Decision : Not upheld
Decision date : 28 Mar 2018
The Ombudsman's final decision:
Summary: Ms X complains about the actions of the Council and its enforcement agents in pursuing her for an unpaid Penalty Charge Notice. The Ombudsman has found no evidence of fault in the way the Council and its enforcement agents dealt with the matter.
- The complainant, whom I shall refer to as Ms X, complains about the actions of the Council’s enforcement agents (bailiffs) in pursuing her for an unpaid penalty charge notice (PCN).
The Ombudsman’s role and powers
- 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)
- 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 have read the papers submitted by Ms X. I considered the Council’s comments about the complaint and the documents it provided. I have explained my draft decision to Ms X and the Council and considered the comments received.
What I found
- In Taking Control of Goods: National Standards 2014 the government has published standards for use by all bailiffs and the creditors who use their service to ensure high standards of business ethics and practice. The creditor in this case is the Council. The standards say in creditors responsibilities that:
“29. Should a debtor be identified as vulnerable, creditors should be prepared to take control of the case, at any time, if necessary.”
- It says in the professionalism and conduct of the enforcement agents that;
“30. Where enforcement agents had identified vulnerable debtors or situations, they should alert the creditor and ensure they act in accordance with all relevant legislation. “
- The standards say enforcement agents and creditors should have agreed procedures about how to deal with vulnerable groups, this includes pregnant women.
Events leading to the complaint
- The Council issued Ms X a PCN in 2016. Ms X did not pay the PCN at the original discounted rate of £30 or at the full rate of £60. The Council therefore issued a charge certificate increasing the amount payable by 50%, before registering the debt with the court at a cost of £8. The Council passed the case to its bailiffs in December 2016 who contacted Ms X seeking payment of £98 plus a £75 fee.
- Ms X contacted the bailiffs in January 2017 agreeing to pay in instalments by standing order, with the first payment of £58 due on 21 January 2017. However, she then cancelled the standing order and the bailiffs wrote to her on 26 January confirming the arrangement had been broken. The bailiffs therefore took further action to recover payment from her, adding an additional fee of £235.
- The bailiffs visited Ms X’s property in April 2017 but found she had left the address. The bailiffs traced Ms X to her new address and sent a letter asking for a payment of £98 plus a £75 fee. Ms X agreed a second payment arrangement with the bailiffs in September 2017 to pay £82 for three months. Ms X made one payment of £84 and the bailiffs sent a letter advising of a broken agreement in October 2017.
- Ms X contacted the bailiffs in November 2017 advising she was pregnant so they added her to the vulnerable set group. Ms X explained she had no money, had other debts and her partner did not work.
- Ms X complained to the Council in November 2017 asking it to take back her debt from the bailiffs and allow her to pay the Council instead. Ms X said the bailiffs required payment of £324 by 15 November 2017 or they would come to the property. Ms X reported she was pregnant again after suffering a miscarriage in the summer. Ms X said she had no money or assets and so should be treated as vulnerable.
- An officer responded to Ms X’s complaint. The officer said based on the case records and time with the bailiffs there was no reason to bring it back to the Council without evidence from Ms X to confirm further vulnerability. The officer asked Ms X to provide information about any benefits she was receiving. The officer noted Ms X had arranged previous instalment plans with the bailiffs which she defaulted on. If she had kept to the arrangements it would had resolved the case.
- The officer confirmed contact with the bailiffs and “requested you (Ms X) are given a further 6 months to pay this Penalty Charge Notice.” The officer said Ms X had two choices. These were either to reinstate an instalment arrangement and make further payments to the bailiffs or provide the Council and bailiffs with information on her benefits.
- Ms X asked what evidence the Council needed and explained her circumstances. Ms X said the situation was causing her distress and understood the Council should treat her as vulnerable and give her opportunity to make affordable payments.
- The officer confirmed the Council needed to see information about her benefits and she should submit information about her financial situation if she was in difficulties. The officer noted Ms X wanted affordable payments and so had asked the bailiffs to extend the time for instalments. The officer confirmed the Council was treating Ms X as vulnerable and the bailiffs also identified her as such. The officer asked Ms X to provide the financial information and agreed to put the case on hold for bailiff action for seven days to allow her opportunity to provide the information.
- The Council says Ms X did not provide the information and so it removed the hold on bailiff action. Ms X complained the Council had failed to treat her as vulnerable and had failed to allow her an extended time to repay the debt as advised.
Council’s response to the complaint
- The Council has confirmed it has a Code of Practice (Code) for enforcement agents based on the National Standards. Section two of the Code refers to dealing with Vulnerable groups. It says there is no prescribed definition of vulnerability so individual cases need to be assessed on their merits. It refers to the vulnerable groups including pregnant women but says if people are in the groups it does not necessarily mean they are vulnerable but they may be vulnerable.
- The Council expects enforcement agents to deal with such cases with extreme sensitivity. They should mark the case as vulnerable and notify anyone working on the case, the time visits should be made and to offer an extended instalment plan.
- The Council says it accepted Ms X was vulnerable due to her pregnancy and personal circumstances. But this does not automatically mean her case should be returned to the Council from the bailiffs. The Council says it has reviewed the actions of the bailiffs in Ms X’s case and is satisfied they have acted according to its Code. The bailiffs put the case on hold following Council instructions and proposed instalment plans even though Ms X had broken two previous payment plans in recognition of her vulnerability.
- The Council said the bailiffs agreed to offer Ms X a further instalment plan if she made contact within seven days in November 2017 when they put a hold on action at the Council’s request. This was to enable Ms X to provide further information about being vulnerable. The Council removed the hold after seven days on 29 November 2017 as Ms X had not provided any information or contacted the bailiffs to set up an instalment plan.
- The Council confirmed the officer’s contact with Ms X in November 2017 recognised her as vulnerable due to her pregnancy. The officer gave Ms X an opportunity to provide more information and evidence about her financial information. The officer explained the Council was placing enforcement action on hold for seven days to allow her to provide more information. Ms X would then be given a further six months to repay the debt to the bailiffs. But this was dependant on Ms X contacting the bailiffs and agreeing a structured instalment plan.
- Ms X did not provide the information or agree a plan so the Council recommenced enforcement action. The bailiffs asked Ms X to pay within seven days according to their procedure. Ms X contacted the bailiffs and agreed an instalment plan. The Council says Ms X has defaulted on the agreement again. The bailiffs sent another letter in January 2018 asking for payment within seven days.
- The Council says it has considered Ms X as a vulnerable person since she advised of her situation on 1 November 2017. And both the Council and bailiffs have tried to resolve her repayment of the debt with careful consideration.
- The Council has reviewed the correspondence with Ms X in November 2017 and confirmed the offer to repay over six months may not have been set out clearly. It says this may have led to a misunderstanding she had a full six months before she had to make a payment. But the Council was offering her an opportunity to set up a six-monthly instalment plan. So, it accepts there was a lack of clarity about what action it was expecting from her. Due to this the Council has offered to withdraw enforcement action and cancel the PCN as a gesture of good will.
- Ms X does not dispute the PCN and she had opportunities to pay it at £30 and £60 before the debt was registered with the court and then passed to bailiffs. The Council is under no obligation to cancel bailiff involvement. But the documents show it has considered Ms X’s request as required by the National Standards.
- The Council has confirmed it has a working code of practice for its bailiffs as required by the National Standards. The Council says it expects bailiffs to act according to its Code. The Council has provided information to show both the Council and bailiffs have recognised Ms X’s vulnerability. This is according to the National Standards and the Council’s own Code of Practice.
- As the Council has acknowledged her vulnerability Ms X had been given a further opportunity to arrange a payment schedule despite defaulting on two previous arrangements. This is the action we would expect of the Council. And so, on the evidence I have seen, I do not consider there has been fault by the Council.
- The Council has accepted there may have been a lack of clarity about the action it was expecting her to take in her contact in November 2017. So, it has offered to withdraw enforcement action and cancel the PCN as a good will gesture. I consider this is suitable action for the Council to take.
- I am completing my investigation. I have found no evidence of fault in the actions of the Council and its bailiffs in pursuing Ms X for an unpaid PCN.
Investigator's decision on behalf of the Ombudsman