Saturday, 7 September 2013

BPA Ltd retain control over POPLA web site

Evidence that further weakens POPLA's claim to be independent has emerged following the completion of an FoI request.

The Parking Prankster had previously run a campaign to urge POPLA to update their web site to include more reasons motorists could use to appeal. POPLA resisted this - now we know why. POPLA are not allowed to update their own web site; content has to be approved by British Parking Association (BPA) Ltd.

If any further proof was needed that the BPA Ltd only have the interests of their members at heart, and do not care a fig about the motorist, then a quick read of the bad-tempered email exchange between the BPA Ltd and the Department for Transport (DfT) will dispel all doubts.

Photograph: Patrick Troy, Chief Executive, BPA Ltd. The man responsible 
for misleading the government over savings POFA 2012 could achieve and
blocking the government from making changes to POPLA for the benefit of 

The email exchange clearly shows the DfT recognise that the BPA Ltd have complete control over the POPLA website. The DfT start by pointing out the BPA Ltd have used different wording than agreed, including barring motorists from claiming the fees are excessive, that signage problems are not relevant and that mitigating circumstances never apply.

They also point out the code of practice (CoP) is misleading in that the BPA Ltd tell parking operators that the keeper can be pursued if the driver refuses to pay. Although the DfT redact their legal advice, it obviously concerns the wording used by the BPA Ltd in the CoP.

The BPA Ltd make small changes, changing the web site a little. They then drag their feet, refusing to change the web site any more. The DfT even consider removing the BPA Ltd's Accredited Trade Association (ATA) status in an effort to force them to change the site.The email exchange shows that the BPA Ltd do not want to encourage more appeals. Finally, after much government pressure, the BPA Ltd eventually make the changes.

Here are some selected excerpts.

Anthony Boucher, Deputy Director, Transport Division, DfT to Norman Baker MP, pointing out BPA Ltd's prevarication.
Motorists are not being given clear guidance about the grounds on which they can appeal if they receive a parking ticket when they park on private land. Officials have had some success in pushing the British Parking Association (BPA) to make the necessary changes, but the BPA are prevaricating on some aspects, and a letter from you may be needed. There is also a problem with the revised BPA Code of Practice which gives potentially misleading advice to their members about keeper liability.

DfT on BPA Ltd admitting the reasons on the website are limited to prevent appeals
they are unwilling to make changes to the website so that motorists know that they can appeal if they believe the charge was excessive or disproportionate. Their reasoning is that motorists might see any charge as excessive and as a result the appeals service would be flooded with appeals
DfT official to Anthony Boucher regarding BPA Ltd failure to co-operate
This question is linked to the consideration of what action we advise Ministers to take if BPA/POPLA continue to prevaricate or refuse outright to make the changes we require. On the latter is there a view on options, particularly on whether we should go so far as to recommend to Ministers that they could consider a general suspension on ATA member access to DVLA data if the changes aren't made? I don't think advice on this needs to go in this submission but we need to consider the options and what is possible if BPA choose not to co-operate

It was therefore fairly cheeky of the Lead Adjudicator to state in his annual report:
The appeal form notes and the website suggests situations which might fall within particular grounds but we, and the Department for Transport, were aware that too many suggestions as to what is not within a particular ground, may have the unintended consequence of perhaps putting off a motorist with a genuine case
It is clear from the email exchange that the BPA Ltd, and by association POPLA, would far prefer to put motorists off appealing than to encourage them. After all, each appeal costs the BPA Ltd around £120 and only £27 of this cost is recoverable from their members. As far as The Prankster can see from the information provided in the FoI request, the statement by the Lead Examiner has no basis  in fact and appears to be completely opposite to the true picture.

The Prankster has had no success so far at persuading POPLA to update their reasons to appeal. He had asked them to add the reasons which have been successful for motorists so far, including requiring the operator to produce a break down of their pre-estimate of loss and show written authorisation from the landowner they can issue charges and pursue to court.

Now he knows why they have flatly refused; their paymasters the BPA Ltd have been pulling the strings all along.

In a reply to The Prankster, Richard Reeve, the Tribunal Manger for POPLA, gave this reason for not updating the web site:
"As POPLA is an independent body, it would not be appropriate for it to advertise successful appeal reasons"
The Prankster considers that the exact opposite applies. As POPLA wishes to be thought of as an independent body (despite the evidence stacking up against this), then it would be entirely appropriate for it to publish valid reasons to appeal.

The Prankster also asked for a register of appeal results to be published, similar to the way PATAS does. Mr Reeve replied.
"There is no statutory requirement for POPLA to maintain a register."
The Prankster considers this is ducking the question. Moreover, Mr Reeve is quite happy to quote PATAS when it suits him. When the Prankster complained that the operators get 28 days to consider the motorist's evidence, but the motorists only gets 7 days to consider the operator's (which may consist of 40 pages or more) Mr Reeve stated:
It should be pointed out that in the statutory tribunals, the minimum is 5 days.
The Prankster notes that the government consider that appealing a parking charge because the amount is not a genuine pre-estimate of loss is a valid appeal reason.

Extracts from letter to the BPA Ltd from Norman Baker MP
As you know we exchanged a number of letters on what the eligible grounds for appeal should be in the run-up to 1 October, and agreed among other things that POPLA would be able to:
 consider whether or not a parking charge was based on a genuine pre-estimate of loss, or whether it contained an element of non-enforceable penalty;
I believe failure to act on these issues would seriously undermine the intended safeguards on reasonable behaviour by parking operators that I clearly set as a condition of agreeing to introduce the provisions in Schedule 4 of the Protection of Freedoms Act. I would therefore be grateful for your confirmation that you will ensure that the Code of Practice and the grounds of appeal to POPLA are amended forthwith to reflect that agreement.
The Lead Adjudicator also thinks this is a valid appeal reason. Many appeals have been upheld on this basis by his staff, and he explicitly mentions it in his secret May newsletter to help parking companies:
Genuine pre-estimate of loss

If the motorist claims that the parking charge is ‘disproportionate’ or similar, or quotes the Unfair Contract Terms Act 1977 or other legislative provisions, then the operator must, as always, address the issue. If they do not then, as with any issue not addressed, the appeal is likely to be allowed.

The amount sought as the parking charge may be a term of the contract, rather than a sum for breach of it. If this is the case then reference to the signage may be sufficient. Some signs make it very clear, for example: ‘The tariff for overstaying or parking outside the bay markings is £100’ or ‘This is a Blue Badge bay. You may park here without a Blue Badge but if you do the charge is £100’.

If the signage appears effectively to indicate that the amount is damages then, where the issue is raised, the operator must clearly state that it is indeed a genuine pre-estimate of loss, always assuming that it is.
If, in whatever way, a motorist actually explains why they think the amount of the parking charge is not a ‘genuine pre-estimate of loss’, which is not common, then the operator may be able to deal with it by briefly explaining what it is. If nothing is said then the issue has not been dealt with.

Why then is this valid appeal category not mentioned on the POPLA web site? The real reason is because the BPA Ltd do not want it there. The reason they don't want it? All appeals where the parking company claim breach of contract will currently lose at POPLA if this appeal reason is quoted.

Happy Parking

The Parking Prankster

1 comment:

  1. Two people you'll never see in the same room; Patrick Troy and Herr Otto Flick (from 'Allo 'Allo)