Summary: Mrs X complains about the way the Council recovered an outstanding debt using its bailiff. The Ombudsman finds fault with how the bailiff charged the sale fee. The Ombudsman recommends the Council refund Mrs X for the sale and disposal fee and acts to prevent recurrence.

The complaint

1. The complainant, whom I refer to as Mrs X, complains about the way the Council recovered an outstanding council tax debt, in her husband Mr X’s name, using its bailiff. Mrs X says the bailiff should not have added fees onto the debt and having to pay these has caused her financial hardship. She also said she only paid the debt as the bailiff visit caused distress to her son, Mr Z, who suffers with mental illness.

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The Ombudsman’s role and powers

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. 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

4. As part of my investigation I have:
• Considered the complaint by Mrs X.
• Discussed the complaint over the telephone with Mrs X.
• Considered the documents provided by the Council in response to my enquiries.
• Sent a draft of this decision to Mrs X and the Council and considered their comments.

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What I found

5. The Taking Control of Goods (Fees) Regulations 2014 (Fee Regulations) defines the compliance stage as all activities from the bailiff’s receipt of a warrant until the bailiff’s first visit to the property. At this stage a fee of £75 is added to the debt.
6. Once a bailiff visits a person's property the case moves to the enforcement stage and a further fee of £235 is added to the debt. The Fee Regulations define the enforcement stage as all activities from the bailiff’s first visit to the property up to, but not including, attending to remove goods.
7. A bailiff can only take control of goods belonging to the debtor. These goods can be on the debtor’s premises or on the highway. The Tribunals, Courts and Enforcement Act 2007, Schedule 12, provides a clear procedure for how bailiffs may take control of goods. To take control of goods a bailiff must do one of the following:
• secure the goods on the premises on which he finds them;
• if he finds them on a highway, secure them on a highway, where he finds them or within a reasonable distance;
• remove them and secure them elsewhere;
• enter into a controlled goods agreement with the debtor.
8. The Taking Control of Goods Regulations 2013 (the Control Regulations) set out ways in which a bailiff can secure goods on the premises. The bailiff may secure goods in a cupboard, room, garage or outbuilding. The bailiff may secure a car on the premises or the highway by fitting an immobilisation device. Having taken control of goods, the bailiff must give a notice to the debtor confirming they have taken control of goods and what those goods are.
9. When the bailiff attends a property to transport goods for sale a further £110 is added to the debt. Regulation 5 of the Fee Regulations define the sale or disposal stage as all activities from the first attendance at the property for the purpose of transporting goods for sale onwards. The bailiff does not have to remove goods to start this stage but just has to attend intending to remove. The bailiff must have already taken control of the goods.

Background

10. On 3 March 2018, the Council said it issued Mr X with a new annual council tax bill, of £1,653.08, for the period beginning 1 April 2018. As the Council received no payment it sent a reminder on 24 April 2018.
11. The Council did not receive further payment of the debt so issued a summons to court on 18 May 2018. This added a further £115 onto the debt.
12. On 21 May 2018 the Council received £200 payment onto the council tax account and a further £181.15 in June 2018. The courts granted a liability order on 19 June 2018 and on 25 June 2018 the Council sent a notification of referral to its bailiffs as the debt remained unpaid. A further £75 was added onto the debt.
13. On 3 July 2018 Mr set up a payment plan with the bailiffs and agreed to pay £162.43 every month. However, Mr X broke the agreement in August 2018. A further agreement was set up in August 2018 however, Mr X missed the next payment in September 2018.
14. On 4 September 2018 a bailiff attended Mr and Mrs X’s property and left a notice specifying the debt owed. At this stage the bailiff added a further fee of £235 to the debt.
15. On 5 September 2018 Mrs X paid £1,186.93 to the Council, leaving £310 outstanding. The bailiff attended Mr and Mrs X’s property again on 10 September 2018 and left a final notice at the property.
16. The Council emailed Mr X on 11 September 2018 to acknowledge receipt of the payment it received and said Mr X still owed £310. On 26 September 2018 the bailiff attended Mr and Mrs X’s property and left a further notice specifying the debt owed of £310.
17. On 29 March 2019 a bailiff attended Mr and Mrs X’s property. Mr X was not in and Mrs X answered the door. The Bailiff clamped Mrs X’s car before knocking at the door.
18. The bailiff’s bodycam footage shows the bailiff told Mrs X about the outstanding debt and went through the payment history with her. The bailiff told Mrs X he should be charging an extra £110 but would not do so. Mrs X said she was disputing the debt with the Council and tried to get Mr X on the phone so he could speak to the bailiff. The bailiff told Mrs X if she did not pay the debt, he would remove the vehicle. Mr Z then came to the front door and Mrs X and the bailiff discussed the possibility of taking the television instead. The footage shows a disagreement between the bailiff and Mr Z and at this point the bailiff said he is adding £110 onto the debt and will remove the car.
19. Mrs X then spoke to Mr X over the telephone and told the bailiff she can pay £310, which was the original debt. The bailiff refused this and said the debt increased to £420. Mr Z and the bailiff became involved in another disagreement and Mrs X tried to intervene and told the bailiff Mr Z has mental health issues. Mrs X then agreed to pay the £420 and the bailiff removed the clamp from the vehicle after she had paid.
20. Mr and Mrs X telephoned the Council on 29 March 2019 to complain about the bailiff’s visit. Mrs X followed this up with a written complaint on 1 April 2019.
21. The Council sent Mrs X a stage one response in early April 2019. Mrs X asked the Council to escalate her complaint to stage two as the Council did not agree to refund her the bailiff fees.
22. In May 2019 the Council provided Mrs X with a final response to say the enforcement fees were charged correctly and it would not be refunding these based on her personal circumstances.

