Independent Parking Committee fail to provide Alternative Dispute Resolution to ADR Entity consumer regulation standards

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 came into force on 9th July 2015. Although they are not mandatory, they do lay down the criteria that an Alternative Dispute Resolution (ADR) body must match or exceed if they wish to gain the status of 'ADR entity'.

This therefore is a natural starting point for any ADR offering. The DVLA when granting Accredited Trade Association  (ATA) status to parking trade associations requires them to offer free ADR to motorists, but it does not currently require the ADR to be carried out by a listed ADR Entity, or even to match those required standards.

The current offering of the Independent Parking Committee (IPC) has been matched against those standards, and found to be severely wanting.

In summary, the ADR offering passes on 17 counts, fails on 33 counts, with 11 counts unknown or not applicable. Crucially the service fails all 5 of the fairness criteria and 11 of the 16 transparency criteria.

	pass	fail	unknown or n/a
Alternative dispute resolution services offered by the body	2	1	0
Access to the ADR entity	1	3	2
Expertise, Independence and Impartiality	2	5	1
Conflict of interests procedure	0	3	0
Transparency	3	11	2
Effectiveness	3	2	0
Fairness	0	5	0
Participation	0	1	3
Legality	2	0	0
Grounds to refuse to deal with a dispute	4		2            3
TOTALS	17	33	11

The recommendation is therefore that the DVLA carry out a full audit of the IPC appeals service and dependent on the results withholds ATA status unless the service can get up to the required standards in a reasonable timescale.





The full analysis is as follows.

SCHEDULE 3 Regulation 9(4)

Requirements that a competent authority must be satisfied that the body meets

Alternative dispute resolution services offered by the body
1. The body—
(a) offers alternative dispute resolution services in relation to a domestic dispute or crossborder
dispute brought by a consumer against a trader;
PASS
(b) is not formed for the purpose of dealing only with one particular domestic dispute or
cross-border dispute;
PASS
(c) does not offer alternative dispute resolution services in relation to a domestic or crossborder
dispute in circumstances where an ADR official responsible for the dispute is either employed or remunerated directly by a trader who is a party to the dispute.
FAIL. Because the ADR Officials are not named, and the selection process is not transparent this cannot be guaranteed. In addition, at least some disputes appear to have been decided by members of the IPC, given the speed of decision (less than 5 minutes)

Access to the ADR entity
2. The body—
(a) maintains an up-to-date website which provides the parties to a domestic dispute or crossborder
dispute with information regarding the alternative dispute resolution procedure operated by the body;
FAIL. Only the procedure for motorists is listed. The procedure for operators is kept secret.
(b) provides the information referred to in sub-paragraph (a) to a party on a durable medium,
if a party requests it;
Not known
(c) ensures that its website enables a consumer to file an initial complaint submission and any necessary supporting documents online;
PASS
(d) permits the consumer to file an initial complaint submission by post, if the consumer
wishes;
FAIL. Although postal submission has been know to happen, it is not explained how to do this.
(e) enables the exchange of information between the parties via electronic means or, if a party wishes, by post;
FAIL. No exchange of information occurs. Operator submissions and evidence are kept secret.
(f) accepts disputes covered by Regulation (EU) No 524/2013 of the European Parliament
and of the Council of 21 May 2013 on online dispute resolution for consumer disputes(a).
Not known

Expertise, Independence and Impartiality

3. The body—
(a) ensures that an ADR official possesses a general understanding of the law and the necessary knowledge and skills relating to the out-of-court or judicial resolution of consumer disputes, to be able to carry out his or her functions competently;
FAIL. Officials have failed to show competency with basic parking laws and consumer regulations
(b) appoints each ADR official for a term of office of sufficient duration to ensure the independence of that person’s actions and provides that no ADR official can be relieved of his or her duties without just cause;
FAIL: Officials are used on an ad-hoc basis as and when needed
(c) ensures that no ADR official discharges his or her duties in a way that is biased as regards a party to a dispute, or the representative of a party;
FAIL. Analysis of the results shows an apparent institutional bias against motorists
(d) remunerates an ADR official in a way that is not linked to the outcome of the alternative dispute resolution procedure;
PASS
(e) where it appoints more than one ADR official, ensures that an ADR official, without undue delay, discloses to the body a circumstance that may, or may be seen to—
(i) affect the ADR official’s independence or impartiality; or
(ii) give rise to a conflict of interest with a party to the dispute which the ADR official is asked to resolve;
FAIL. As the officials are not named, this cannot be guaranteed.
(f) ensures that the obligation to disclose a conflict of interest is a continuing obligation throughout the alternative dispute resolution procedure;
FAIL. As the officials are not named, this cannot be guaranteed.
(g) ensures that in circumstances where its ADR officials are employed or remunerated exclusively by a professional organisation or business association, the body has a ringfenced budget at its disposal which is sufficient to enable it to carry out its functions as an ADR entity;
Not known
(h) ensures that where the operating model of its alternative dispute reolution procedure is to have a collegial body of representatives of both professional organisations or business associations, and consumer organisations, its ADR officials comprise an equal number of representatives of consumer interests and trader interests.
PASS - (not applicable)


