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#Post#: 41190--------------------------------------------------
Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: S.M
Date: October 17, 2024, 7:40 am
---------------------------------------------------------
Is the below POFA compliant? The hirer received the below PCN (
a lease car ) - The NTK was addressed to the keeper which is the
lease company.
The hirer appealed as the hirer on Met Parking services and the
below reply was received.
Can the Hirer now appeal to POPLa with the same wording used for
the initial appeal to MetParking?
Appeal Text
--- Quote ---
> Dear Sir/Madam
> As the registered hirer, this is my appeal about a Penalty
Charge Notice issued by MET Parking Services Ltd for an alleged
breach of the company's terms and conditions in the McDonalds
Car Park at Leytonstone, London, E11 1HR on 14/09/2024.
> MET PCN Ref:
> VRN:
> 1. Insufficient evidence of the alleged contravention
> 2. The site boundary is not clear
> 3. Lack of standing/authority from landowner
> 4. Non-Compliant Signage
>
>
> 1. Insufficient evidence of the alleged contravention
> The evidence provided by MET Parking Services for the alleged
breach of terms and conditions stated as left the premises are
still photos of an empty parked vehicle. There is also no
evidence that the supposed boundaries are shown on any signs or
on a prominent map that individuals can see while on site in
order for them to make a reasonable decision as to what then
might be considered 'off site'.
> Even if a sign says a charge can be issued for 'leaving the
site', this means nothing if 'the site' is not defined. This
could include any number of shops, a cash point, toilets, cafe,
drop-off areas, delivery area, the car park itself, rest
area/benches and any other section of a retail park.
> No evidence has been provided from MET Parking Services
showing the vehicle driver leaving the site and I require MET
Parking Services to provide this. Such evidence should include
photographs of the contravention and a site map and a picture of
the signage that would have communicated to the driver the
defined boundary of the site they are alleged to have left. The
burden of proof shifts to MET Parking Services to prove
otherwise and to explain why their attendant (presumably):
> 1. Watched a driver or occupant walk towards the edge of an
undefined boundary,
> 2. Did not attempt to stop/warn the driver nor even ascertain
if a passenger had already been dropped at the door of the
premises.
> The attendant also had a legal duty under contract law, to
mitigate any loss. In VCS v Ibbotson, Case No 1SE09849
16.05.2012 District Judge McIlwaine stated:
> ‘you say he left the premises...where does the premises start
and where does the premises finish?....there is a duty to
mitigate the loss.’
> In this case, I contend that MET Parking Services have neither
demonstrated any evidence that there was a breach nor shown that
their operative took any steps to mitigate any loss.
> 2. The site boundary is not clear
>
> The notice to keeper states that the reason for issuing the
charge notice is: “Vehicle was left in McDonalds’ car park while
the occupants left McDonalds premises.”
> Nowhere on the signage does it state:
> - What the site boundary is
> - Show any map of where site boundary begins and ends
> - That leaving the site fails to comply with terms and
conditions
> I require evidence from MET Parking Services to show a site
map and a picture of the signage that would have communicated to
the driver the defined boundary of the site they are alleged to
have left.
> There are no legible markings distinguishing the boundary of
McDonalds car park. How does one know that one has left the
site?
> 3. Lack of standing / authority from landowner - the operator
is put to strict proof of full compliance with the BPA Code of
Practice.
> As this operator does not have proprietary interest in the
land then I require that they produce an unredacted copy of the
contract with the landowner. The contract and any 'site
agreement' or 'User Manual' setting out details - such as any
'genuine customer' or 'genuine resident' exemptions or any site
occupier's 'right of veto' charge cancellation rights, and of
course all enforcement dates/times/days, and the boundary of the
site - is key evidence to define what this operator is
authorised to do, and when/where. It cannot be assumed, just
because an agent is contracted to merely put some signs up and
issue Parking Charge Notices, that the agent is authorised on
the material date, to make contracts with all or any category of
visiting drivers and/or to enforce the charge in court in their
own name (legal action regarding land use disputes generally
being a matter for a landowner only). Witness statements are not
sound evidence of the above, often being pre-signed, generic
documents not even identifying the case in hand or even the site
rules. A witness statement might in some cases be accepted by
POPLA but in this case I suggest it is unlikely to sufficiently
evidence the definition of the services provided by each party
to the agreement. Nor would it define vital information such as
charging days/times, any exemption clauses, grace periods (which
I believe may be longer than the bare minimum times set out in
the BPA CoP) and basic but crucial information such as the site
boundary and any bays where enforcement applies/does not apply.
Not forgetting evidence of the only restrictions which the
landowner has authorised can give rise to a charge, as well as
the date that the parking contract began, and when it runs to,
or whether it runs in perpetuity, and of course, who the
signatories are: name/job title/employer company, and whether
they are authorised by the landowner to sign a binding legal
agreement.
> Paragraph 7 of the BPA CoP defines the mandatory requirements
and I put this operator to strict proof of full compliance:
> Section 7.1 states:
> “If you do not own the land on which you are carrying out
parking management, you must have the written authorisation of
the landowner (or their appointed agent). The written
confirmation must be given before you can start operating on the
land in question and give you the authority to carry out all the
aspects of car park management for the site that you are
responsible for. In particular, it must say that the landowner
(or their appointed agent) requires you to keep to the Code of
Practice and that you have the authority to pursue outstanding
parking charges.”
> Section 7.21 states:
> “If the operator wishes to take legal action on any
outstanding parking charges, they must ensure that they have the
written authority of the landowner (or their appointed agent)
prior to legal action being taken.”
> Section 7.3 states:
> “The written authorisation must also set out:
> a. the definition of the land on which you may operate,
so that the boundaries of the land can be clearly defined
> b. any conditions or restrictions on parking control
and enforcement operations, including any restrictions on hours
of operation
> c. any conditions or restrictions on the types of
vehicles that may, or may not, be subject to parking control and
enforcement
> d. who has the responsibility for putting up and
maintaining signs
> e. the definition of the services provided by each
party to the agreement”
> I do not believe that MET’s mere site agreement as a
contractor issuing PCNs and letters 'on behalf of' the landowner
gives the parking firm any rights to sue in their own name. This
is insufficient to comply with the BPA Code of Practice and not
enough to hold me liable in law to pay MET (not that a keeper
can be liable anyway on non-relevant land and MET cannot enforce
byelaws themselves). MET have no title in this land and
therefore have no standing to enforce 'parking charges' or
penalties of any description in any court. No evidence has been
supplied lawfully showing that MET are entitled to pursue these
charges in their own right.
> In order to comply with paragraph 7 of the BPA Code of
Practice, a non-landowner private parking company must have a
specifically-worded contract with the landowner - not merely an
'agreement' with a non-landholder managing agent - otherwise
there is no authority. I put MET to strict proof of compliance
with all of the above requirements.
>
> 4. Non-Compliant Signage - The signs in this car park
are not prominent, clear or legible from all parking spaces and
there is insufficient notice of the sum of the parking charge
itself
>
> I note that within the Protection of Freedoms Act (POFA) 2012
it discusses the clarity that needs to be provided to make a
motorist aware of the parking charge. Specifically, it requires
that the driver is given 'adequate notice' of the charge. POFA
2012 defines 'adequate notice' as follows:
> ''(3) For the purposes of sub-paragraph (2) 'adequate notice'
means notice given by: (a) the display of one or more notices in
accordance with any applicable requirements prescribed in
regulations under paragraph 12 for, or for purposes including,
the purposes of sub-paragraph (2); or (b) where no such
requirements apply, the display of one or more notices which:
(i) specify the sum as the charge for unauthorised parking; and
(ii) are adequate to bring the charge to the notice of drivers
who park vehicles on the relevant land''.
