Notwithstanding the obvious absurdity of paying a non-refundable £40 to appeal £100, the letter raises serious questions about Excel's ethics in this situation, insinuating that the Consumer Ombudsman are not accredited to deal with matters arising over parking charge notices and can only deal with communications, energy, property and copyright licencing. The Consumer Ombudsman is a brand name of Ombudsman Services. The Chartered Trading Standards Institute lists them as an approved ADR body here http://www.tradingstandards.uk/advice/ADRApprovedBodies.cfm
Ombudsman Services is approved by CTSI to provide approved ADR procedures across a wide range of consumer sectors including retail, motor, home improvements, copyright and trade schemes. Also see below under other Competent Authority approvals.
A spokesperson from Ombudsman Services provided the following information to The Prankster
Ombudsman Services (OS) has a number of brands including OS: Energy, OS: Property, OS: Communications, and OS: Consumer Ombudsman and each brand deals with a different type of complaint. So if a consumer wants to complain about their energy supplier, they can take the complaint to OS: Energy, or if they want to complain about their broadband supplier they can take the complaint to OS: Communications.
Where a motorist wants to appeal their parking charge (from a BPA member), they need to use POPLA which is administered by Ombudsman Services, but is not an Ombudsman scheme.
OS: Consumer Ombudsman
When the new ADR regulations came into effect, it became compulsory for businesses to signpost complainants to a certified ADR body. Many businesses were already part of ombudsman schemes because government or trade bodies had mandated it (eg. banks using The Financial Ombudsman, Solicitors using The Legal Ombudsman, Energy Companies using OS: Energy etc.) but that did leave many businesses in a position where they hadn’t previously had any requirement to use an ombudsman scheme. In some instances, there weren’t ombudsman schemes established that could take complaints from various business types. When the ADR directive came about, numerous additional ombudsman and ADR schemes were created to give the consumer somewhere to turn, and give retailers/businesses a certified ADR provider they could signpost to. One scheme created and certified was OS: Consumer Ombudsman.
The British Parking Association use Brand POPLA* to deal with their member's disputes once internal handling finishes, but as POPLA is not a qualified ADR entity, then BPA parking companies are still required to list at least one which is. However, and this is where things may get confusing, although they are required to list an ADR Entity which is competent to deal with the dispute, they are not compelled to actually use that entity.
Recommending the rival IAS would probably stick in the throat, and so Ombudsman Services are recommended instead.
Here are the relevant notes from the BPA minutes of 16/6/2015 regarding the issue:
Here is an example from BPA member CARE Parking rejecting a motorist's appeal.
The Prankster contacted Ombudsman Services to check that the message given by the BPA was correct.
I blog about parking related matters as The Parking Prankster, and as such I have a large number of motorists emailing me each day for help.
I understand Ombudsman Services run the POPLA service now, which is not an ADR Entitry, but it seems as if you may run a parking related ADR Entity service as well. In the recent newsletter the BPA sent out to their members they advised as follows:
In order to comply with the EU ADR Directive, the following wording should be used on all appeal rejection letters from the 1st October 2015: ‘You have now reached the end of our internal appeals procedure. [Insert standard operator text to appeal to POPLA, including 28 day time limit for doing so, the POPLA verification code and the POPLA website address]By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.’
If motorists cannot use POPLA (eg if they are in Scotland) I would like to advise them to use your other ADR service instead. My feeling is that it is always better to try and resolve disputes rather than using the court system. However I cannot find details on your website on the link provided by the BPA. Please can you confirm that you do run an ADR Entity competent to deal with parking matters, and if so provide me with full details and the correct link to use to which I can refer motorists to.The Prankster received a detailed reply which stated the matter would be handled under the Consumer Ombudsman brand, which is essentially an 'ADR Entity of last resort', handling consumer disputes not covered by other mandatory provisions. This would be better handled using this web link, rather than the one given by the BPA.
However, although Ombudsman Services could deal with parking related matters, it would require the co-operation of the parking company. The process would also operate in a different way to POPLA. Even though Ombudsman Services do currently administer POPLA, this is under a different scheme which is not ADR Entity approved.
Excel are therefore totally incorrect in their reply
The practice directions for pre-action conduct make it clear it would be unwise simply to ignore Excel's offer of ADR.
14. The court may decide that there has been a failure of compliance when a party has
(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.
15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that
(c) sanctions are to be applied.
16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—Awarding costs on an indemnity basis removed the protection of the small claims track costs limitation, and therefore should be avoided.
(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
(b) an order that the party at fault pay those costs on an indemnity basis;
(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;
(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.
However, using the IAS is not a sensible option. The Prankster has already exposed the IAS as having all the characteristics of a kangaroo court. Even parking companies agree on this.
The motorist might as well burn £40 and send £100 to Excel as use the IAS. The motorist should therefore reply robustly to Excel.
Your information is incorrect and I can confirm the Consumer Ombudsman is qualified to assist with our dispute. You can confirm this by contacting them at Ombudsman Services, The Brew House, Wilderspool Park, Greenall's Avenue, Warrington, WA4 6HL.
Additionally, The Consumer Ombudsman is free to consumers.
Please therefore indicate whether you are now willing to use their services to attempt to resolve our dispute. I remind you that failing to respond at all to an offer to use ADR is against pre-court protocol and if this matter proceeds to court I will ask the court to award my full costs on an indemnity basis regardless of the result of any hearing.
I robustly reject your offer to use the IAS for several reasons. Firstly, it is not reasonable to expect me to pay a non-refundable total of £40 for a dispute over £100. Secondly, and most importantly, the IAS has been exposed as having serious flaws and so it does not make sense to agree to a binding judgment by an organisation whose findings are regularly overturned in the courts. Additionally, although the IAS currently has ADR Entity status, this is under review by the CTSI because the IAS does not meet the statutory requirements. I understand the IAS has a limited time to improve, and after that ADR Entity status is lost.
The major failings of the IAS are as follows, together with a reference to the statutory requirements defined in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations
- Failure to name the assessors (5c)
- Failure to allow the consumer to respond to all evidence (7b)
- Failure to provide competent and/or unbiased assessors (3a, 3c)
- Failure to handle conflict of interest with Gladstone Solicitors (4c)
- Failure to deal with all disputes (13)
These are all well-documented and I can provide more details if you require.
Additionally, in this case I consider that the £40 cost of appeal fails 6(b)(ii)
I would be prepared to consider using the IAS once it meets all these statutory requirements. If this is acceptable then I suggest we defer the matter for now and that you contact me again once the CTSI has re-verified the IAS.
Alternatively I would consider using the IAS now under the following conditions
1) The service is free to me
2) The results are not binding on me, and that you agree to indemnify me against all costs arising from any disagreement I have with the result
If this is agreeable I will draw up a draft contract which you can sign and return togeether with a non-refundable cheque for £15 which I will use to appeal to the IAS.
The Parking Prankster
*POPLA is a brand, which means that different organisations can deal with POPLA appeals. Some appeals will be deal with by Ombudsman Services, and some by parking company debt collectors.