Summary: The complaint is about the way a council and bailiffs acting on its behalf dealt with Ms B’s unpaid penalty charge notice. There was fault because the bailiffs did not follow the Taking Control of Goods Regulations and the bailiffs’ appointed auctioneers failed to prevent the sale of the car. This caused Ms B injustice as described in this statement. The Council and bailiffs acting on its behalf have agreed a payment to Ms B and a review of procedures to reduce the risk of recurrence in future cases. This is an appropriate remedy.

The complaint

1. Ms B complains there was fault in the way London Borough of Barnet (the Council) and bailiffs acting on its behalf, Marston Holdings, dealt with an unpaid penalty charge notice (PCN) which led to them selling her car. She says this caused her avoidable distress, financial loss and wants the Council to reimburse her the value of the car.

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The Ombudsman’s role and powers

2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
3. When investigating complaints about contractors acting for a council, we consider the council is accountable for the contractor’s actions. In this case, we are naming the bailiffs, Marston Holdings. We note other councils contract with it and so it is in the public interest to highlight the faults we have found to those councils.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, we 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. We 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)
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)

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How I considered this complaint

6. I considered:
• The complaint to us
• Documents described later in this statement
• Comments from the Council, bailiff and Ms B on several drafts of this statement.
7. I discussed the complaint with Ms B.

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What I found

8. The Council enforces parking restrictions and takes recovery action using procedures set out in the Traffic Management Act 2004 and associated Regulations. Councils and motorists must follow these procedures.
9. In law, the owner of a vehicle is responsible for any penalty charges regardless of who was driving. This is usually the person registered with the Driver and Vehicle Licensing Agency (DVLA) as the keeper of the vehicle. A council sends any formal documents using keeper details from the DVLA.
10. If a parking attendant believes a parking contravention has occurred, they may issue a PCN, setting out a penalty charge. The PCN allows for an informal challenge to be made and for a 50% discount if paid within 14 days. If the penalty is not paid in this period, the council may send a Notice to Owner, which gives the registered keeper the option to pay in full within 28 days or make formal representations. If the attendant could not fix the PCN to the car or give it to the person in control of the vehicle, the PCN is sent by post and this acts as the Notice to Owner.
11. If the person does not pay or make representations within 28 days, the council can issue a charge certificate, which increases the penalty charge by 50%. If the person does not pay within 14 days, the council can register the debt at the Traffic Enforcement Centre (TEC), adding costs. The council sends an order for recovery of the unpaid charge to the person informing them they must pay within 21 days or make a witness statement to the TEC. A witness statement can only be made on certain grounds where there has been a flaw in the process of issuing the PCN. The applicant must state which ground they rely on and ask the TEC to revoke registration of the debt. The TEC has discretion to accept a late witness statement.
12. If the debt is still not paid and there has been no witness statement, the council may apply to the TEC for a warrant which it can pass to bailiffs to recover the amount owing. The bailiffs may also recover their own costs as laid down in Regulations.
13. Bailiffs must follow the Taking Control of Goods Regulations 2013 (the Taking Control Regulations) and Taking Control of Goods (Fees) Regulations 2014 (the Fees Regulations. Relevant paragraphs are:
1. A bailiff must send a notice of enforcement to the debtor seven clear days before taking control of goods (visiting to take goods). ‘Clear days’ do not include the date of issue, receipt or Sundays or bank holidays.
2. A bailiff can only take control of goods at premises where the debtor usually lives or conducts their business or on the highway. If the goods are elsewhere the bailiff must ask the court for an order before taking control of goods.
3. Bailiffs take control of goods by securing them on the premises, on the highway, removing them elsewhere or making a controlled goods agreement (an agreement which lets the debtor keep the goods if they promise not to dispose of them). Securing goods includes clamping a vehicle.
4. Bailiffs must leave two hours before removing a vehicle to storage and allow at least seven clear days before sale. Removed goods must be kept in a similar condition in which it they were found and damage to the goods prevented. Sale may be by auction. The bailiff should send the debtor notice of the sale and a copy of its valuation of the goods seven days before the sale.
5. Once a bailiff returns a warrant, the enforcement power ends. So if there are any unpaid fees, the bailiff cannot take action to collect them.
6. A bailiff may charge a compliance fee for each warrant they hold for a debtor When taking action under more than one enforcement power and they can exercise those powers at the same time, bailiffs can only make one charge for the enforcement, sale or disposal stage.
7. Once a bailiff issues an enforcement notice the goods of the debtor are bound. If the debtor sells the goods unless the person who receives the goods acted ‘in good faith, for a valuable consideration and without notice’ the sale is invalid. If a third party claims goods the bailiff has seized belong to them they have a right to go to court to contest ownership.
8. Where a bailiff removes goods from the highway or premises, it must keep them in a similar condition to that in which it found them.
14. The Civil Procedure Rules (part 85) contain rules about claims on controlled goods. If a person other than the debtor claims they own removed goods, they must give notice in writing (which must include their full name and address, a list of the goods and the grounds of claim) to the bailiff who has taken control of them. On receiving a notice, the bailiff should, within three days, give notice of the claim to the creditor. The creditor must then within seven days, give notice to the bailiff telling them whether it accepts or rejects the claim. If the creditor rejects the claim, then the person claiming to own the controlled goods needs to make an application to the court.
15. Our focus report Fairer Fines (February 2017) sets out common issues we find in complaints about parking penalties and includes advice to councils on how they can improve procedures around parking enforcement.

