FEATURE AOS UPDATE
10. Failure to maintain a fair and professional
operation; 11. Imposition of a penalty charge where the law
does not allow this; 12. Charging for both a clamping action and a
removal action within a specified timescale; 13. Failure to include the name of the place where the payment was made and of the operator involved
in any receipt; 14. Unauthorised enforcement against a vehicle; and 15. Repeated and frequent contraventions of the Code of Practice.
Operators have a duty to abide by the Code.
However other breaches of the Code of Practice
are more open to interpretation. For example, there are three different kinds of
‘failure in communication with customers’: a minor failure in communication is a level 2 contravention, a major failure is a level 3 contravention and a significant failure is a level 4 contravention. Incorrect signs and notices can also fit into one of three different levels. So it may be difficult for an operator to know, in advance of being challenged, how serious his alleged breach of the Code is. Te contraventions scheme is at its most explicit when dealing with very serious code breaches – level 5 contraventions. Level 5 contraventions are where the operator is likely to have broken the law ‘or similar’. It carries a maximum of 10 points, requires immediate remedial action and the operator is likely to be suspended pending further investigation. Te DVLA and/or the SIA will also be advised of that suspension. Tere are 15 examples of Level 5 contraventions –
the largest list among the five levels: 1. Failure to register with the SIA where required; 2. Abuse and/or misuse of DVLA data; 3. Failure to comply with the requirements of the
Data Protection Acts; 4. Failure to register with the Information
Commissioner;
5. Misrepresentation;
6. Failure to keep correct information when
removing or immobilising vehicles; 7. Failure to comply with the Consumer Protection from Unfair Trading Regulations 2008 and other
consumer protection law; 8. Unlawful application of the VAT charges; 9. Failure to produce an SIA identification card;
www.britishparking.co.uk
ABOUT THE AUTHOR:
Bill Blakemore, LLB, MSc is a barrister and was the advisor to the BPA throughout its 2009 review and re-issue of the Approved Operator Scheme Code of Practice. He recently launched the ‘Get-Legal’ consultancy service. For advice on any of the issues raised, he can be contacted by email on
bill@get-legal.co.uk
How easy will it be for operators to comply with the Code and the law?
Operators are now subject to the increasingly complex requirements of new legislation, the application of common law rules on trespass and contract law, new codes of practice from outside the world of parking as well as the new stricter and tougher requirements of the AOS Code itself. Almost inevitably, some operators will find themselves in breach of the law, as well as in breach of the AOS Code, because they may have been relying on out-of date custom and practice.
It may be difficult for an operator to know in advance of being challenged how serious his alleged breach is
It is easy to break the law inadvertently. On a
recent snapshot survey of eight approved operator websites, I found four operators stating they provided services relating to the issue or collection of “penalty charges”. Te AOS Code prohibits the use of the term “penalty” or “penalty charge” for off-street enforcement. Penalties within a contract (which is the basis of the business of many operators) are not enforceable. Operators now have a heavy burden to keep
up to date with all relevant rules. For example: ‘Operators need to consider if they are complying with the disability discrimination legislation, which particularly applies to hospital and university parking.’ Tere are many ways in which operators may be
risking either exclusion from accessing the DVLA register after a BPA code breach, prosecution by trading standards for ignoring consumer law, or being unsuccessful in court because their parking tickets are thrown out as unenforceable penalties. With new legislation regulating vehicle immobilisation heading towards the statute book, there will be even more ways in which operators could break the law without knowing they are doing so.
APRIL 2010
21
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