>
> Even in circumstances where POFA 2012 does not apply, I
believe this to be a reasonable standard to use when making my
own assessment, as appellant, of the signage in place at the
location. Having considered the signage in place at this
particular site against the requirements of Section 18 of the
BPA Code of Practice and POFA 2012, I am of the view that the
signage at the site - given the minuscule font size of the £100,
which is illegible in from the driver’s view at the site
entrance, and is not visible from any parking spaces - is NOT
sufficient to bring the parking charge (i.e. the sum itself) to
the attention of the motorist. There was no contract nor
agreement on the 'parking charge' at all. It is submitted that
the driver did not have a fair opportunity to read about any
terms involving this huge charge, which is out of all proportion
and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case,
2015.
> In the Beavis case, which turned on specific facts relating
only to the signs at that site and the unique interests and
intentions of the landowners, the signs were unusually clear and
not a typical example for this notorious industry. The Supreme
Court were keen to point out the decision related to that car
park and those facts only:
> In the Beavis case, the £85 charge itself was in the largest
font size with a contrasting colour background and the terms
were legible, fairly concise and unambiguous. There were 'large
lettering' signs at the entrance and all around the car park,
according to the Judges.
> This case, by comparison, does not demonstrate an example of
the 'large lettering' and 'prominent signage' that impressed the
Supreme Court Judges and swayed them into deciding that in the
specific car park in the Beavis case alone, a contract and
'agreement on the charge' existed.
> Here, the signs are sporadically placed, indeed obscured and
hidden in some areas. They are unremarkable, similar in
appearance to un-related parking signage, not immediately
obvious as parking terms and the wording is mostly illegible,
being crowded and cluttered with a lack of white space as a
background. It is indisputable that placing letters too close
together in order to fit more information into a smaller space
can drastically reduce the legibility of a sign, especially one
which must be read BEFORE the action of parking and leaving the
car.
> It is vital to observe, since 'adequate notice of the parking
charge' is mandatory under the POFA Schedule 4 and the BPA Code
of Practice, these signs do not clearly mention the parking
charge which is hidden in small print (and does not feature at
all on some of the signs). Areas of this site are unsigned and
there are no signs with the full terms displayed - i.e. with the
sum of the parking charge itself in large lettering, and the
full terms displayed on a single sign, - neither at the entrance
nor elsewhere, so it cannot be assumed that a driver drove past
and could read a legible sign, nor parked near one.
> This case is more similar to the signage in POPLA decision
5960956830 on 02/06/2016, where the Assessor Rochelle Merritt
found as fact that signs in a similar size font in a busy car
park where other unrelated signs were far larger, was
inadequate:
> ''the signage is not of a good enough size to afford motorists
the chance to read and understand the terms and conditions
before deciding to remain in the car park. [...] In addition the
operator’s signs would not be clearly visible from a parking
space [...] The appellant has raised other grounds for appeal
but I have not dealt with these as I have allowed the appeal.''
>
> From the evidence I have seen the terms appear to be displayed
inadequately, in letters that are approximately half an inch
high.
>
> I put the operator to strict proof as to the size and font of
the wording on their signs and the size of lettering for the
most onerous term, the parking charge itself, and to prove the
location and number of signs required to be read to fully read
the full terms of parking.
>
> As further evidence that this is inadequate notice, Letter
Height Visibility is discussed here:
>
HTML http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
>
> “When designing your sign, consider how you will be using it,
as well as how far away the readers you want to impact will be.
For example, if you are placing a sales advertisement inside
your retail store, your text only needs to be visible to the
people in the store. 1-2' letters (or smaller) would work just
fine. However, if you are hanging banners and want drivers on a
nearby highway to be able to see them, design your letters at 3'
or even larger.”
> “... Letter Visibility Chart shows the maximum reading
distance for your sign to make the best impact, as well as the
overall readable distance. A good rule of thumb is every 1 inch
of letter height provides 10 feet of readability with the best
impact. For example, 3” tall letters make the best impact within
30’; however, they can still be seen and read from up to 100’
away”
> “… The font type that you choose can also impact the
visibility of your text. Very thin fonts and script fonts can
potentially decrease visibility. When choosing fonts, you should
select a bold style that is easy to read and with sufficient
spacing between letters (kerning).”
