Summary: Mr C said the Council charged him too much rent for his business premises and failed to provide evidence to show what he owed. Much of this complaint is out of time as Mr C could have complained earlier so we have not investigated. However, the Council is at fault for the way in which it dealt with Mr C’s concerns. This caused Mr C injustice in the form of distress and uncertainty. The Council has agreed to apologise to Mr C and pay him a sum in recognition of the injustice caused.

The complaint

1. The complainant, Mr C, says the Council is at fault for:
1. Demanding he pay rent he has already paid for his business unit,
2. Failing to provide evidence to prove the amount is owed, and
3. Refusing to meet him to let him put his case.
2. Mr C says this has caused him injustice as the Council continues to overcharge him. He has suffered distress and has been visited by debt collectors.

Back to top

The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council is said to have done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

6. I spoke to Mr C. I wrote an enquiry letter to the Council requesting further information. I considered the evidence I had gathered.
7. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should happen

Commercial rent arrears recovery process

8. Since 2014, landlords of commercial properties can use the commercial rent arrears recovery (CRAR) process to recover unpaid rent. (Tribunals, Courts and Enforcement Act 2007)
9. A landlord can complete a warrant of control form and approach a certified enforcement agent if:
• More than seven days of rent is owing, and
• The landlord has written proof of the tenancy, and
• The tenant has property at the premises worth more than the value of the arrears,
10. After being instructed, the enforcement agent will send a notice of enforcement to the tenant. The tenant has seven days, not including Sundays and bank holidays, to pay the arrears. After then, the enforcement agent can seize goods to cover the value of the debt. Alternatively, the tenant can enter into a Controlled Goods Agreement (CGA) with the enforcement agent for the repayment of the arrears at an agreed rate. The tenant will then be allowed to retain the goods while they keep to the agreement.

Councils’ duties to keep records

11. Councils are subject to the normal legal requirements which apply to any organisation in relation to commercial and contractual matters.
12. The Ombudsman has published guidance, Principles of Good Administrative Practice which sets out fundamental standards which councils should meet in order to meet the requirements of good administrative practice. It says that councils should keep proper and appropriate records.

What happened

13. Mr C owns a business in the Council’s area and rents a business premises from the Council which he has rented for more than twenty years. He signed a new lease for the premises in 2009.
14. The evidence I have seen shows that Mr C fell behind with his rent before 2009. He signed a new lease in 2009 which referred to repayment of outstanding arrears. The evidence shows that, by 2017, Mr C owed over £17,000 in rent. Mr C disputes this evidence.
15. The Council used the CRAR process and instructed a debt collection company to recover money from Mr C. Mr C signed a CGA in July 2017 agreeing to pay the Council £250 per week from August 2017 until the arrears were paid.
16. In April 2019, the enforcement agent wrote to Mr C saying he had failed to abide by the terms of this CGA. It said he still owed more than £5000. It said he would have to pay it by a date in mid-January 2019. The Council says that, between 2010 and 2016, Mr C made numerous agreements to pay the overdue debt but did not keep to them. The Council says Mr C still owes over £6,000. Mr C says he has already paid over £3,000 more than he should have and that the Council has deleted records of payments he has made from its systems.
17. Mr C complained to the Council in September 2021. It did not respond until April 2022. We therefore accepted his complaint without the Council having considered the complaint through its own internal complaints process.

Analysis

Overcharging

18. On the evidence, Mr C has been aware of this debt for many years. He disputes that he owes it and says he paid amounts in 2012, for example, which are not credited to his account. However, the evidence shows that the debt was clearly stated and quantified in 2017. At that time, Mr C signed a CGA with a debt collection agency to pay a weekly sum towards the arrears under the CRAR process. He did not dispute the debt then. Nor did he come to the Ombudsman.
19. Mr C says he paid £24,050 between 2010 and 2020. It was in April 2019 that the Council’s enforcement agent contacted Mr C about allegedly failing to keep up with his payments. Mr C did not complain to the Ombudsman until September 2021. The Ombudsman will not investigate complaints about events occurring more than a year before a complaint is made other than in exceptional circumstances. Almost all, if not actually all of the events that Mr C complains about took place more than a year before he complained to the Ombudsman.
20. Mr C says he did not come to the Ombudsman earlier because he wished to pursue other avenues first. However, it is clear that his dispute with the Council about this debt has gone on for many years. In 2017, Mr C signed the CGA. He could have come to us then, if not sooner. I believe that, therefore, any consideration of the amount Mr C owes would be incomplete and inconclusive as we could not look at events before 2017. I could never be, therefore, in a position to say whether Mr C’s complaint is justified.
21. For that reason, I have not investigated this part of Mr C’s complaint.

Failure to provide accurate statement of account

22. Mr C says the Council failed to provide him with a computer generated statement of account created by computer. He says this means he cannot trust the Council’s calculations. The Council says it does not have such records given how long has passed since the start of this dispute and relies on records held by the enforcement agent.
23. While it is understandable that the Council should have updated obsolete software and this would mean that some records are incomplete, I have found, during the course of this investigation, that the Council has inadequate records and inadequate systems to recover information. This is fault and it caused injustice, in the form of uncertainty, to Mr C. There is no evidence, though, that these failures have caused Mr C financial loss.

Delay

24. The Council says it did not respond to Mr C’s complaint between September 2021 and April 2022 because the person who dealt with his account had left the Council.
25. This fact does not excuse the Council’s failure to respond in a timely manner which was fault. It caused Mr C injustice in the form of frustration and uncertainty.
26. This fault suggests the Council does not have proper procedures and records in place to allow for work to continue if there is disruption or if key staff members leave or are unavailable. There is further evidence for this in the fact that the Council took over seven weeks to reply to enquiries on this complaint because a key staff member was absent.

Back to top

Agreed action

27. The Council has agreed that, within four weeks of the date of this decision, it will:
1. Write to Mr C and apologise for the fault and injustice found, and
2. Pay him £100 in recognition of the injustice the fault caused.
28. The Council has also agreed that, within eight weeks, it will review its procedures, record keeping and systems to see how it can improve internal communication to prevent similar complaint handling errors occurring in future.
29. It has agreed that it will then write to the Ombudsman to inform of us any changes made.

Back to top

Final decision

30. I have not upheld Mr C’s complaint about the Council’s calculation of the debt it says he owes. I have, though found the Council at fault for poor communication and record keeping. The Council has agreed to my suggested remedies. I have closed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman