood of regulatory scrutiny and potential sanctions, which may be more effective in resolving the matter than an appeal.
This requires a focused strategy on the operator’s significant breach of data protection laws and procedural failings. By only complaining and not submitting a separate appeal helps to avoid any potential confusion or implication of liability on the keepers part, ensuring that their main concern — unlawful data handling and compliance failures — remains the priority.
