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Harborough District Council (18 012 739)

Category : Benefits and tax > Other

Decision : Upheld

Decision date : 19 Jun 2019

The Ombudsman's final decision:

Summary: Mrs X has complained about the actions of an enforcement agent that visited her home to recover a debt owed by her son. There is some evidence of fault by the Council.

The complaint

  1. Mrs X has complained about the actions of an enforcement agent that attended her home to recover a debt owed by her son, Mr Y. Mrs X says she felt intimidated by the bailiff and had to pay her son’s debt to prevent her possessions being taken.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered all the information from Mrs X and the Council including its response to my enquiries.
  2. A copy of this decision was sent in draft to Mrs X and the Council. I have considered the comments received in response.

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What I found

  1. Mr Y had an outstanding debt with the Council for non-domestic rates and in June 2018 it instructed an enforcement agency to collect payment. Mr Y had moved into Mrs X’s home and a notice of enforcement was sent to him at this address on 2 July 2018. As Mr Y did not make a payment, a bailiff visited Mrs X’s home on the 23 July 2018.
  2. Mrs X has complained about the actions of the enforcement agent. She says he placed his foot in her door and threatened to take her possessions away if Mr Y could not pay the outstanding debt. Mrs X says she told the bailiff that all the items in the house belonged to her, but he said he could still seize the goods unless she provided proof of ownership, such as receipts. Mrs X has lived in her house for 30 years and bought many of the contents some time ago. Therefore, she could not provide proof of purchase and says she was not told she could give alternative evidence such as a statutory declaration. Mrs X says she felt she had to make a payment or risk her items being taken and sold at auction. In response to Mrs X’s complaint, the Council said the enforcement agent did not act unlawfully. It accepted that a bailiff can only seize items belonging to the debtor but said if a third party claims to own items, it is their responsibility to produce evidence of ownership to prevent the removal of the goods.
  3. Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 (the Schedule) gives enforcement agents the power to enter premises where they reasonably believe a debtor lives. In this case, Mr Y was the debtor and he had told the Council he was living with Mrs X. Therefore, I cannot say it was fault for the enforcement agent to attend Mrs X’s home to recover the debt.
  4. Paragraph 10 of the Schedule says an enforcement agent may only take control of goods if they are the goods of the debtor. I have viewed the footage recorded during the bailiff’s visit to Mrs X’s home. The recording shows that Mrs X and Mr Y told the bailiff several times that the property and its contents belong to Mrs X. In response the bailiff said that unless it could be proven who owned the items, he would need to seize the goods. The enforcement agent did ask Mr Y where his belongings were, and Mr Y explained that he did not have much when he lived in his previous property and has now lost everything. However, the bailiff said he would need to continue with the enforcement process unless there was proof the contents of the house were Mrs X’s. The footage ends at this point and therefore I do not know what was discussed before the bailiff left.
  5. When an enforcement agent attends a debtor’s home to recover a debt it is not usually unreasonable if they ask for proof of ownership if it is claimed that items in the home belong to a third party. However, such a strict approach should not normally be taken when the debtor is staying in someone else’s home. It is more likely than not the third party will own most of the contents in their home and are unlikely to be able to provide proof of ownership for all their possessions, particularly items they have had for many years. In cases such as this, the bailiff should consider all the circumstances and evideince they have regarding ownership rather than insist on proof.
  6. In this case, the bailiff’s failure to properly consider the circumstances regarding ownership of the contents in Mrs X’s home was fault. However, I have needed to consider if this fault caused Mrs X any injustice and what, if any, remedy may be suitable. There must be a clear link between the fault and injustice caused, and any remedy we recommend should be proportionate, appropriate and reasonable. While I consider it likely that Mrs X may have felt she had no choice but to make a payment on her son’s behalf to prevent her possessions being taken, I cannot recommend the Council refund the money she paid on behalf of Mr Y. This is because I do not know what would have happened had the bailiff not adopted such a strict approach regarding the ownership of the items in her home. He may have considered seizing other items which did belong to Mr Y or Mrs X may have still decided to make a payment on her son’s behalf. However, I do consider the bailiff’s actions put Mrs X to time and trouble. She has also been caused uncertainty about what might have happened had the bailiff not insisted she provide proof of ownership for the items she had owned for many years.
  1. Mrs X has also complained about how the bailiff behaved during the visit. She says he placed his foot in the door and she felt threatened and intimidated by the situation. While, it is always likely to be upsetting when an enforcement agent visits someone’s home, I cannot say the bailiff’s behavior was unprofessional or intimidating. He did place his foot in the door for a few minutes while he was talking to Mrs X, but he did remove this and did not force his way into the property.

Agreed action

  1. The Council has agreed to pay Mrs X £150 for her time and trouble and for the uncertainty caused by the bailiff’s actions. This payment should be made within one month of this decision.

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Final decision

  1. There is some fault with the actions of the bailiff appointed by the Council.

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Investigator's decision on behalf of the Ombudsman

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