> So, a letter height of just half an inch, showing the terms
and the 'charge' and placed high on a wall or pole or buried in
far too crowded small print, is woefully inadequate in an
outdoor car park. Given that letters look smaller when high up
on a wall or pole, as the angle renders the words less readable
due to the perspective and height, you would have to stand right
in front of it and still need a stepladder (and perhaps a torch
and/or magnifying glass) to be able to read the terms.
> Under Lord Denning's Red Hand Rule, the charge (being 'out of
all proportion' with expectations of drivers in this car park
and which is the most onerous of terms) should have been
effectively: 'in red letters with a red hand pointing to it' -
i.e. VERY clear and prominent with the terms in large lettering,
as was found to be the case in the car park in 'Beavis'. A
reasonable interpretation of the 'red hand rule' and the
'signage visibility distance' tables above and the BPA Code of
Practice, taking all information into account, would require a
parking charge and the terms to be displayed far more
transparently, on a lower sign and in far larger lettering, with
fewer words and more 'white space' as background contrast.
Indeed in the Consumer Rights Act 2015 there is a 'Requirement
for transparency':
> (1) A trader must ensure that a written term of a consumer
contract, or a consumer notice in writing, is transparent.
> (2) A consumer notice is transparent for the purposes of
subsection (1) if it is expressed in plain and intelligible
language and it is legible.
> The Beavis case signs not being similar to the signs in this
appeal at all, I submit that the persuasive case law is in fact
'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106'
about a driver not seeing the terms and consequently, she was
NOT deemed bound by them. This judgment is binding case law from
the Court of Appeal and supports my argument, not the operator's
case:
>
HTML http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html
> This was a victory for the motorist and found that, where
terms on a sign are not seen and the area is not clearly
marked/signed with prominent terms, the driver has not consented
to - and cannot have 'breached' - an unknown contract because
there is no contract capable of being established. The driver in
that case (who had not seen any signs/lines) had NOT entered
into a contract. The recorder made a clear finding of fact that
the plaintiff, Miss Vine, did not see a sign because the area
was not clearly marked as 'private land' and the signs were
obscured/not adjacent to the car and could not have been seen
and read from a driver's seat before parking.
> Taking all the above into account, I therefore respectfully
request that my appeal is upheld, and the charge is dismissed.
>
> Yours faithfully,
>
--- End Quote ---
HTML https://i.ibb.co/T48MHLK/AB23407641.png
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#Post#: 41237--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: b789
Date: October 17, 2024, 10:03 am
---------------------------------------------------------
If the Hirer has not identified the driver, where is the most
important point of appeal? Besides the point that it appears
that transfer of liability has not been done according to the
requirements of PoFA, are you saying that you appealed as the
Hirer even though you did not receive a Notice to Hirer (NtH) in
the hirers name?
From what has been said above, it appears that the Hirer has
appealed without receiving an NtH and only received a copy of
the Notice to Keeper (NtK) from Tusker. By failing to have the
liability transferred from Tusker (the Keeper) to you (the
Hirer) and by appealing as such, you have thrown away the
"golden ticket".
We already have one headache with another Tusker leased car.
Tusker "fines" team are a bunch of utter morons are are likely
to screw you over, front and back!
Did you appeal the NtK because Tusker sent you a "letter of
authorisation" to deal with it? If so, they have not transferred
liability to the Hirer and they could still be liable. MET are
very likely to get back to Tusker with a reminder and they will
go ahead and pay it, leaving you with zero chance of recovering
your money that they will charge or deduct from you.
The only way to guarantee that this would be easily dealt with
was if Tusker transferred liability as required by PoFA. MET
would then have been required to issue you an NtH in your name.
This they would have screwed up though as they would have failed
to comply with PoFA 14(2)(a) thus unable to hold the Hirer
liable.
I hope I'm wrong, but if you try and appeal to POPLA the winning
argument that MET have failed to comply with PoFA 14(2)(a), they
will simply say that that doesn't apply because no NtH was
issued. You now have to rely on the other arguments which POPLA
assessors are likely to dismiss.