Conflict of interests procedure

4. The body has in place the following procedure in the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—
(a) where possible, the ADR official is replaced by another ADR official to handle the particular dispute;
FAIL. As the officials are not named, this cannot be guaranteed.
(b) if the ADR official cannot be replaced by another ADR official—
(i) the ADR official must refrain from conducting the alternative dispute resolution procedure, and
(ii) the body must, where possible, propose to the parties that they submit the dispute to another ADR entity which is competent to deal with it;
FAIL. As the officials are not named, this cannot be guaranteed.
(c) if the dispute cannot be transferred to another ADR entity, the body—
(i) must inform the parties to the dispute of the circumstances of the conflict of interest,
(ii) must inform the parties to the dispute that they have the right to object to the conflicted person continuing to handle the dispute, and
(iii) can only continue to deal with the dispute if no party to the dispute objects.
FAIL. As the officials are not named, this cannot be guaranteed.

Transparency
5. The body makes the following information publicly available on its website in a clear and easily understandable manner, and provides, on request, this information to any person on a durable medium—
(a) its contact details, including postal address and e-mail address;
FAIL. The postal address is not provided on the contact page
(b) a statement that it has been approved as an ADR entity by the relevant competent authority once this approval has been granted;
Not applicable
(c) its ADR officials, the method of their appointment and the duration of their appointment;
FAIL. These are all kept secret
(d) the name of any network of bodies which facilitates cross-border alternative dispute resolution of which it is a member;
Not applicable
(e) the type of domestic disputes and cross-border disputes which it is competent to deal with, including any financial thresholds which apply;
PASS
(f) the procedural rules of the alternative dispute resolution procedure operated by it and the grounds on which it can refuse to deal with a given dispute in accordance with paragraph

13;
FAIL. The operator procedures are not listed
(g) the language in which it is prepared to receive an initial complaint submission;
FAIL. This is not specified
(h) the language in which its alternative dispute resolution procedure can be conducted;
FAIL. This is not specified
(i) the principles the body applies, and the main considerations the body takes into account,
when seeking to resolve a dispute;
FAIL. This is not fully specified
(j) the preliminary requirements, if any, that a party to a dispute needs to have met before the alternative dispute resolution procedure can commence;
PASS
(k) a statement as to whether or not a party to the dispute can withdraw from the alternative dispute resolution procedure once it has commenced;
FAIL. This is not specified
(l) the costs, if any, to be borne by a party, including the rules, if any, on costs awarded by the body at the end of the alternative dispute resolution procedure;
PASS
(m) the average length of each alternative dispute resolution procedure handled by the body;
FAIL. This is not specified

(n) the legal effect of the outcome of the dispute resolution process, including whether the outcome is enforceable and the penalties for non-compliance with the outcome, if any;

FAIL. This is not specified

(o) a statement as to whether or not alternative dispute resolution procedures operated by it can be conducted by oral or written means (or both);

FAIL. This is not specified

(p) the annual activity report required to be prepared under regulation 11(2).

FAIL. No annual report is prepared

Effectiveness

6. The body—

(a) ensures that its alternative dispute resolution procedure is available and easily accessible

to both parties irrespective of where they are located including by electronic means and

non-electronic means;

FAIL. Only electronic applications are easily accessible. Even they are not easy. Cut and paste is not allowed in the appeals box, meaning the entire appeal has to be typed out at the time.

(b) ensures that—

(i) the parties to a dispute are not obliged to obtain independent advice or be represented

or assisted by a third party although they may choose to do so;

PASS

(ii) the alternative dispute resolution is available free of charge or at a nominal fee for

consumers;

PASS

(c) notifies the parties to a dispute as soon as it has received all the documents containing the

relevant information relating to the dispute constituting the complete complaint file;

FAIL. The motorist is not informed.

(d) notifies the parties of the outcome of the alternative dispute resolution procedure within a

period of 90 days from the date on which the body has received the complete complaint

file except that, in the case of a highly complex dispute, the body may extend this period

but must inform the parties of this extension and the expected length of time that it will

need to conclude the alternative dispute resolution procedure.

PASS

Fairness

7. The body—

(a) ensures that during the alternative dispute resolution procedure the parties may, within a

reasonable period of time, express their points of view;

FAIL. Only 21 days are allowed to appeal, as opposed to the year stipulated by the Regulations

(b) provides a party to a dispute within a reasonable period of time, upon request, with the

arguments, evidence, documents and facts put forward by the other party to the dispute,

including a statement made, or opinion given, by an expert;

FAIL. The motorist is not allowed to see anything from the operator until the appeal is finished

(c) ensures that the parties may, within a reasonable period of time, comment on the information and documents provided under paragraph (b);

FAIL. The motorist is not allowed to comment on the information. Even if they were allowed to see it, no changed can be made once the appeal is filed. 

(d) informs the parties that they are not obliged to retain a legal advisor, but that they may seek independent advice or be represented or assisted by a third party at any stage of the alternative dispute resolution procedure;

FAIL. This is not clearly mentioned

(e) notifies the parties of the outcome of the alternative dispute resolution procedure on a durable medium and gives the parties a statement of the grounds on which the outcome is based.

FAIL. The outcome is notified by email only. Where motorists win appeals often no grounds are given, giving rise to the suspicion that a certain number of appeals are allowed to make up the numbers.

Participation

8. Subject to paragraphs 9 and 10, in relation to an alternative dispute resolution procedure which aims at resolving a dispute by proposing a solution, the body ensures that the parties—

(a) have the possibility of withdrawing from the alternative dispute resolution procedure at any stage if they are dissatisfied with the performance or operation of the alternative dispute resolution procedure;

Not applicable

(b) before the alternative dispute resolution procedure commences, are informed of their right to withdraw from the alternative dispute resolution procedure at any stage;

Not applicable

(c) are informed, before agreeing to or following the proposed solution—

(i) that they have a choice as to whether or not to agree to, or follow, the proposed solution;

(ii) that their participation in the alternative dispute resolution procedure does not preclude the possibility of them seeking redress through court proceedings;

(iii) that the proposed solution may be different from an outcome determined by a court applying legal rules; and

(iv) of the legal effect of agreeing to, or following the proposed solution;

FAIL

(d) before expressing their consent to a proposed solution or amicable agreement, are allowed a reasonable period of time to reflect.

Not applicable

9. Paragraphs 8(a) and 8(b) do not apply to the body in respect of a party who is—

(a) a trader; and

(b) obliged, under an enactment or under the rules of a trade association to which the trader may belong, to participate in an alternative dispute resolution procedure.

10. Paragraph 8 does not apply to the body in respect of a party who is—

(a) a trader; and

(b) obliged, under an enactment or under the rules of a trade association to which the trader may belong, to accept the solution proposed by the body if the consumer accepts the solution.

Legality

11. In relation to an alternative dispute resolution procedure which aims at resolving a dispute by imposing a solution on the consumer, the body ensures that—

(a) in a situation where there is no conflict of laws, the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by agreement by virtue of any enactment;

PASS. Solutions are non binding on the consumer.

(b) in a situation involving a conflict of laws—

(i) where the law applicable to the sales contract or service contract is determined in accordance with Article 6(1) and (2) of Regulation (EC) No 593/2008 on the law applicable to contractual obligations(a) the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the law of the member State in which the consumer is habitually resident;

(ii) where the law applicable to the sales contract or service contract is determined in accordance with Article 5(1) to (3) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations(a) the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the mandatory rules of the law of the member State in which the consumer is habitually resident. l.

PASS. Solutions are non binding on the consumer.

12. For the purposes of paragraph 11 “habitual residence” is be determined in accordance with

Regulation (EC) No 593/2008(b).

Grounds to refuse to deal with a dispute

13. The body may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—

(a) prior to submitting the complaint to the body, the consumer has not attempted to contact the trader concerned in order to discuss the consumer’s complaint and sought, as a first step, to resolve the matter directly with the trader;

PASS

(b) the dispute is frivolous or vexatious;

PASS

(c) the dispute is being, or has been previously, considered by another ADR entity or by a court;

PASS

(d) the value of the claim falls below or above the monetary thresholds set by the body;

Not applicable

(e) the consumer has not submitted the complaint to the body within the time period specified by the body, provided that such time period is not less than 12 months from the date upon which the trader has given notice to the consumer that the trader is unable to resolve the complaint with the consumer;

FAIL. Complaints are only allowed for 21 days

(f) dealing with such a type of dispute would seriously impair the effective operation of the body.

Not known

14. The body ensures that its policy regarding when it will refuse to deal with a dispute, including in relation to the level of any monetary threshold it sets, does not significantly impair consumers’ access to its alternative dispute resolution procedures.

Not known

15. Subject to paragraph 16, where a body refuses to deal with a dispute, it must, within three weeks of the date upon which it received the complaint file, inform both parties and provide a reasoned explanation of the grounds for not considering the dispute.

PASS

16. Where following the expiry of the period referred to in paragraph 15, it appears to the body that one of the parties has sought to mislead the body as regards the existence or non-existence of one of the grounds for it to decline to deal with a dispute, the body may immediately decline to deal further with the dispute.

FAIL. Any reasonably competent body should be able to detect that the parking operators regularly seek to mislead the body.