Analysis

23. Mr X had an unpaid debt with the Council. After getting a liability order and warrant of execution the Council was entitled to pass this to its bailiff to pursue. However, it would be good practice for the Council in future cases to write to council tax debtors after a liability order has been made to warn them the warrant is being passed to a bailiff, with a note of the costs that will become due.
24. I have not found fault with the Council’s actions from when it issued the debt to when the bailiff visited on 29 March 2019. From the evidence provided Mr X made a number of payment plans with the Council and did not keep to these. After the payment plans had not been kept the bailiff visited Mr and Mrs X’s property in September 2018.
25. The Council issued the enforcement fee of £235 correctly as it did so after the first visit to Mr and Mrs X’s property.
26. There was fault with how the bailiff added the £110 sale and disposal fee to the debt. The legislation is clear that when a bailiff takes control of goods it must give the debtor the correct notice or get the debtor to sign a controlled goods agreement. From the evidence provided there is no record the bailiff provided Mrs X with a notice specifying what goods had been taken control of or got her to sign a controlled goods agreement, prior to moving the matter to the sale stage and adding the £110 fee.
27. The Council in its response to my enquiries said the bailiff added the £110 fee onto the debt and moved to the sale and disposal stage as Mrs X refused to pay the debt. From the bailiff’s bodycam the bailiff added the £110 fee after becoming involved in a disagreement with Mr Z. Before this the bailiff agreed to allow Mrs X the chance to call Mr X on the telephone so the bailiff could speak with him.
28. When the bailiff arrived, he initially advised Mrs X he should be adding a further £110 fee onto the debt but would not do so. This is fault. Before a bailiff can add the £110 fee they need to start the removal process.
29. The Council further said in response to my enquiries the action the bailiff took to remove the vehicle was to clamp it. The bailiff then explained to Mrs X if she did not pay the debt the bailiff would remove the vehicle.
30. The legislation says the sale stage starts from, “the first attendance at the property for the purpose of transporting goods to the place of sale, or from commencing preparation for sale if the sale is to be held on the premises.” The vehicle was clamped at the enforcement stage. This was how the bailiff took control of the vehicle. It was not enough for the bailiff to clamp the vehicle and tell Mrs X it would remove the vehicle should she not pay. Before adding the £110 fee the bailiff needed to start the removal process.
31. A bailiff should not add the £110 fee on the basis a debtor is refusing to pay. From the evidence provided the bailiff did not start the removal process before adding the £110 fee. This is also fault.
32. While I acknowledge the bailiff told Mrs X he would call a removal company, it is not clear whether he did this as he was speaking with Mrs X and Mr Z at the same time. In addition, Mrs X offered to pay the £310 after speaking with Mr X. I am not satisfied the bailiff started the removal process before adding the £110 fee onto the debt.
33. I find this fault caused Mrs X injustice as she had to pay an extra £110 on top of the debt.
34. In response to my suggested remedy the Council said there were 184 cases where the sale and disposal fee had been charged in the last three months. This suggests the Council may be wrongly charging the fee on a regular basis. So I have recommended the Council check all cases over the last 12 months where the sale and disposal fee has been charged and consider if, in the light of my decision, the fee has been correctly applied in each case.

Recommended action

35. To remedy the injustice set out above I recommend the Council complete the following actions and provide evidence to the Ombudsman it has done so:
36. Within four weeks of the date of my final decision:
• Refund Mrs X £110 for the sale and disposal fee the bailiff added to the debt.
37. Within three months of the date of my final decision:
• Look back at previous cases over the last 12 months where sale fees have been charged but no goods seized and;
• Consider whether the sale fee has been correctly applied. Refund individuals the sale fee where it has not been correctly applied.

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Final decision

38. I have completed my investigation on the basis there was fault by the Council in how it recovered an outstanding debt. This caused Mrs X injustice. I have made recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman