Summary: There is no evidence of fault in how the Council pursued the complainant for payment of outstanding building control fees. Although the complainant was vulnerable, the Council took account of this in accordance with its policy, and so the Ombudsman cannot criticise its decision to apply for a County Court Judgement. For this reason, the Ombudsman has completed his investigation.

The complaint

1. The complainant, to whom I will refer as Ms H, says the Council obtained a County Court Judgement against her for unpaid building control fees, despite being aware she was severely ill and unable to respond to its requests for payment. She says this has left her in a very difficult financial situation, which she considers the Council should assist her with.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I reviewed Ms H’s correspondence with the Council, and the Council’s ‘Fair Debt Collection Policy’.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. In 2017, Ms H obtained planning permission from the Council to develop her home. She asked the Council to inspect the work for building control purposes, which is a service the Council offers in return for a fee.
7. Ms H says she moved out of her home in March 2017, because it was uninhabitable during the work. She also says she was out of the country for a period in July and August. After she returned to the country in August, Ms H was informed that she was likely to suffer a relapse of cancer, having being successfully treated for it previously. She says her father also passed away around this time, which contributed further to her distress and anxiety.
8. The Council says it sent an invoice for the building control fee of £545.16 to Ms H’s address in August. After she did not respond, it sent two reminders in September. After still receiving no response, on 5 October, it issued a Letter of Claim to Ms H. This explained the next step the Council would take would be to obtain a County Court Judgement (CCJ).
9. In October, Ms H visited the Council offices. She met with the officer responsible for seeking payment of the fee, to whom I will refer as Mr V, and paid £100 on her credit card. She also agreed an ongoing payment plan of £100 per month.
10. In November, Ms H received confirmation her cancer had returned, and that she would begin to under chemotherapy in December or January. Ms H did not pay anything further against her building control fees, and in December, the Council cancelled the payment plan and issued a County Court Claim, adding costs of £62.39 to Ms H’s debt.
11. On 3 January 2018, Ms H says she called the Council and spoke to an officer (not Mr V). She says she explained her medical situation and that her treatment was shortly due to begin. However, she says she paid a further £50 of the debt at that point, and agreed she would call to pay a further £50 each month going forward.
12. After further letters from the Council over the following weeks, during which she was undergoing treatment and was very unwell, Ms H says she called Mr V on 8 February. She says she explained her medical situation to him, and he then emailed her a direct debit form to complete and return.
13. The Council has given a different account of events around this date. It says Ms H had called and spoken to Mr V on 3 January, and later that day he sent her an email confirming the agreement for a £50 per month payment plan, beginning on 1 February. It also says Mr V attached a direct debit form to this email, for Ms H to complete and return.
14. Both parties agree Ms H returned the form by email on 8 February, and on 9 February, Mr V contacted Ms H to explain it could not accept a scanned copy of the form and must instead sign and return a hard copy. The Council says Mr V also explained Ms H must return the form by 16 February, for it to be processed for the payment due on 1 March.
15. On 26 February, Ms H emailed Mr V, asking him to call her back. She also paid a further £100 against the debt. Mr V emailed her back on the same date, confirming receipt of her payment, and stating the next instalment was due on 1 April.
16. The Council says it heard nothing further from Ms H at that time. Ms H says she was too ill to manage her affairs during this period.
17. On 23 April, the Council proceeded with its County Court application. This added a further £9.99 in statutory interest charges to Ms H’s debt. On 1 May, the court issued its judgement against Ms H, confirming her debt now stood at £417.54.
