Plymouth City Council (18 013 949)

Category : Benefits and tax > Other

Decision : Upheld

Decision date : 11 Apr 2019

The Ombudsman's final decision:

Summary: The complainant says the Council has refused to investigate her complaint about its enforcement agents’ actions. The Council is at fault. The enforcement agents the Council uses act on its behalf and the Council should investigate complaints made against them. The Council should apologise, investigate her complaint and review its procedures.

The complaint

  1. Miss T complains through her representative, Mr P. She complains that:
  • enforcement agents, instructed by the Council, charged her multiple fees, contrary to The Taking Control of Goods (Fees) regulations 2014, and
  • the Council refused to investigate her complaint about this.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
  5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  6. 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)
  7. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.

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How I considered this complaint

  1. I spoke with the complainant’s representative and read the Council’s initial response to our enquiries. I researched the relevant legislation. I gave both the complainant and the Council the opportunity to comment on my decision. The complainant has not responded and the Council has agreed to my recommendations.

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What I found

  1. A council can apply to the magistrates’ court for a liability order when a person has council tax arrears. This process adds costs to the debt. Once it has a liability order it can use a number of different enforcement powers to collect the debt. One of these is referral to an enforcement agent.

The Taking Control of Goods (Fees) regulations 2014, (‘the Regulations).

  1. The regulations say that an enforcement agent may charge a compliance fee (£75) for each warrant they hold for a particular debtor for all activities which take place before the first visit. Once the agent visits a debtor they can charge an enforcement fee of £235 plus 7.5% of the debt over £1500.
  2. Where an agent is taking action under more than one enforcement power and they reasonably exercise those powers at the same time they can only make one charge for the enforcement and sale or disposal stage.
  3. If a debtor considers bailiffs’ fees are excessive he or she can apply to the county court for the charges to be assessed. This must be done within three months of the receipt of the bill for the charges. The court can decide if the costs were legal, reasonable and applied at the correct point. Fixed charges, such as those for a first and second visit, cannot be challenged.
  4. The right of appeal to the County Court is an alternative remedy. But the Ombudsman will consider whether it is reasonable to expect a complainant to take, or have taken, the matter to court. This will involve consideration of the specific circumstances of each case.
  5. I exercised discretion to investigate this complaint because the Council had not investigated the actions of its agents, the bailiffs, after they responded to Miss X’s complaint.

The enforcement agents (Agent D) complaints process

  1. Agent D’s website says it has a four stage complaints process. It says that, at the end of the complaint process, as they act on behalf of the Council, complaints about them and the outcome will be shared with the Council.

What happened

  1. At the beginning of October 2018 Miss X’s representative, Mr P, contacted the Council’s enforcement agents, Agent D. He said Agent D had charged Miss X multiple enforcement fee charges, contrary to the Regulations.
  2. Agent D responded on 9 October 2018. Their email set out the fees they say they are entitled to charge in law. They did not address the specific fees they had charged Miss X. The email does not refer to any further possible stages to the complaint. Agent D shared the email with Miss X and with the Council.
  3. On 18 October 2018 Mr P wrote to the Council. He explained Agent D had charged multiple enforcement fees. He said this was against the Regulations. He said he did not understand why the Council continued to use their services.
  4. The Council responded on 18 October 2019. It said, “…enforcement fees are set by the enforcement agent” and Mr P needed to contact Agent D directly to discuss the fees.
  5. The Council added it would consider what Mr P said when it next reviewed its enforcement agents. Mr P took the complaint to the next stage. He said:

“…you cannot just off load the complaint onto the bailiffs, the bailiffs are acting on your behalf, they are your responsibility, you need to deal with the complaint.” He also said that the Council had failed to provide a case reference number for the complaint. He said it, “…looks like you are trying to make it difficult to escalate the complaint.”

  1. The Council responded on 5 December 2018. It said that, “…complaints about enforcement agency’s practices and behaviour should be raised with the enforcement agency.” It added that the Council has regular meetings with enforcement agencies and it could raise his comments at the next meeting.
  2. It provided the details of the Ombudsman if Mr P remained unhappy with the Council response.

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Findings

  1. If an enforcement agent is conducting debt collection on behalf of the Council, the agent is an agent of the Council. As such, the Council should investigate a complaint about Agent D and respond to that complaint. It is not good enough to say that it will raise concerns at the next meeting, that does not constitute addressing a complaint. Councils can outsource a service, but not outsource accountability for that service.
  2. Mr P followed the correct process. He complained to Agent D first. There was no indication from Agent D he had any more stages to complain through their process. However, he was not satisfied with Agent D’s response. The Council should have dealt with the complaint at that stage. This is fault.
  3. I make no comment on whether the fees Agent D charged were correct. Further, the Council told Mr P that enforcement fees are ‘set by’ the enforcement agents. They are not. They are set by legislation. Since Mr P was informing the Council that its agents were misapplying the legislation, it should have investigated that claim. This is fault.

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Agreed action

  1. Within a month of my final decision, the Council should:
      1. Investigate Miss X’s complaint against Agent D and respond to Miss X, through her representative, Mr P. If Miss X is unhappy with the Council’s response she can return to the Ombudsman.
      2. Apologize to Miss X for sending her back to Agent D to complain when it should have addressed her complaint itself.
      3. If it is the Council’s approach to send all complaints about enforcement behaviour and practices to its enforcement agents, it should review this practice and ensure that where a complainant is not satisfied with an enforcement agency’s response to a complaint, they should be redirected to the Council’s complaints service.
  2. Within three months of my final decision, the Council should:
      1. Review its records and look again at complaints made against Agent D. The Council should contact anyone who complained to it about Agent D’s complaint response, and review their complaints. The Council should provide a report to the Ombudsman, setting out how many of these complaints it received since it started to use Agent D. It should also inform the Ombudsman what steps it has taken to address these complaints.

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Final decision

  1. I have found the Council at fault and made recommendations to remedy that fault.

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Investigator's decision on behalf of the Ombudsman

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