The Ombudsman's final decision:
Summary: Mrs X complains that the Council refuses to take back her council tax debt from bailiffs, which she says it should have done because of her vulnerability. She complains about the way the Council handled her complaint, and says the Council contacted her doctor without her permission. She says this has caused her stress and cost her time and trouble. Despite largely finding no fault with the way the Council handled collecting the debt, the Ombudsman finds some fault with the Council for failing to call Mrs X as promised, and with its complaint handling. The Council has agreed to apologise to Mrs X, make a payment to recognise the faults, and review its complaints procedure. The Ombudsman has not investigated the part of Mrs X’s complaint about the Council contacting her doctor. This is because the Information Commissioner’s Office is better placed to deal with complaints of this nature.
- The complainant, who I refer to here as Mrs X, complains about the way the Council has handled her council tax. She complains that:
- the Council refuses to take a debt back from bailiffs. She says the Council should do this because she should be classed as a vulnerable person;
- the Council called her doctor without her permission; and,
- the Council has failed to deal with her complaint properly.
What I have investigated
- I have investigated parts a and c of Mrs X’s complaint. The final section of this statement contains my reasons for not investigating part b of the complaint.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
How I considered this complaint
- I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
- I have considered the relevant legislation, statutory guidance and policies, as set out below.
What I found
- The primary legislation for council tax is the Local Government Finance Act 1992. The main secondary legislation concerned with collection and recovery is The Council Tax (Administration and Enforcement) Regulations 1992 (“the Regulations”). Councils are responsible for collecting council tax.
- If a council tax payment is missed, a council must issue a reminder notice (at least seven days after the missed payment). If the arrears are not paid, the balance for the full year then becomes due. A council can then complain to the Magistrates Court and issue a summons. A liability order hearing is then heard in the Magistrates Court (at least 14 days after the service of the summons). The court can then grant a liability order.
- Councils will charge costs for the issue of a summons and a liability order. If only the costs of the summons are outstanding the council can still ask for a liability order, with the additional costs. The case can proceed in the defendant’s absence. The court must grant an order if it is satisfied that the sum has become payable and has not been paid. Once a council has obtained a liability order it can take steps to recover the debt without any obligation to inform the debtor.
- Under section 36 of the Regulations, if a liability order has been made then the debtor must give the council (or ‘billing authority’) relevant information it asks for. This includes information about employment, earnings, deductions, and other sources of income.
- Under section 52(4) of the Regulations, any payments made are first put towards any costs, including any bailiffs’ costs. The allocation of payments can give rise to problems, especially when there are arrears or summonsed debt.
- Councils’ computer systems will allocate payments according to some simple rules. Usually payments which are exactly equal to instalments or exact multiples of instalments will be allocated to the current liability. After a summons is issued the computer system may then allocate instalment payments to any arrears, because the right to pay by instalments is lost once a final notice has been issued.
- Councils have discretion to decide when the instalments will be payable. By agreement a council and a taxpayer may make a special payment arrangement outside the normal instalment scheme.
- Bailiffs, or ‘enforcement agents’, act as agents of the local authority when instructed by a council to recover debts.
- It is good practice for councils to write to debtors after the liability order has been made to warn them the warrant is being passed to bailiffs, with a note of the costs that will become due. The Regulations set out fees as follows: £75 for the compliance stage; £235 for the enforcement stage; and £110 for the sale or disposal stage.
- In April 2014, the government issued guidance for bailiffs and creditors, including local authorities, for debt recovery (‘Taking Control of Goods: National Standards’). This sets out the roles and responsibilities of each agency in collecting debts. This says local authorities are responsible and accountable for bailiffs acting on their behalf.
- The guidance says local authorities “should act proportionately when seeking to recover debt, taking into account debtors’ circumstances”. It says local authorities “must consider the appropriateness of referring debtors in potentially vulnerable situations to enforcement agents and, if they choose to proceed, must alert the enforcement agent to this situation”.
- The guidance says local authorities must ensure there are clear protocols agreed with bailiffs about the approach to be taken when a debtor is identified as vulnerable.
- Paragraph 16 of the guidance says, “should a debtor be identified as vulnerable, creditors should be prepared to take control of the case, at any time, if necessary”.
- The guidance sets out what could make a person vulnerable. It says, “a debtor may be considered vulnerable if, for reasons of age, health or disability they are unable to safeguard their personal welfare or the personal welfare of other members of the household”.
- It lists some groups who might be considered vulnerable, including people with a disability. It notes that vulnerability may not be immediately obvious, and says each situation should be assessed on a case-by-case basis.
The bailiffs’ safeguarding/vulnerability policy
- The bailiffs acting on behalf of the Council in this case have a policy for dealing with vulnerable debtors and safeguarding issues. This was issued in March 2018.
- The policy defines a ‘vulnerable adult’ as “a person aged 18 or over who is or may be in need of community care services by reason of mental or other disability, age or illness, and who is or may be unable to take care of him or herself, or unable to protect him or herself against significant harm, abuse or exploitation”.
- The policy refers to ‘Taking Control of Goods: National Standards’ in identifying a potentially vulnerable person. This includes someone suffering from a mental health problem.
- The bailiffs have a welfare team which is responsible for managing all cases where the debtor has been identified as vulnerable.
- The policy says, “where contact is made by … the debtor … full details of the illness will be obtained. If the illness … is considered to be most serious the case will be returned to the council immediately”.
- The Council has a two-stage corporate complaints procedure. Once a person has made a complaint the Council will endeavour to acknowledge the complaint within three working days of receipt. The Council will respond to the complaint within ten working days. If the Council is unable to do this, it will advise the complainant of the delays and keep them updated with progress.
- If the complainant is dissatisfied with the response, they can ask to escalate the complaint to the second stage of the complaints procedure.
- The Council will endeavour to acknowledge the request for the complaint to be dealt with at stage two within three working days of receipt. The Council will aim to respond within ten working days. Again, if the Council is unable to do this, it will advise the complainant of the delays and keep them updated with progress.
- If the complainant remains dissatisfied, they will be signposted to the Ombudsman.
- Mrs X moved into her address in 2007, and this began her liability to pay council tax. Between 2008 and 2015, the Council obtained five liability orders following non-payment of council tax. Since 2014, there have been no further summons issued against Mrs X and no further liability orders.
- Since 2014, Mrs X has been in receipt of council tax reduction.
- In March 2018, Mrs X started to make regular payments directly to the Council, not the bailiffs. She paid her current council tax instalment in the first week of each month, and then paid £5 per week for the remaining three weeks of the month. This was to repay her debt which was with the bailiffs.
- Also in March, Mrs X complained to the Council and the bailiffs about the debts outstanding with bailiffs that she had not repaid. She asked the Council to take the debt back from the bailiffs because she should be classed as a vulnerable person due to mental health problems.
- Five working days later, the Council sent Mrs X a text saying that her complaint had been passed to the council tax recovery team who would respond.
- In April, Mrs X chased the Council for a response to her complaint. At the end of that month, the Council called Mrs X. Mrs X told the Council about her mental health problems. The officer asked Mrs X for details of her income, expenses and other debts.
- There was then a series of emails sent between the Council officer and Mrs X. Mrs X said the Council had an obligation to take the debt back from the bailiffs. She said she felt the officer was dismissive of her mental health and current situation. She said she would give the Council the information requested once the debt had been taken back from the bailiffs.
- The Council officer acknowledged that Mrs X had made a further complaint, in that she was unhappy with the way he had handled the situation. He said the Council had not yet had an opportunity to respond to her initial complaint. He advised her to submit her complaint online.
- The officer told Mrs X that “to establish vulnerability, submission of an individual’s financial and personal circumstances is required”. Mrs X told the officer she did not think this was not the case.
- A few days later, Mrs X’s doctor sent her a letter asking her to make an appointment regarding comments she made to the Council. Mrs X went to her doctor, who said the Council had made contact due to concerns for Mrs X’s welfare, because she said she was going to kill herself.
- In May, Mrs X’s doctor sent the Council a letter confirming that Mrs X was suffering from depression and the situation to do with her council tax debt was affecting her mental health.
- On the same day, the Council issued its stage one response to Mrs X’s complaint. Regarding her debt history, the Council said it had removed the costs associated with the first liability order as a gesture of goodwill, given that the only remaining balance was made up of costs rather than an unpaid debt.
- The Council said it did not intend to recall the remaining debts from the bailiffs. It said the bailiffs were aware of Mrs X’s personal circumstances and would treat her in accordance with their vulnerable persons’ policy, a copy of which was attached.
- The Council said it was prepared to agree payments she would make to bailiffs until the debts were cleared. In order to agree these payments, the Council said it needed current details of Mrs X’s income, expenditure, details of other debts, and commitments to those debts. It said it needed this information within two weeks. It said if Mrs X decided not to submit this information, she would need to negotiate payments with the bailiffs directly.
- A few days later, Mrs X hand-delivered her written request to escalate her complaint to stage two to the Council’s reception desk. She complained that the Council contacted her doctor without her permission, and disputed that she said she was going to kill herself. She also said she did not give the Council her doctor’s contact details.
- Mrs X again said that the Council should recall the debt from the bailiffs because she should be classed as a vulnerable person. She said the Council officer was unable to give her a good reason why the Council would not recall the debt.
- Between the end of May and mid-July, Mrs X chased the Council five times for a response to her complaint.
- In July, Mrs X complained to the Ombudsman.
- In August, the Council recalled Mrs X’s debt from the bailiffs. The bailiffs wrote to Mrs X to inform her of this.
- In September, a Council manager called Mrs X. She told Mrs X that the Council had taken the debt back from the bailiffs. Mrs X says the manager told her she could see Mrs X had been making payments but they had not been correctly assigned to the current year’s liability.
- Mrs X says she complained to the manager about the officer’s lack of sensitivity. She says the manager told her the officer would not have meant to make her feel that way.
- Mrs X says the manager told her she would call back the next day with an action plan.
- In October, Mrs X complained again to the Council. She said she was waiting for the manager to call her back, as promised.
- The manager then called Mrs X. The Council says the manager apologised to Mrs X for the delay in dealing with her complaint. It says the manager told Mrs X she had misunderstood comments made by her colleagues about the complaint, and mistakenly thought the complaint had been dealt with.
- The Council says the manager advised Mrs X that she had decided to recall the debt from the bailiffs because she had been making regular payments to the Council. The manager said her decision was not based on Mrs X’s comments about vulnerability, but “out of taking a reasonable approach” because Mrs X had demonstrated her intention to repay the arrears and to keep her current liability up to date.
- This was followed up by an email to Mrs X. The Council acknowledged that Mrs X had requested that the Council take the debt back from the bailiffs. It said an officer who had been dealing with this request was waiting for confirmation of Mrs X’s council tax reduction, which was amended in September.
- The Council said it had made changes to Mrs X’s council tax account to show that the payments she had been making, some of which had been attributed to her arrears rather than her current council tax liability, were correctly attributed.
- The Council said it had adjusted her current account so that she did not pay more than £22 per month, as agreed with Mrs X.
- At the end of October, the Council called Mrs X to make sure the complaint had been resolved. Mrs X was not satisfied that this resolved her complaint.
Council tax debt
- Mrs X complains that the Council refuses to take the debt back from bailiffs. She says the Council should do this because she should be classed as a vulnerable person (part a of the complaint).
- The Council says that Mrs X’s case has been dealt with by the bailiffs’ welfare team since December 2016. It says that one of the three outstanding liability orders was settled in June 2018, and that both remaining liability orders (debts) were taken back by the Council in August 2018.
- The Council says it initially decided not to take the debt back from bailiffs because it knew that Mrs X’s case was being dealt with by the bailiffs’ welfare team. It says the bailiffs’ welfare team has a duty to assess vulnerability and return the case to the Council if they deem it appropriate. The Council says it allowed the bailiffs’ welfare team to continue with its assessment of Mrs X’s circumstances.
- The bailiffs’ policy says that if an illness is considered to be “most serious”, the case will be returned to the Council immediately. In this case, there is no evidence that the bailiffs considered Mrs X’s illness to be “most serious”. Further to this, I have not seen evidence that convinces me the bailiffs should have considered that her mental health met this criterion.
- The government guidance, ‘Taking Control of Goods: National Standards’, says that if a debtor is identified as vulnerable, the creditor (in this case the Council) should “be prepared to take control of the case, at any time, if necessary”.
- The Council is therefore under no obligation to take back a debt from bailiffs if a debtor is classed as vulnerable. Instead, it has to be prepared to take the case back. In this case, the Council took back the debt when it deemed it necessary and appropriate. This is in line with the guidance.
- The Council and the bailiffs correctly identified Mrs X as vulnerable due to her mental health. The Council acted appropriately by making sure the bailiffs were aware of Mrs X’s vulnerability, and the bailiffs acted appropriately by ensuring their welfare team dealt with Mrs X’s case.
- For these reasons, I do not find fault.
- The Council says that in April 2018 it decided not to take the debt back from bailiffs because of Mrs X’s prior “erratic” payment history, and because the Council knew her case was being handled by the bailiffs’ welfare team.
- The Council says it decided to take the debt back from bailiffs in August 2018 because Mrs X was making regular repayments, not because she was classed as vulnerable, and that it took this decision as a “reasonable approach”. It made the decision six months after Mrs X began making regular repayments on both her current liability and her outstanding debts.
- I cannot find fault with the Council here because the Council is entitled to make that decision. And, it is entitled to make the decision when Mrs X has shown consistency in making payments over an appropriate period of time. In this case, six months can be considered an appropriate length of time to show such consistency.
- Mrs X says that she wants to be able to pay the Council directly with no bailiff involvement, and to make affordable repayments. This has now happened. The Council has agreed with Mrs X a repayment arrangement that is affordable.
- Mrs X says that she wants the costs that have been added in bailiffs’ fees to be removed.
- The Council has some discretion over whether to remove bailiffs’ costs. The Council has exercised this discretion regarding Mrs X’s earliest debt. The Council says that the bailiffs will not pursue Mrs X for an outstanding amount of £63 linked to her debt for the 2013/14 year.
- I find that the remaining costs that form part of Mrs X’s debt are legitimate and in line with the Regulations. The Council has discretion over these costs but is not obliged to remove them when it takes a debt back from bailiffs. I do not find fault with the Council for these costs remaining as part of Mrs X’s outstanding debt.
- Mrs X complains that the Council did not correctly attribute her payments to the current liability and debt. The Council says that because her liability changed in June 2018 when her entitlement to council tax reduction changed, this meant the payments she was making were not automatically attributed to the right account.
- As stated in paragraphs 17 and 18, if a payment amount is not exactly the same as the instalment amount that should be paid, often this leads to payments being incorrectly attributed. This is not fault. The Council has since manually corrected this, and the payments Mrs X has made have been attributed to the correct account.
- Mrs X says the Council should not have asked for details of her income and expenditure to see if it could take the debt back from the bailiffs. She says that, as a vulnerable person, the Council should have just taken the debt back.
- Under section 36 of the Regulations, a debtor must give a council certain financial information if a liability order has been granted. In this case, Mrs X’s debt was made up of previous liability orders. For this reason, the Council was entitled to ask Mrs X for financial information.
- The Council’s email to Mrs X in April 2018 says, “to establish vulnerability, submission of an individual’s financial and personal circumstances is required”.
- The Council says that it was trying to establish if Mrs X was financially vulnerable due to financial hardship. There seems to have been some misunderstanding between Mrs X and the Council about the term ‘vulnerability’.
- The Council is entitled to ask for Mrs X’s financial information under section 36 of the Regulations. While there may have been some misunderstanding about what the information was going to be used for, the Council is not at fault for asking for this information.
- Mrs X complains that the Council manager failed to call her back the next day, as promised. She says she had to contact the Council to chase this up.
- The Council accepts that the manager did not call Mrs X back as promised. It says this was an “oversight”.
- I find that this constitutes fault because the Council did not deliver a promised service. This caused Mrs X injustice, because she had to chase the Council for a response, and the Council did not respond for a number of weeks.
- Mrs X complains that the Council has failed to deal with her complaint properly (part c of the complaint).
- The Council’s complaints procedure says it will endeavour to acknowledge a stage one complaint within three working days. It acknowledged Mrs X’s complaint in five working days. This is minor fault.
- The procedure says the Council will aim to respond in ten working days. The Council called Mrs X after 26 working days, and did not formally respond in writing for 33 working days. This is fault.
- The procedure says if the Council is not able to respond in ten working days it will advise the complainant and keep them updated on progress. I have seen no evidence that this happened until the Council called after 26 working days.
- Mrs X requested that her complaint be escalated to stage two of the complaints process. I have seen no evidence that the Council acknowledged this request. Mrs X repeatedly chased the Council for a response over a three-month period with no response.
- The Council called Mrs X in October to apologise for the delay in responding to her complaint. This was over five months after she requested escalation to stage two. I have seen no evidence that the Council sent a formal stage two response to Mrs X at any stage. This is fault.
- The Council accepts there were delays in concluding the complaint. It says there was some “miscommunication” between officers.
- I find that the significant delays caused Mrs X injustice. She went to time and trouble to chase the Council repeatedly for a response. This caused Mrs X uncertainty and added to her stress.
- In addition to this, I have seen no evidence that the Council dealt appropriately with the aspect of Mrs X’s complaint about her experience of how the officer handled her disclosure about her mental health.
- When Mrs X complained to the manager about the officer’s lack of sensitivity and that she felt he was dismissive of her mental health, Mrs X says the manager told her the officer would not have meant to make her feel that way. There is no record of this phone call. The Council says this is because only incoming calls are recorded, and in this case the officer called Mrs X.
- The Council says that while the officer did not intend to cause further distress, it accepts that “he was delivering an outcome that was not acceptable to the customer”.
- The Council has no recording of the calls, and has only brief case notes which do not reflect the whole content of the call or Mrs X’s comments.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- In this case, I have considered Mrs X’s account and the Council’s records. Mrs X has consistently given the same account to the Council and the Ombudsman.
- It is my view that the Council’s response to this part of Mrs X’s complaint should not have been the manager’s opinion of the officer. There appears to have been no investigation of this aspect of the complaint as part of the Council’s response to Mrs X’s complaint. This is fault which caused Mrs X injustice, because this part of her complaint should have been addressed in the stage two response after an investigation.
- Within four weeks of this decision, the Council has agreed to write to Mrs X to apologise for not calling her back when promised, for the significant delays in handling her complaint, and for not dealing appropriately with the aspect of her complaint about the officer.
- Also within four weeks of this decision, the Council has agreed to make a payment of £225 to Mrs X in recognition of these faults. This is in line with the Ombudsman’s published guidance on remedies, which suggests payments of £100 to £300 for unnecessary time, trouble and inconvenience. I have recommended a figure at the upper end of the scale, given the significant delays in handling Mrs X’s complaint.
- Within three months of this decision, the Council has agreed to review its complaints handling procedures to ensure that there is an appropriate system in place to avoid possible miscommunication about the progress of complaints. It says this review has already begun.
- The Ombudsman will need to see evidence that these actions have been completed.
- I have completed my investigation. Despite largely finding no fault, I have identified some fault because the Council did not deliver a promised service. This caused Mrs X injustice, so I uphold part a of the complaint. The Council has agreed to take action to remedy that injustice.
- I find fault with the Council for the way it handled Mrs X’s complaint, and so I uphold part c of the complaint. This fault caused Mrs X injustice, and the Council has agreed to take action to remedy that injustice.
Parts of the complaint that I did not investigate
- Mrs X complains that the Council called her doctor without her permission (part b of the complaint). She says she did not give the Council her doctor’s contact details.
- It is my view that the Information Commissioner’s Office (ICO) is better placed to deal with this part of Mrs X’s complaint because it is about Mrs X’s personal information. The ICO deals with complaints about data protection and councils’ actions regarding people’s personal data.
- While the Ombudsman does have some discretion to investigate (see paragraph nine), there has to be a good reason for doing so. In this case, I do not see that there is a good reason for the Ombudsman to exercise discretion to investigate because it is reasonable for Mrs X to exercise her right to take this part of her complaint to the ICO.
Investigator's decision on behalf of the Ombudsman