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PCN Help with Smartparking Ltd.
Sunny Day
post Tue, 2 Jan 2024 - 14:00
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I hope someone can help me with this please (sorry for long post)

I am not a driver and have never held a driving licence or driven a car but I have recently (in the last five months) received three PCN’s from Smartparking Ltd. I am the registered keeper of a motability vehicle as I am in receipt of PIP due to a disability. My daughter is the main registered driver and my son-in-law is also registered to drive the vehicle.

Unfortunately I was caught out three times when visiting the local gym (driven there by my daughter) by going 11 or 12 minutes over the time paid for. The reason was, on the first occasion I came over feeling sick and dizzy when about to leave the gym and had to sit down for a while, the other two times I had an urgent need for the toilet which took me over the time. I didn’t even realise I’d gone over, thinking there was a grace period to get back to the car and out the car park. This car park depends on camera footage which is timed on entering and leaving and seems no time is allowed for parking/paying/getting back to the car and leaving etc. As a disabled person this takes a little bit longer.

I appealed all three PCN’s to Smartparking, two of which I am still awaiting the outcome. The third was rejected, I appealed online to POPLA and I’m still awaiting the outcome.

I have since researched this issue and think I have messed things up with my appeals to both Smartparking and also POPLA as they were along the lines of, “I came over ill and had to use the toilet which made me a few minutes late getting back to the car.” For all appeals I included photos of my Blue Badge, Motability Vehicle proof and my Nimbus Access Card which shows I have toileting needs among other disabilities.

After some research on this site and others, I am not sure whether I am responsible for these charges as I was not the driver (and could not have been as I do not even hold a driving licence). There is no mention anywhere on any of the PCN’s of the Protection of Freedoms Act, and all three PCN’s were well over the 14 days required so if they are relying on the POFA then they were in breach of it. However, I was present as a passenger and the car is registered in my name.

If I am not responsible, my question is - am I done for regarding the POPLA appeal? If they refuse the appeal (as I’m expecting) will I have to pay? Could I write back to Smartparking and tell them I wasn’t the driver and not prepared to name the driver or is it too late? Shall I just let them take me to court?

I made no mention in any of the appeals as to who the driver was, they no doubt assumed it was me but I did not state this nor name anybody.

Just one last thing, even though I appealed all three within the time limit I have still been getting debt recovery letters. I feel I am being harassed as I have email acknowledgements for all appeals.

Any advice would be gratefully appreciated. Thank you in advance.

This post has been edited by Sunny Day: Tue, 2 Jan 2024 - 14:20
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Sunny Day
post Thu, 8 Feb 2024 - 16:09
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Thank you very much, this has been really helpful and I appreciate it immensely.

The only issue I have is with getting letters from my GP, Motability and DVLA. The GP letter would cost me £30, no idea what or if the others would charge. I see this as punitive: is it really my responsibility to prove I was not the driver rather than Smartparking try and prove that I was? (Which would be impossible as I was not). If it was to go to court then I would be prepared to pay for a GP letter and when (hopefully) the case was dismissed I could claim the cost back from Smartparking.

Sorry if I’ve got it wrong again but I don’t see why I should pay to prove my case when it seems Smartparking are in the wrong.

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Redx
post Thu, 8 Feb 2024 - 16:12
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If you win you add it to your costs schedule and ask the judge for your costs to be awarded, various items can be claimed for, at the witness statement stage, the judge may award what they deem fair and reasonable, within the justice system guidelines
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Sunny Day
post Thu, 8 Feb 2024 - 17:15
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QUOTE (Redx @ Thu, 8 Feb 2024 - 16:12) *
If you win you add it to your costs schedule and ask the judge for your costs to be awarded, various items can be claimed for, at the witness statement stage, the judge may award what they deem fair and reasonable, within the justice system guidelines

Yes, I’m prepared to pay for letters in the event it goes to court, but not to send to Smartparking at this stage. If they decide now to cut their losses without going to court, I wouldn’t get a penny back.

I could tell them I would be happy to supply proof from my GP or Motorbility (as I am not insured to drive the car), if it were to go to court, but would be claiming the costs back when I win the case.

This post has been edited by Sunny Day: Thu, 8 Feb 2024 - 17:18
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Sunny Day
post Fri, 9 Feb 2024 - 14:36
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I’ve drafted a reply email to Smartparking, from the excellent advice of hcandersen above. I made a few tweaks, I’m hoping this will get them off my back. I will be sending it tomorrow morning in case it needs more tweaking??


I am writing further to your email of X.X.XXXX and ask you to consider the following:-

Parking Charge Notices ##########, ########## & ##########

I refer to the above three PCN’s which were issued on X.X.XXXX, X.X.XXXX & X.X.XXXX respectively.

I have appealed each of these to POPLA, received a decision in respect of ########## and await those in respect of the others. I have read the decision, which rejected my appeal, and I cannot fault the assessor given the information which I provided in the context of their very limited scope and ability to discover material facts during their consideration. The combined effect of my mistakes, the assessor's limited powers and equally limited knowledge, which is shared by you, is that you are likely to embark upon a course of enforcement which is bound to be unsuccessful.

Let me explain why:

I have never driven a vehicle of any type and do not hold a driving licence. I suffer from Spino Cerebellar Ataxia with symptoms of double vision and nystagmus which would not be conducive to driving or obtaining a licence. Being aware of this, I thought that a simple reference to my condition to you and indeed the assessor would have been sufficient to show that I was not the driver on the days in question. I now wish that I had spelt this out at the beginning of these proceedings and I do so now. I was not and could not have been the driver and therefore cannot be liable for any charges in this regard. If you were to bring this case to court I would supply evidence of this from my GP and also from Motorbility (as I am not named on the insurance further proving I could not be the driver). Any charges incurred in this respect would need to be reimbursed by you when I win the case.

As regards the issue of any liability which falls to me as the registered keeper, you are well aware that by virtue of you not relying upon the Protection of Freedoms Act 2012, Schedule 4, I cannot be held liable. You also cannot hold me liable on the pretext that as I was the keeper I must have been the driver for the reasons above. I am not obliged to name the driver and I decline to do so.

I apologise for not making these facts clearer earlier, but they apply and you could not succeed were you to look to pursue me for these charges. I hope that by setting out the full position you will avoid the expense and reputational damage which you would be bound to suffer should you continue to pursue me in these matters and suggest you cancel all three PCN’s forthwith.

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Sunny Day
post Sat, 17 Feb 2024 - 12:58
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UPDATE:

I’ve had a reply back from Smartparking. They’ve cancelled the two PCN’s still awaiting POPLA decisions. The first PCN which was rejected by POPLA they say needs paying by 4.3.2024 or £10 added and it will go to debt collection.

I’m wondering whether I should reply or just sit and wait for them to take me to court.

Any suggestions welcome.
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Jlc
post Sat, 17 Feb 2024 - 13:13
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QUOTE (Sunny Day @ Sat, 17 Feb 2024 - 12:58) *
I’m wondering whether I should reply or just sit and wait for them to take me to court.

Nothing lost in replying and reminding them you have no liability.

What was POPLA's reasoning?

They aren't particularly litigious.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Sunny Day
post Sat, 17 Feb 2024 - 15:35
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QUOTE (Jlc @ Sat, 17 Feb 2024 - 13:13) *
QUOTE (Sunny Day @ Sat, 17 Feb 2024 - 12:58) *
I’m wondering whether I should reply or just sit and wait for them to take me to court.

Nothing lost in replying and reminding them you have no liability.

What was POPLA's reasoning?

They aren't particularly litigious.

Their only reasoning was that POPLA had upheld the appeal so now I was required to pay.

We can confirm that Parking Charge Notices xxxxxxxxxx and xxxxxxxxxx have been cancelled.

As you have made an appeal with POPLA for xxxxxxxxxx and they have made the decision to also uphold your charge, the parking charge notice now remains outstanding the full amount of £100.00 and will need to paid by the 04/03/2024, after which, if no payment is made, an admin fee of £10.00 will be added and the PCN will be passed to Debt Recovery.

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Jlc
post Sat, 17 Feb 2024 - 15:39
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No, what did POPLA say? (It's not binding on you)


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Sunny Day
post Sat, 17 Feb 2024 - 18:44
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QUOTE (Jlc @ Sat, 17 Feb 2024 - 15:39) *
No, what did POPLA say? (It's not binding on you)

Sorry, I misunderstood. I posted POPLA’s response earlier in this thread. I had appealed to them before I’d researched into it and completely messed up the appeal, so wasn’t surprised when the appeal was rejected. I didn’t know then about the PoFA and appealed solely on mitigating circumstances. The two later POPLA appeals I made a more informed case which hadn’t reached a decision before Smartparking cancelled them after the email I sent (which was helped massively by hcandersen on here).
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Sunny Day
post Fri, 23 Feb 2024 - 16:05
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Smart Parking are digging their heels in, I sent them this reply on Monday:

I acknowledge your cancellation of PCN’s XXXXXXXXXX and XXXXXXXXXX.

Regarding the remaining PCN XXXXXXXXXX, POPLA’s result is not binding on the appellant.  I have no intention of paying this charge for which I have no liability for the reasons I stated in my previous email. 

Furthermore, I will not be responding to any more communication from either you or your debt collectors as I would only be repeating what I have already stated. 

I am willing to contest this charge in court. 




And today received this from them:

Good morning, 

Thank you for your recent communication. 

We can confirm that XXXXXXXXXX remains outstanding at the full amount of £100.00, which is valid for a further 10 days. 

Please be advised that payment can be made via the below methods:
•             By Post: Please send a cheque or postal order, payable to Smart Parking Ltd to Smart Parking Ltd, Unit 43, Elmdon Trading Estate, Bickenhill Lane, Marston Green, Birmingham B37 7HE.
•             By Web: To make a payment online with a debit or credit card, please visit www.smartparking.comand have your Parking Charge Notice Number to hand.
•             By phone: Pay via our 24 hour automated telephone payment service on 0845 805 4802. Please have your Parking Charge Notice Number to hand.

Please note, if no payment is received the Parking Charge Notice will continue to naturally escalate. 

Kind regards,


Will I ever be rid of them?

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DWMB2
post Fri, 23 Feb 2024 - 16:18
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QUOTE
Will I ever be rid of them?

At some point, yes, but possibly not soon. These things can't drag on forever, they have up to 6 years to start a court claim.


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