07/04/2011

The Parking Enforcement Notice received by Ms Greensmith was issued correctly, for a valid contravention and within the timeline and evidential guidelines dictated by the AOS Code of Practice. Ms Greensmith subsequently appealed the issuing of the Notice, and upon identifying that this appeal had not received a full response within the very specific timescales set by the AOS Code of Practice, the case was cancelled on our enforcement database by a member of our appeals team - all of whom have an intimate knowledge of the Code under which our business operates. To this point, the Code has been followed to the letter. However, a clerical error within our appeals team resulted in the despatch of a 'Notice uphold' letter as opposed to a 'Notice cancellation' letter. Additionally, it is important to note that as the Enforcement Notice had been cancelled on our database, had Ms Greensmith attempted to pay the charge - whether by telephone or through our web payment channel - upon receipt of this erroneous letter, she would have been unable to do so.

A letter of apology, explaining our administrative error and apologising for any confusion this may have caused was sent to Ms Greensmith earlier this week. We believe that the steps we have taken follow the key principles of the AOS Code of Practice, and that we have acted appropriately to bring a satisfactory conclusion to the matter upon identifying our error.

Regarding the specific questions you have put to us;

1. WHY DID IT TAKE APCOA PARKING UK LTD SO LONG TO RESPOND TO THIS APPEAL?

Our appeals department receive large volumes of written appeals to the issuing of Parking Notices every day. On occasion, rare though these may be, it is possible for an appeal to be missed by our appeal clerks through human error - we do not rely on any significant level of automation for appeal responses, as we believe strongly that each case should be reviewed in detail by a trained appeals clerk who would then craft a bespoke response. Upon identifying an appeal that has not had a response in the required timescale, it is standard practice - and a requirement under the Code of Practice - to cancel the associated Enforcement Notice, as was the case with Ms Greensmith's Notice.

2. HAS APCOA PARKING UK LTD BEEN FOUND IN BREACH OF THE CODE ON ANY PREVIOUS OCCASIONS? IF SO, WHEN; WHAT FOR; WHAT ACTION WAS TAKEN, AND WAS THIS MATTER REPORTED TO THE DVLA?

No, APCOA has an unblemished record in respect of breaches of the Code of Practice, and we work closely with the British Parking Association to ensure our practices, policies and procedures remain in line with the Code at all times. Furthermore, we are in regular contact with the DVLA to ensure we maintain the highest possible standards of compliance.

3. WHAT MEASURES DOES APCOA PARKING UK LTD PLAN TO TAKE TO ENSURE THAT THE COMPANY ADHERES TO THE CODE OF PRACTICE IN FUTURE?

As an established and prominent member of the British Parking Association, APCOA will continue its active role in striving to raise and protect industry standards through our involvement in the Approved Operator Scheme.

4. DOES APCOA PARKING UK LTD UNDERSTAND THE CONSEQUENCES FOR THE COMPANY, AND FOR THE BPA FOR BREACHES OF THE CODE IN RELATION TO THE ABILITY OF BPA MEMBERS TO ACCESS REGISTERED KEEPER DETAILS FROM THE DVLA?

APCOA, as a committed supporter of the BPA's Approved Operator Scheme, are fully conversant with all areas of the Code, its sanctions and the implications of these for our business, our Trade Association and our fellow AOS members.

Mr Hughes did not complain about the date and time stamps when he made his appeal, so this was not picked up by our Appeals department. Mr Hughes' appeal related to his assertion that he had displayed a resident's parking permit, even though this was not visible on any photographs supplied by us, nor on any photographs supplied by Mr Hughes.

Neither the pictures he submitted, nor our own could identify a parking permit - and Mr Hughes has never, to date, shown us a clearer photograph (taken by him) with a resident's parking permit clearly displayed, nor provided us with a copy of a resident's parking permit.

The important point however remains that even though only one of our websites had a date and time stamp on the photographs (we accept it was on the www.paycharge.co.uk website and not the www.ukpcappeals.co.uk website) the BPA's Code of Practice does not require us to provide photographs at all.

The relevant clause from the BPA's Code of Practice states:

"B7.1 You may [not "must"] use photographs (our emphasis and wording in square brackets) as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should [not "must"] (our wording in square brackets) be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or altered digitally".