The other strong argument about no evidence that the driver left
the site is good and should also be a winner. However, if it
does not succeed and you need to fight it in court, where it
would almost certainly win, it will be too late as MET will
simply go back to Tusker with a reminder or a debt demand and
they will simply pay it and then you are screwed.
So, what is the situation regarding the transfer of liability?
Did you receive an NtH in your name or did you simply appeal on
behalf of the Keeper?
#Post#: 41255--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: S.M
Date: October 17, 2024, 11:14 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> If the Hirer has not identified the driver, where is the most
important point of appeal? Besides the point that it appears
that transfer of liability has not been done according to the
requirements of PoFA, are you saying that you appealed as the
Hirer even though you did not receive a Notice to Hirer (NtH) in
the hirers name?
>
> From what has been said above, it appears that the Hirer has
appealed without receiving an NtH and only received a copy of
the Notice to Keeper (NtK) from Tusker. By failing to have the
liability transferred from Tusker (the Keeper) to you (the
Hirer) and by appealing as such, you have thrown away the
"golden ticket".
>
> We already have one headache with another Tusker leased car.
Tusker "fines" team are a bunch of utter morons are are likely
to screw you over, front and back!
>
> Did you appeal the NtK because Tusker sent you a "letter of
authorisation" to deal with it? If so, they have not transferred
liability to the Hirer and they could still be liable. MET are
very likely to get back to Tusker with a reminder and they will
go ahead and pay it, leaving you with zero chance of recovering
your money that they will charge or deduct from you.
>
> The only way to guarantee that this would be easily dealt with
was if Tusker transferred liability as required by PoFA. MET
would then have been required to issue you an NtH in your name.
This they would have screwed up though as they would have failed
to comply with PoFA 14(2)(a) thus unable to hold the Hirer
liable.
>
> I hope I'm wrong, but if you try and appeal to POPLA the
winning argument that MET have failed to comply with PoFA
14(2)(a), they will simply say that that doesn't apply because
no NtH was issued. You now have to rely on the other arguments
which POPLA assessors are likely to dismiss.
>
> The other strong argument about no evidence that the driver
left the site is good and should also be a winner. However, if
it does not succeed and you need to fight it in court, where it
would almost certainly win, it will be too late as MET will
simply go back to Tusker with a reminder or a debt demand and
they will simply pay it and then you are screwed.
>
> So, what is the situation regarding the transfer of liability?
Did you receive an NtH in your name or did you simply appeal on
behalf of the Keeper?
>
--- End Quote ---
My bad on this one - I shouldn`t have made the appeal before
receiving the ntH - When I saw the email from Tusker saying that
they have managed to transfer liability - I assumed everything
was ok.
When appealing this was one of the reply that was received from
Met Parking as the middle name was missing
--- Code ---
Thank you for your correspondence in respect of the above
charge. We note you state you are appealing as the
vehicle's registered keeper, however, we would point out that
you are not the registered keeper nor are you the hirer
that has been nominated by the vehicle's registered keeper.
Before we can process your appeal, please confirm who
you are in relation to this charge. Your response can be
uploaded at www.appealmetparking.com. We have placed the
charge on hold for a further 14 days to allow you time to send
us this information. If we do not receive the information by
the end of the 14 days, the charge will continue to progress
and we will be unable to process your appeal, as only
authorised individuals are permitted to appeal.
--- End Code ---
My friend did mention to Tusker that he has appealed and not to
pay any fines in relation to this PCN.
Can a POPla appeal not be able to put forward regarding the site
boundary or even the proof that the driver left the premises?
#Post#: 41261--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: b789
Date: October 17, 2024, 11:49 am
---------------------------------------------------------
Is the vehicle being purchased through a salary sacrifice
scheme?
In the response from MET they say that you are not the named
Hirer which implies that Tusker did transfer liability to the
Hirer, possibly your employer. You appear to be the day to day
keeper.
