Summary: Mrs C complained an enforcement company, acting on behalf of the Council, charged her for a visit to her property it did not make. Mrs C felt harassed by the enforcement company and found the messages it sent her threatening. We found fault with the Council causing injustice. On the balance of probabilities, the enforcement company charged Mrs C an enforcement fee for a visit it did not make and sent her misleading messages. The Council has agreed to apologise to Mrs C, make a payment for distress and review how it monitors the enforcement companies it uses.

The complaint

1. Mrs C complained an enforcement company, acting on behalf of the Council, charged her for a visit to her property it did not make.
2. Mrs C felt harassed by the enforcement company and found the messages it sent her threatening.

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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 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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

7. I considered:
• Mrs C’s complaint and the information she provided;
• documents supplied by the Council and the enforcement agency;
• relevant legislation and guidelines; and
• information provided by a third party.
8. Mrs C and the Council commented on a draft decision. I considered their comments before making a final decision.

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What I found

Legislation and policy

9. Billing, collection and recovery of unpaid council tax is governed by the Council Tax (Administration and Enforcement) Regulations 1992, SI 1992/613. Recovery action is through the issue of a summons and a liability order through the magistrates' courts. Options include seizure and sale of goods following the issue of a warrant.
10. The Council may ask an enforcement company to attend a person’s property and seize goods to the value of a council tax debt. Only certified enforcement agents can remove a debtor's goods to recover council tax debts.
• When the debt is passed to an enforcement company there are two stages: Compliance stage: Upon receipt of the  instruction from the creditor (the local authority/magistrates court etc.), the enforcement company must send a Notice of Enforcement giving the debtor a  minimum of seven clear days to pay before a visit can be made.  The debtor can make a payment proposal following the Notice of Enforcement. The enforcement company adds a compliance stage fee to the debt, in 2019 this was £75.
• Enforcement stage: If the debtor does not pay during the compliance stage or they default on a payment arrangement, the enforcement company will pass their account to an individual enforcement agent. The agent will visit the debtor’s property for the purpose of taking control of their goods. At the time of the visit, an enforcement fee is added to the debt, in 2019 this was £235.
11. In 2014 the Ministry of Justice produced national standards for enforcement agents. These include:
12. Standard 20: Enforcement agents must not be deceitful by misrepresenting their powers, qualifications, capacities, experience or abilities, including, but not restricted to:
• Falsely implying or stating that action can or will be taken when legally it cannot be taken by that agent.
• Falsely implying or stating that a particular course of action will ensue before it is possible to know whether such action would be permissible.
• Falsely implying or stating that action has been taken when it has not.
13. Standard 23: Enforcement agents, for the purpose of taking control of goods shall, without the use of unlawful force, gain access to the goods. The enforcement agent must produce all relevant notices and documents, such as controlled goods agreements that are required by regulations or statute.

What happened

14. In January 2019, the Court granted the Council a liability order for recovery of Mrs C’s council tax plus the legal costs. The Council attempted to recover Mrs C’s debt via a special payment arrangement and an attachment of earning order, but neither were successful. The Council referred Mrs C’s debt to an enforcement company in October 2019.
15. The enforcement company says it sent Mrs C a notice of enforcement, advised her it had added a £75 compliance fee to her debt and told her if she did not pay her arrears by the 30 October 2019 an enforcement agent would visit her property and may seize her belongings. It informed her that this visit would incur further costs, and these would be added to her debt.
16. Mrs C paid her council tax arrears on 31 October 2019.
17. The enforcement company says it sent Mrs C a follow up notice in November 2019 and asked her to make contact. The enforcement company allocated an agent to the case. The company says this agent tried to contact Mrs C by phone but could not get hold of her. Mrs C says she tried to phone the enforcement company and when she could not get through, contacted the Council. The Council told the enforcement company Mrs C had cleared her debt.
18. The enforcement company says it send Mrs C a statement informing her the compliance fee was outstanding and allocated the case to a new enforcement agent.
19. The enforcement company says the agent visited Mrs C’s property on 3 December 2019 and there was no one at the address. Mrs C disputes this. She says she was at her property all day and an enforcement agent did not visit.
20. The enforcement agent made the following case notes for the visit:

“Door: White. Lock: In handle. Address visited Defaulter. Property type Residential. Semi-detached. being used as Other. Resident status Unable to confirm. Fair. No answer, Left letter”.