18. On 13 June, Mr V emailed Ms H. He said Ms H had contacted the Council in the previous month, during which it had explained the payment plan had been cancelled, and she had explained her medical situation had left her unable to engage with the Council. However, the Council said it had received no further contact from Ms H, and no payment. It asked Ms H to respond within seven days, or the Council would take steps to enforce the debt.
19. On 20 June, Ms H emailed the Council. She explained she had had her final chemotherapy session a week prior, and need another week to recover. The Council agreed to wait a further week and then contact Ms H again.
20. On 28 June, Ms H spoke to Mr V and paid £150. She also requested a copy of the Council’s complaints policy, which was provided to her.
21. On 25 July, Mr V emailed Ms H, asking her to confirm how she would repay the outstanding £267.54. He emailed her again on 7 August, after receiving no reply, and again on 11 September.
22. Ms H paid a further £50 on 14 September and again on 28 November, followed by £100 on 27 December. This reduced her debt to £67.54.
23. Mr V emailed Ms H on 12 March 2019. He referred to a new payment plan agreed they had agreed, for a payment of £50 on 31 January and the remaining £17.54 on 28 February. However, during a call on 5 February, Mr V had agreed to hold enforcement action until 5 March. Mr V said Ms H had again not made further contact with the Council since that call.
24. On 22 March, Ms H emailed Mr V, to say she would make further payment once she received her salary. Mr V emailed Ms H on 4 and 11 April, to chase this up. She emailed Mr V back on 11 April to ask him to call her, which Mr V attempted to do on 12 April, but with no answer from Ms H.
25. Ms H emailed Mr V on 15 April apologising for missing his calls. She explained the difficulty of her financial position and why she was struggling to pay off the outstanding amount.
26. On 24 April, Mr V responded to say he would accept reduced monthly payments, due to Ms H’s financial circumstances. He asked her to suggest an amount she could afford.
27. Ms H paid £25 on 26 April, and a further £20 on 14 June, reducing the debt to £22.54.
28. On 15 June, Ms H complained to the Council. She said the Council had failed to take account of her medical situation in pursuing the debt and applying for the CCJ, and complained it was in breach of the Equality Act, which is applicable for a person suffering from cancer. She said, as a consequence of the CCJ, she was now in £32,000 of debt, as she had been unable to obtain credit from the banks.
29. Ms H also complained Mr V had continually written to her at her home address, despite being aware she was not living there due to the building work.
30. The Council responded to the complaint on 8 August.
31. It provided a detailed chronology of the Council’s pursuit of the debt. Although it recognised Ms H had informed it of her medical problems, it said its records showed she had not fully disclosed her situation until after the Council had already applied for the CCJ. Once the Council was aware, it had taken an “appropriately sympathetic” approach to further pursuit of the debt.
32. The Council acknowledged Ms H had informed it she was not living at home, but said she had not provided an alternative address. It said it consider it was reasonable to assume she had made arrangements to monitor and collect any post delivered to her home address. The Council also said Mr V had relied heavily on email and phone communication with Ms H.
33. The Council did not uphold Ms H’s complaint, as it consider it had acted properly. However, as a goodwill gesture, it said it would deduct the court fee and other additional charges from her debt. This left an outstanding overpayment of £49.84, which it would refund to her.
34. The Council also noted Ms H had, at its suggestion, applied to the court for the CCJ to be struck out. It said it would not oppose her application, on the condition Ms H did not seek an award of costs against the Council, and provided the text of its proposed response to the court confirming this.
35. On 8 November, Ms H referred her complaint to the Ombudsman. She reiterated she did not consider the Council had accounted for its duties under the Equality Act when applying for the CCJ. She said her debt now stood at £15,000, and she considered the Council should contribute towards reducing this.
36. Ms H also complained the stress caused by the Council’s actions had contributed to a further relapse in her cancer.