Did your employer pass the Notice to Hirer (NtH) they received
after transfer of liability fro Tusker or have they simply
passed on to you the copy of the Notice to Keeper (NtK) that
Tusker will have also sent to the Hirer as part of the transfer
of liability?
If the employer wanted to let you, the day to day keeper, handle
the PCN on their behalf, they would have to issue a letter of
authority something like this:
--- Quote ---
> [Company Letterhead]
> [Date]
>
> To Whom It May Concern,
>
> Re: Authority to Act on Behalf of [Company Name] in Relation
to Notice to Hirer Ref: [NtH Reference Number]
>
> This letter serves as formal confirmation that [Employee’s
Full Name], an employee of [Company Name], is hereby authorised
to act on behalf of [Company Name] in all matters related to the
Notice to Hirer (Reference: [NtH Reference Number]), issued for
the vehicle with registration number [Vehicle Registration
Number].
>
> [Employee’s Full Name] is authorised to correspond with
[Parking Company Name], submit appeals, and make decisions on
behalf of [Company Name] in relation to this Notice.
>
> If you have any questions or require further verification of
this authority, please do not hesitate to contact us.
>
> Sincerely,
>
> [Name of Authorised Person]
> [Title]
> [Company Name]
> [Contact Information]
--- End Quote ---
#Post#: 41263--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: S.M
Date: October 17, 2024, 12:01 pm
---------------------------------------------------------
--- Quote from: b789 link ---
>
> Is the vehicle being purchased through a salary sacrifice
scheme?
>
> In the response from MET they say that you are not the named
Hirer which implies that Tusker did transfer liability to the
Hirer, possibly your employer. You appear to be the day to day
keeper.
>
> Did your employer pass the Notice to Hirer (NtH) they received
after transfer of liability fro Tusker or have they simply
passed on to you the copy of the Notice to Keeper (NtK) that
Tusker will have also sent to the Hirer as part of the transfer
of liability?
>
> If the employer wanted to let you, the day to day keeper,
handle the PCN on their behalf, they would have to issue a
letter of authority something like this:
>
> [quote][Company Letterhead]
> [Date]
>
> To Whom It May Concern,
>
> Re: Authority to Act on Behalf of [Company Name] in Relation
to Notice to Hirer Ref: [NtH Reference Number]
>
> This letter serves as formal confirmation that [Employee’s
Full Name], an employee of [Company Name], is hereby authorised
to act on behalf of [Company Name] in all matters related to the
Notice to Hirer (Reference: [NtH Reference Number]), issued for
the vehicle with registration number [Vehicle Registration
Number].
>
> [Employee’s Full Name] is authorised to correspond with
[Parking Company Name], submit appeals, and make decisions on
behalf of [Company Name] in relation to this Notice.
>
> If you have any questions or require further verification of
this authority, please do not hesitate to contact us.
>
> Sincerely,
>
> [Name of Authorised Person]
> [Title]
> [Company Name]
> [Contact Information]
--- End Quote ---
[/quote]
vehicle is being leased through a salary sacrifice scheme.
Tusker has sent a letter of authority which was used in the
appeal. At no point did the hirer identified the driver. Aren`t
we able to appeal to POPLA considering we already have the
appeal reference and the popla code?
I have seen quite a few posts on MSE website where people have
won their cases, maybe this one is different due to it being a
lease vehicle on a salary sacrifice?
#Post#: 41303--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: b789
Date: October 18, 2024, 3:32 am
---------------------------------------------------------
You can try and appeal to POPLA but the person is NOT the Hirer.
The employer is the Hirer. The employee is the day to day
keeper. Tusker giving the employee the NtK does not remove
Tuskers liability unless they transferred liability to the
Keeper (the employer) according to the requirements in PoFA
paragraph 13.
BY all means, try a POPLA appeal as the "Hirer" although they
are not the "Hirer". As far as we know, no NtH has been issued
by the operator, whether to the employer or the employee because
Tusker have fecked up the correct way to do it.
As far as POPLA will be concerned, the NtK was issued correctly
(unless you can persuade them that there is some other failure
that means it was not issued correctly) and PoFA paragraphs
13/14 do not apply as no one has transferred liability to the
actual Hirer.
The employee should find out from Tusker whether they competed
the transfer of liability as per PoFA requirements which you can
read here:
Protection of Freedoms Act 2012
HTML https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
Paragraph 13 is the one the Keeper (Tusker) has to follow and
then Paragraph 14 is the one applicable to the Hirer (the
employer). The employee is not considered as the day to day
keeper is not a term used in PoFA. Only "Driver", "Keeper" and
"Hirer" apply.
From what we can tell, the correct procedure would be for
Tusker, upon receipt of the NtK should complete the transfer of
liability to the Hirer (the employer company). That absolves
Tusker of any liability whatsoever. The Hirer then has to wait
for an NtH to be sent in their name and after that they can deal
with it. If they don't want to deal with it, they can give the
employee (the day to day keeper) a letter of authority to handle
it on behalf of the company.
This process has not been followed and the root cause is Tusker.
#Post#: 41337--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: S.M
Date: October 18, 2024, 5:58 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> You can try and appeal to POPLA but the person is NOT the
Hirer. The employer is the Hirer. The employee is the day to day
keeper. Tusker giving the employee the NtK does not remove
Tuskers liability unless they transferred liability to the
Keeper (the employer) according to the requirements in PoFA
paragraph 13.
>
> BY all means, try a POPLA appeal as the "Hirer" although they
are not the "Hirer". As far as we know, no NtH has been issued
by the operator, whether to the employer or the employee because
Tusker have fecked up the correct way to do it.
>
> As far as POPLA will be concerned, the NtK was issued
correctly (unless you can persuade them that there is some other
failure that means it was not issued correctly) and PoFA
paragraphs 13/14 do not apply as no one has transferred
liability to the actual Hirer.
>
> The employee should find out from Tusker whether they competed
the transfer of liability as per PoFA requirements which you can
read here:
>
> Protection of Freedoms Act 2012
HTML https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
>
> Paragraph 13 is the one the Keeper (Tusker) has to follow and
then Paragraph 14 is the one applicable to the Hirer (the
employer). The employee is not considered as the day to day
keeper is not a term used in PoFA. Only "Driver", "Keeper" and
"Hirer" apply.
>
> From what we can tell, the correct procedure would be for
Tusker, upon receipt of the NtK should complete the transfer of
liability to the Hirer (the employer company). That absolves
Tusker of any liability whatsoever. The Hirer then has to wait
for an NtH to be sent in their name and after that they can deal
with it. If they don't want to deal with it, they can give the
employee (the day to day keeper) a letter of authority to handle
it on behalf of the company.
>
> This process has not been followed and the root cause is
Tusker.
>
--- End Quote ---
Yes it it not the correct one and Tusker is seemingly coming up
with rules as they go along.
Appealing to POPLa should I use the same wording as above from
the original appeal?
I have seen quite a few links on the MSE website - Ex - using
this one
HTML https://forums.moneysavingexpert.com/discussion/6431256/successful-popla-appeal-against-met-parking-stansted-mcdonalds-and-starbucks<br
/>can i add point number 2 to my appeal?
#Post#: 41344--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: b789
Date: October 18, 2024, 6:21 am
---------------------------------------------------------
The MSE POPLA appeal you have linked to does not apply in this
case. That was for a PCN issued on land under statutory control,
Stansted Airport bylaws where there can be no keeper liability.
It's up to you how you appeal to POPLA. Had Tusker and the
employer carried out the correct procedure and an NtH been
issued to the employer company and had they provided the
employee authorisation to deal with it in the company name, then
it would be an easy win at POPLA because there would be no
keeper/hirer liability and as long as the driver was not
identified, that would be the end of the matter.
If you want to try POPLA, then I really don't know as what the
employee is appealing as. If they are appealing as the driver,
then there is little to appeal on. If the are appealing as the
Hirer, then as long as POPLA don't query the fact that the
appellant is not the named Hirer, there is a chance it could be
successful, again as long as the driver is not identified.
If they are appealing on behalf of Tusker under a letter of
authority to deal with it in their name, I don't see any
successful appeal that can be made, whether the driver is
identified or not.
From the information provided, there has only ever been an NtK
issued. Transfer of liability has not been correctly carried out
according to the requirements of PoFA and so, the Keeper
(Tusler) is still ultimately liable. If POPLA don't accept
whatever appeal you submit, MET are then going to go back to
Tusker and demand that they pay the alleged debt. Tusker will
simply pay it, charge back to the Hirer and the Hirer will dock
the wages of the employee.
In the final event, if the employee wants to recover that money,
they will have to sue Tusker or get their employer to sue
Tusker.
#Post#: 41385--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: S.M
Date: October 18, 2024, 10:26 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> The MSE POPLA appeal you have linked to does not apply in this
case. That was for a PCN issued on land under statutory control,
Stansted Airport bylaws where there can be no keeper liability.
>
> It's up to you how you appeal to POPLA. Had Tusker and the
employer carried out the correct procedure and an NtH been
issued to the employer company and had they provided the
employee authorisation to deal with it in the company name, then
it would be an easy win at POPLA because there would be no
keeper/hirer liability and as long as the driver was not
identified, that would be the end of the matter.
>
> If you want to try POPLA, then I really don't know as what the
employee is appealing as. If they are appealing as the driver,
then there is little to appeal on. If the are appealing as the
Hirer, then as long as POPLA don't query the fact that the
appellant is not the named Hirer, there is a chance it could be
successful, again as long as the driver is not identified.
>
> If they are appealing on behalf of Tusker under a letter of
authority to deal with it in their name, I don't see any
successful appeal that can be made, whether the driver is
identified or not.
>
> From the information provided, there has only ever been an NtK
issued. Transfer of liability has not been correctly carried out
according to the requirements of PoFA and so, the Keeper
(Tusler) is still ultimately liable. If POPLA don't accept
whatever appeal you submit, MET are then going to go back to
Tusker and demand that they pay the alleged debt. Tusker will
simply pay it, charge back to the Hirer and the Hirer will dock
the wages of the employee.
>
> In the final event, if the employee wants to recover that
money, they will have to sue Tusker or get their employer to sue
Tusker.
>
--- End Quote ---
I think in this case - let the hirer appeal under their name
with the Tusker authorisation - Considering Met Parking hasn`t
mentioned anything in relation to the employer being the hirer,
it could be a case that POPLA will accept it.
Would you add anything to the text that was used or should the
same text and ground be used? Thank you
#Post#: 41390--------------------------------------------------
Re: Met Parking Services - Occupants left premises - Mc Donalds
Leytonstone
DIR By: b789
Date: October 18, 2024, 10:46 am
---------------------------------------------------------
You can use the same points in the POPLA appeal. However, there
is no such thing as the "registered hirer". There is only the
"driver", "keeper" or "hirer". The "keeper" can be just the
"keeper" or the "registered keeper".
In this case, the person appealing is the day to day "keeper"
but is not the named "keeper" which is where an issue could
arise. The point about no evidence of the driver leaving the
site is a powerful one but don't expect POPLA to really care.
They can be moronic at times.
Even if POPLA reject the appeal, there is no obligation to pay
the charge and the POPLA decision has absolutely no bearing on
any future proceedings. However, as pointed out, If POPLA reject
the appeal, MET are going to send a reminder to Tusker where you
will be screwed.
It would be Tusker who receive the claim form in their name. If
it were in the employees name, it would never reach a hearing
because it is what is known as a "toothbrush" case where
previous attempts by PPCs to claim driver left site cases that
actually got in front of a judge, the advocate for the claimant
was told in no uncertain terms that if they tried to waste the
courts time on these pathetic, un-evidenced claims, they'd
better bring a toothbrush next time because they would not be
going home from the court for their unreasonable behaviour.
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