Why parking on private land is an administrative justice issue

‘You know, somebody actually complimented me on my driving today. They left a little note on the windscreen. It said “Parking Fine”.’

Comedian Tommy Cooper

by Margaret Doyle

We all know that parking and parking tickets are highly emotive issues. A Direct Line poll this year found that parking charges are the fee consumers hate most. Headlines show the extent of rage against private car park operators – ‘Are Private Parking Firms Scamming Drivers By Doctoring Timing Of Photos?’ and ‘Pub customer fined £60 for staying 11 minutes too long for lunch’ are a few examples. Private parking also features in a case just heard by the UK Supreme Court, Beavis v ParkingEye, on the recoverability of penalty charges imposed by a private car park operator upon those who overstay a limited period of free parking.

This blog post considers the mechanisms for appealing charges for parking on private land and suggests that private parking appeals are of interest to administrative justice because they illustrate some key problems with dispute system design.

For appeals of parking on private land, two redress bodies exist, both essentially adjudication mechanisms:

• Parking on Private Land Appeals (PoPLA) came into being following the Protection of Freedoms Act 2012 and was set up by the British Parking Association (BPA).
• the Independent Appeals Service (IAS) was established in 2014 by the Independent Parking Committee (IPC).

Both BPA and IPC are known as Accredited Trade Associations (ATAs) for the private parking operator industry. According to the BPA, there are 542 private car parks and 388 local authority car parks managed by members of either the BPA or the IPC.

Background

Private parking enforcement has changed significantly in recent years, following the Protection of Freedom Act in 2012. That Act made wheel-clamping on, or towing away from, private land, without authority, illegal. This ban meant private parking operators had no effective means of enforcing their rules on overstaying, so the Act brought in vehicle keeper liability, which allowed private parking companies who are members of an ATA to request data on motorists from the DVLA. Concerns about this have been noted by the RCA Foundation, which published the report Private parking, public concern earlier this year:

‘… When operators were confronted with persistent offenders, wheel-clamping had, before the change in the law, been a means of guaranteeing that they would be paid; but when clamping became illegal it was recognised that another way would have to be found to ensure reasonable parking behaviour.

To meet the need of the operators to pursue those in breach of contract, after much debate in Parliament and after carrying out an impact assessment (DfT, 2011b), the Government decided to offer ‘keeper liability’ to members of the BPA–AOS (at the time the only parking ATA allowed to request DVLA data). Keeper liability meant that operators would be able to recover charges from the keeper of a vehicle at the time of an alleged breach of conditions, regardless of whether or not he or she had been the driver.’ 

This new provision means private operators have access to personal data held by a public body. In 2013, following the Act, ‘Members of parking ATAs (around 180 companies) made…2.2 million requests for vehicle keeper details from DVLA’. The RCA Foundation report notes that ‘[w]here publicly owned personal data is shared with private parking companies, regulation must be put in place to ensure consumers are not disadvantaged’.

The Coalition Government agreed that these keeper liability provisions would not be in force until an independent appeals mechanism was set up.

Appeal mechanisms

Since 1 October 2012, all members of an ATA have been required to offer free access to an Independent Appeals Service (IAS), available if the person receiving the ticket wishes to appeal after making representations to the landholder. Landholders who are not members of an ATA are not required to subscribe to an appeals process; any disputes or appeals arising in relation to those will normally be dealt with by the courts if not resolved informally between the parties.

As defined in the Government’s Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012, the appeals process must:

• be independent;
• cover all tickets issued on relevant land in England and Wales by Accredited Trade Association (ATA)members;
• be provided free to motorists;
• make decisions that are binding on the industry (but not on drivers and registered keepers); and
• be entirely sector funded.

PoPLA was set up in October 2012 and was until recently run on behalf of BPA members by London Councils. (Note that since 1 October 2015 POPLA has been run by a private ADR body, Ombudsman Services, following a competitive tendering exercise. See the RPC Blog for more on this.) It is named in the Guidance as ‘the independent appeals service’, suggesting it was intended to be the sole appeals mechanism. It has been busy. According to PoPLA’s 2015 Annual Report, 25,214 valid appeals were registered in the twelve months ending 31 March 2014. In contrast, for the same period the Traffic Penalty Tribunal, which deals with appeals in relation to Penalty Charge Notices (PCNs) issued by councils in England and Wales (outside London), received 15,578 appeals.

