ECP, NTK help needed Options

[Flopdc]

Hi and thank you for taking the time to read this request for help

An NTK has been received by post from Euro Car Parks.
The following information is included:
Under Para 9(2)(b) of Schedule 4 of the PoFA 2012.
It is advised that if after 29 days from the date given (presumed to be second working day after the Date Issued) etc etc…
This notice is issued under Para 9(2)(f) of schedule 4 of PoFA 2012 and is subject to compliance with applicable conditions under Schedule 4 of the Act.

· Date of Event: 20/08/2019
· Issue date: 02/09/2019
· Date: 02/09/2019
· The P&D/permit purchased did not cover the date and time of parking
· Two cropped images of the vehicle registration are shown for the date of event with entry times of 12:51:05 and exit time 14:14:02

Would it be correct therefore, that the NTK should with a commencement date of 21/08/2019 have been delivered by the relevant period to the registered keeper no later than 03/09/2019 (14 days as set out under Schedule 4 PoFA)?

The images of vehicle registration showing enter/exit times do not appear to have been digitally produced so this is not evidence of actual time parked which is different .

The keeper departed on holiday on 05/09/2019, the NTK had not been delivered by then the latter cannot be proven. On returning from holiday on 30/09/2019 when the NTK was found in the mail the following day it was already too late. The keeper would never have been in a position to challenge the invoice, pay the reduced invoice of £60, payable within the 14 days of the date issued, avoid the £100 or indeed appeal within the 28 day time limit. The envelope shows no evidence of when the NTK posted as there is no stamp/frank mark as it was sent via a UK Mail PO Box address, likely bulk mail. It is unclear what the “Date 02/09/2019” on NTK refers to and so can it be “presumed, unless to the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph 4) on the second working day after the day on which it is posted”?

The keeper, today established through land registry records the identity of the landowner to request their intervention to cancel this invoice due to mitigating circumstances however, could see no benefit given that the owners are in fact Euro Car Parks Management Ltd.

The keeper lives in another part of the country to the event car park location
and is unable to produce images of ECP’s signage, however some have been found if needed on the forum from the same event location.

Does the keeper have a case? Have ECP breached conditions imposed in Schedule 4 of PoFA, does the keeper still have grounds to challenge this invoice? If so, advice on best way forward along with any wording would be greatly appreciated.

Thank you.

This post has been edited by Flopdc: Sat, 5 Oct 2019 - 16:44

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[ostell]

The PCN was issued on day 13 do is assumed to be delivered 2 working days later, day 15. Whoops!


Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to deliver the notice within the relevant period of 14 days as prescribed by section 9 (4) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

Any further communication with me on this matter, apart from confirmation of no further action and my details being removed from your records, will be considered vexatious and harassment. This includes communication from any Debt Collection companies you care to instruct.

Yours etc

[Flopdc]

ostell

Thank you for your response and confirmation. Send via email or snail mail+ proof of postage or both? Presumably, there will be a need after an outright rejection for a POPLA appeal using the POPLA code they will send to me?


Out of interest is there anything in legislation for timely challenges & appeals?

This post has been edited by Flopdc: Wed, 2 Oct 2019 - 21:44

[nosferatu1001]

We basically dont care, you pick. One is free.

Yes, you use POPLA to get this beaten.

No, there is no legislatoin at all (yet)

[Flopdc]

Thank you Nosferatu1001. No we wait.

Ostell, To prepare a response for a POPLA appeal, I've looked for one of your POPLA guidance templates relevant to the above in the succussful POPLA cases but most seem to be dated back to 2017 or so. Could you possibly guide me to something more up to date please. I don't want to leave any stone unturned or more crucially, forget to include something crucial. Once I've prepared the appeal and I know it is asking a great deal for anyone's precious time, perhaps I could post the draft for some extra pairs of eyes to check it over. Additionally, did I read that it is the POPLA appeal that should be sent to them on the 26th day?

Many thanks again to both for your help to date.

This post has been edited by Flopdc: Thu, 3 Oct 2019 - 16:30

[nosferatu1001]

No, you cannot appeal to POPLA yet. You have fundamentally misunderstood the process

You appeal to the PPC on day 26. 99% of the time they will reject you
They then provide you a POPLA code
You appeal to POPLA with the 28 day deadline

POPLA appeals - MSE forum parking sub forum ALSO has appeals. Around 4000 words on average.

[Flopdc]

If you mean 26th day from NTK issue date, that was not possible as 29 days had already passed when received and the "Dear Sirs" was emailed to PCC at earliest opportunity on day 31. I am aware PCC will reject and expect a POPLA code and would then need to send an appeal to POPLA for consideration. What exactly have I misunderstood? Nervous now that this has fallen at the first step.

This post has been edited by Flopdc: Fri, 4 Oct 2019 - 11:46

[nosferatu1001]

There is no need to send the POPLA appeal on day 26
The only time the timing of the POPLA appeal matters is when you are trying to not alert them to a NtK having been sent

You only send the initial apeal on day 26 in response to a NtD, to again , try to not make them send a real NtK.

[Flopdc]

My original question re 26th day was because I knew I'd read it somewhere & couldn't remember what it was related to. So to clarify

You only send the initial apeal on day 26 in response to a NtD, to again , try to not make them send a real NtK. day 26 could not have been applicable in this scenario? Has anything been jeopardised by sending that email?

[nosferatu1001]

The only way you can jeopardise is by ginving away the drivers identity. If you do so then POFA goes out the window.

[Flopdc]

I understand.

Ha ... and as we speak, a Final notification Letter has arrived whereby discounted amount no longer applies and the outstanding balance is of course £100. As the "Dear Sirs" has been sent notifying them of their non compliance within the Act, does this letter require a further response?

[Dennis Basher]

Given that ECP failed to deliver a notice to keeper within the relevant period specified under Paragraph 9 of Schedule 4 of POFA, they have been very naughty in claiming keeper liability. You can submit a formal complaint to the BPA about ECP's breach of Paragraph 21.10 of the BPA Code of Practice:

If you are not making use of the keeper liability provisions of POFA or you are unable to achieve the deadlines specified therein, your letter must not reference POFA or state that the keeper is liable.

This will put ECP on the naughty step and the BPA should instruct them to cancel the PCN.

[Flopdc]

Thanks Dennis Basher. Would you recommend BPA complaint simulatenous to a POPLA appeal, once I've had my "Dear Sirs" rejected & received a POPLA code or instead? Any suggestions for wording in a complaint. Which is more likely to result in a cancellation?

This post has been edited by Flopdc: Mon, 7 Oct 2019 - 20:17

[nosferatu1001]

Complaint to the bpa at the same time as you enter the popla appeal. Then they get charged

Popla must cancel given the non compliance, barring the fact their assessors are barely trained , but I'd imagine the bpa will tell ecp to cancel.

[Dennis Basher]

Here's a suggestion for an email complaint to the BPA - aos@britishparking.co.uk

Formal Complaint: Euro Car Parks Limited – Parking Charge Notice (“PCN”) Ref. 8888xxxxxx

Dear Sir,

I write to submit a formal complaint regarding a breach of the BPA Code of Practice ("CoP") by Euro Car Parks Limited (“ECP”) in its issue of the above-detailed PCN. This concerns the PCN’s invalid claim to keeper liability under Paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA 2012”) which puts ECP in breach of Paragraphs 21.6 and 21.10 of the CoP i.e.

21.6 If you want to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and you have not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, your Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).

21.10 If you are not making use of the keeper liability provisions of POFA or you are unable to achieve the deadlines specified therein, your letter must not reference POFA or state that the keeper is liable.

I attach a copy of ECP’s PCN from which it is clear that ECP did not meet the timetable set out in Schedule 4 of POFA 2012; I draw your attention to the following:

• Date of parking event: Tuesday 20th August 2019
• In accordance with the terms of Paragraph 9 (5) of Schedule 4 of POFA 2012, the relevant period for the delivery of the notice to keeper was therefore the 14 days from Wednesday 21st August 2019 to Tuesday 3rd September 2019 inclusive.
• Date of issue of notice to keeper: Monday 2nd September 2019
• Paragraph 9 (6) of Schedule 4 of POFA 2012 states that a notice sent by post is presumed, unless the contrary is proved, to have been delivered (and so “given” for the purpose of sub-paragraph (4)) on the second working day after the day on which it was posted.
• Therefore the notice to keeper was deemed to have been delivered on Wednesday 4th September 2019 – after the end of the relevant period.

I refer you to the Supreme Court’s judgment in the case of ParkingEye v Beavis in which it was noted that in order for Mr Beavis to avoid breaching his contract with ParkingEye all that he needed was a watch. In this instance, in order to avoid breaching the CoP all that ECP needed was a calendar. Therefore I do not accept that the BPA can dismiss ECP’s breach as a mere “administrative error”.

Please investigate ECP’s clear and obvious breach of the CoP.

Thank you for your cooperation and I look forward to receiving your confirmation that ECP has cancelled this PCN.


Yours faithfully

etc.

Please note that the BPA have now set up an online portal for complaints. However, this currently includes a requirement for the complainant to tick a box agreeing to the BPA at all times owning their data; the BPA have acknowledged that this is not reasonable and are looking to make changes. In the meantime the BPA have said that they will continue to accept email complaints.

This post has been edited by Dennis Basher: Tue, 8 Oct 2019 - 17:47

[Flopdc]

Thank you both for your very helpful replies and particularly the BPA suggestions, the data policy noted for future reference.

Here is the response to “Dear Sirs” email sent to info@eurocarparks.com and receipt acknowledged the same day by the customer service team

Good morning,

I can confirm that Parking Charge Notice xxxxx, was issued under PoFA conditions (Schedule 4) and the registered keeper is made liable through civil action.

In line with British Parking Association (BPA) Code of Practice, Euro Car Parks are obliged to notify the registered keeper within 14 days of the contravention date.
ECP have followed due process and procedure.

The date of contravention was 20/08/2019 and the Notice to Keeper was issued on 02/09/2019.

If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012 (‘the Act’), Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid.

Please note that if you will not provide a serviceable address for the driver, liability will be stay with the Registered Keeper.

Kind regards,

Includes attached copies of NTK & Final Notification Letter.


This response doesn’t indicate from whom this was sent other than the above email address that it was originally sent to. Which stated:

this is an automated response to confirm that we have received your email and will update you accordingly. You can expect a reply by email within the next 10 working days. If the PCN is with Euro Car Parks, you can expect an appeal response within 35 days.

……. Appeals: We do not accept Appeals via email/telephone.

If you are unable to log the appeal via the website and have sent an appeal with full information and supporting documentation via email – it will be passed to the appeals team on your behalf. The PCN will be placed on hold and the appeals process can take up to 35 days - you will be advised via email to the address provided


Would it appear that the “Dear Sirs” has not been "passed" anywhere and has not been treated as anything other than an email? yet the wording states “I can confirm” but email ends Kind regards, no name or customer service team sign off. If it has been decided to reject why no POPLA appeal code or rejection wording used? No code, no POPLA appeal or no BPA letter of complaint. Should I re-send the “Dear Sirs” again by post with the proof of postage directly to the appeals department? Really appreciate your advice with this one.

This post has been edited by Flopdc: Wed, 9 Oct 2019 - 14:03

[ostell]

So write back to them and suggest they read the requirements of POFA very carefully and note that the time of delivery is the important point and delivery us assumed 2 days after posting., as specified at 9 (6).

[Flopdc]

Not convinced this was passed to the appeals team but does that matter as someone has confirmed it has beeg issued correctly! ??

This post has been edited by Flopdc: Wed, 9 Oct 2019 - 17:43

[Flopdc]

Will draft a response as ostell suggests. Should it be sent back as a reply to their email, thus maintaining that chain of communication or by post?

As things stand should the above reply from ECP be relied upon as a formal appeal rejection? Your help as usual appreciated.

This post has been edited by Flopdc: Thu, 10 Oct 2019 - 12:35

[ostell]

Yes, reply to their email but also send by nail, with free certificate date of posting from a post office

This post has been edited by ostell: Thu, 10 Oct 2019 - 14:19