Summary: Mr B complains the Council issued him with three penalty charge notices relating to cars he does not own. He says he did not receive the notices before the Council instructed enforcement agents. He says the Council then did not respond to his complaints. The Ombudsman finds fault in how the Council considered information about Mr B’s case and vulnerability.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council issued three penalty charge notices (“PCN”) against him. Mr B says he does not own the cars and did not commit the parking offences. He says the first he became aware of the PCN’s was after the Council instructed bailiffs. He says the bailiffs sent repeated letters chasing payment and the Council has not responded to letters of complaint from his representative.

Back to top

What I have investigated

2. I have investigated the Council’s handling of the complaints from Mr B’s representative and the way enforcement action took place.

Back to top

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 cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
5. 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)

Back to top

How I considered this complaint

6. I considered the information provided by Mr B. I spoke to his representative about the complaint then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.

Back to top

What I found

7. The Department for Transport has issued statutory guidance to local authorities on the civil enforcement of parking contraventions (“the Guidance”).
8. The Guidance sets out three stages at which a vehicle owner may dispute the using of a PCN:
• Informal representations before the authority serves a Notice to Owner;
• Formal representations after it has served a Notice to Owner; and
• An appeal if the formal representation is rejected.
9. The Guidance says an authority has a discretionary power to cancel a PCN at any point throughout the process. It can do so even when an undoubted contravention has occurred. It has a duty to act fairly and proportionately. An authority should be ready to depart from its policies if the circumstances of the case warrant it.
10. The Taking Control of Goods Regulations 2013 (“the Regulations”) set out that a bailiff may enter relevant premises to search for and take control of goods. A bailiff may not take control of goods if the debtor is a vulnerable person and they are the only person present.
11. The Ministry of Justice has published the Taking Control of Goods: National Standards (“the Standards”). This sets out the standards bailiffs and creditors should comply with when taking enforcement action.
12. The Standards say that creditors are ultimately responsible and accountable for bailiffs acting on their behalf. Both creditors and bailiffs have a role ensuring the vulnerable and socially excluded are protected. They should act proportionately when seeking to recover debt, considering debtors’ circumstances. If a debtor is identified as vulnerable, creditors should be prepared to take control of the case at any time, if necessary. The bailiff has a duty to contact the creditor and report the circumstances in situations where there is evidence of a potential cause for concern.
13. A debtor may be considered vulnerable if, for reasons of age, health or disability they are unable to safeguard their personal welfare or the personal welfare of other members of the household.

Background

14. In late 2017 the Council issued three PCN’s to Mr B. Two of the PCN’s were for parking offences relating to one car (“Car A”). Those offences took place within a day of each other in November 2017. The other was for a parking offence relating to a different car (“Car B”), which took place in December 2017.
15. The Council obtained information from the DVLA, which showed Mr B as the registered keeper for both cars. The first car was registered to Mr B at one address (“Address 1”). This is not Mr B’s correct address but is next door to where he lives. The second car was registered to Mr B at his correct address (“Address 2”).
16. The Council sent notices for the Car A fines to Address 1 in December 2017. It sent another notice for the Car B fine to Address 2 in January 2018. Mr B did not respond with any representations and did not pay the fine, so the Council issued Charge certificates. It sent the certificates for Car A to Address 1 in January 2018. It sent the certificate for Car B to Address 2 in February 2018.
17. The Council still did not receive payments so applied for orders of recovery in each case in March 2018. Orders of recovery were sent to Address 1 and Address 2 respectively. Mr B did not respond or pay the fines, so the Council passed the cases passed to bailiffs for enforcement action.
18. The Council passed the first case involving Car A to the bailiffs in April 2018. The bailiffs then sent a notice of enforcement to Mr B at Address 1. The bailiffs sent a further non-statutory letter at the end of April 2018 as Mr B did not respond.
19. In May 2018 the Council passed the second case involving Car A and the case involving Car B to the bailiffs. The bailiffs sent enforcement notices for these two cases to Address 1.
20. The bailiffs received no response so completed a search and identified Mr B’s address as Address 2. It therefore sent all three notices of enforcement to Mr B again at Address 2 at the end of May 2018. It sent further non-statutory letters to Mr B in June 2018 as it did not hear from Mr B.
21. Mr B’s representative wrote to the Council in mid-July 2018. She said Mr B did not own the cars and asked action needed to be taken to stop the enforcement action. She asked the Council to place the matter on hold. The Council did not review or respond to this letter.
22. A bailiff visited Mr B’s property in July 2018. He was not home so the bailiff left a letter and visited again two days later. On that occasion the bailiff made contact with Mr B who said he was not liable for the debt and would not pay. The bailiffs transferred the case to their enforcement specialists, who wrote to Mr B in August 2018. Mr B did not respond so they wrote again at the end of August.
23. The bailiffs made further attempts to contact Mr B by text and telephone. Mr B advised on the telephone that he had been in hospital for three weeks. The Bailiffs then referred the matter to its welfare team who oversee potentially vulnerable debtors. The welfare team requested proof of Mr B’s medical condition, but he did not provide this, so it sent a notice of removal.
24. Mr B’s representative provided evidence in September 2018 that Mr B was an inpatient in hospital. The bailiffs placed the matter on hold for 42 days. She also wrote to the Council to chase for a response. She said Mr B was vulnerable and currently in hospital. She asked for the Council to treat the letter as a complaint as it had not responded to her previous letter. The Council did not review or respond to this letter.
25. In October 2018 the bailiffs removed the vulnerability details from Mr B’s account in error. At the end of October, Mr B’s representative sent a third letter to the Council chasing for a response. The Council did not review or respond to this letter.
26. Mr B did not respond within the 42 day hold so they removed the hold and advised Mr B of this by letter. Mr B responded that he had been a victim of identity fraud and the DVLA were investigating. Mr B could not provide evidence, so the bailiffs sent a further notice of removal on each account in November 2018.
27. Mr B’s mother (“Mrs C”) contacted the bailiffs, but they would not discuss the account with her as they did not have authority from Mr B. Mrs C wrote in to say Mr B had been in hospital for three months and was still an outpatient.
28. A bailiff attended Mr B’s home on two dates in January 2019 but did not make contact with Mr B either time. The bailiff left letters on both occasions.
29. Mr B’s representative contacted the bailiffs in February 2019 asking for the complaint to be placed on hold again. The bailiffs agreed to another 42-day hold.
30. In March 2019, after receiving notification of the Ombudsman’s investigation, the Council requested information about Mr B’s insurers from the police. The police confirmed Car A was insured by someone other than Mr B. The Council has therefore cancelled the two PCN’s relating to Car A. However, the police confirmed Mr B was the insurer for Car B, so it maintains Mr B should pay the fine and has continued with enforcement action.
31. Mr has now applied to court for a late appeal against the fine relating to Car B. There has not yet been an outcome to this court action.

