Summary: Mr & Mrs X complained about action the Council and its enforcement agents took when they were recovering a Council Tax debt Mrs X owed. We found some fault but this did not cause any injustice. The enforcement agents’ fees have since been removed and this provides the outcome Mr & Mrs X wanted.

The complaint

1. Mr & Mrs X complained that:
• the Council failed to properly consider Mr X’s vulnerability before it passed Mrs X’s Council Tax debt to enforcement agents in May 2019;
• the enforcement agents continued to make visits after Mr X had provided information about their income and expenditure;
• the enforcement agents failed to properly consider Mr & Mrs X’s income and expenditure information, and did not offer reasonable payment instalments;
2. Mr & Mrs X also complained about the conduct of an enforcement agent who visited their home in October 2016. I did not investigate this part of the complaint for the reasons given in paragraph 54.

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What I have investigated

3. I investigated events between May and October 2019. This begins with the Council’s decision to pass the Council Tax debt to its enforcement agents in May 2019 and ends on the date Mr & Mrs X complained to the Ombudsman.
4. Where necessary, I refer to earlier events to explain the background to this complaint.

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The Ombudsman’s role and powers

5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company provides 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)
7. We cannot investigate late complaints unless we decide there are good reasons. A complaint is late when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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)

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How I considered this complaint

9. I considered Mr & Mrs X’s complaint and the information they sent us. I considered comments and evidence the Council and its enforcement agents provided in response to my enquiries.
10. Mr & Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Council Tax recovery

11. Councils apply to the Magistrates Court for a Liability Order to allow them to recover unpaid Council Tax.
12. When it has a Liability Order, a council may choose which method to use to recover the debt. It may decide to use an attachment of earnings order or make direct deductions from the person’s welfare benefits. Councils may also decide to use private enforcement agents (formerly known as bailiffs) to recover unpaid Council Tax debts.
13. When a debt is passed to enforcement agents, additional fees are charged at the compliance and enforcement stages. These fees are set out in regulations.
14. At the compliance and enforcement stages, the debtor has no legal right to make an arrangement to pay the debt in instalments. However, Cornwall Council’s Tax Collection & Recovery policy (“the policy”) says:

“Payment arrangements can be made at any time during recovery proceedings. However, customers should only be granted a payment arrangement once they have provided income and expenditure details and confirmed employment details if working or benefit details if in receipt of benefit.”

15. The Council’s policy says it monitors payment arrangements regularly and, if payments are not made as agreed, it will take further appropriate recovery action.
16. When necessary, the council can ask its enforcement agents to put a hold on further enforcement action while a dispute is resolved.

Vulnerable debtors

17. An enforcement agent may not take control of goods, make a controlled goods arrangement, or re-enter premises if the only person on the premises is a child or a vulnerable person. The Local Government Finance Act 1992 and Regulations do not define the term “vulnerable”.
18. It says the Council considers using enforcement agents as a last resort to collect arrears. It will check its records and make a thorough assessment of each customer’s situation to decide whether enforcement agent action is appropriate in each individual case.
19. Having made the checks outlined above if they reveal the customer may be at risk of being vulnerable consideration will be given to using alternative methods of engagement and collection rather than taking, enforcement agent action.
20. The Council’s Collection & Recovery policy includes guidance about how staff and enforcement agents should identify and deal with vulnerable debtors. The Council’s policy defines a vulnerable person as someone who is, or may be, in need of community care services due to a mental or other disability, age or illness and who is, or may be, unable to take care of him /herself or unable to protect him/herself or ‘family’ from significant harm or exploitation. It gives some examples of common indicators of vulnerability which include:
• long term or serious illness;
• low income, e.g. those who are unemployed and/or on benefits;
• a sudden change of circumstances, e.g. bereavement, divorce, illness, loss of employment, recently having given birth or adopted
21. However it emphasises that not everyone with one of these indicators will necessarily be vulnerable in every circumstance.

Background information

22. Mrs X has a Council Tax debt for a property she used to occupy before she lived with Mr X. Mr X is not liable for this debt.
23. The Council obtained two Liability Orders in December 2014 and December 2015 to enable it to recover this debt. Mrs X owed £350.74 including Court fees.
24. Since 2014/15 the Council has made several attempts to recover the debt from Mrs X. It says it made nine arrangements for Mrs X to pay the debt in instalments but she has not kept them. It made four different arrangements with Mrs X between February 2018 and May 2019. It says Mrs X made three payments in December 2018, January 2019 and March 2019. As she made no further payments, it decided to send the account to its enforcement agents on 21 May 2019.
25. This is a brief summary of the background to this complaint. Our investigation examines what happened from May 2019 onwards.

The events of this complaint

26. On 21 May 2019 the Council instructed the enforcement agents to start recovery action.
27. According to the enforcement agents’ records, it sent a letter to Mrs X on 23 May. It then made two attempts to contact her in late May by telephone and left voicemail messages. It sent two reminder letters in June.
28. On 13 June Mr X called the enforcement agents’ contact centre. According to the enforcement agents’ records, he said Mrs X could not pay the full amount and she was potentially vulnerable. There are no details about her potential vulnerability in the records the enforcement agents provided. They agreed to email a financial statement form to Mrs X and put the case on hold for 20 days. There is no evidence of further contact from Mr or Mrs X until 9 July.
29. Mrs X did not complete and return the financial statement within 20 days. The hold on enforcement action ended on 3 July. The enforcement agents received the completed financial statement on the following day. After making two unsuccessful attempts to telephone Mrs X, the case was assigned to an enforcement agent for a visit.
30. The enforcement agent, whom I shall refer to as Mr P, visited Mr & Mrs X’s home on 9 July. Mr P did not see Mr & Mrs X and he left a letter at the property.
31. On 10 July Mr X made a complaint to the Council and the enforcement agents about Mr P’s visit. He said Mr P had visited them before in October 2016 and Mr X had not been happy with his conduct then. Mr X said he had come across Mr P in his former employment and Mr P may know one of his relatives. He suggested Mr P had a possible conflict of interest.
32. The Council instructed the enforcement agents to put a further hold on the account for 14 days while they investigated Mr X’s complaint. On 18 July the Council instructed the enforcement agents to extend the hold for a further 21 days.
33. Mr X says he was receiving hospital treatment at the time for a serious health condition. The Council says it did not know about Mr X’s medical condition until he disclosed this information when he called following Mr P’s July 2019 visit. It says Mr X did not provide any supporting evidence. As the debt was in Mrs X’s name only, the Council did not consider it necessary to make any adjustments to its recovery policy. On further reflection, it says it could have given further consideration to Mr X’s health condition and circumstances at the time.
34. On 5 August, following contact with Mr X, the Council instructed the enforcement agents to set up a payment arrangement for £5 per week. The first instalment was due to be paid on 19 August. The enforcement agents wrote to Mrs X later in August to confirm this arrangement.
35. On 15 August the Council received an income and expenditure form Mr X had completed with assistance from a debt advice charity. The Council said it noted the form at the time but it did not review the existing payment arrangement for £5 per week. When it replied to our enquiries, the Council said it could have given further consideration to the outgoings Mr & Mrs X had declared on the form.
36. In early September the Council asked the enforcement agents to put a further hold on enforcement action for 28 days because Mr X had escalated his complaint to the next stage of the Council’s complaints procedure. The hold was later extended.
37. In late September 2019 the Council replied to Mr X’s complaint at the final stage of its complaints procedure. It focused on the complaint Mr X made about Mr P’s conduct when he visited in October 2016. It said it could not investigate this due to the passage of time and the fact that the enforcement agent’s bodycam evidence had been deleted some time ago to comply with data protection requirements. It said it had decided to continue with enforcement action due to the previous payment history and the fact that Mrs X had not kept previous payment arrangements.
38. In October 2019 the Council informed the enforcement agents that Mr X had complained to the Ombudsman and asked them to proceed with caution. It asked them not to ask Mr P to make further visits.
39. The Council has given a breakdown of the statutory compliance and enforcement fees of £385. These were added to the original Council Tax debt and Court fees while the case was with the enforcement agents. These fees were:
• £75 compliance fee for each of the two Liability Orders; and
• £235 enforcement fee for the October 2019 visit.

Events following Mr & Mrs X’s complaint to the Ombudsman

40. In mid-January 2020 the Council agreed to put a further hold on enforcement action while we investigated the complaint. The enforcement agents returned the account to the Council in early August 2020. At that point, the compliance and enforcement fees of £385 were no longer payable.
41. In response to our enquiries, the Council said the debt is now for the original amount of £350.74. On his complaint form, Mr X said he would be willing to pay the original debt to bring his complaint to a conclusion.
42. Mr & Mrs X’s financial circumstances have changed since they complained to the Ombudsman. They now receive benefits. The Council says it is therefore willing to negotiate a new arrangement to pay the original debt of £350.74. It has invited Mr or Mrs X to make contact to discuss a new arrangement. The Council had put a hold on enforcement action until we completed this investigation.

Analysis

43. Mrs X has an outstanding Council Tax debt from 2014/15. The Council has a duty to recover unpaid Council Tax to ensure all Council Taxpayers are treated fairly and to fund local services. However, when it takes recovery and enforcement action, it must carefully consider the needs of vulnerable debtors. The Council’s policy says this extends to considering the circumstances of vulnerable dependents in the debtor’s household.
44. The evidence I have seen so far shows the Council did not know about Mr X’s health condition when it passed the case to its enforcement agents in May 2019. So it was not fault to use enforcement agents when several previous attempts to collect the debt by making an arrangement to pay with Mrs X had failed. At the time, the Council did not know Mr X may be vulnerable due to a serious health condition.
45. The enforcement agents received the completed financial statement one day after the hold on recovery action expired. So it was returned late. I note that the agents did try to telephone Mrs X after getting the form. Nevertheless it would have been good practice to have reviewed the financial statement to decide whether a new payment arrangement could be made before Mr P visited on 9 July. The Council later reviewed the arrangement in August after it received a separate statement from the debt advice charity.
46. The Council was at fault because it did not consider the information Mr X provided in July 2019 about his health condition. The Council’s policy says a long-term or serious health condition may be an indicator of vulnerability. This applies to the debtor and dependent members of his or her household. So the Council should have considered this information at the time to decide:
1. whether or not Mr X was vulnerable; and
2. if it decided he was a vulnerable dependent of Mrs X, whether that should lead to a change in the method of recovery and not use enforcement agents.
47. We do not know whether the Council would have decided Mr X was a vulnerable dependent of Mrs X and recalled the account from the enforcement agents in July 2019. It does not automatically follow that because Mr X has a long term health condition he would be considered vulnerable. But the Council should have considered this at the time and made a record of its decision. That decision would have been made after the enforcement agent’s visit in July and would not have prevented it. In the event, the Council then put further enforcement action on hold while it considered Mr X’s complaint and awaited the outcome of our investigation.
48. The Council did not review the income and expenditure form Mr X returned in mid-August. That was also fault. Although the payment arrangement had been set up just ten days earlier, it should nevertheless have reviewed the information on the form to decide if that repayment rate was still reasonable.
49. On the complaint form, Mr X said he and Mrs X would be willing to settle the Council Tax debt if the enforcement agents’ fees were removed. The debt is no longer with the enforcement agents so those fees are no longer payable. The Council is willing to negotiate a new arrangement with Mrs X to clear the original debt of £350.74. Mr & Mrs X should contact the Council to pay this amount and this will achieve a satisfactory resolution of their complaint.
50. We will not recommend that the Council writes off the entire Council Tax debt. Mrs X owes Council Tax from 2014/15 and the Council is entitled to recover this historic debt.

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Final decision

51. There was fault by the Council but this did not cause injustice to Mr & Mrs X.
52. As the Council Tax debt has been returned to the Council, and the enforcement agents’ fees are no longer payable, this provides the outcome Mr & Mrs X want from this complaint.

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Parts of the complaint that I did not investigate

53. I did not investigate Mr & Mrs X’s complaint about the conduct of the enforcement agent, Mr P, when he visited in October 2016. These events happened more than 12 months before Mr & Mrs X complained to the Ombudsman so this part of the complaint is late. There is no good reason to exercise discretion to investigate this now.

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Investigator's decision on behalf of the Ombudsman