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Background

Council debt collection policy

37. The Council’s ‘Fair Debt Collection Policy’ includes a section on the collection of sundry (‘non-specific’) debts. It says:

“An invoice should be issued as soon as possible after the event giving rise to the charge occurs … At any stage following receipt of the invoice the customer can contact the Council to discuss payment by instalment arrangement if payment in full is not possible for the customer.

“If payment is not received within 28 days from the invoice date, and no request is received to consider a payment arrangement, a first reminder letter will be sent.

“Should payment not be received after the issue of the first reminder and within 50 days of the invoice date, a second reminder is sent giving the debtor seven days to pay to avoid the debt progressing to the legal recovery stage.

“Should no payment be received within seven days from the date of the second reminder the debt will proceed to the legal recovery stage and be subject to one or more of the following actions:-

1. Referral to the Council’s approved collection agent, or
2. Issue a Letter Before Action giving notice that the debt should be paid within seven days or the debt will become the subject of a County Court action. The Council may then obtain a County Court Judgement against the debtor. Costs and statutory interest may also be added to the debt at this stage.

“Once a judgment is obtained the Council may enforce the judgement by applying for:-

• An Attachment of Earnings Order, or
• A Warrant of Execution against the Debtors Goods (i.e. refer the debt to the County Court’s enforcement agent), or
• Any of the other enforcement processes available through the County Court that the Council may deem appropriate dependant on the circumstances of the Debtor.

“The Council may charge interest on overdue commercial debts in accordance with the Council’s Policy for the Charging of Interest on Late Payment of Commercial Debts.”

38. The policy also includes a section about the collection of debts from vulnerable people. It says:

“Vulnerability does not mean that a person will not be required to pay amounts they are legally obliged to pay. However, where a person is recognised to be vulnerable consideration should be given to;

• Allowing longer to pay,
• Postponing enforcement action,
• Assisting the person to claim benefits, discounts or other entitlements,
• Referring the person to sources of independent advice,
• Providing information in an accessible format,
• A temporary payment arrangement with lower repayment than would normally be agreed,
• Informing the Council’s Adults and Community Services Directorate of any concerns regarding the debtor’s safety or welfare.

“The cause of vulnerability may be temporary or may be permanent in nature and the degree of vulnerability will vary widely … A person with a disability is not necessarily vulnerable for the purposes of this Policy. However, where the disability affects the persons ability to deal with their financial affairs they should be considered to be vulnerable.”

