POFA or not POFA

POFA is the often used shorthand for Schedule 4 The Protection of Freedoms Act 2012. That law was introduced at the same time as clamping on private land was outlawed and gives a landowner (via their chosen parking management company) the right to demand payment from the registered keeper of the vehicle if certain conditions are met.

Mr Mustard doesn't routinely help people with private parking charges but does advise some friends who have a vehicle hire business and receive about 100 tickets (council and private) a week and does a few others just for the practice and the fun of it. Mr Mustard is happy appearing at the tribunal which runs very efficiently to a 30 minute timetable per ticket but can't spend his life sitting around at various county courts waiting to get in front of a district judge. He is though perfectly capable of dealing with a case on the papers and parking companies are usually happy to fight that way as it saves them paying a fee to the legal representative who would otherwise have to be in court.

Here is a Parking Charge Notice to Registered Keeper which a private individual sent on to Mr Mustard and asked for help with.

sorry the edges are cut off but they aren't needed

The rule set by POFA is that if the first document is a Notice to Keeper sent by post, it has to be in the hands of the Registered Keeper by the 14th day after the day of parking, so if the parking was on Friday 1st January, by Friday 15th January. In the above case Mr Mustard noted that the Notice was not posted until the day after the 14 day period has ended and thus would have arrived 2 or 3 days after the period had ended. That would give the Keeper a good defence to a POFA based claim. However, by the wording of the Notice, Mr Mustard came to the conclusion that All Parking Services were relying on a contract having been formed by the driver by the presence of signs, then applying to DVLA for keeper details under the basis of reasonable cause (which Mr Mustard doesn't think is reasonable as the parking company has no idea if the Keeper was the Driver on the day) and then sending what looks like a POFA compliant Notice to Keeper but isn't, it is simply a subtly worded letter inviting the Keeper to admit who the Driver was. This is a bad idea as often the Keeper will incriminate themselves as the Driver and they have the right not to (don't try this with a police speeding ticket, tell them the truth, as the law obliges the keeper to name the driver).

Mr Mustard sent a letter in this case to ZZPS who do all the chasing on behalf of All Parking Services (their details got cut off the bottom of the letter when scanned) which said the following

Your Notice is out of time for good service under the Protection of Freedoms Act and there is no other legislation which requires the Keeper to pay your 'PCN' (a term which a private parking operator should not use as it is liable to be confused with a council document) nor is there any legislative reason why the Keeper 'should' give you the details of the driver on the day in question.

The Keeper is not going to name the Driver and you have no evidence as to who it was.

That letter was only sent this week so Mr Mustard can't tell you the response as yet. He will later.

At the weekend, Mr Mustard popped down to see his friends at the vehicle hire company and asked them if they had any demands from the PCN Admin Centre as they shouldn't release details of the hirer unless obliged to by POFA. He was given this one:

You can see straightaway that there is more content in this Notice to Keeper/Hirer and this is for a site where a ticket was put on the vehicle on the day. The Notice isn't perfect but that isn't the reason for this blog, the reason is to make you stop and think and decide at the beginning if you should be naming the driver or not.

You can easily find a copy of POFA on the internet. Schedule 4 is fairly short.

Paragraph 8 sets out the rules for a Notice to Keeper after a Notice to Driver was issued. That cannot be served until 29 days after the parking event.

Paragraph 9 sets out the rules for a Notice to Keeper when nothing was served on the day. That has to arrive within the 14 days starting the day after the parking event.

Get your analysis correct at the beginning and you will avoid a whole heap of trouble.

Yours frugally

Mr Mustard

Wing on a prayer

Wing Parking seem to have become the default solution to councils in London to 'manage' parking on council estates (by 'manage' I mean to dish out Parking Charge Notices and, to be fair, to issue permits upon request, but the profit in this type of contract is in issuing as many penalties as possible).

Unfortunately the person who let the contract at Barnet Homes, had not seen a letter of advice from Sir Robert Goodwill MP:

Sir Robert Goodwill Letter of Sept 14 by MisterMustard on Scribd

Just to be clear the Protection of Freedoms Act (POFA) (a misnomer if ever Mr Mustard saw one) which was introduced to bring in a less harsh system than clamping (debatable if it has had that outcome what with private ticketing having become a growth industry) allows for parking charge notices to be issued on private land which is 'relevant land' and Barnet Council owned land simply isn't.

These are extracts from POFA which confirm what Mr Mustard has just written.

clearly as Barnet Council are the Highway Authority for the borough and as Barnet Homes manage the estates owned by Barnet Council what they should have done, and what other local authorities have done, was to introduce a CPZ for each housing estate so that only residents and their visitors can park there, which is the aim. For some reason councils tenants are only charged £15 for an annual permit whereas residents who live within a CPZ have to pay £40 / £70 / £100 (an emissions based charge which is itself unfair as only 10% of residents live within a CPZ, the rest can have a 5 litre engine if they wish) so either council tenants have been under-charged or CPZ residents have been over-charged, or both (or both overcharged? - in Newham the first permit is free - putting the community first).

Here is an extract from a recent witness statement made in a case which is ongoing at POPLA. You would hope that the Assessor would notice the illegality but they tend to decide only on points of appeal that are raised with them - this one is now being raised. Mr Mustard expects that a private parking expert who has good contacts at high level with POPLA will be bringing this matter to the attention of the chief assessor.

so Barnet Homes agree that the land belongs to the London Borough of Barnet, who are the traffic authority, so this is not 'relevant land'. The witness is a Neighbourhood Housing Officer who clearly doesn't know what she is signing.

Mr Mustard has heard on the grapevine that Wing have been banned from accessing the DVLA database because they are issuing PCN which are legally defective. If that is the case you can park freely on a council housing estate mismanaged by Wing and ignore the Notice to Driver (keep it safe in your glove box) as a Notice to Keeper will never arrive as Wing can't find out who the Keeper of the vehicle is. (It would be unhelpful to deliberately park in this way).

If you have received a Notice to Keeper, had your challenge rejected and are now heading towards POPLA then this should be the grounds of your Appeal, that the land is not relevant land. You should also complain to the DVLA about the release of your data.

Complaints Team
DVLA
Swansea
SA6 7JL

They like to use web forms rather than email (Mr Mustard hates web forms as he can't save them to his computer for his own records) but if you phone 0300 790 6802 you could ask for a real email address, one which ends in .gov.uk probably. If you give it to Mr Mustard he will edit this blog.

Just about everything is wrong with the use of Wing. Mr Mustard's final beef is the use of a PCN which looks like it was issued by an official body and Codes of Practice require that private parking companies do not pass themselves off as having any official status.

Mr Mustard notes that the Penalty was issued before the 15 minutes stipulated in the Contract. Barnet Homes not auditing their suppliers then?

Yours frugally

Mr Mustard