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Keeper Liability - Para 11 of Sch 4 PoFA, An enquiry to be submitted by RKs to the DVLA
Broadsword
post Fri, 20 Feb 2015 - 17:41
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Paragraph 11 of Sch 4 PoFA sets out the third (and largely overlooked) statutory condition which must be met in order for the 'Creditor' (the PPC) to benefit from 'keeper liability'

For ease of reference this is the salient text:-

"11 (1) The third condition is that—

(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;

(b) the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);

© the information sought by the application is provided by the Secretary of State to the applicant
."


I am aware of anecdotal evidence of many occasions of PPCs reusing data, or obtaining 'RK data' using ulterior means (company details from liveried vehicles etc) or otherwise accessing RK data other than in accordance with the statutory requirements of Para 11 of PoFA.

If the RK can show that the PPC has failed to comply with this requirement then there is no 'keeper liability'.

The below therefore is a generic enquiry that could be submitted the Dft (via the DVLA).

I have considered the implications of the FOI/SAR route, however I feel that it is important that this is kept as a separate but still legitimate enquiry to ascertain a) whether or not the PPC has played by the rules and b) whether or not they have the right to legally pursue the keeper.

I am also aware that the DVLA will be unable to answer (as it stands) questions 5,6 and 7 but it's important that those questions are asked because it highlights the sparsity of information that the DVLA still sells data against.


I would therefore advise every single Registered Keeper who gets a postal PCN citing either Sch 4 and/or 'keeper liability', to make an enquiry of the Secretary of State (via his agents at the Dft/DVLA) for confirmation or otherwise that the statutory requirement of Para 11 has indeed been met, as follows:

email to:- dsp@dvla.gsi.gov.uk


The Protection of Freedoms Act (PoFA) 2012 –
An enquiry regarding Paragraph 11


Name
Address
Date

Dear Sir,

As DVLA records will confirm, I am the registered keeper of a motor vehicle registration number................................

I recently received a postal Parking Charge Notice demand for a payment from a Private Parking Company.

The Notice makes reference to Sch 4 of the Protection of Freedoms Act 2012 (‘PoFA’) and/or ‘keeper liability’.

I understand that Paragraph 11 of PoFA makes it a statutory requirement for the creditor (or a person acting for or on behalf of the creditor) to have made an application for the keeper’s details to the Secretary of State.

I therefore require the Dft, acting on behalf of the SoS, to provide the following information:-

1) Confirmation (or otherwise) that my data was requested and supplied in accordance with that statutory requirement.
2) The full details of the name and address of the requestor
3) The date of the request
4) The date that my personal details were given
5) The date of the alleged contravention specified by the requestor
6) The details of the alleged parking contravention.
7) The location of the alleged parking contravention

Regards

Registered Keeper


This post has been edited by Broadsword: Fri, 20 Feb 2015 - 17:42
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post Fri, 20 Feb 2015 - 17:41
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Gan
post Fri, 20 Feb 2015 - 18:13
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I agree

There have been several threads where there's reason to believe they used old data
That's a nice letter

It's a shame that it isn't possible to check if a PPC made an application for a hire car

I've long believed that these are deliberately targeted so I make a point of removing stickers
According to my very good source, one of her competitors charges to replace them
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JFK1969
post Sat, 21 Feb 2015 - 05:44
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Thank you for that Broadsword. I have sent the email.

Just wondering though in relation to my case, which is at CCCF stage, we have 20 separate PCN's. Would ppc have to apply to DVLA for each one. Because each NTK's can only refer to one pcn.
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Broadsword
post Sat, 21 Feb 2015 - 07:49
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QUOTE (JFK1969 @ Sat, 21 Feb 2015 - 05:44) *
Thank you for that Broadsword. I have sent the email.

Just wondering though in relation to my case, which is at CCCF stage, we have 20 separate PCN's. Would ppc have to apply to DVLA for each one. Because each NTK's can only refer to one pcn.


That is absolutely correct, each and every NtK has to be generated from it's own individual DVLA data request.

Para 11 (1) (a) ".........has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate"

Furthermore, I believe that it is also a contractual condition between the PPC and the DVLA that a separate data request must be submitted for each separate Parking Charge Notice issued, so irrespective of whether of not they are claiming 'keeper liability' they are contractually obliged to pay £2.50 for each alleged contravention whether using PoFA or not.

Funnily enough, whilst the DVLA generally take an extremely relaxed view about what we would consider to be some major CoP breaches by PPCs, they will go ballistic if they are provided with evidence that data requests have not been submitted as should - a more cynical person than me might conclude that this highlights that it's all about the money.
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Gan
post Sat, 21 Feb 2015 - 08:36
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QUOTE (JFK1969 @ Sat, 21 Feb 2015 - 05:44) *
Thank you for that Broadsword. I have sent the email.

Just wondering though in relation to my case, which is at CCCF stage, we have 20 separate PCN's. Would ppc have to apply to DVLA for each one. Because each NTK's can only refer to one pcn.

If the registered keeper wasn't the driver on many of the occasions, it's a very important point

Contact the DVLA and request the information

As an aside

If you've had so many tickets, throw into your defence that the company has failed to mitigate its loss

If it believed that the driver was a serial trespasser, it could have applied for an injunction to prevent the parking
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JFK1969
post Sat, 21 Feb 2015 - 13:36
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Thank you broadsword and gan

For Gan

Wondering if you saw my CCCF that you asked for in ' Pcn cccf stage #6 '
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cabbyman
post Sat, 21 Feb 2015 - 13:49
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Just a point, Broadsword, do you mean 'I therefore require the Dft, acting on behalf of the SoS,.....' or should that read '.....require the DVLA....?'


--------------------
Cabbyman 10 PPCs 0
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Broadsword
post Sat, 21 Feb 2015 - 15:21
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QUOTE (cabbyman @ Sat, 21 Feb 2015 - 13:49) *
Just a point, Broadsword, do you mean 'I therefore require the Dft, acting on behalf of the SoS,.....' or should that read '.....require the DVLA....?'


My thought process is this; if the RK writes to the Dft 'acting on behalf of the SoS' then two things will happen as follows:-

1) The Dft will simply pass the enquiry to the DVLA to deal with in any event.
2) This will create a (further) delay in the DVLA responding to the enquiry (and I am mindful that the RK may need the response in time for the POPLA appeal so time (to a certain extent) is of the essence.)

Next, as I believe that it is technically the Dft who act on behalf of the SoS (rather than the DVLA which is an executive agency of the Dft)) then I thought that addressing it to the Dft but sending it to the 'right' department within the Dft - the DVLA (and where the data is actual held) would seem the most logical thing to do.

Another point to take into account is that the email address to send it to at the DVLA goes directly into that department whereas it's a 'fill this general enquiry form in' on the Dft's website.

In summary, I'm trying to anticipate and design out one of Murphy's Laws kicking in but no doubt the DVLA will throw every obstacle and the kitchen sink at these requests because they won't want to have to do them full stop, so it's now a question of wait and see what they come back with and then respond accordingly.

I think it's a perfectly reasonable and justifiable line of enquiry for RKs to make.

This post has been edited by Broadsword: Sat, 21 Feb 2015 - 15:21
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cabbyman
post Sat, 21 Feb 2015 - 20:58
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Forgive me, my fault. I read the abbreviation as 'Department for Trade', which probably doesn't exist ( being DoT). I understand now that you meant Department for Transport.

Many thanks for the clarification.


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JFK1969
post Thu, 26 Feb 2015 - 14:20
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Hi has anyone done this. If so have they had a response.

I have emailed, and heard nothing, not even a reply to say they have received it.

I sent email on the 21st, 5 days ago.
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Broadsword
post Thu, 26 Feb 2015 - 17:05
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Send a polite chase up email to the same email address, point out that you've not even had an acknowledgement (but this time copy in julie.lennard@dvla.gsi.gov.uk - she's the new Corporate Director at the DVLA, she used to work for 'Which')
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JFK1969
post Fri, 27 Feb 2015 - 00:43
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Will do. Cheers
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JFK1969
post Fri, 27 Feb 2015 - 12:37
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We'll I have a response from DVLA.

Saying a posted reply showing the correct procedure for making a request for information on your vehicle.
This request would be considered a Data Subject Access Request.

Under Section 7 of DPA 1998 a person is entitled to be informed of personal data that a controller holds on them if they make a request in writing and pay a fee which does not exceed the proscribed maximum £10.

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Broadsword
post Fri, 27 Feb 2015 - 14:20
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QUOTE (JFK1969 @ Fri, 27 Feb 2015 - 12:37) *
We'll I have a response from DVLA.

Saying a posted reply showing the correct procedure for making a request for information on your vehicle.
This request would be considered a Data Subject Access Request.

Under Section 7 of DPA 1998 a person is entitled to be informed of personal data that a controller holds on them if they make a request in writing and pay a fee which does not exceed the proscribed maximum £10.



Anticipated response.

I'm just going out now but will revisit this later and provide you with the rebuttal.

There is a precedent where a) the DVLA accepted that it wasn't a SAR and b) there was no charge - and that was in the case of Tracy Kiss (glamour model) and UKPC - if you google Tracy Kiss and UKPC you should find it on her blog (she had quite a bit of fun with the DVLA by all accounts wink.gif )
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nigelbb
post Fri, 27 Feb 2015 - 14:32
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It's not a SAR as you already know what data the DVLA hold on you. What you are asking for is when they released that data to a PPC.

I personally have been provided with such information at no cost when I sent an email of the following form to foi@dvla.gsi.gov.uk & received a reply from David.Dunford@dvla.gsi.gov.uk

QUOTE
Dear DVLA,

I have just received a claim for a parking charge from {PPC} who have obtained my details as Registered Keeper from the DVLA. I would please like you to confirm exactly when the details for my vehicle {VRN} were requested the organisation or company that requested the details and what the grounds for their request were. I attach the document that I received from {PPC} addressed to me at the address where the car is registered.

I need the answers to my questions as a matter of urgency as I evidently must respond to this claim within 28 days from DD-MM-YYYY if I wish to appeal & the information that I have requested from you is necessary for me to decide my grounds for an appeal. If you do not respond in a timely fashion and I suffer as a consequence I shall take issue with you for the delay.

Regards

nigelbb


--------------------
British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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dandyman
post Fri, 27 Feb 2015 - 14:43
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I started reading this thread and thought immediately "they'll treat it as a SAR and demand money".

Could try heading the letter "COMPLAINT" and state in the body that you believe your details may have been misused.
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Jlc
post Fri, 27 Feb 2015 - 14:49
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It's a nice little ruse to use the SAR routine - the £10 would put many off...


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

Private Parking - remember, they just want your money and will say almost anything to get it.
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Broadsword
post Fri, 27 Feb 2015 - 17:40
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Right then just a quickie as I've just walked back in.

First off thanks nigelbb, that's exactly the same type of enquiry but I wanted to avoid having to send a copy of the NtK into the DVLA. I want them to answer it with no more info than they had when the PPC requested the data in the first place, that's really important in the long run

Next, I don't believe that it is a SAR because you are not asking for personal information, you already have that (in the NtK and the fact that the NtK tells you that your data was obtained from the DVLA).

What this request is doing is seeking clarification from the DVLA that both the PPC and the DVLA have acted in accordance with para 11 of PoFA, no more, no less.

Lastly, this is all about the vehicle registration number (as indeed the DVLA have confirmed), well in November 2011, David Evans (the then Corporate Director of the DVLA) sat in front of the Parliamentary Transport Committee and pronounced that a registration number was not personal data.

When he made this disclosure Simon Tse (the then CEO of the DVLA) was sat next to him and didn't correct him, therefore, that's the official DVLA position.

So please hold fire until I put some 'lines' together to fire back, it's really important that this doesn't go off half cock ok?
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JFK1969
post Fri, 27 Feb 2015 - 18:19
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Thank you for the info on TRacey Kiss.

Interesting read.

I do appreciate everyone's time.

I am sure that my NTK is correct with IPC code of practice, although no evidence supplied with it, except on back is says any queries go to paymypcn.net. No mention on NTK about how to view evidence.


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Broadsword
post Fri, 27 Feb 2015 - 18:59
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PM'd you, maybe best work off the boards for a while on this one wink.gif

This post has been edited by Broadsword: Fri, 27 Feb 2015 - 19:00
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