The BPA's Code of Practice does not require us to provide photographs, otherwise this would give viewers the impression that we have acted contrary to the BPA's Code of Practice, even though that is not the case.

Parking Eye complies with the BPA code of practice at all times, and has done so in this case. Our Parking Charge Notice always includes date and times stamped photographs, as required by the BPA, and this was sent to Mr []. When Mr [] appealed, we sent further copies of the photographs - there is no requirement in the code for these additional copies to include a date and time stamp. We have decide that in future we will send copies of the original Parking Charge Notice whenever a motorist appeals. This goes above and beyond any requirement in the BPA code.
The signs in our car parks are in compliance with the BPA Code. Whenever a BPA change occurs that affects car park management, the BPA allows a timescale for operators to make this change. Our sign change programme is now well advanced and will be completed within the BPA permitted period. All of our procedures and forms have been approved by the BPA. Parking Eye is regularly audited by the BPA, and has never been in breach of any BPA code.

"We are working with our contractor ParkingEye, which is implementing a rolling programme of updates to our car park signage and can confirm that our Camden store car park is now compliant with the British Parking Association Code."

Searchlight Security and Parking Solutions have told us:
They have now removed all references to 'fine' on their website.

We would like to refer you to our compliance procedures, as they appear in section five of the Approved Operator Scheme Code of Practice. This is available at: http://www.britishparking.co.uk/write/Documents/AOS/BPA_CodeofPractice_v8.pdf

You have asked a number of questions about how the British Parking Association's Approved Operator Scheme manages the compliance of its Members.

1. DOES THE BPA UNDERSTAND ITS OBLIGATIONS AS A DVLA ACCREDITED TRADE ASSOCIATION? SPECIFICALLY THAT THEY MUST ENFORCE THEIR CODE OF PRACTICE BECAUSE 'THOSE ATA'S THAT FAIL TO ENFORCE THEIR CODE OF PRACTICE COULD LOSE THEIR DVLA ACCREDITATION WHICH IN TURN WOULD MEAN THEIR MEMBERS FORFEITING THE ENTITLEMENT TO REQUEST AND RECEIVE DVLA INFORMATION'.

The BPA fully understands its obligations as an ATA and established the Approved Operator Scheme as a method of ensuring that operators who manage parking enforcement on private land and wish to have access to DVLA data, sign up to an agreed Code of Practice. It has a Memorandum of Understanding with the DVLA which outlines their expectations and works with them to ensure that members of the Scheme are substantially compliant with the Code.

2. HAVE ANY MEMBERS OF THE BPA'S APPROVED OPERATOR SCHEME HAD ACTION TAKEN AGAINST THEM AS A RESULT OF BREACHING THE CODE SINCE 2009? IF SO, WHO WERE THOSE COMPANIES, WHAT WAS THAT FOR AND WERE THE BREACHES REPORTED TO THE DVLA?

The BPA receives a number of complaints and all of them are investigated. If, following an investigation, a member is found to be in breach of the Code, they would be subject to the Sanctions Scheme which went live to members on September 1st 2010 where operators who breach the Code can expect to receive a number of penalty points depending on the severity of the offence. As with driving offences, once an operator's 'licence' has reached twelve points in any given 12-month period, then he will be faced with suspension or expulsion.

During the last seven months two members have been expelled from the Scheme following disciplinary action taken and a further one has been suspended (with their access to DVLA denied as a result) with expulsion pending.

3. DOES THE BPA PLAN TO TAKE ACTION AGAINST THE PRIVATE PARKING COMPANIES NAMED IN YOUR INITIAL LETTER AS A RESULT OF THEIR FAILURE TO COMPLY WITH THE CODE OF PRACTICE?

It should be noted that the BPA has never received any of the complaints referred to by Watchdog and that if they had then they would have been investigated.

You have asked the BPA to respond to a number of issues relating to members of our Approved Operator Scheme. At this stage, it might be helpful to explain the way that the BPA deals with complaints.

When a complaint from a member of the public is received, the BPA takes very seriously its duty to investigate whether the complaint is fair or whether a motorist is simply seeking to avoid paying a parking charge. The BPA cannot deal with appeals against parking tickets or other enforcement actions but where they believe a breach of the Code may have occurred, they do investigate and take action.

In cases where they can ascertain with any certainty that an operator has breached the Code of Practice they take disciplinary action as described above. The BPA is in the process of investigating the incidents raised in your letter. Some of the operators have provided their comments which the BPA understands have been forwarded to you separately by them.

4. WHAT MEASURES DOES THE BPA CURRENTLY TAKE TO ENSURE THAT MEMBERS OF THE APPROVED OPERATOR SCHEME COMPLY WITH THE CODE?

The BPA has a number of ways in which is ensures that members of the AOS comply with the Code of Practice:

AOS Board. The Board that governs the activities of the AOS includes representatives of consumer organisations such as the RAC Foundation and Institute of Advanced Motorists, and representatives of landowners such as the Freight Transport Association and the Federation of Private Residents Association.

External Auditing. The BPA have appointed Insight Certification who have many years experience of auditing security companies, to conduct external audits of its members as part of the compliance strategy. These audits run through the component parts of the Code of Practice and check that the operators are not in breach of it. All operators will be audited this year and a full follow-up report is provided to the BPA including recommendations for the awarding of sanction points if appropriate.

Sanction Scheme. As mentioned in the response to Question 2, the BPA launched a Sanctions Scheme to members in September 2010 following a trial period. This action takes the form of a points system, similar in some ways to penalty points on a driving licence. A minor infringement might result in a three point penalty and a major breach could result in a hearing followed by expulsion.

Evidence of Compliance. Before being accepted as an AOS member, an operator must go through a number of checks to ensure that the business processes that he plans to adopt are in full compliance with the Code of Practice. This would include a thorough review of all paperwork and signage that he intends to use as well as photographic evidence of liveried vehicles and staff uniforms.

Probationary Period. All new members, once they have passed the initial Evidence of Compliance check, must go through a probationary period of six months where they are closely scrutinised before they can move from postal access to the DVLA to electronic access.

Complaints from the public. All complaints received are investigated to determine whether there is a breach of the Code and if this is found to be the case, appropriate action is taken. In 2010 the BPA received 1102 motorist complaints.

Code Review Group. The BPA regard the AOS Code of Practice as a living document and, as such, has established a group made up of operators and representatives of consumer organisations who meet regularly to review the Code and make recommendations to improve/update it for the AOS Board to consider. To date a number of important changes have already been made.

5. WHAT MEASURES DOES THE BPA INTEND TO TAKE TO ENSURE THAT MEMBERS OF THE APPROVED OPERATOR SCHEME COMPLY WITH THE CODE IN FUTURE?

The BPA will continue to robustly apply the initiatives outlined in the response to question 4.

The BPA believes that Government should make membership of an Accredited Trade Association (ATA) compulsory for all parking operators that undertake enforcement on private land. In the longer term, the BPA want Government to fully regulate private parking operators. Whilst the BPA has established a robust form of self-regulation through its Approved Operator Scheme, the long term objective is to see a regulated environment which is fair to both operator and motorist and meets the needs of landowners who have a right to protect their land from those who are seeking to park where they shouldn't and to avoid paying to park in those places where they are required to do so. If there is reasonable cause then operators should be allowed to access DVLA data in order to deal with these situations. The Government - through the DVLA - has recognised the need to properly control this access and the activities of operators through the implementation of the ATA process.

The BPA has also been trialling an independent appeals service for the last six months where a small number of operators agreed to be bound by the decisions of independently appointed adjudicators following appeals/challenges by motorists. This initiative is currently being evaluated and similar adjudication models from other industries are being assessed to determine how such a service could be rolled out across the sector. The BPA believes the Government should legislate in this area.

Subsequently you have asked a number of questions relating to specific details of the investigative and disciplinary action that the BPA has undertaken in relation to operators' access to the DVLA database. I hope that you can understand that we feel it would be inappropriate to disclose, to a national television programme, the names of parking operators who have been, or continue to be, subject to a BPA investigation given that these operators are either now fully compliant with the Code of Practice or not yet proven to have been in breach of it. The BPA responses to the questions posed are as follows:

6. THE NAMES OF THE COMPANIES WHICH HAVE BEEN DENIED THE FACILITY TO REQUEST INFORMATION FROM THE DVLA, AS WELL AS THE NAME OF THE COMPANY THAT IS CURRENTLY SUSPENDED.

The two companies that have been expelled are PCS Ltd and SSS Security Systems Ltd. The BPA is not prepared to divulge the name of the organisation that has been suspended as this case is currently going through the BPA disciplinary process and, as such, should be considered as confidential.

7. THE REASON THAT THESE COMPANIES WERE DENIED ACCESS, AND WHETHER THE INVESTIGATIONS WHICH LED TO THE SUSPENSIONS WERE INITIATED BY THE BPA, OR AS A RESULT OF REQUESTS FROM THE DVLA.

The investigations that led to the two expulsions and the current suspension of a member were all initiated by the BPA. They came as a result of issues identified during a BPA compliance audit and as a response to complaints received from motorists where the operators in question were in breach of various parts of the Code and appropriate action was taken.

8. THE NAMES OF THE 21 COMPANIES THAT WERE INVESTIGATED AS A RESULT OF DVLA REQUESTS BETWEEN MARCH 2010 AND MARCH 2011, AS WELL AS THE BREACHES THAT WERE INVESTIGATED, AND THE ACTION TAKEN BY THE BPA RELATED TO THESE 21 COMPANIES INCLUDING:

The 9 private parking companies found to be complaint with the code
The 9 companies found to have breached the code but are now compliant following BPA intervention.
The 2 companies that are being investigated by the BPA.
The company that has been suspended from the BPA.

As there is commercial sensitivity surrounding these cases and as, in all instances, the operators were either found to be compliant with the Code or adapted their processes to be compliant following BPA intervention, the BPA is not prepared to release any specific details.

The BPA does of course seek to investigate the complaints that it receives and we would encourage any motorist who feels that a parking operator may have breached the Code of Practice to contact us immediately. We have long campaigned for the Government to take control of this issue and until they are prepared to do so, we have undertaken to regulate the industry as best as we can.

We believe that Government should use the Code of Practice as the basis for a legislative framework which could properly regulate parking enforcement on private land and eliminate rogues for good.

THE DVLA HAVE TOLD US:

David Evans, DVLA's Director of Corporate Affairs, said:

"It is every driver's responsibility to ensure that they comply with the landowner's terms and conditions when parking on their land. Those landowners would have great difficulty in enforcing their rights if motorists were simply able to ignore legitimate parking rules.

"But we have to strike a balance - allowing fair enforcement but protecting motorists. That is why information is only provided under strict controls to parking firms who meet the standards set by an appropriate Accredited Trade Association and are compliant with its Code of Practice.

"If it is brought to our attention that a company does not meet the necessary standards, we will immediately investigate, and if allegations are proven, stop the release of keeper information to them."

IN ADDITION, THE DVLA HAVE TOLD US:

1. IF THE DVLA IS UNABLE TO PROFIT FROM THE CHARGES MADE TO PROCESS REQUESTS AND RELEASE REGISTERED KEEPER DETAILS TO PRIVATE PARKING COMPANIES, WHAT IS DONE WITH THE INCOME GENERATED, AND TO WHAT USE IS IT PUT?

We do not sell vehicle keeper information. We provide a service to those who we believe have the legal right to request and receive vehicle keeper information, which includes private parking companies who are compliant members of a relevant Accredited Trade Association.

The law allows DVLA to recover the cost of processing these requests, but prevents any profit being made. The fee, which covers the administrative associated costs of providing the information, ensures that the cost is borne by the requestor and not passed onto the public.

2. THE NAMES OF THE TWO PRIVATE PARKING COMPANIES THAT WERE DENIED ACCESS TO REGISTERED KEEPER DETAILS, AND THE NAME OF THE COMPANY THAT WAS SUSPENDED AS A RESULT OF THEIR FAILURE TO COMPLY WITH THE BPA CODE OF PRACTICE

Three companies have been denied access to DVLA data or have been suspended as a result of their failure to comply with the BPA Code, or because they were no longer members of the BPA.

Magnaco's access to DVLA data was terminated after they were removed from the AOS scheme for non-compliance.

One of the companies in question voluntarily gave up its AOS membership of BPA and no longer receives keeper information as a result. It would not be appropriate to disclose their details as investigations were not completed, and to do so might unfairly prejudice any other operations the company may carry out.

A further company has been suspended while investigations into possible non-compliance are carried out by BPA, and as such it's not appropriate to name them at this time.

3. THE NAMES OF THE COMPANIES THAT, AS A RESULT OF THE DVLA'S REQUEST FOR THE BPA TO INVESTIGATE WERE EITHER - FOUND COMPLIANT (9 COMPANIES); FOUND TO HAVE BREACHED THE CODE (9 COMPANIES); ARE CURRENTLY BEING INVESTIGATED BY THE BPA (2 COMPANIES), AND THE COMPANY THAT HAS BEEN SUSPENDED FROM THE BPA PENDING FURTHER ENQUIRIES. IN ADDITION, CAN YOU ADVISE US OF THE SECTION(S) OF THE CODE THAT EACH COMPANY WAS SUSPECTED TO BE, OR WAS FOUND IN BREACH OF?

It would be inappropriate to name companies that have been found to be compliant, as there is no case to answer, and any association with non-compliance would unfairly prejudice their business interests. As with the previous answer, we do not believe it appropriate to name any parties that are currently under investigation.

All nine companies who breached the Code are now fully compliant with the scheme. Again, to highlight activities that have now been remedied would unfairly prejudice their commercial interests.

4. THE TOP FIVE REQUESTING COMPANIES IN ORDER OF WHICH MADE THE MOST REQUESTS. IS IT AS WRITTEN IN THE RESPONSE TO OUR FOI (NUMBER ONE PARKING EYE DOWN TO NUMBER FIVE ROXBURGHE UK)?

I can confirm that the companies have been listed below in the order in which the most requests were made.

Parking Eye
Ranger Services
APCOA Parking
Excel Parking
Roxburghe UK

4. HOW DOES THE DVLA CHECK THAT PRIVATE PARKING COMPANIES ARE COMPLYING WITH THE BPA CODE OF PRACTICE BEFORE THE DVLA SUPPLIES REGISTERED KEEPER DETAILS TO THOSE COMPANIES?

Each company is required to demonstrate compliance with the BPA Code of Practice before membership will be granted. Those wishing to obtain BPA membership are required to provide the BPA with a completed Evidence of Compliance report, with details about their business. They also have to provide documentation showing the positioning of signage at each site and a list of sites to be used for random audit purposes. The DVLA has to be satisfied that a company has demonstrated this level of compliance to BPA before it will release any data.

5. WHAT ACTION DOES THE DVLA PLAN TO TAKE TO ENSURE THAT PRIVATE PARKING COMPANIES ADHERE TO THE BPA CODE OF PRACTICE, AND FURTHER TO ENSURE THAT THE BPA IS ENFORCING THE CODE? WE UNDERSTAND, ACCORDING TO THE DVLA WEBSITE, THAT ATAS THAT FAIL TO ENFORCE THEIR CODE OF PRACTICE COULD LOSE THEIR DVLA ACCREDITATION.

The DVLA runs a rolling programme of audits to ensure that information is requested only where appropriate and used in accordance with the agreement with the DVLA and in full compliance with the terms of the Data Protection Act. Targeted audits are carried out if concerns have been raised about a particular company. The DVLA also carries out office-based audits of all companies annually to check that the reasons for requests comply with their contracts.

All BPA members have to continue to comply with the Code of Practice to maintain their membership. If DVLA learns that a company is not complying with the BPA Code then the complaint will be passed to the BPA for investigation. The BPA will inform us of the outcome of the investigation and we will take any necessary action.

Where complaints are upheld, sanctions will be applied and the BPA have, and will, terminate membership for companies failing to adhere to the Code. The DVLA would then suspend/terminate access to its data. We don't believe that the removal of the DVLA accreditation from the BPA is appropriate, and we continue to work closely with the industry to ensure, where necessary, improvements are made.