PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

POPLA now making up their own rules on company vehicles - WTF
Dennis Basher
post Sat, 9 Dec 2017 - 00:34
Post #1


Member


Group: Members
Posts: 472
Joined: 13 Jan 2014
Member No.: 67,950



This oddball POPLA ParkingEye assessment needs to be read in conjunction with the following statements in the FAQs section of POPLA's website.

It is not the role of the assessor to collect evidence or contact witnesses. They will look at the evidence that is provided to them from both parties and make a decision based on this alone”.

Your appeal will be independently reviewed by one of our professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice”.

It must also be noted that nowhere in PE's evidence pack did they suggest that they were seeking to hold the hirer (company ABC Ltd) liable on the basis that the driver was an employee or agent of ABC Ltd. As it happens, the driver was not an employee of ABC Ltd.

QUOTE
"Decision: Unsuccessful

Assessor Name: Linda M

Assessor summary of operator case

The operator’s case is that the appellant did not purchase parking time for the time on site.

Assessor summary of your case

The appellant’s case is that the Parking Charge Notice (PCN) is on long term lease and they confirm that [ABC Ltd] is the hirer and for the purposes of the corresponding definition under the Protection of Freedoms Act 2012 (PoFA 2012) they set out below why it is not liable for this PCN.

* The appellant states that the operator failed to comply with the strict requirements of POFA 2012:
* The appellant states that the operator has no standing or authority to pursue charges or to form contracts with drivers using this particular car park:
* The appellant states that the car park signage was inadequate:
* The appellant states that the sum of £100 claimed by the operator is extravagant and unconscionable and contrary to Department of Health rules on NHS parking. The appellant has supplied a document expanding on the above as evidence to support the appeal. They have also supplied a copy of another POPLA assessment.

Assessor supporting rational [sic] for decision

In this case, the appellant is a company, ABC Ltd (ABC), and the driver of the vehicle is using the vehicle as a company vehicle. Companies are responsible for the actions of their agents. As this is a company vehicle provided to the driver for the purposes of carrying out their duties, I will be considering whether ABC is responsible for the charge as principal on behalf of their agent, who was driving the vehicle and is not known.

This appeal has been considered in conjunction with any evidence provided by both the appellant and the operator…………………

[the usual POPLA template copy and paste stuff about Beavis etc.]

…………… The appellant states that the operator failed to comply with the strict requirements of POFA 2012. While I appreciate you have indicated that the requirements of PoFA 2012 have not been met, we consider ABC responsible as principal rather than as hirer. Accordingly, we do not consider a failure to follow PoFA 2012 as relevant to our present reasoning. ABC has provided the company vehicle to the driver. We consider the company has, authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts. As such, we hold ABC responsible for the PCN as principal.

While I acknowledge the additional documents the appellant has supplied, this does not exempt the driver from complying with the terms of the site. Ultimately, it is the motorist’s responsibility to read the signs and act in accordance with the terms and conditions applicable to the site.

Therefore, from the evidence provided, I conclude that the operator issued the PCN correctly".


I take particular issue with the assessor's statement that "we consider ABC responsible as principal rather than as hirer". ParkingEye did not seek to hold ABC responsible as the driver's employee / principal so what gives POPLA the right to do so.

The assessor's statement that "we do not consider a failure to follow PoFA 2012 as relevant to our present reasoning" is rather ominous. I wonder if this new "reasoning" is the result of pressure from the BPA.

I suspect that this may not be a one-off dodgy assessment and that POPLA may have moved further down the slippery slope towards parity with the IAS.

This post has been edited by Dennis Basher: Sat, 9 Dec 2017 - 00:35
Go to the top of the page
 
+Quote Post
 
Start new topic
Replies (1 - 8)
Advertisement
post Sat, 9 Dec 2017 - 00:34
Post #


Advertise here!









Go to the top of the page
 
Quote Post
The Rookie
post Sat, 9 Dec 2017 - 06:37
Post #2


Member


Group: Members
Posts: 39,912
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



QUOTE (Dennis Basher @ Sat, 9 Dec 2017 - 01:34) *
The assessor's statement that "we do not consider a failure to follow PoFA 2012 as relevant to our present reasoning" is rather ominous. I wonder if this new "reasoning" is the result of pressure from the BPA.

