Summary: The Council and its agents were not at fault when Mr X did not receive an enforcement notice. The agents followed the Regulations in posting the notice to Mr X.

The complaint

1. Mr X complains enforcement agents acting for the Council added £1,750 fees to his business rates without warning.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. I considered the complaint made by Mr X and discussed it with him. I considered information from the Council.
6. Mr X and the Council had the opportunity to comment on a draft version of my decision before I made a final decision.

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What I found

Business rates debts

7. A council can get a liability order for non-payment of business rates. If the debtor does not pay a council can then engage enforcement agents to recover the money.
8. Regulations say what the enforcement agents must do when recovering the debt and how much they can charge.
9. The Taking Control of Goods Regulation 2013 give the process the enforcement agent must follow. Before taking control of goods (in other words visiting to take goods) an enforcement agent must issue a notice of enforcement on the debtor seven clear days before the agent takes control of goods. This is the compliance stage. Once an agent makes a first visit the compliance stage is over and the enforcement stage has begun.
10. The Regulation say the agent must give the notice by

• posting it to a place where the debtor lives or carries on a trade; or
• fax or other electronic means; or
• hand delivery through the letterbox.

11. The Regulations do not say the agents must have proof of service or must use registered or recorded post.
12. The Taking Control of Goods (Fees) Regulations 2014 say what fees an agent can charge. These are £75 for the compliance (letter) stage and £235 for the enforcement (visits) stage. For debts over £1,500, the agent adds 7.5% of the debt to the fees.

What happened

13. In 2018 Mr X’s business struggled and he could not afford to pay the business rates. On 20 June 2018 the Council got a liability order for over £20,000. Mr X agreed to make payments but says he could not keep to this. In August 2018 the Council engaged enforcement agents to recover the debt.
14. Mr X says he was not aware the Council had engaged agents. He says the first he knew was when an agent visited his business on 11 September 2018. He says the agents now wanted the arrears and £1,750 fees.
15. Mr X has since paid the arrears and fees but says the Council should pay him the fees back. He says its agents did not notify him before coming to his business and adding the enforcement fee.
16. The Council has provided a copy of the enforcement notice from the agents dated 28 August 2018. It has the correct address. The Council says it has not received complaints from others about the agents not sending the enforcement notice.
17. Mr X says this is not enough. He says the agents should have sent the notice recorded delivery or registered post. He says without this the Council has no proof the agents served the enforcement notice. He says because he did not receive the notice, he lost the opportunity to pay the arrears before the agents added a large enforcement fee.

Analysis

18. I understand why Mr X feels aggrieved. However, I must consider if the Council or its agents did anything they should not have done.
19. The agents’ have evidence they produced the enforcement notice. I can see no reasons they did not send it. Mr X did not receive it. The Ombudsman cannot hold the Council or its agents responsible for a failure by the postal service. The Ombudsman also cannot tell the Council or agents they must do more than the Regulations require. The Regulations say the agents can serve the notice by posting it to a correct address. The Regulations do not say the agents must use recorded delivery or registered post. Therefore, the Ombudsman cannot say the agents were at fault for not using registered post or recorded delivery.
20. The agents added the correct fees under the Regulations.

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Final decision

21. I have seen no evidence of fault by the Council or its agents. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman