Protection of Freedoms Act 2012: Keeper Liability Explained

Protection of Freedoms Act 2012: What Every Driver Needs to Know

The Protection of Freedoms Act 2012 (POFA), specifically Schedule 4, fundamentally changed the landscape of private parking enforcement in England and Wales. Before POFA, operators could only pursue the driver. Since many drivers could not be identified, charges often went uncollected. POFA introduced "keeper liability" to close this gap.

What Is Keeper Liability?

Keeper liability means that if the driver of a vehicle cannot be identified, the registered keeper becomes liable for the parking charge. This allows operators to use DVLA data to send charges to the registered keeper even if they were not driving.

However, keeper liability only applies if the operator meets strict conditions. If any condition is not met, keeper liability does not transfer and the operator can only pursue the (usually unidentified) driver.

The Conditions for Keeper Liability

For keeper liability to apply, ALL of the following must be true:

1. The operator must be a member of an accredited trade association

Currently, the two accredited bodies are the BPA (British Parking Association) and the IPC (International Parking Community). If the operator is not a member of either, they cannot use POFA keeper liability provisions.

2. A Notice to Driver must have been issued

If the vehicle was present when the alleged contravention was observed, a notice must have been given to the driver or affixed to the vehicle.

3. A Notice to Keeper (NtK) must be served within the correct timeframe

The NtK must be served on the registered keeper within 14 days of the vehicle leaving the land (not 14 days from the date of the contravention). For ANPR-monitored sites where the operator obtains keeper data from the DVLA, the 14 days starts from when the DVLA provides the data. However, the DVLA application itself must be made promptly.

4. The NtK must contain specific prescribed information

The NtK must include:

• The amount of the charge
• The grounds for the charge
• How and where to pay
• How to appeal
• A statement that the keeper is not liable if they name the driver
• The right to appeal to POPLA or IAS
• The operator's trade association membership details

5. The keeper must not have identified the driver

If the keeper provides the name and address of the person who was driving, keeper liability shifts to the named driver instead.

How to Use POFA in Your Appeal

POFA provides several powerful grounds for appeal:

NtK timing: If the NtK was served more than 14 days after the event (or after obtaining DVLA data), keeper liability fails. Check the dates carefully. The "date of service" is typically deemed to be 2 business days after posting.

NtK content: If the NtK is missing any required information, it may not comply with POFA. Compare the contents against the statutory requirements.

Naming the driver: If you were not driving, you can provide the driver's details to the operator. This removes your keeper liability (though the named driver then becomes liable).

Operator not accredited: If the operator is not a BPA or IPC member, POFA keeper liability does not apply.

POFA Does Not Apply in Scotland

POFA Schedule 4 applies only in England and Wales. In Scotland, the situation is different. The common law principle of vicarious liability in Scotland means the keeper may be liable regardless of POFA. However, Scottish courts have not tested this extensively and the legal position remains somewhat uncertain.

POFA and the New Parking Code of Practice

The Parking (Code of Practice) Act 2019 paved the way for a single government-backed Code of Practice to replace the separate BPA and IPC codes. The new code, expected to set a maximum charge level and standardise enforcement, will work alongside POFA. The core keeper liability provisions under POFA remain unchanged.