No, it comes fro that fact that the assessor is deciding the registered keeper is liable under agency, so PoFA isn't relevant if you've already decided (created) there is a reason why the registered keeper can be liable. Of itself that bit makes sense, its just the creative and flawed thinking that a hire (lease) company can be liable under agency for a driver's (who isn't even the hirer) actions that are risible, the fact it's a company car doesn't change that as any possible agency would be driver to company not driver to hire (lease) company.

That needs a strongly worded response to the lead adjudicator.

Whether the BPA have put pressure on WOPLA to creatively use agency where the case fails PoFA is a subtly different matter.

If one were cynical one may consider that this would be handy for cases involving companies who are then much more likely to roll over and pay to avoid litigation, as agency has been adjudged to apply then even naming the driver or company (which would discharge liability if it were adjudged that PoFA was complied with) wouldn't help in that respect.

This post has been edited by The Rookie: Sat, 9 Dec 2017 - 06:41


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
Go to the top of the page
 
+Quote Post
Dennis Basher
post Thu, 28 Dec 2017 - 23:20
Post #3


Member


Group: Members
Posts: 472
Joined: 13 Jan 2014
Member No.: 67,950



The key point here is that ParkingEye never sought to argue that the driver was acting as our company's agent at the time of the parking incident. Essentially, the POPLA assessor introduced this argument on ParkingEye's behalf at the very end of the process such that we didn't even have an opportunity to make a counter-argument.

For the record, here are the details of our complaint to POPLA which we marked for the personal attention of John Gallagher, Lead Adjudicator.


Dear Mr. Gallagher,

Complaint: Case Ref. [606xxxxxxx], ParkingEye Limited: Parking Charge Notice xxxxxx/xxxxxx

We write to submit our formal complaint regarding Ombudsman Services Limited’s mismanagement of the above-detailed POPLA assessment concerning a Parking Charge Notice issued by ParkingEye Limited (“ParkingEye”) to our company, [ABC Limited] (“[ABC]”).

We consider that rather than merely containing procedural errors, the process through which your assessor reached [her] decision to disallow our “appeal” was fundamentally procedurally unfair and contrary the basic principles of natural justice.

Despite POPLA’s promise that its assessors will look at the evidence that is provided to them from both parties and make a decision based on this alone, your assessor did not do so. Instead, [she] introduced [her] own subjective and unsubstantiated theory that even though ParkingEye had not complied with Schedule 4 of POFA, this was not relevant because the PCN had been issued to a “company vehicle”. In [her] rationale, [she] stated that “we consider [ABC] responsible as principal rather than as hirer” and “accordingly, we do not consider a failure to follow POFA as relevant to our present reasoning. [ABC] has provided the company vehicle to the driver. We consider the company has, authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts”.

At no stage in the process did ParkingEye seek to claim that the driver had bound [ABC] to a parking contract. Instead ParkingEye sought to rely only upon Schedule 4 of the Protection of Freedoms Act 2012 to claim unpaid parking charges from [ABC] as the vehicle’s hirer. Our initial “appeal” to POPLA and our subsequent submission of comments regarding ParkingEye’s evidence was therefore focused upon demonstrating ParkingEye’s non-compliance with POFA.

Given POPLA’s promise that its professional assessors will act independently and impartially, it is unacceptable that POPLA should have sought to introduce its own legal arguments in favour of ParkingEye when ParkingEye did not itself put these forward at any stage of the process. Notwithstanding such a failure by POPLA to maintain its independence and impartiality, it would clearly be ludicrous for “appellants” to have to try to second-guess other arguments that POPLA may itself introduce in favour of the operator at the very end of the process.

Given this clear procedural unfairness, we require that POPLA reassesses this case looking only at the evidence that had been provided from both parties.

We also require your clarification in respect of your assessor’s statements that we consider the company has authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts and we do not consider a failure to follow POFA as relevant to our present reasoning - i.e. please confirm if this reasoning is a) isolated only to this particular assessor or b) now being applied across the whole of POPLA?

We very much hope that this is a case of the former which may be resolved by POPLA providing remedial retraining to the assessor involved. However, if this reasoning is a new POPLA-wide policy, it must be withdrawn immediately – otherwise POPLA will no longer have any credible claim to be an independent and impartial “appeals” service.

POPLA should understand that there can be no presumption in Law that the driver of a company vehicle must necessarily be an employee of the company acting on company business at the time that a “parking contract” is formed. This was once again confirmed in the recent case of Excel Parking Services Ltd vs Clever Car Finance Ltd (Ref. D6DP7R03.12/12/17) heard at Skipton County Court. In summing up, the judge said the case rested on whether the driver had been given either express or implied authority from the Defendant to enter into a contract on its behalf at the material time. It was incumbent on the Claimant to prove or convince her of such on the balance of probabilities, which it had failed to do.

In this particular POPLA case, ParkingEye made no attempt to prove or even argue that the driver was acting in the capacity of an employee or agent of [ABC Limited] at the time of the “parking incident”. In the absence of any evidence to demonstrate that on the balance of probabilities a contract had been formed between the two companies, your assessor had no right to favour ParkingEye by presuming that there had been.

Even if ParkingEye had made such a claim, we could have responded through the course of the “appeals” process to demonstrate that the driver of the vehicle was not an employee of [ABC Limited] and that he / she was not carrying out duties for or on behalf of [ABC Limited] at the material time and as such, there could have been no contract between ParkingEye and [ABC Limited].

Given the seriousness of this matter, we require that you give it your urgent attention. Thank you for your cooperation and we look forward to receiving your confirmation by return that this case shall be reassessed, this time in proper consideration of the relevant laws and based only upon the evidence that has been provided from both parties.

Yours sincerely,


etc.
Go to the top of the page
 
+Quote Post
Dennis Basher
post Thu, 28 Dec 2017 - 23:34
Post #4


Member


Group: Members
Posts: 472
Joined: 13 Jan 2014
Member No.: 67,950



Here is POPLA's reply - from one of their complaints handlers rather than from John Gallagher himself.

Dear Dennis,

Your complaint about POPLA

Thank you for your email dated 18 December 2017, which was passed to me by the POPLA team as I am responsible for responding to complaints.

I note from your correspondence that you are unhappy with the decision reached by the assessor in your appeal against Parking Eye.

Following some recent guidance from our Sector Expert, Craig Ineson, we have adopted a different approach to how we assess an appeal where the vehicle is a company vehicle and the company itself is appealing against the Parking Charge Notice (PCN). In the Notice to Keeper, I can see that the operator invited you to identify the driver. Instead, the company itself continued to appeal against the PCN on behalf of the driver.

The only reasonable conclusion was that the driver was an employee of the company undertaking duties in accordance with his or her employer’s wishes. As an agent of the company, the driver had the authority to enter into contracts on its behalf. As such, our assessor has assessed the company’s liability for the PCN as if it were the driver of the vehicle.

As a result, your comments regarding the Notice to Keeper not meeting the requirements of the Protection of Freedoms Act 2012 (PoFA 2012) are irrelevant, as PoFA 2012 would only apply when the driver is unknown.

Ultimately, I have reviewed the assessor’s decision and I am satisfied that the outcome reached is correct. As POPLA is a one-stage process, there is no opportunity for you to appeal the decision.

As our involvement in your appeal has now concluded you may wish to pursue matters further. For independent legal advice, please contact Citizens Advice at: www.citizensadvice.org.uk or call 0345 404 05 06 (English) or 0345 404 0505 (Welsh).

In closing, I am sorry that you feel your experience of using our service has not been positive. However, we have reached the end of our process and my response now concludes our complaints procedure.

I trust you will appreciate that there will be no further review of your appeal and it will not be appropriate for us to respond to any further correspondence on this matter.

Kind regards,

Emily C

POPLA Complaints


According to Craig Ineson's Linkedin profile, although he has been with Ombudsman Services since November 2014 (initially as an investigations officer and then a senior investigations officer), he was only appointed as a "Sector Expert" in September 2017.

This post has been edited by Dennis Basher: Fri, 29 Dec 2017 - 00:06
Go to the top of the page
 
+Quote Post
Churchmouse
post Fri, 29 Dec 2017 - 12:30
Post #5


Member


Group: Members
Posts: 1,997
Joined: 30 Jun 2008
From: Landan
Member No.: 20,731



QUOTE (Dennis Basher @ Thu, 28 Dec 2017 - 23:34) *
Following some recent guidance from our Sector Expert, Craig Ineson, we have adopted a different approach to how we assess an appeal where the vehicle is a company vehicle and the company itself is appealing against the Parking Charge Notice (PCN). In the Notice to Keeper, I can see that the operator invited you to identify the driver. Instead, the company itself continued to appeal against the PCN on behalf of the driver.

The only reasonable conclusion was that the driver was an employee of the company undertaking duties in accordance with his or her employer’s wishes. As an agent of the company, the driver had the authority to enter into contracts on its behalf. As such, our assessor has assessed the company’s liability for the PCN as if it were the driver of the vehicle.


According to Craig Ineson's Linkedin profile, although he has been with Ombudsman Services since November 2014 (initially as an investigations officer and then a senior investigations officer), he was only appointed as a "Sector Expert" in September 2017.

Nobody with that name is registered as a solicitor on the SRA site, either...

It was simply untrue that the company was appealing against the PCN "on behalf of the driver", wasn't it? Ordinarily, RKs defending PPC claims lodged against themselves act on their own behalf, based strictly on their own liability under POFA 2012. It's a wonderfully circular argument POPLA has devised: If the company was not appealing as the RK, but "on behalf of the driver", the company must have had a principal/agent relationship with the driver--which is then taken as proof that such a relationship existed! However, in addition to mentioning the true basis of your appeal, you've also stated unequivocally that the driver was not an employee of the company, which POPLA has either ignored or contradicted without justification.

To draw a "reasonable conclusion" from erroneous evidence is always going to be a challenge--even for experienced, practising solicitors. But the main problem here is as you have suggested: that by adjudicating on the basis of an argument not raised by the claimant (and not giving the defendant any opportunity to respond), the entire "impartial hearing" process is reduced to an IAS level. Ominous, indeed.

--Churchmouse
Go to the top of the page
 
+Quote Post
cabbyman
post Fri, 29 Dec 2017 - 13:06
Post #6


Member


Group: Members
Posts: 5,941
Joined: 15 Dec 2007
From: South of John O'Groats, north of Cape Town.
Member No.: 16,066



Given PE's propensity to litigate, and your option to resist, is this a point that could go all the way to the Supreme Court or is there already precedent from a higher court?


--------------------
Cabbyman 10 PPCs 0
Go to the top of the page
 
+Quote Post
Dennis Basher
post Fri, 29 Dec 2017 - 17:47
Post #7


Member


Group: Members
Posts: 472
Joined: 13 Jan 2014
Member No.: 67,950



QUOTE (Churchmouse @ Fri, 29 Dec 2017 - 12:30) *
It was simply untrue that the company was appealing against the PCN "on behalf of the driver", wasn't it?

It was totally untrue.

Indeed, POPLA already knew that the "appeal" was not made on behalf of the driver. The POPLA online process includes a box to be ticked if the person completing the form is doing so on behalf of someone else. We never tick the box - our company's "appeals" to POPLA are always made by the company itself in its capacity as the vehicle's registered keeper or hirer (as the case may be).

This new "reasoning" really does put POPLA down there alongside the IPC's IAS in the marsupial kingdom.

Our company has already beaten PE in Court on one previous occasion following a dodgy POPLA decision to disallow our "appeal". I have no doubt that if PE ever took this latest claim to Court, they would lose - in which case we could then look to issue a claim against Ombudsman Services Ltd for the costs suffered as a result of their professional negligence.

This post has been edited by Dennis Basher: Fri, 29 Dec 2017 - 17:49
Go to the top of the page
 
+Quote Post
cabbyman
post Fri, 29 Dec 2017 - 21:25
Post #8


Member


Group: Members
Posts: 5,941
Joined: 15 Dec 2007
From: South of John O'Groats, north of Cape Town.
Member No.: 16,066



Please, please, please keep this thread up to date. This is a real popcorn moment! smile.gif


--------------------
Cabbyman 10 PPCs 0
Go to the top of the page
 
+Quote Post
The Rookie
post Sun, 31 Dec 2017 - 16:46
Post #9


Member


Group: Members
Posts: 39,912
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



A relevant case on Pranky
https://parking-prankster.blogspot.co.uk/20...s-personal.html


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
Go to the top of the page
 
+Quote Post

Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Wednesday, 14th November 2018 - 03:38
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.