In mid-2014 a second appeals body was established, when the Independent Parking Committee obtained ATA status and established its own appeals service, the Independent Appeals Service (IAS). The IAS uses self-employed solicitors and barristers to decide appeals based on written submissions from both parties. It does not publish any statistics on its caseload, making it difficult to compare volumes.

The problems of competition in redress

Two recent reports identify some of the problems arising from having multiple, non-statutory, industry-funded redress schemes within a single sector.

Research commissioned by the BPA and published in April 2015 gives an overall picture of the sector and suggests that more investigation is needed into the approaches used by the adjudication services and consideration of how this impacts on views of the system and further compliance. The report also highlights what research has been done and what gaps there are in the research on parking appeals, including:

• research into the views of users of the PoPLA service, particularly in relation to impartiality, effectiveness and fairness; and
• data on the extent to which the decisions of the tribunals and ADR bodies are complied with.

The report identifies that research is need into the accountability and transparency of relationships within the sector. The increasing use of outsourcing in both public and private parking organisations means that accountability and transparency can become diffused and difficult to map.

Private parking, public concern, a report published by RAC Foundation in February 2015 and written by Jo Abbott and John de Waal QC, proposes that greater regulation is needed not just of private parking operators but of the appeals mechanisms for considering complaints. It notes that the intention of government (indicated by the then Secretary of State for Transport and the Department for Transport published guidance) appears to have been for a single appeals body:

‘In a free market, a second Accredited Trade Association (ATA) in the parking sector was admittedly always a possibility, but that it was originally the intention of ministers to allow multiple codes of practice and appeals services, working in different ways and with different levels of governance, is doubtful.’

The authors of the RAC Foundation report consider it as essential that the appeals services offered by the current parking ATAs should ‘mirror each other exactly in terms of access, service and governance’:

‘Motorists already struggle to understand the difference between the outcomes arising from parking on private land and parking on land managed by traffic authorities. Having parked on private land, why should they then be faced with the need to grasp a further level of distinction, that between the differing services offered by the two (so far) parking ATAs? It is little wonder that confusion often results.’

The two existing ATAs differ on a number of matters:

• Accessibility – PoPLA takes appeals by post and online; the IPS appears to accept only online appeals. In the public sector, there is even greater flexibility for submitting appeals: the Traffic Penalty Tribunal (TPT) accepts appeals by post, by phone, and in some cases online; the Parking and Traffic Appeals Service (PATAS) accepts appeals by post, in person and in some cases online.
• Governance and accountability – PoPLA, for example, has its independent scrutiny board (ISPA), but it appears the IPS has no equivalent body.
• Reporting – PoPLA issues an annual report reporting on cases and issues and naming its assessors. There is no equivalent report by which it is possible to judge the status and independence of assessors employed by the IPS.

The two appeals schemes also have different codes of practice for the members of their respective trade bodies.

‘In a free market, a second Accredited Trade Association (ATA) in the parking sector was admittedly always a possibility, but that it was originally the intention of ministers to allow multiple codes of practice and appeals services, working in different ways and with different levels of governance, is doubtful.’

Furthermore, the treatment of mitigating circumstances by the appeals bodies suggests there has ‘been a shift in the treatment of genuinely mitigating circumstances between the original DfT guidance on the one hand, which indicates an expectation from government that such circumstances should be taken into account by the appeals services, and the two codes of practice of the existing services on the other, each of which goes out of its way to state that mitigating circumstances are irrelevant to an appeal except insofar as they might point to some unlawfulness in the issuing of the charge.’

The report highlights that the situation creates confusion for the consumer/motorist, including:

• There is no geographical basis for the split of cases between the two bodies, as with the statutory bodies: it depends on which ATA the parking company subscribes to. Since the two existing ATAs do not share a common code of practice, it is not easy for the motoring public to judge whether or not they are getting a fair deal; many feel they are not.
• Motorists do not generally understand the relationship between the alternative dispute resolution services and the Courts. Decisions made by POPLA and the IPC’s appeals service are binding on the operators but not on motorists. This means that if an appeal against a charge is upheld, an operator cannot then pursue the motorist for payment through the court system. On the other hand, if the appeal is not upheld, and the motorist nevertheless opts not to pay, the operator must decide whether to drop the case or to continue to recover the debt, ultimately through the county courts (although even then the judge is not bound by the decision of the relevant appeals service).

In addition, the report authors notes, the governance and structure of the private parking appeals services has become asymmetrical and is confusing to the public: ‘That parking operators are choosing to move from one appeals regime to another, where the independence of the service is less easy for consumers to discern, is a matter relevant authorities should address.’

The Independent Scrutiny Board for Parking Appeals on Private Land (ISPA), which oversees PoPLA, has also raised concerns about this asymmetry, citing ‘motorists’ inability to distinguish and understand two separate and quite different schemes of regulation in the private parking sector together with the differences between the statutory schemes in the public sector and the non statutory schemes in the private sector’.

‘That parking operators are choosing to move from one appeals regime to another, where the independence of the service is less easy for consumers to discern, is a matter relevant authorities should address.’

Why are private parking appeals a matter of administrative justice?

The PoPLA Lead Adjudicator highlighted the contentiousness of parking and parking tickets in his 2015 Annual Report:

‘Parking and parking tickets of all types remain a political topic. When writing my last Report I remarked that by the time of this one there would have just been a UK general election in which parking generally, but its enforcement especially, may well have been a contentious issue. In fact, just before the election, the Prime Minister made a machinery of Government change in that responsibility for off-street parking transferred from the Department for Transport to the Department for Communities and Local Government. This included Schedule 4 of the Protection of Freedoms Act 2012, in respect of the recovery of unpaid parking charges.’

The RAC Foundation report authors note that the system under which Penalty Charge Notices (PCNs) for public land (eg local authorities) are issued is transparent and well regulated, and charges are limited by a statutory process. For private parking land, however, amounts charged for overstaying are not limited by law. This is a matter of state regulation:

‘Considering the direct involvement of the government in the recovery of charges, it is regrettable that Parliament did not incorporate a definition of what are and are not reasonable charges into the Bill that became the Protection of Freedoms Act 2012 (which outlawed wheel-clamping on private land and allowed parking operators to pursue registered keepers for payment of parking charges).’

The second section of this report is by John de Waal QC, who argues that there is a public interest in prohibiting extravagant and unconscionable charges for parking and that there are precedents for doing so in other consumer protection legislation. He suggests that it would be possible and desirable for Parliament to amend Schedule 4 of the PoFA 2012 so that only reasonable parking charges could be recovered from vehicle keepers.

The authors also note the impact of the EU ADR Directive, which requires that all consumer services have an independent accredited Alternative Dispute Resolution (ADR) service to determine unresolved complaints. Arrangements for England and Wales are being overseen by the Department for Business, Innovation and Skills (BIS) and the Trading Standards Institute (TSI). If it is determined that an appeal about a parking charge amounts to a consumer complaint against the parking operator provider, the current appeals services will need to be accredited to comply with the Directive.

One of the report’s recommendations is that Government ‘should ensure that BIS and the TSI issue clear guidance as to whether appeals by motorists against a demand from an operator for payment of parking charges fall within the provisions of the European ADR Directive’.

Conclusion

There is no clear reason why parking on private land should not be considered a consumer service, in which case it comes under the EU ADR Directive and means that the parking appeals services must be accredited as ADR providers and meet the requirements that BIS has set out for accredited ADR providers.

This in itself won’t mean complete symmetry – the requirements are set out in such a way that a range of practices, approaches, and governance models are allowed. It also, unfortunately, allows for competing redress providers within a single sector. But the Directive does set out requirements for reporting (on case volumes and outcomes) that will mean greater transparency and accountability in the sector of private parking appeals than is currently provided by one of the appeals schemes.