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Analysis

39. The Ombudsman normally expects a complainant to approach him within 12 months of becoming aware of the main issue surrounding their complaint. In Ms H’s case, it appears the key events were between October 2017 and mid-2018. Ms H did not approach the Ombudsman until November 2019, and so her complaint is late.
40. However, the Ombudsman has the discretion to disapply the 12-month rule, where he considers the complainant has a good reason for not approaching him sooner, and where it is still possible to undertake an effective investigation. In this case, I am aware Ms H has serious medical reasons for taking longer to act than we might normally expect – indeed, that is the crux of her complaint itself. I am also satisfied the Council’s records are sufficiently detailed for me to make safe findings here. So I have disapplied the 12-month rule here and accepted this as a late complaint.
41. Turning to the substantive matter, Ms H complains the Council did not consider her vulnerability when pursuing her for outstanding building control fees. She also complains the Council sent correspondence to her home address, despite being aware she was not currently living there, which meant she missed key communications.
42. It is very clear Ms H found herself in exceptionally difficult circumstances, which made it hard for her to manage her affairs. I can understand why this meant she missed payments she had arranged towards her debt, and did not respond promptly to communications from the Council about it.
43. However, ultimately, I do not consider I can find fault by the Council here.
44. It appears Ms H first informed the Council she was unwell in October 2017, when she visited the Council’s office, paid the first £100 towards the debt, and arranged a payment plan for the remainder. By this point, the Council had already issued a letter of claim, notifying her the next step would be to apply for a CCJ. I note, also, the timescales for the Council’s actions at this point were exactly in accordance with its debt recovery policy.
45. Having had no more payments, the Council cancelled the arrangement and applied for the CCJ in December.
46. By Ms H’s account, she then called and spoke to an unidentified Council officer on 3 January 2018, and informed her she had been diagnosed with cancer and that she was due to begin treatment. She made another arrangement to make monthly payments during the call.
47. The Council, on the other hand, says Ms H spoke to the Council’s credit controller, who sent her a direct debit form to complete. Both agree Ms H returned the form by email, but unfortunately it needed to be signed and returned in hard copy, and so the Council could not process it. After a further payment later in February, but no more contact from Ms H, the Council proceeded with the CCJ, which the court confirmed on 1 May.
48. The Council’s position is that Ms H did not make clear the seriousness of her condition until after it had already obtained the CCJ. There is evidently some disagreement between the two parties here, and unfortunately, I have no way of resolving this dispute. The Council has confirmed it has no recording or contemporaneous notes of phone calls with Ms H.
49. But, even if I accept Ms H’s account, I could not say it supports a finding of fault by the Council. As the Council’s policy sets out, the simple fact a debtor is vulnerable does not relieve them of their responsibility to pay their debt. The policy sets out some possible adjustments the Council will consider making for a vulnerable debtor, but I am satisfied it complied with this, both before and after obtaining the CCJ – for example, it gave Ms H several opportunities to make payment arrangements, extended deadlines for her to make contact, and offered smaller repayments when she explained she was in financial difficulty.
50. The Ombudsman’s role is to review the Council’s adherence to procedure. I cannot make decisions on the Council’s behalf, nor uphold a complaint simply because someone disagrees with the Council’s decision. I must instead determine whether the Council has correctly followed the law, and its own policies, which I am satisfied it has.
51. Ms H says, when she visited the Council office in October 2017, the officer to whom she spoke failed to mention she could pay the debt by direct debit. She says, if he had done, she would have made a direct debit arrangement then, which would have ensured the debt was paid automatically. She accuses the Council officer of negligence in this respect.
52. Again, I cannot determine what the officer may have said to Ms H during her visit, as I was not there and there is no objective record. However, I note the Council’s original invoice of August 2017 explains the methods of payment available, one of which is direct debit. So I consider Ms H had already been told she could arrange a direct debit.
53. More generally, direct debit is a very common method of arranging payments by instalment. I do not consider it unreasonable to expect Ms H to have enquired about the possibility of arranging one during the visit, even if the officer did not suggest it himself.
54. It is unfortunate Ms H’s subsequent attempt to arrange a direct debit failed (because she emailed the form back to the Council), but the Council is evidently not responsible for this.
55. Ms H has also complained the Council continually wrote to her home address, despite knowing she was away for extended periods, and despite having her email address and phone number on its records.
56. It appears the Council sent the original invoice, first and second reminders, and letter of claim by post to Ms H’s home address. Ms H says she was out of the country for much of this time, but the Council has pointed out it had no alternative address for her, and it was reasonable to expect her to have made arrangements to monitor her post while she was away. And, as I understand it, a letter of claim must be sent by post anyway.
57. In any case, Ms H eventually responded to the Council’s attempts to contact her, when she visited its offices. This was before the Council applied for the CCJ, and before any additional costs were added to her debt.
58. And thereafter, even by Ms H’s own account, there was frequent email and phone contact between her and the Council – instigated, in most cases, by the Council. It is unfortunate that Ms H often felt unable to engage with the Council on these occasions, but I cannot accept her allegation it failed to use email or phone to contact her when it should have.
59. In summary, I appreciate, and in no way dismiss, the difficulty this matter has caused Ms H. But I cannot overlook the fact the Council allowed her debt to remain outstanding for nearly two years, repeatedly allowing her opportunities to pay it off, and without resorting to enforcement action. It cannot fairly be said the Council was aggressive in pursuing her debt. Its application for a CCJ was entirely in accordance with its policy, and I have no grounds to decide it should have acted otherwise.
60. Ms H accuses the Council of being in breach of the Equality Act by failing to make adjustments for her disability. But, as I have said, I am satisfied the Council adhered to its policy, and that it made several adjustments for her vulnerability on this basis. If Ms H still considers this was inadequate for the Council to meet its equality duty, this is a matter best decided in court. The Ombudsman cannot make findings on discrimination, which is ultimately what Ms H claims.

Final decision

61. I completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman