POPLA Complaint - Procedural error and mishandling of PCN Appeal.
Original POPLA Code -
Assessor Name
Dear Lead Assessor,
I have recently received an appeal response from your organisation relating to the parking charge identified above.
Unfortunately, the appeal response contains what I can only describe as a glaring procedural error on the part of the assessor.
A key point in my appeal was the non PoFA complaint PCN issued by Euro Car Parks.
This complaint relates purely to the assessor's inability to correctly establish the legal requirements of PoFA Schedule 4 Paragraph 9(2) and, in particular, the requirements set out by para. 9(2)(e).
Para 9(2)(e) requires that the operator's NtK must contain a section of predetermined text followed by a two limbed invitation to the keeper to either pay the outstanding parking charges or to provide driver details in the instance that the keeper was not driving at the time of the alleged contravention.
I am satisfied that my specific appeal point adequately led the assessor to the precise nature of the issue - that the NtK did not contain the required paragraph of text and legal choice which para 9(2)(e) specifically sets out.
At this point, could I respectfully ask you to read and understand the requirements para 9(2)(e)?
In the appeal response the assessor states the following;
"The appellant has stated that the PCN does not include a proper invitation to the keeper. The PCN states, “If you were not the driver at the time the Parking Charge Notice was issued, please provide full name and address of the driver in writing and pass the notice on to the driver.” I am satisfied that this is a clear invitation from the parking operator to the keeper to identify the driver."
In the first instance, I would immediately draw your attention to the fact that the assessor deliberately manipulates the nature of my appeal point - the manipulation occurs because the assessor is struggling to find a rebuttal point if the appeal point is left unmanipulated - a classic legal deflection technique.
What the assessor should say is, "The appellant has stated that the PCN does not include a proper invitation to the keeper to pay the unpaid parking charges" - the assessor deliberately curtails my appeal point sentence because the latter part that says "to pay the unpaid parking charges" is very awkward since it is not rebuttable by the assessor as the required mandatory wording is clearly not present on the operators NtK.
In my appeal I set out the total non compliance with para 9(2)(e) and, in particular, the lack of the required statutory wording along with the non presentation of the required legal choice which 9(2)(e)(I) and 9(2)(e)(II) specifies - I also made clear reference to the fact that the NtK never 'invites the keeper to pay the unpaid charges' as set out in 9(2)(e)(I).
In their response, the assessor deliberately ignores both the missing mandatory wording and the missing invitation to the keeper to pay the unpaid charges.
Instead, the assessor deliberately moves focus on the on the sentence which asks the keeper to nominate the driver.
So, as I'm sure you can see, the assessor is very careful not to comment on the core issue ie the critical parts of 9(2)(e) which are missing.
This appears to be a fairly obvious attempt to avoid finding the NtK to be non compliant - the old adage of, "clarity is exactly what I'm trying to avoid" is never better demonstrated.
The assessor is clearly trying to make compliance a subjective issue because objectivity is legally inconvenient.
If the required mandatory wording and subsequent legal choice was present then I am positive that the assessor would have pointed this out instead of tactically deflecting away from the nature of my appeal point.
In simple terms, the invitation to the keeper to identify the driver is not sufficient to satisfy the complete requirements of 9(2)(e) in the manner which the assessor suggests - 9(2)(e) actually has multiple requirements and the single sentence which the assessor mentions would never be enough to meet those requirements.
The assessor implies that the inclusion of this one sentence satisfies the requirements of 9(2)(e) - This is a clear and obvious procedural error since even the most basic examination of the legislation shows that the requirements of 9(2)(e) are far greater.
I am sure that by now you will have studied the precise wording of Schedule 4 Paragraph 9(2) and, in particular 9(2)(e)?
In order to be compliant the NtK must contain specific mandatory text and legal choices as specified by Schedule 4 of PoFA.
In this instance, the requirements of Schedule 4 Paragraph 9(2)(e) are not satisfied by the operators NtK.
To be compliant, the requirements of 9(2)(e) can only be met if a specific paragraph is placed in the NtK which should read as follows;
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At the current time, Euro Car Parks (the creditor) does not know both the name and a current address for service for the driver.
The keeper is therefore INVITED TO PAY THE UNPAID PARKING CHARGES
Or
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.
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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 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.
In this particular instance;
The Euro Car Parks NtK never states the essential mandatory wording required by para. 9(2)(e) - avoided by the assessor.
The Euro Car Parks NtK never 'invites the keeper to pay the unpaid parking charges' - avoided and deflected by the assessor.
The Euro Car Parks NtK never uses the required mandatory word "or" to connect the two required limbs of the legal choices - avoided by the assessor.
The Euro Car Parks NtK never presents the two limbed legal invitation which para. 9(2)(e)(i) and 9(2)(e)(ii) requires - avoided by the assessor.
It remains unclear to me why the assessor behaves in the way that they do since the requirements of PoFA are actually straight forward when understood correctly - this gives the impression that the assessor is carefully tip-toeing around the key points rather than addressing them - compliance with PoFA is actually a check box exercise for each case which is reviewed - it is arguable that POPLA should automatically review NtK's for compliance in any instance where an operator is claiming keeper liability since PoFA compliance is 100% identical in every appeal.
The missing wording / legal choice is fatal to the operator's reliance on PoFA keeper liability as the legislation requires total compliance with para 9(2).
A search online reveals that POPLA continue to make the most basic errors when assessing NtKs for PoFA compliance.
At the present time it appears that all Euro Car Parks NtKs are non compliant since they lack the required wording.
There appears to be a number of POPLA responses online where assessor's state that a ECP NtK is compliant when the required wording is missing - in each instance the assessor either ignores the appeal point or twists the appeal point in order to provide rebuttal evidence.
I await your considered response.
Best wishes,
xxxxxx xxxxxxx