21. A photograph taken of Mrs C’s door in March 2019 shows a red door with a lock on the door itself. The housing association that owns the property confirmed the door has not been changed since March 2019.
22. The company added an enforcement fee of £235 to Mrs C’s outstanding debt and sent her the following SMS (text):

“**FINAL NOTICE** The [enforcement company] Removal Unit has been booked and may remove your goods on Wednesday 4th December between 6.30am and 8.30pm to cover the balance outstanding. We would prefer it if you were in attendance, although this is not necessary for our action to continue. Alternatively, to prevent action, call me immediately”..”

23. Mrs C paid the £75 compliance fee. She contacted the enforcement company which told her a £235 enforcement fee had been to her account.
24. The enforcement company sent Mrs C a SMS saying the enforcement agent was due to visit and to prevent the removal of goods she should contact the company. Two days later the company sent her another SMS advising her that a removal unit had been dispatched and would be attending her property that day.
25. In December 2019, Mrs C complained to the Council that she was charged £235 enforcement fee when an enforcement agent had not visited her home. The Council asked the enforcement company to put Mrs C’s case on hold. The enforcement company advised the agent had carried out the visit and rejected her complaint.
26. Mrs C challenged the enforcement company’s response. It wrote to her again in January 2020 and stated it stood by its previous response and would not engage in any further correspondence with her about this matter.

Analysis

27. The Council was granted a liability order by the courts, which meant it could ask enforcement agents to recover the debt. There was no fault with the Council’s actions in this regard.
28. The enforcement company has not been able to provide copies of the letters it says it sent to Mrs C in November 2019. Given Mrs C contacted the enforcement company each time it claims it wrote to her, on the balance of probabilities, I consider these letters were sent. However, failure to keep a record of these letters was fault.
29. The enforcement company says an enforcement agent visited Mrs C on 3 December 2019. Mrs C says this did not happen. The enforcement company’s case records describe Mrs C’s door as white with a lock in the handle. Mrs C’s door was red and did not have a lock in the handle. The enforcement company say the enforcement agent left Mrs C a handwritten letter informing her of the visit. Mrs C says she did not receive a letter. The company could not provide a copy of this letter stating it does not deem it necessary to produce or keep copies, not keeping accurate records was fault.
30. Given the enforcement agent’s description of Mrs C’s door was incorrect and the company could not provide any evidence of a visit, on the balance of probabilities, I find that the agent did not attend Mrs C’s property on 3 December 3019. As the visit was not made, the enforcement company should not have charged Mrs C an enforcement fee or pursued her for this debt. Falsely stating action has been taken when it has not is counter to the Ministry of Justice’s National Standards. Incorrectly stating an enforcement agent visited Mrs C’s property and charging her an enforcement fee was fault.
31. Given the finding that the enforcement agent did not attend Mrs C’s property, the automated SMS messages the enforcement company sent following the visit, should not have been. Sending these messages was fault.
32. The message sent on the day of the alleged visit said the enforcement company had booked a removal and may remove her goods. It said it would prefer her to be in attendance but advised this was not necessary for its action to continue. The enforcement agent could not have legally entered Mrs C’s property without permission. The company said the purpose of the messages was to prompt customers to contact the company as soon as possible to discuss their case. It advised because of the large volume of cases it holds, it was not feasible for different types of messages to be sent and all debtors receive the same messages.
33. The message sent by the enforcement company was counter to the Ministry of Justice’s National Standards. The information given to Mrs C misrepresented the company’s powers. The message falsely implied action would be taken without Mrs C being present to encourage her to contact it. Misrepresenting its powers was fault.
34. The faults identified caused Mrs C considerable distress. She told the Council she found the messages menacing and threatening.
35. The enforcement company was working on behalf of the Council and therefore the Council is responsible for the faults and injustice identified in this decision statement.

Agreed action

36. Within one month of the final decision, the Council will:
• Apologise to Mrs C for the faults identified.
• Cancel the enforcement fee Mrs C was charged.
• Pay Mrs C £100 for the distress caused by the enforcement company wrongly charging her an enforcement fee.
37. Within two months of the final decision, the Council should:
• Complete an audit of one hundred enforcement cases from December 2019 where an enforcement agent from the enforcement company alleged they visited a debtor’s property, and the debtor was not present. If the Council finds there are other cases where a debtor has been incorrectly charged an enforcement fee, it should offer a remedy to the individual and widen the timescale of its audit.
• Review how it monitors that the enforcement companies it uses meet Standard 20 of the Ministry of Justice’s National Standards.
38. The Council should provide the Ombudsman with evidence these actions have been completed.

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Final decision

39. I have completed my investigation and uphold Mrs C’s complaint. Mrs C has been caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman