Summary: Ms X complains about the Council’s decision to take enforcement action for historic council tax arrears and the handling of her vulnerability as a debtor. We do not find fault in the Council’s decision to pursue the historic debts. However, we have found fault in the Council’s handling of Ms X’s vulnerability as a debtor. To remedy this, the Council has agreed to apologise to Ms X, review Ms X’s case with the bailiffs and make a service improvement.

The complaint

1. The complainant, who I shall refer to here as Ms X, complains about the Council’s decision to take enforcement action for historic council tax arrears from 2014, 2017 and 2018. More specifically, Ms X complains the Council:
1. failed to consider the 23 pieces of evidence she sent the Council showing she was not liable to pay the arrears;
2. did not properly consider her request to write off arrears. Ms X says she does not owe the outstanding amounts. She says she was receiving employment and support allowance, housing benefit and council tax support during the relevant time periods;
3. failed to consider her vulnerability before deciding to take enforcement action. Ms X says she has mental health difficulties and is the main carer for her daughter who is disabled; and,
4. failed to respond to her emails about the outstanding amounts before taking enforcement action.
2. Ms X says the situation and bailiff recovery action has caused her stress and distress. She says the bailiff recovery action has affected her mental health. She says she has gone to time and trouble trying to get the Council’s recovery department to respond to her questions.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’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)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. If we are satisfied with an organisation’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

7. I spoke with Ms X about her complaint. I considered all the information that Ms X and the Council sent me.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Council tax recovery

9. The Council Tax (Administration and Enforcement) Regulations 1992 cover both the way councils collect payments of council tax and the way councils can recover council tax debt. The Tribunals, Courts and Enforcement Act 2007 and associated regulations cover the way bailiffs may recover debts.
10. The council tax bill for the year is due on the 1st April. A council will usually collect payment through monthly instalments. If any instalment is missed the council will send the liable person a reminder. If a payment is still not made or a further payment missed, then the entire outstanding balance will be due (that is the full amount for the rest of the year).
11. To use the various powers available to it to recover unpaid council tax, a council must apply to the Magistrates Court for a liability order against those it believes are liable. Once a council has obtained a liability order it can take recovery action.
12. The Council’s website says, if someone receives a summons or liability order, to avoid further recovery action and fees, they should contact the Council to make a payment arrangement or complete its Statement of Means form.
13. A liability order gives councils legal powers to take enforcement action to collect the money owed. This can include taking deductions from benefits, getting an attachment of earnings (by which deductions are taken directly from earnings by an employer and passed to the Council) or using bailiffs.
14. Bailiffs (also referred to as enforcement agents) charge fees which also must be paid. The Council’s website says individuals should not ignore the summons or liability order as it will send an enforcement agent to collect the debt.
15. The Council can decide which recovery method it wishes to use but it can only use one method for one liability order at one time.
16. There is no definition of ‘vulnerable’ in the law or government guidance. The law and guidance do not say debts may not be recovered from vulnerable debtors, but that such cases once identified should be handled with care.

Bailiffs – vulnerability

17. A bailiff may not take control of goods if the debtor is a vulnerable person and they are the only person present.
18. The Taking Control of Goods (Fees) Regulations 2014 say bailiffs may recover fees from the debtor. Where the debtor is a vulnerable person, the fee due for the enforcement stage is not recoverable unless the bailiff has given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.
19. The law does not define what a vulnerable person is. The Ministry of Justice has issued ‘Taking Control of Goods: National Standards’ (“the Standards”) which set out the responsibilities of creditors and bailiffs.
20. The Standards say creditors should remember that bailiffs act on their behalf and they are accountable for the bailiff’s actions. They must consider if the debtor is vulnerable and if so, agree clear protocols governing the approach the bailiff should take.
21. The Standards provide a list of examples of where a person may be vulnerable. This list is not exhaustive, and care should be taken to assess each situation on a case-by-case basis. The list includes:

• people with a disability
• the seriously ill
• unemployed people

22. If a bailiff identifies a vulnerable debtor, they should alert the creditor and ensure they act in accordance with all relevant legislation. Bailiffs should be aware that vulnerability may not be immediately obvious.
23. In this case the Council instructed an enforcement agency (“the Bailiff”). The Bailiff’s Vulnerability Policy (2015) provides guidance to staff on assessing potential debtor vulnerability. It has a list of situations that could mean a debtor is vulnerable, which includes mental health and where the person is unemployed. It says, when the Bailiff receives a case from the Council, it will first check the information from the Council and carry out other checks to establish any potential vulnerability.
24. The Bailiff’s Vulnerability Policy says:

“We look to identify and assess vulnerability throughout the whole enforcement process … [We] assess the severity of the debtor’s condition and what it stops the person doing, how long it has been going on or may continue for, whether it is a one off situation or one of several episodes and then, assess whether the person is getting the right assistance, evidence of treatment and if additional referral or help is required. This … process will determine whether further enforcement action is appropriate. Staff will then make decisions based on the individual circumstances and this may result in us withdrawing, suspending action for a period of time, or referring the matter to an appropriate support agency. The council will be kept informed of the situation … The debtor is treated fairly and with respect at all times.”

