Decision : Not upheld
Decision date : 17 Aug 2017
The Ombudsman's final decision:
Summary: There is no fault in the Council’s decision not to withdraw warrants for debt recovery until Mr B provides evidence of his vulnerability. I do not consider it fault for the Council to ask for details of his vulnerability.
- The complainant, whom I shall refer to as Mr B, complains the Council should have withdrawn the bailiffs immediately when he told it his was vulnerable and he should not need to provide details and evidence of his vulnerability.
What I have investigated
- I have investigated that part of Mr B’s complaint about how the Council dealt with his complaint that the Council should withdraw the debt from the bailiffs as he was vulnerable. The final section of this statement contains my reasons for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- The Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London.
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
How I considered this complaint
- I read the papers sent by Mr B and discussed the complaint with him.
- I considered the Council’s comments about the complaint and the supporting documents it provided.
- I gave the Council and Mr B the opportunity to comment on my draft decision.
What I found
- Mr B has received 5 penalty charge notices (PCN) for parking offences since 2014. A parking enforcement officer placed two on the car and Mr B received three through the post. On the telephone, Mr B told me that he did not take account of parking laws as he believes there is a law from the year 1600 that means he can’t be fined and so can park anywhere.
- The Council says it follows the statutory process set out in the Traffic Management Act 2004, which states that if the registered keeper of a car fails to pay an outstanding PCN, or have the notice cancelled by appeal to the Council, or an independent adjudicator, it allows the Council to register the debt at Northampton County Court.
- If the driver does not make an informal challenge or formal representation against the PCN which the Council accepts, and then does not pay, the Act allows for a surcharge of 50% to be added at the Charge Certificate Stage. If this is not paid within 14 days of the date of certificate being served, the next stage is to issue an Order for Recovery advising the keeper that a debt has been registered at the Court. The TE3 form outlines grounds of appeal against the debt registration which the keeper can consider and if any of those grounds apply, file a witness statement, to revoke the order for recovery and any warrant issued.
- This warrant is drawn on the authority of The Traffic Enforcement Centre (TEC) at Northampton County Court. The TEC is the court appointed by the Secretary of State and the Department of Transport to deal with registration of debts arising from penalty charge notices. Files on the case are transferred electronically between the Council and the Traffic Enforcement Centre.
- Once the Court acknowledges the Order for Recovery has been approved and a warrant approved, the warrant is transferred electronically to a Council appointed bailiff. The bailiff then acts in compliance with the Taking Control of Goods Act 2014, in contact with the debtor and subsequent visits to the debtors property to recover payment, or removal of goods.
- Mr B did not pay the fine on the PCN’s. The Council sent Mr B a notice to owner, which explains clearly how to pay the charge or how to make representations to the Council to explain why it should cancel the charge. The letter explained that if the Council did not accept the representations made, Mr B could have appealed to the parking adjudicator.
- As Mr B did not pay the fine, the Council got a warrant and sent it electronically to the bailiff.
- The Council has said that Mr B first used the words’ vulnerable’ about his wife and him both having Blue Badges on 3 December 2015.
- The Council said it advised Mr B on 5 July to contact the bailiffs for them to consider his ‘vulnerability’ and for him to provide them with whatever evidence they need to confirm his status as vulnerable. The Council advised Mr B that if the bailiff did deem his to be a vulnerable household the Council would withdraw the warrant and cease activity.
- The Council said Mr B did not supply the bailiffs with supporting evidence. It has said the blue badge issued to Mr B, shows they have met the criteria of limited mobility to have a blue badge issued but may not necessarily be vulnerable.
- The Council says that Mr B thinks that his vulnerability means that he is exempt from paying these fines. The Council says it disagrees with Mr B’s interpretation. It considers he is still liable to pay these fines, but any vulnerability means the Council has to consider extra discretion over how these fines are paid, e.g. deferring payment periods, accepting lower instalments until debts paid.
- The Council has asked Mr B to provide supporting written evidence of his ‘vulnerability’ for it to find out if there are other conditions from which he suffers that may fit his interpretation of vulnerability, e.g. Mental health, depression, post- traumatic stress, at risk of self-harm, inability to understand and engage with the process. The Council says that if Mr B does meet any of these criteria, then it may withdraw the warrants and close the cases. Mr B has not provided supporting evidence.
- In order to challenge the PCN’s, there is a well documented procedure to make written representations to the Council and then appeal to the parking adjudicator. Mr B has not done this. Mr B can email the Council and the Ombudsman with his complaint, so I consider it was reasonable for him to use the alternative remedy of appealing to the parking adjudicator if he felt the parking tickets were wrongly issued. So, I do not intend to exercise discretion to investigate when the parking tickets were issued as I consider it reasonable for Mr B to have appealed.
- As Mr B did not pay the fine or challenge the PCN, the Council moved to take further action to recover the debt owed.
- Mr B complained a business centre issued the warrants rather than a court and so were invalid. The TEC is the court appointed by the Secretary of State and the Department of Transport to deal with registration of debts arising from penalty charge notices. I can find no fault on this point.
- Mr B complains the bailiffs did not have the correct warrants. The Council has said the court sends the warrants electronically and so there are no paper copies. For completeness, I will ask the Council to send me its electronic records showing the warrants but I can see no evidence of fault on this point.
- Mr B believes that under the taking control of goods national standards act 2010, (updated 2015) as soon as he told the bailiff company finds out he is vulnerable (with no explanation) they have to withdraw. He believes that he does not need to provide details of his details of his vulnerability; it is then the Council’s job to prove he isn’t.
- The Taking Control of Goods Regulations 2013, part 2, regulation 10 set out the circumstances in which an enforcement agent may not take control of goods. It says an enforcement agent may not take control of goods of a debtor where a child or vulnerable person is the only person present. The legislation does not give any further guidance about how a vulnerable person is defined.
- Mr B told the Council he was a vulnerable person. However, he has not explained why he considers he is vulnerable. He considers that it is the Council’s job to prove he is not.
- It cannot be right that a person can say they are vulnerable and all outstanding debts are written off without them giving further information. If this was the case, then there would be no way for the Council to enforce any debt collection as anybody could claim vulnerability without evidence. I do consider it reasonable for Mr B to explain why he considers himself to be vulnerable.
- In any case, a vulnerable person still has to pay the fines, but any vulnerability means the Council has to consider extra discretion over how the debtor pays the fines, e.g. deferring payment periods or accepting lower instalments. It should also allow the vulnerable person time to get help and advice.
- I have found no fault in the Council’s actions. The Council gave Mr B the opportunity to appeal the PCN’s and to appeal to the court. No further recovery action has been taken once he told the bailiffs and Council he is vulnerable. However, I do consider it reasonable for him to give details of his vulnerability if he wants the Council to consider removing the warrants.
- I have completed my investigation of this complaint. I have found no fault in the Council’s decision not to remove the warrants without evidence of Mr B’s vulnerability. This complaint is not upheld.
- I have not investigated the PCN’s received by Mr B. Mr B was able to make representations to the Council and then appeal to the parking adjudicator if he believes that PCN was incorrect. I consider it reasonable for Mr B to have done this and so have not exercised discretion to investigate this part of his complaint.
Investigator's decision on behalf of the Ombudsman