Here is a complaint to the DVLA. This covers facts which could be thrown at a PPC but you do need to read Schedule 4 of POFA and check paragraph 9 (if they have used ANPR) and do a word search to compare what the Act says they must say in the notice and just what they have said in the notice you received. Everything in [ ] is an instruction on completing the letter and must not be in the actual letter being sent
Dear Mr Watts,
[
enter full name and address of PPC as a heading]
I wish to lodge a formal complaint against the above named Parking Company and the DVLA
I enclose the following documents for your consideration
1.Notice to Keeper served by the Parking Company on the [ insert date you received notice] in respect of an alleged parking infringement which occurred on the [ insert date ]
You will note from this Notice that the Parking Company claims to have the legal right to pursue keeper liability
The Parking Company
In order for any parking company to pursue keeper liability under the Protection of Freedoms Act 2012 (the Act) that parking company must have met the conditions in the Act. The conditions are set out in the sub paragraphs of the paragraphs in Schedule 4 of the Act. The Parking Company uses ANPR for its enforcement, in which case the relevant conditions that it must meet are those in paragraph 9. That is to say, the whole of paragraph 9 as is evident from its introduction which reads “(2) The Notice must…specify…inform…..describe…state that …warn…identify. All of which are mandatory requirements.
The Parking Company failed to meet the following conditions in relation to its Notice:-
[Pick whatever is relevant - these seem to be the usual failures]
1. Paragraphs (9)(4) and (9)(5) in that the Notices were served more than 14 days after the alleged infringement
2. Paragraph (9)(2)(h) in that the Notices fail to identify the "Creditor". To identify anyone he has, at the very least, to be named. The obligation here is not to leave that identity to the imagination of the registered keeper. Asking for payment is not the same as identifying the creditor as required by this condition.
3. Paragraph (9)(2)(b) in that it fails to inform the keeper that the driver is required to pay the charge
4. Paragraph (9)(2)(e) in that it fails to state that the creditor does not know the name and address of the driver nor does it invite the registered keeper to pay the charge or to provide the creditor with the name and address of the driver
5. Paragraph (9)(2)(f) in that there is no warning provided of the kind required by this paragraph
as a consequence, paragraph 4 of Schedule 4 of the Act prevents the Parking Company from exercising the rights to pursue keeper liability. Notwithstanding the Parking Company expressly states in its Notice that it has the right to recover the charges from the keeper of the vehicle. That is wrong in law and misleading the registered keeper.
Making a claim, which cannot be sustained in law, contravenes the Consumer Protection from Unfair Trading Regulations 2008. Regulation 5, for example, refers to misleading statements. Advising a registered keeper that action will be taken against him, when it cannot be pursued, is clearly misleading. A breach of these Regulations is, of course, a criminal offence. Send a follow up letter making the same claim and there may be a breach of the Protection from Harassment Act 1967 and which creates another criminal offence. So it is arguable that the Parking Company processed my data for criminal purposes. That may have been inadvertent but ignorance of the law is no defense. It is my understandind that your Agency has already had this drawn to its attention.
[If your Notice is received after the 14 days include the next three paragraphs]
I understand that Kevin Watts, on the 17th June 2013 stated "
Where a company requests data outside of the 14 day period for ANPR-run car parks set out in the Protection of Freedoms Act, they are still entitled to receive this data under the reasonable cause provisions provided that they do not use it to exercise the keeper liability powers in Schedule 4 of POFA, and only use it to pursue payment through other channels in accordance with the conditions and deadlines set out in the BPA Code of Practice."
This scenario concerns the issue of a Notice to Keeper out of time and which is a failure to meet a condition in the Act. It follows, logically, that if a parking company has data in sufficient time to serve a notice within the timescales of the Act, but intends to serve it outside of that time, it did not have reasonable cause. It is the same action i.e. deliberately failing to meet the conditions. The Parking Company may have so established its business such that it knows that it will be unable to serve any Notice to Keeper within the statutory timeframe and thus obtains data knowing that it will serve a Notice late. The DVLA should investigate this suggestion.
The DVLA is required to advise me of the date that the Parking Company applied for my data in relation to the Notices. If it was indeed late then that falls squarely into Mr Watts condition and the Parking Company certainly did not have “reasonable cause”
I further understand that on the 14th June 2012 the DVLA wrote to the BPA as follows:-
"Can the BPA send out a message to all members of private parking schemes (contract law basis) that if the DVLA is advised and provided with evidence of any company making any reference to liability by anyone other than the driver we will immediately suspend access to our data for a minimum of three months. This applies to tickets, signage and any correspondence with a keeper."
Where a Notice to Keeper fails to comply with the Act then keeper liability may not be pursued. However, as I say, the Parking Company Notices indicates that it claims that statutory right. In law it can only pursue recover of an alleged debt outside of POFA. As your direction of the 14th June 2012, to the BPA Members, including the Parking Company, concerned non Protection of Freedoms Act cases, then the DVLA should follow its own guidance and suspend the Parking Company for a period of three months with immediate effect.
As regards the Notice to Keeper, I have set out the sub paragraph conditions that have not been met. Checking those references here
http://www.legislation.gov.uk/ukpga/2012/9...edule/4/enacted and then perusing the Notice, to see if the relevant mandatory words or phrases are present, is simply a word search exercise that the DVLA can undertake. There is no need to ask the BPA if the Notice is valid. I understand that in some cases of invalid Notices the BPA has maintained that invalid notices are valid. The BPA is of course the body representing the interests of its members and not the interests of the public. Accordingly, I do not expect to see that the BPA is involved in your word search.
Action required
1.That the Parking Company be suspended from access to the DVLA database for a period of three months.
2.That the Parking Company be advised that upon its reinstatement it may not pursue keeper liability, in whatever guise, until such time as its Notices are fully compliant with the Act
The DVLAThe First Data Protection Principle directs the DVLA that it must
(a) be transparent about how it intends to use our personal data, and
(b)handle people’s personal data only in ways they would reasonably expect.
To that end the DVLA is on record as stating that it has a number of procedures in place to ensure fair and lawful processing. These are clearly designed to ensure, so far as reasonably practicable, that when the DVLA makes data available to Members of an ATA, that Member uses that data lawfully. For the DVLA to make personal data available to a party knowing that it will use that data in a way which is contrary to the law would clearly not be fair processing, a breach of the Data Protection Act and fly in the face of the assurances it has provided to data subjects.
The DVLA has said, publicly, that it “can confirm that since the implementation of POFA in October 2012 we have checked the notices issued by every new PPC. DVLA have also checked the notices issued by all PPCs who were already under contract with us, however some of these checks will have occurred before October 2012.” It has since retracted that assurance. However, it has also confirmed that as part of the AOS protocols it checks the notices served by Parking Companies. It has also now retracted that statement. It is a nonsense for the DVLA to provide public assurances that it did check such important documents and then change its mind. In view of the introduction of such wide ranging changes to private parking enforcement it was incumbent upon the DVLA, in meeting its duty to data subjects, to have checked such notices. There is a lack of transparency here.
Notwithstanding, the DVLA has now been put on notice about quite a number of PPCs whose Notices fail to meet the conditions in POFA and which may offend the Consumer Protection from Unfair Trading Regulations, such that
(a) If the parking Company in this case is amongst those referred, the DVLA knew that it was making my data available to a PPC to be used unlawfully, and
(b) any prudent public body, acting diligently, would have checked the Notices to be used by PPCs by now. A failure to do so reflects a laissez faire attitude towards fair processing, and
© The DVLA has sufficient evidence before it that PPCs Notices are not POFA compliant that it should be checking all notices and advised PPCs that they may not pursue keeper liability until their Notices have been approved.
If either failure has arisen, I would submit that the DVLA, in such circumstances, has improperly exercised the discretion to make my data available and has processed my data unfairly.
If the Parking Company in this case has had its defective notices referred to the DVLA, then the DVLA is required, under the Freedom of Information Act, to confirm that that is the case. If that is the case the DVLA has failed to implement its own policy by not suspending the Parking Company
Action required
1. That the DVLA apologises
2. That the DVLA provides me with an assurance that it has introduced changes into its processing of data, and to describe those changes, to ensure that similar situations do not arise in the future
Regards
Copy to ICO