Findings

32. For the reasons outlined below, I do not find the Council at fault for issuing the PCN’s to Mr B or instructing bailiffs to take enforcement action. However, I do find fault in how the Council and the bailiffs managed the case during the ongoing enforcement action.

Issuing PCN’s

33. I do not find the Council at fault for issuing the PCN’s to Mr B. It received information from the DVLA that Mr B was the registered owner of the cars. It relied on this information when issuing the PCN’s and did not, at first, receive any reply to suggest this information was wrong.

Instructing Bailiffs

34. The first thing to note is that the Council did not send the PCN’s for Car A to Mr B’s actual address. Mr B says he is not connected to Address 1 in any way, so he would not have received these PCN’s or any of the later notices.
35. The Council received this information from the DVLA so I cannot find it at fault for sending the initial letters to the wrong address. I note the Council had Mr B’s correct address in relation to Car B. It may be the fact it had two addresses should have raised questions early on. However, the fines were processed separately at slightly different times. Also, it was possible Mr B might have been connected to both addresses.
36. Mr B did not respond to the PCN or charge certificate the Council sent to the correct address. It is not clear why, although I acknowledge Mr B had ongoing health issues and was in and out of hospital. Even so, the Council was not aware of this at the time, so I cannot find fault in it going ahead with enforcement action.

Enforcement action

37. I have three concerns about the way enforcement action took place:
• The Council did not review or respond to letters from Mr B’s representative
• The bailiffs did not inform the Council about Mr B’s potential vulnerability
• The bailiffs removed information about Mr B’s vulnerability in error
38. All three points involve the concerns raised about Mr B’s potential vulnerability.

Letters from Mr B’s representative

39. The Council says it does not have a duty to engage with a debtor when they have not provided representations or appealed during the statutory timeframe and it has passed the matter to a bailiff. It says from this point on the debtor should engage with the bailiff. In this case, the Council says it did not review the three letters Mr B’s representative sent.
40. It is true the Council does not have to formally respond to representations that are made outside the normal timeframe. However, it is always good practice to read and consider any correspondence it receives and normally to provide at least some acknowledgement. It is poor practice not to look at that correspondence at all. The letters could contain information that is important to the case or raises concerns about the debtor’s personal circumstances.
41. In this case, Mr B’s representative raised two main points in her letters. The first was that Mr B did not own the cars and had been a victim of identity fraud. The second was that he was vulnerable and in hospital.
42. On the first point, the Council did not necessarily have to accept or ask for further evidence in relation Mr B’s representations that he did not own the cars. However, a cursory look at the case would have shown the PCN’s were issued to two different addresses. This may have reasonably flagged concerns that there was an error, or some merit to what the letters said. The Council needs to keep in mind its discretionary powers to cancel a PCN at any point.
43. I note the Council obtained further information that showed Mr B did not insure Car A, after it became aware of our investigation. However, it missed an opportunity to make such enquiries between July and October 2018. Our investigation notification did not provide any more information than the Council already had about this case. Therefore, it is difficult to justify why it was reasonable to make such further enquiries at this point, but not at the point it received the letters from Mr B’s representative.
44. The further enquiries ultimately led to the Council exercising its discretion to cancel the two PCN’s. It is therefore reasonable to conclude the same would have happened if it made the enquiries in 2018. If it did so, Mr B would not have received additional letters and messages about those two PCN’s. However, it would not in itself have prevented further letters and visits in relation to the third PCN.
45. On the vulnerability point, the Council always remains responsible for enforcement and, in line with the Standards, should be receptive to information about the possible vulnerability of a debtor. It should consider any information it receives about a person’s health or other circumstances and be prepared to take control of the case if needed.
46. I cannot say for certain what action the Council would have taken if it read the letter that said Mr B was in hospital. It may not have used its discretion to cancel any PCN’s on this basis but should have at least contacted the bailiff to ensure they were aware and, if necessary, discuss how to approach enforcement action in the future.
47. The fact the Council did not review or consider the letters at all is fault. It means the Council did not retain responsibility for the case as it should have done and missed opportunities to respond to concerns and consider its discretion at an earlier point. This caused injustice to Mr B.

Informing the Council of vulnerability

48. The bailiffs say they do not normally inform creditors if a person is flagged as vulnerable, in road traffic cases. They did not inform the Council that Mr B had been flagged as potentially vulnerable or that he was referred to its welfare team.
49. The Standards say bailiffs have a duty to inform creditors when there is evidence of a potential concern about a person’s vulnerability. There is nothing in the Standards that suggests this should not apply in certain types of cases. It is not clear why this duty would not apply in road traffic cases. I therefore find fault in the bailiffs not informing the Council of the concerns about Mr B’s health and for not having proper processes in place to inform creditors of vulnerability in all types of cases.
50. It is not possible to know for certain the impact it would have had on any future enforcement action if the bailiffs did inform the Council. However, again, the Council should have been responsible for the case and considered whether this affected how it wished to proceed.

Removing vulnerability details

51. The bailiffs accept it was an error to remove details of Mr B’s vulnerability status in October 2018. It meant the case returned to its main office rather than remaining with the welfare team. This is fault. However, the bailiffs say they would have proceeded with enforcement action in any case so this did not change what happened going forward.
52. I accept enforcement action may have continued regardless. However, I do not feel it can be said the removal of these details did not alter what happened.
53. The bailiffs sent several further letters and messages following this. It is not clear whether they would have taken a different approach had the case remained with the welfare team.
54. I also note a bailiff visited Mr B on two more occasions. The law says a bailiff cannot take control of goods if a vulnerable person is the only person present. In this case, the bailiff would not have been aware of Mr B’s vulnerability because the details had been deleted. This presented a risk he may have taken control of goods in breach of the law, if Mr B was the only person home.
55. As it happens, the bailiff did not make contact with Mr B or take control of goods. It is therefore difficult again to establish the level of injustice this caused.

Consideration of Remedy

56. The Council has now cancelled the two PCN’s relating to Car A. Mr B has not therefore suffered quantifiable financial loss that I can remedy. I also cannot investigate whether the Council should cancel the third PCN for the reasons outlined below at Paragraphs 66 – 67.
57. I can only consider any undue distress or time and trouble Mr B suffered as a result of the fault.
58. I note the bailiffs have sent a significant amount of correspondence to Mr B on each case. I accept part of the reason for this is because the matter has been placed on hold and taken off more than once. Also, because Mr B has not responded to all correspondence. However, if the fault found above had not occurred, it is likely the volume of that correspondence would have been less.
59. Receiving large amounts of correspondence from a bailiff would undoubtedly cause distress. Some of this was unnecessary and avoidable so I recommend the Council apologise and pay Mr B £100 for distress.
60. I cannot say the bailiffs would not have attended Mr B’s home on the dates they did, as they still may have done so in relation to the third PCN. Also, the only time they made contact with Mr B in person was in July 2018, before the fault occurred.
61. The fact the Council did not review or respond to letters from Mr B’s representative meant he, his family and his representative spent unnecessary additional time and trouble fighting their case. I therefore recommend the Council pay Mr B a further £100 for time and trouble.
62. I am also concerned by the bailiffs’ statement that they would not notify creditors of vulnerable debtors in road traffic cases. The Council has confirmed it no longer uses that firm of bailiffs and for this reason I have not recommended any service improvement remedy. If the Council had still used the bailiffs I would have recommend the Council provide evidence the bailiffs had reviewed their procedures on notifying creditors of vulnerability.

Agreed action

63. The Council has agreed that, within a month of this decision, it will:
• Apologise to Mr B for not reviewing correspondence from his representative and not properly considering information about his vulnerability.
• Pay Mr B £100 for avoidable distress.
• Pay Mr B £100 for avoidable time and trouble.

Back to top

Final decision

64. The Council is at fault in how it considered information about Mr B’s case and vulnerability.

Back to top

Parts of the complaint that I did not investigate

65. I have not investigated whether the Council should cancel the final PCN relating to Car B. This is because Mr B has submitted an application to file a statement out of time with the Traffic Enforcement Centre (“TEC”). The TEC will decide whether there are grounds to accept this application and then whether the PCN should stand.
66. As outlined at Paragraph 4, we cannot investigate a complaint where the matter has been to court.

Back to top

Investigator's decision on behalf of the Ombudsman