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> PPCs - fighting back. The forces are aligned , and their 'business model' is untenable
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Note that the author is is not a solicitor and has no legal qualifications.
Please keep that in mind.

The new 2008 Consumer Regulations
http://www.direct.gov.uk/en/Motoring/Ownin...icle/DG_4022067
have put the cat amongst the pigeons in my view.

(The whole thing is worth reading, it doesn't just apply to all PPCs it applies to all "commercial practices".)

The more I have looked at the Regulations the more I am convinced that they could either transform or wipe out the PPC industry as we know it.

The PPCs and the BPA are struggling to deal with this. The BPA is covering itself and the PPCs cannot comply and still run their con trick in a way that will work.

The DVLA may also have helped put a second cat among these pigeons.

Since October 2007 the DVLA have insisted that only Approved Trade Associations (ATAs) can have electronic access to DVLA records (the BPA is not the only one but it is the only one of relevance to the PPCs). the DVLA terms this link "Approved Conditional Access" or ACA.

We know full well that the BPA is trade association out for its members, that is councils and PPCs, and that the DVLA loves its six million a year plus revenue from selling RK details. What they have in common is that their self interest forces them to cover their own backsides. I believe this has created a 'fork' as chess players would call it.


BPA members - background.

I classify the PPCs into different classes.
1) The outlandish who send outrageous paperwork and often seem to violate the Fraud Act 2006. Mostly not BPA members but cannot be sure as the BPA keeps its full membership list secret.
2) The centre ground - mild mannered beneath the radar not very big companies.
3) The bigger players. Members of the BPA "Approved Operator" scheme. Players who need the electronic link to the DVLA for reasons of scale.

The initial focus of this article is that latter group but will carry on to discuss the Consumer Regulations in a way that can be used against any PPC.

The Approved Operator Scheme (AOS) came about in October 2007 at the same time that second part of the BPA's Code of Practice for parking enforcement on private land and unregulated public car parks was launched and came into full force.
This is also the same timeframe that that the DVLA imposed its trade association membership requirements. Not mere co-incidence !

The list of members in the Approved Operator Scheme is subject to change but is available on the BPA website. It is a condition of being an ATA that this list is kept public there. So if at any time it is not available then report this to the DVLA forthwith.

It is linked to on here (at the time of writing)

http://www.britishparking.co.uk/info_page....&info_id=21

If the list of AOS members cannot be found on the BPA site then post about it in the Parking forum. The list should be there so have a look around in case they moved it elsewhere and the link to it in thois FAQ may need updating.

So we have a list of Approved Operators (that has so many of our well known 'friends').
Now the DVLA aspect (before using them together as the 'fork').

The following document is repeated underneath the URL link - merely in case the URL changes as they are prone to do.
http://www.dvla.gov.uk/media/pdf/leaflets/...onal_access.pdf

"Approved Conditional Access (ACA) for Electronic Access
Some companies have Approved Conditional Access (ACA) which allows them to request and receive data via a secure electronic link. These links are operated in the context of clear terms of agreement detailing when information may be requested, how it can be used and how it should be stored. Transactions are subject to audit and review.
All companies now seeking ACA status must first serve a six-month probationary period using manual enquiry forms. Any complaints are logged and closely monitored. On completion of a satisfactory probationary period an electronic link may be established. All companies or organisations that do not have a statutory regulator are required to be a current member of a DVLA Accredited Trade Association (ATA).
Associated Trade Associations (ATA)
All ATAs must have an enforceable Code of Practice (COP) governing the conduct and business practices of their members. All ATAs have to:
• maintain records on all complaints and their resolutions
• monitor compliance, ensuring members act in accordance with the COP
• undertake to expel any member who fails to comply with the COP and notify DVLA with 24 hours of the suspension/expulsion of any member
• investigate at DVLA’s request any complaints about alleged breach of the COP or inappropriate use of information and report on the outcome
Those ATAs who fail to enforce their COP will lose their accreditation and their members will forfeit their entitlement to request and receive DVLA data electronically. This requirement is being enforced consistently for all ‘unregulated’ bodies, regardless of the industry in which they operate.
Any organisation that wants to apply to become an ATA should write to Policy Casework and Advice, Zone 1/D16, DVLA Swansea SA6 7JL for the criteria for becoming an ATA.
All ATAs must publish their COP on their website and provide contact details for enquiries and complaints.
The DVLA has approved the following as ATAs.
The British Parking Association (BPA) - more information about their Approved Operators Scheme is published on their website at www.britishparking.co.uk
The Association of British Investigators (ABI) - more information is published on their website at www.theabi.org.uk
The Finance and Leasing Association (FLA) - more information is published on their website at www.fla.org.uk"



So we have conditions applied by the DVLA that the BPA should uphold its published CoP.
Of course we all know that the DVLA makes millions every year from selling Registered Keeper details to a wide range of organisations (full list on the DVLA website for any interested).
The DVLA will not want to turn off that tap especially to the PPCs as that is a volume business for the DVLA. Tough ! In covering themselves the DVLA has also made a rod for its own back


And the BPA shows willing
http://www.britishparking.co.uk/info_page....info_id=21#what

Note that "The BPA Code of Practice supports the AOS. Continued BPA membership is dependent on operators in this sector signing up to the Code of Practice and joining the AOS."

So 2007 ties things up together then along comes 2008..

So where do the 2008 Consumer Regulations come in (on 26th May).

Trading Standards actually reached out pro-actively to the BPA and drew their attention to them, inter alia to Regulation 7 which deals with aggressive and unfair trading practices:-

7.1 A commercial practice is aggressive if, in its factual context, taking account of all its features and circumstances –
a) it significantly impairs or it is likely to significantly impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
b) it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.
7.2 In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of –
a) its timing, location, nature or persistence;
b) the use of threatening, abusive language or behaviour;
c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgement, of which the trader is aware, to influence the consumer’s decision with regard to the product;
d) any onerous or disproportionate contractual barrier imposed by the trader where the consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or anther trader; and
e) any threat to take any action which cannot be legally taken.
7.3 In this regulation –
a) ‘Coercion’ includes the use of physical force; and
b) ‘undue influence’ means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.


Anyone with even just a passing familiarity with PPC letters and invoices will see straight away that they now have a problem with this. A BIG problem. If they abide by this their conning letters will be gutted and will have to be honest in their mails. This could well cause the collapse of the PPC business as we know it. If the PPCs do not obey the statutory Consumner Regulations then they are acting unlawfully

What is more the BPA seem to agree with me !

A kind anonymous soul provided me with some of the communications that the BPA has sent out to ALL the AOS members.


"Whilst this is a new and untried regulation, members should be aware that sending a demand for payment to the vehicle keeper (as opposed to the driver) - without making it clear that the liability is with the driverwould fit within this regulation. Members should also be aware of the methodology used in the escalation of excess parking fees, ensuring that this escalation cannot be considered to be an ‘aggressive practice’."

"Members should therefore ensure that – for the time being – all correspondence with the vehicle keeper makes it clear that the contractual liability lies with the driver who parked inappropriately"

Note the ' - for the time being -'. You can bet the BPA is seeking legal advice.

To cover itself the BPA has made its AOS members sign off a personal responsibility declaration which begins:-

"I hereby confirm that I have read and understood the BPA Code of Practice for Parking Enforcement on Private Land and unregulated Public Car Parks. Part 1 Vehicle Immobilisation or Removal and/or Part 2 Parking Tickets and will ensure that, as a member of the British Parking Association, the company:
1. Complies with these Codes of Practice.. .....
"

In further covering of its own backside the BPA has made all AOS members sign an Evidence of Compliance Report. Without completion of this latter form there is no BPA membership.

The Code of practice is available on the BPA website - as it has to be to satisfy the DVLA condition as at the start of this article. A the time of writing there is a pending update to the BPA CoP but such is the dilemma they are faced with they have already implemented the changes.

Once again that kind anonymous soul (who I hope will still send me the odd snippet after this is published) sent me a snippet of a note the BPA sent to all BPA members weeks ago. when you read the following text you will see that it should have already been implemented. This is good for the public and potentially bad for the PPCs.

"2. Keeper/driver liability
2.1 Changes to Code of Practice - Part 2 Parking Tickets
The paragraph 36) C) – xviii (Parking Ticket Issue - page 10) will be amended to read:
“What will happen next if no payment or challenge is received within the time(s) allowed and any further charges that may be accrued, e.g. “the name and address of the registered keeper of the vehicle will be requested from the DVLA and a request will be sent to the keeper asking for the name and address of the driver at the time the charge was incurred””.
2.2 The paragraph 67) A) (Enforcement Action on outstanding parking tickets – Notice to Owner - page 13); this “letter to the owner” should make no reference to asking for payment but should specifically point out the details of the contravention and request that the owner furnish the details of the driver at the time the charge was incurred.
3. Implementation
3.1 Because of the importance and possible implications of this information, these amendments are to be implemented immediately. Members involved in ticketing operations should contact BPA to confirm receipt and acknowledgement of this notice, and should contact BPA again to confirm an implementation timescale within a week of sending the first e-mail."


If you go to the BPA url shown above to inspect the AOS members list then scroll down the web page and you will see these forms mentioned above have no been posted publicly by the BPA (since this FAQ was first published as it happens).


So finally we get to the conclusion !! (Hurray you shout...)

Any letters coming from ANY AOS members that does not comply with:-
"making it clear that the liability is with the driver"
and or is not the same in meaning as
“the name and address of the registered keeper of the vehicle will be requested from the DVLA and a request will be sent to the keeper asking for the name and address of the driver at the time the charge was incurred””.
means they are non-compliant with the BPA CoP. This same CoP they have been forced to personally sign off on and that the DVLA insists upon. Nice ! smile.gif
Vigorous complaints should be made in every case stating such to the DVLA and reminding the DVLA of their own statement:-

"investigate at DVLA’s request any complaints about alleged breach of the COP or inappropriate use of information and report on the outcome"


A complaint should also be made to the BPA (yes I know how daft that sounds) reminding them of the DVLA imposed constraints of:-

"• maintain records on all complaints and their resolutions
• monitor compliance, ensuring members act in accordance with the COP
• undertake to expel any member who fails to comply with the COP and notify DVLA with 24 hours of the suspension/expulsion of any member"


According to their own website the BPA have employed a Compliance Officer - I hope he/she has a large in-tray on their desk. The BPAs own ad for the role said "The position will be responsible for ensuring that complaints of non-compliance with the scheme are addressed speedily and effectively".

This will only work if people actually write those letters of complaint to the DVLA and the BPA.
The choice is yours



"We need letters, lots of letters...to build the weight of evidence"


meanwhile

Do NOT contact the PPC (that is exactly what the PPC wants you to do !)
Do NOT pay the PPC
Tell ALL your friends how to handle this scam.

and email the DVLA for ALL the V888/3 request information including evidence of contract/agreement with the landowner - you may well find that the landowner is someone quite unnexpected. This will also get you the real address of the PPC. P.O boxes are not allowed for V888/3 requests. And you will get the ICO registration number of the company making the request. It should be an AOS member. It may not be the same PPC that sends the invoice... the V888/3 responses can reveal information that is very usable in complaints as outlined above and the ICO. I have seen a few V888/3 responses and they have all been worth seeing and at the cost of sending an email to the DVLA why not do it ?

It is notable that the DVLA has changed the V888/3 form in Q4 2008. Secretly the DVLA likes PPCs, well their money anyway. That PPC money really comes from victims of the PPCs and rperesents only a small portion of the money that unknowing and scared victims pay to PPCs every year. So its a good idea to turn off that tap smile.gif


get a copy of the current V888/3 form here
http://www.direct.gov.uk/en/Motoring/Ownin...p;Rendition=Web[attachment=4646:DG_40220...888_form.pdf]


Notioce how the DVLA call its a 'Penalty Charge' - when it can;t be as per the contents of the form - 'landowner'

http://www.direct.gov.uk/en/Motoring/Ownin...icle/DG_4022067


Addition:-

I have created a pro forma letter to the DVLA that brings in the above and asks for the V888/3 information.
As ever comments are welcome especially as this was created by butchering a V888/3 template and not purpose written from scratch..

Please be aware that this pro forma will need modifying to suit and that it is aimed at AOS PPCs only. For queries to the DVLA related to genuine council PCNs scroll down a bit. There is pro fprma for that after this one.

=============================================

Vehicles Fee Paying Enquiry Section
DVLA
Swansea
SA99 1AJ

Month Day, yyyy
Release of Information,
Fee Paying Enquiries Section,
DVLA,
Swansea
SA99 1AJ.
Dear Sir/Madam,

This letter is not requesting personal information and so is not a
Subject Access Request under the Data Protection legislation therefore
I believe no fees are involved.

As your records will show I am the Registered Keeper of vehicle index XXXXX.

On the nnth of Month 200y my vehicle garnered a purported ["Fixed Penalty Charge"/”Penalty Charge Notice”/”Parking Charge Notice”] from [Name of PPC], a photocopy of which is enclosed.

Following this I received a [“Final Reminder”/”Notice to Owner”/”Letter to Owner”] about this 'Charge' and the alleged 'Contravention': a photocopy is enclosed.

Please note neither of these documents contains the actual address
of [Name of PPC]which I am advised is in breach of "The Companies (Registrar, Languages and Trading Disclosures) Regulations 2006 (S.I. 2006 No.3429)"

I add for your information that I have also been referred to multiple
Statutes which may be being broken by [Name of PPC] including but not limited to:-
• The Enterprise Act 2002 (Supply of Services) Order 2003
• Misrepresentation Act 1967
• Fraud Act 2006
• The Consumer Protection from Unfair Trading Regulations 2008 (particularly Regulation 7).

It is due to the latter Statutory Instrument, and having their attention drawn to it by Trading Standards, that the BPA have already made a rapid change to their Code of Practice, as I am sure you are aware. The BPA issued a note containing the following:-

"2. Keeper/driver liability
2.1 Changes to Code of Practice - Part 2 Parking Tickets
The paragraph 36) C) – xviii (Parking Ticket Issue - page 10) will be amended to read:
“What will happen next if no payment or challenge is received within the time(s) allowed and any further charges that may be accrued, e.g. “the name and address of the registered keeper of the vehicle will be requested from the DVLA and a request will be sent to the keeper asking for the name and address of the driver at the time the charge was incurred””.
2.2 The paragraph 67) A) (Enforcement Action on outstanding parking tickets – Notice to Owner - page 13); this “letter to the owner” should make no reference to asking for payment but should specifically point out the details of the contravention and request that the owner furnish the details of the driver at the time the charge was incurred.
3. Implementation
3.1 Because of the importance and possible implications of this information, these amendments are to be implemented immediately. Members involved in ticketing operations should contact BPA to confirm receipt and acknowledgement of this notice, and should contact BPA again to confirm an implementation timescale within a week of sending the first e-mail."

Please also take note of the fact that the 'Reminder' clearly states that [Name of PPC] is attempting to shift the liability of an alleged contract to a third party - namely me. This is not a genuine PCN as issued by councils so any alleged contract is clearly with the driver whom [Name of PPC] have never addressed nor as far as I can tell even tried to identify prior to demanding money from the Registered Keeper. This is clearly not lawful. It is also against the BPA Code of Practice (CoP) which the DVLA insists is adhered to and enforced. As I understand it the BPA has made all members of the “Approved Operator Scheme” (AOS) personally sign off that they have adopted appropriate wording viz:-

"I hereby confirm that I have read and understood the BPA Code of Practice for Parking Enforcement on Private Land and unregulated Public Car Parks. Part 1 Vehicle Immobilisation or Removal and/or Part 2 Parking Tickets and will ensure that, as a member of the British Parking Association, the company:
1. Complies with these Codes of Practice....... "


The BPA has made it clear to all AOS members that written communications should "make it clear that the liability is with the driver"

AOS members have also been told by the BPA that communications should only convey the message that:

“the name and address of the registered keeper of the vehicle will be requested from the DVLA and a request will be sent to the keeper asking for the name and address of the driver at the time the charge was incurred”

[Name of PPC] is a member of the AOS, as per the published list on the BPA website but is most clearly not adhering to the Code of Practice nor to the Notes that the BPA has sent them.

I am sending a letter of complaint to the BPA Compliance Officer about this and will keep you informed of the response as I fully expect the BPA to be held to the conditions imposed by the DVLA by the DVLA itself and to actually do something about this.

If they fail to take positive steps then I will of course be in touch with you. As you know the BPA is a private company and so is exempt from Freedom of Information requests and may choose not to send me such supporting as a copy of the personal sign-of to the CoP by [Name of PPC]. In which case I will ask you to:-
“• investigate at DVLA’s request any complaints about alleged breach of the COP or inappropriate use of information and report on the outcome.”

This 'Charge' is in fact an invoice from a private company and is not
a [“Fixed Penalty Charge”/”Penalty Charge Notice/”Parking Charge Notice”]. Penalties in civil contracts, where such contracts actually exist, are unenforceable in English law. This is long established as Excel parking recently found out in Court when losing the case they foolishly mounted to enforce such a charge.
Much Case Law has been quoted to me in this regard especially, but not limited to:-

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1915).
Notice'.

The weight of law in this area, both statute and well established case law, clearly shows that [Name of PPC] are not using the Information they obtain in a "fair and responsible manner". Hence their 'cause' is 'unreasonable'.

Assuming that the DVLA have assessed [Name of PPC] on their behaviour on the use of the data that you have supplied, I formally request a copy of that assessment.

From the information on the DVLA web site it is apparent that [Name of PPC] should have used form V888/3 to request my details from you and that they also have to supply adequate information to The DVLA in order to qualify to use this service. They also have to meet well stated conditions in their business operations and in their use of the data that you supply.
I formally request a copy of their request plus all supporting documentation that [Name of PPC] sent to you to obtain my personal information in order to issue the attached communications. This includes the documentation required to satisfy:-

"Companies acting on behalf of landowners must provide evidence
(contract/agreement) from the landowner to confirm that they are acting with the consent of the landowner. Enforcement companies don't have to provide contracts but should supply a letter from the landlord (on headed paper) confirming that they're acting with the approval of the landlord in enforcing parking restrictions.
Letters should also include the start and end date of the contract, the locations of sites and if CCTV or manual ticketing is in operation."

It is also a condition that:-
"Material evidence should be provided that a penalty charge scheme is in operation and that signs are clearly visible to drivers. You must confirm if CCTV cameras are in operation or if notices are left on vehicle windscreens. Full details of your operations must be included with your application."

I request a copy of that material evidence.


I fully realise that the DVLA has no authority to regulate any
Parking Companies nor to arbitrate in any dispute, I am not asking you to do either of those things. I am asking for Information and pointing out to you the true nature of the business of this client of yours and how they conduct their business and how non-straightforward it is.

Based on this evidence plus the supplied outline of just SOME of the
laws being broken and the signed-off BPA CoP which the DVLA insists is enforceable I do have the expectation that you will deal with this appropriately according to your own published polices and procedures.

I believe it has been more than amply demonstrated that the use
[Name of PPC] made of the information you supplied is neither lawful nor 'reasonable', that they have no behaved "in a fair and responsible way" and that they have not used the data "for the purpose for which it is requested" as they they are unequivocally in breach of the BPA’s CoP.




Yours faithfully.
XXXXX

-----------------------------------------------------------------

WHEN WRITING TO THE DVLA ABOUT A GENUINE COUNCIL PCN

Often a council (some in particular) serve late postal PCNs - a Reg 10 parking PCN, A Bus Lane or other CCTV generated ticket. Well outside the regulations,
These councils always claim that the lateness was caused by a late response from the DVLA so that their PCN stands and you need to pay up. Regular readers on Pepipoo known that councils can get 'confused' about these things and it is never wise to take their word for anything.
The electronic interface the councils use has an overnight run and the normal response time is next morning.
In such instances of lateness by all means ask the council what datee they put their request to the DVLA and what date the DVLA responded. By all means see what the council responds with regarding the date of the request and the date of the response. But even if they don't give you both dates (they probably won't) them merely asserting that the response was late from the DVLA is enough for you to go to the horses mouth and find out what really happened.
So for that you need a different letter to the DVLA. In the text below make nn/xxxx/nnnn the day before the date of the alleged contravention. Better yet make it two days before:-

Vehicles Fee Paying Enquiry Section
DVLA
Swansea
SA99 1AJ

Month Day, yyyy
Release of Information,
Fee Paying Enquiries Section,
DVLA,
Swansea
SA99 1AJ.
Dear Sir/Madam,

This letter is not requesting personal information and so is not a
Subject Access Request under the Data Protection legislation therefore
I believe no fees are involved.

As your records will show I am the Registered Keeper of vehicle index XXXXX.

I require you to send me the dates and times of queries against my VRN XXXXX issued by yyyyy council since nn/xxxx/nnnn. I also require the dates and times of the matching responses that you provided to yyyyy council.

Yours,
etc
--------------------------------------

This may not bring you joy. the DVLA may have been late or it may be a recent registration/change of Registered Keeper caught in the eternal backlog that is DVLA registration.
But then again if the council was 'confused' and they submitted their request late... smile.gif
Only one way to find out. Send the letter.


Complaint letter to the BPA

As described above the BPA is held accountable for keeping detailed records of complains so also send this letter.

If no one sends the complaints they will not be held accountable - it is that simple.

Check that the PPC is a member of the BPA's AOS (the link is provided above)

if the paperwork from the PPC does not abide by the COP as described above then send this - modified to suit. Photocopy their 'Notice to Owner'/letter/all failing documents and staple to this letter:

Compliance Officer
British Parking Association
41-43 Perrymount Road,
Haywards Heath,
West Sussex,
RH16 3BN

Dear Sir,
Please find attached a purported ["Notice to Owner"/"Letter to owner"/"whatever they called it"] sent by [Name of PPC].

It is my understanding that this is, inter alia, a breach of the BPA's Approved Operator Scheme (AOS) Code of Practice (as ammended) - a scheme that the DVLA insists in enforceable and a scheme that [Name of PPC] will have signed up to.

This letter is an official complaint about said breach.

It is also my understanding that all AOS members have had to provide the BPA with a signed statement of compliance so I request a copy of said a statement from [Name of PPC].

I hope that do not find myself at some stage in the near future of having to pursue this matter directly with the DVLA as besides having to deal with this breach I would also have to deal with the issues of Approved Conditional Access and, it seems likely, the issue of the DVLA's governance of Approved Trade Associations. I am fully prepared to do so but hope that I will not find that I have to do so.

Please note that nothing in this letter restricts me from pursuing issues related to possible breaches of, inter alia, The Consumer Protection from Unfair Trading Regulations 2008 (Regulation 7 Aggressive Commercial Practices) and the Fraud Act 2006 (S2).

I am hoping that your response will be a clear and unambiguous decisive declaration that means I will feel no need to take this matter any further.


Yours sincerely,


--------------------------------

By all means copy your MP on these letters and the responses you get, especially so if dissatisfied with the responses.


You will be helping greatly if you post up pictures/scans of the responses you get (scrubbed of your personal details) on the Parking Forum.

Last update: Tue, 10 Aug 2010 - 15:21 by bama    Created: Wed, 10 Sep 2008 - 21:44 by bama    Edits: 15    Views: 45,929
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