Bailiffs – calling back debts

25. The government has published guidance entitled ‘Guidance to local councils on good practice in the collection of council tax arrears’. The guidance says councils should remain prepared to deal directly with individuals at any point. It says Councils can ‘call action back from the bailiffs at anytime and where there is a case to do so they should consider such action’.

What happened

26. My understanding is the Council obtained the following liability orders:

• one in February 2014 and a second in June 2014 for a total outstanding payment of £418.64 for Property A. The Council issued a final reminder in January 2017. This said that unless Ms X paid the sum in full or agreed to a mutually acceptable repayment arrangement with the Council, the Council would make an application to the magistrates’ court for her committal to prison;
• a third in February 2018 for unpaid Council Tax at Property B of £456.82. This was issued following two reminders sent to Ms X in November 2017 and January 2018; and,
• a fourth in July 2018 for unpaid Council Tax at Property B of £286.25. This was issued following two reminders sent to Ms X in April and June 2018.

27. In September 2020, the Council took action to try to trace Ms X at a new address. This was because of outstanding council tax bills at two previous addresses.
28. In November, the Council traced Ms X’s current address and sent her an outstanding council tax bill for a previous address, Property B.
29. Ms X contacted the Council about the bill. Ms X said she was in receipt of Universal Credit at the time and received council tax support. She asked the Council to contact her by email due to issues with her post and mobile phone reception.
30. Two days later, the Council emailed Ms X with copies of two Council Tax Adjustment Notices for the 2017/18 and 2018/19 tax years. These stated Ms X owed £755.86 for Property B, which was made up of council tax arrears plus £200 in court costs.
31. The next day, Ms X replied with 23 pieces of evidence that she asked the Council to consider. She said that she thought the issues had been resolved as she had not received any further contact from the Council since November 2017. This evidence contained documents from between 2016 and 2017, which included the following:

• various documents and emails showing information about Ms X’s employment and support allowance (ESA), housing benefit and child tax credit entitlement; and,
• emails from November and December 2017 confirming one of Ms X’s daughter’s was disabled and living with her. Her daughter had applied for ESA. Ms X said her other daughter had applied for Carer’s Allowance as she was caring for her sister. Ms X told the Council that she was suffering from severe depression, which is why Ms X had also applied for ESA.

32. Council records from December show it reviewed Ms X’s evidence and emails.
33. In February 2021, Ms X contacted the Council again as she had received a letter from the Council, from January 2017, stating she owed £418.64 in council tax arrears for Property A. Ms X said she had not lived at Property A since 2014 and she received council tax support from the Council at the time. She asked the Council why it did not contact her sooner.
34. The Council replied to Ms X a few days later. It provided a breakdown of the council tax arrears for both properties. It explained that a third party tracing agency had found Ms X’s current address, which led to it to taking action. The Council asked Ms X to complete a Statement of Means form. It asked Ms X to respond within seven days otherwise the debts would be passed on to enforcement agents, which would result in further recovery costs.
35. Ms X replied asking the Council to reconsider its decision. She asked it to consider the evidence she sent in November 2020.
36. In September, the Council sent Ms X its complaint response. It did not uphold her complaint.
37. In January 2022, Ms X complained to the Ombudsman. We accepted the complaint before it had completed the Council’s complaint process. This was because Ms X had been consistently complaining since November 2020 and there were occasions where the Council could have accepted a complaint sooner.

Analysis – was there fault by the Council causing injustice?

Liability for council tax

38. The Council was entitled to issue court proceedings based on non-payment, following its final reminder notice. As explained above, we cannot investigate complaints about court action. I cannot make any decision about whether the Council should have taken court action, or the process of that court action, including the court’s decision to issue the liability orders. This means I cannot investigate parts a and b of Ms X’s complaint because they relate to the court’s decision to issue liability orders.
39. However, I can consider what happened after this.
40. If a council has a liability order there is no time limit on taking recovery action.
41. It is my understanding that Ms X left Property B in the summer of 2018, but did not provide the Council with her new address. The Council was then successful in tracing Ms X’s current address in November 2020. It recommenced taking action to recover the debts from Ms X.

Passing the debt to enforcement agents

42. In my view, the Council gave Ms X notice in February 2021 that the debts would be passed to enforcement agents if a mutual affordable payment arrangement was not agreed. It explained that, if Ms X did not respond within seven days, it would pass the debts to enforcement agents, which would incur further costs. It sent Ms X the form to complete so this could be arranged. It sent it again in March and April before passing the debt to enforcement agents in June when it received no response. I do not find the Council at fault (part d of the complaint). It provided Ms X with sufficiently clear instructions on what action to take to prevent the debt passing to enforcement agents.
43. Towards the end of June, the Council passed the debts to enforcement agents when it received no response to its contact from April.
44. In August, the Council said it would return the debt from the enforcement agents if Ms X agreed to a mutually acceptable payment arrangement. The Council sent Ms X a link to the Statement of Means form and asked her to complete this within the next two weeks. It is my understanding that Ms X did not complete the form.
45. I find the Council clearly explained to Ms X what action was needed so that it would consider recalling the debt from enforcement agents. I do not find the Council at fault.

Consideration of Ms X’s potential vulnerability

46. Ms X complains that the Council failed to properly consider if she was vulnerable before taking enforcement action. She says she has mental health difficulties and is the main carer for her daughter who is disabled.
47. I asked the Council how it had considered Ms X’s vulnerability before taking enforcement action.
48. It told me that it was not aware of Ms X’s potential vulnerability and, as the Bailiff had not referred the case back to the Council, as per the Bailiff’s Vulnerability Policy, the Council assumes this point has not been raised by Ms X.
49. However, the Council accepts that the evidence Ms X provided in November 2020 showed, during 2017 and 2018, Ms X was experiencing severe depression and receiving ESA. The evidence also showed Ms X’s daughter was disabled and living with her. In my view, the Council had several opportunities to consider Ms X and her daughter’s vulnerability before deciding whether to pass the debt to the Bailiff. Given the evidence provided, I would have expected the Council to have checked Ms X and her daughter’s vulnerability before passing to the Bailiff. The records I have seen show the Council did not do this, which is fault.
50. In October 2021, a debt advisor from the Citizens Advice Bureau contacted the Council on Ms X’s behalf. The advisor said Ms X had asked for assistance after the Bailiff’s requested payment of almost £1700. She said Ms X was suffering from anxiety and depression.
51. A Council officer replied with details of the debts owed and said the accounts were now with the Bailiff. However, I have seen no evidence that the Council considered Ms X’s vulnerability at this point or contacted the Bailiff to decide what action, if any should be taken. The Bailiff acts on behalf of the Council and it is accountable for the Bailiff’s actions. In this case, I would have expected the Council to have considered whether there were grounds, based on the individual circumstances, to call action back from the Bailiff, suspend action for a period of time, or refer the matter to any other appropriate support agency. The Council’s failure to do so is fault.
52. The fault identified cause Ms X distress (part c of the complaint). She missed out on the Council considering her and potentially her daughter’s vulnerability when handling Ms X’s debt.

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Agreed action

53. Within four weeks of my final decision, the Council has agreed to:
1. apologise to Ms X for the fault causing injustice;
2. make Ms X a payment of £100 for the distress caused. This payment is in line with the Ombudsman’s published guidance on remedies; and,
3. consider Ms X and her daughter’s vulnerability and review her case with the Bailiff to decide what action, if any should be taken, in enforcing her debt. The Council should write to Ms X with the reasons for any decision made.
54. Within two months of my final decision, the Council has agreed to circulate guidance to staff on how to assess and handle potential vulnerability of debtors throughout the debt recovery process. This should include information on when it may consider calling action back from the bailiffs.
55. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

56. I have completed my investigation.
57. I cannot investigate parts a and b of Ms X’s complaint as they concern the court’s decision to issue the liability orders.
58. I have decided not to uphold part d of Ms X’s complaint. This is because I have seen no evidence of fault by the Council causing injustice.
59. I have decided to uphold part c of Ms X’s complaint. This is because I have seen evidence of fault by the Council causing Ms X injustice. The above recommendations are suitable ways for the Council to remedy this, which it has agreed to.

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Investigator's decision on behalf of the Ombudsman