POPLA rejected appeal - have I got the dates wrong?

[timbomomo]

Hello all, I'm in need of an expert eye to help with my case. Or at very least I just need someone to tell me whether POPLA made a mistake when looking at the dates or whether I've made the mistake and should just pay up. Thanks in advance. Here's a summary:

The vehicle was at the location at say 10am then moved by whoever may have been driving at 1001 - only there for a little over 1 minute. This happened on 17 March. A letter was received by the registered keeper on 3 April. This was headed "Non-POFA NTK". The date of issue was 31 March. So I thought this was a good case of being out of time to use POFA to claim from the registered keeper. By my reckoning if the letter was received on the 2nd working day after the 31st this would be 16 days.

Of course the appeal to the parking company was refused but then POPLA also refused the appeal saying "The PCN was issued to the keeper on 13 after the alleged breach occurred..." I can't understand where this 13 has come from. Have I made a mistake in counting the days from 17 March to 2 April?

I did also raise the point that the vehicle was there for less than the 5 minutes grace period given by the British Parking Association code of practice but this was not considered by the POPLA assessor.

Should I just pay up now or wait to go to small claims court? I can provide more details if needed. Many thanks again, Timbo

[ostell]

Write back to POFA and complain about incorrect application of POFA.

It looks like POPLA are saying that is was issued on day 13 and therefore in time. However issued is not in the equation as it is the time to be delivered to the keeper, which in this case would be 2 working days after issue and would be day 15 in anycase.

I agree that 17 - 31 is 14 days.

There is a POPLA contact for cases like this but I can't remember, perhaps someone will help. Complain that POPLA can't get their facts and the law correct.

[timbomomo]

Thank you Ostell for a quick response here. Apologies it was such a simple-looking query but then I was really beginning to question myself. I'll try to go back to POPLA and see what they say though throughout their website they make a big point about their service being a one-step appeal and they won't reassess a case. I'd hope this would just get thrown out at small claims court if it comes to that.

[ostell]

They always say it is one step but they do sometimes reconsider when the assessor has got it so glaringly wrong

[timbomomo]

Just to add some follow up in case anyone else is wondering. I have spoken to someone at POPLA over the phone and she gave the impression that the decision would be reversed. Of course not in those words but she gave me an email address and said to write what I had told her over the phone in my email because they need documentation in writing when they look again at an appeal decision. They have said the review will take a further 21 days (not the 8 week timescale for an appeal). I will update again with the outcome.

[ostell]

There is a name on the forum or the pepipoo forum of a senior member at POPLA to direct your complaint at.

Let us know how you get on.

point out to them the difference between issued and delivered and question the adjudicators knowledge of days in the month.

[timbomomo]

Hi everyone,

The complaints team rejected my interpretation of the dates. Here is their response:

I acknowledge your comments, however, it is important to note that the NTK was issued on 31 March 2021, 14 days after the parking event on 17 March 2021.

POFA is explicit in stating that: “(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended”.

POFA also advises that a Notice to Keeper is: “(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales”.

While I appreciate that you may have not received the NTK until 16 March 2021, the operator only has to demonstrate that it was sent within the relevant period and in this instance, I am satisfied that the NTK meets the strict requirements laid out in POFA and that the assessor is correct in their rational.

So according to POPLA as long as the NTK was posted on Day 14 that is ok. I'm going to argue that the POFA rules there mean that the burden of proof would rest on the parking operator to show that the notice was delivered on Day 14 if posted on Day 14 otherwise it is presumed to have been given two working days later on Day 16 and therefore out of time.

Are we ok waiting now until summons to small claims court? And what would be the process? Would a judge find in our favour based on a written submission or are we going to have to speak in court? Having never done that before, I'm a little apprehensive

Please also note the complaints assessor has made an error there. Based on that two working day presumption, the NTK was given on Friday 2 April 2021 not 16 March 2021.

Thank you again for your help

[ostell]

They must be employing idiots, that is NOT what POFA says at all. Was that 16th March at the end your mistype?

POFA doesn't advise, it states the fact

[timbomomo]

Yes I find it truly bizarre. The person responding to the complaint email has quoted POFA regarding the two working days for delivery of the NTK by post but then completely ignore this and says it doesn't matter because they posted it on Day 14. It was just sent by standard Royal mail. They didn't use any guaranteed same day courier so surely must rely on the timescale given in POFA. It's all really frustrating!

The 16th March was their mistype. Maybe he had the number 16 on his mind adding two days to 14 to make 16? In my email and the original appeal I gave the dates as 17 March for the alleged offence, 31 March for the issue of the NTK and then 2 April for when it is deemed to have been given to the keeper so 14 days plus 2 working days. In hindsight if I knew how bad they could be at counting days I would have listed each day and numbered them.

We're planning on ignoring anything now until a court summons. I hope it will go in our favour that we have exhausted all avenues for appeal.

Many thanks again.