What happened

16. In December 2016, a parking attendant tried to issue a PCN to a car owned by Ms B but noted the driver drove off before he could do so. Notes by the attendant said a man came out of a bookmakers’ shop close to where the car was parked and drove away. The Council issued a penalty charge notice to Ms B by post.
17. Ms B provided us with a photocopy of the PCN. She completed the section for representations saying she became ill at the wheel and needed to park her car urgently so her partner could take over driving and get help. She said her partner drove off because she needed to get to a hospital quickly. She asked the Council to cancel the penalty charge. Ms B told us she posted the PCN with her representations to the Council and enclosed copies of letters from her doctors. The letters said Ms B was hospitalised on the day the PCN was issued. The Council says it did not receive anything from Ms B in the post.
18. Ms B emailed the Council in the middle of January 2017. She said she wanted to appeal against the PCN because she was unwell with severe stomach pains and had to stop driving, park her car and phone for medical help. Ms B received an automated email response on the same day from the contractors providing the Council’s parking services. This acknowledged receipt of the email and said the Council would deal with her query within 10 days.
19. In January 2017, the Council sent Ms B a charge certificate for recovery of the unpaid PCN. It did not receive payment or representations. Ms B says she did not receive the charge certificate.
20. The Council applied to the TEC to enforce the debt and sent Ms B an order for recovery, telling her she must either pay by 6 April or file a witness statement with the TEC. Ms B did not file a witness statement with the TEC. She told us she thought the Council was not pursuing the matter as she had not heard anything since posting her representations in January.
21. The Council sent a warrant request to the TEC at the end of April and the TEC approved the warrant at the beginning of May. The Council then instructed the bailiffs to deal with enforcement of the debt. The bailiffs’ case notes show there were two other live warrants issued by another council in respect of other PCNs Ms B had received.
22. Ms B told us she sold the car to Mr Z at the start of May. Ms B and Mr Z provided us with bank statements showing transfers between accounts and cash deposits into her account in May.
23. The bailiffs’ case records note it received the warrant from the Council on 5 May, sent a Notice of Enforcement on 8 May and clamped the car on 9 May. The bailiffs removed the car the following day noting ‘email sent to London Borough of Barnet to inform them that the vehicle has been removed on two warrants by another client’. The bailiffs also noted a man with keys for the car said he had brought the car on the preceding Sunday.
24. On 10 May, the bailiffs sent Ms B a notice of sale. This advised her it had removed her car under the other council’s warrants, gave the address of the pound and explained it intended to sell the car at auction if she did not pay the outstanding fee by 23 May. The bailiffs included a valuation for the car. Also on 10 May, Ms B filed an application for permission to make an out of time witness statement. The Council instructed the bailiffs to place the case on hold the following day. The TEC transferred the case to the county court because Ms B had asked for an oral hearing.
25. Mr Z then contacted the bailiffs, saying he had brought the car from Ms B. He provided evidence of this. The bailiffs looked at his evidence, but decided Ms B owned the car.
26. On 13 June, the Council was told Ms B’s application to file an out of time witness statement had been refused. Ms B filed a second application the next day, asking for a hearing. The Council told the bailiffs to take no further action on the case for the time being.
27. Ms B and Mr Z told us they agreed she would repay him for the car because the bailiffs would not release it. They provided us with bank statements which they told us showed a transfer of money from him to her.
28. The bailiffs case notes say the other council asked for their warrants to be returned on 8 August. The car remained in storage.
29. The bailiffs noted on 24 August that it had added an enforcement and tow truck fee to the case as ‘another warrant was the lead warrant and has now been returned to the other client’ (a different council).
30. The court struck out Ms B’s application on 11 October; neither party attended the hearing; Ms B told us she was too unwell to attend court. The Council told the bailiffs to continue with enforcement.
31. On 15 October, Ms B made a further application to court for permission to file an out of time witness statement. She said she wanted a review of the case because she had been unwell at the time of the contravention and unwell and unable to attend the previous hearing. The court ordered a hearing on 2 February. Ms B emailed the Council on 2 November with a copy of her court application.
32. On 20 December, the car sold at auction. The following day, the Council found out about Ms B’s further court application and the bailiffs noted a council officer had telephoned and instructed the bailiffs to place the case on hold. The bailiffs sent an email to the auctioneer asking the auctioneer to hold the car from the auction. The auctioneer replied saying the car had already been sold. However, the buyer did not pay for the car and the auctioneer proceeded to sell it again on 29 December, despite the bailiffs having told it to hold the car from auction. The bailiffs returned Ms B £387 (the balance due to her after deducting fees and costs). Ms B told us she did not cash the cheque.
33. Having looked at photos of the car on the auctioneer’s website, Ms B complained to the Council and to the bailiffs. The photos showed damage to the rear bumper and lights and scratches to paintwork. Ms B said the auctioneer and/or the bailiffs had caused the damage and no-one had told her.
34. The court discharged the order made in October 2017 and granted Ms B an extension of time to file a witness statement. She filed this in March 2018. She also told the bailiffs that she had in fact sold the vehicle just before it was clamped. The bailiffs did not accept this claim.
35. In April, the court revoked the order for recovery and cancelled the charge certificate. This order did not cancel the original PCN.
36. The bailiffs’ responses to Ms B’s complaint said:
• The Council told it to continue with enforcement on 24 November;
• The Council did not tell it about her further application and hearing until 21 December, by which time the car had sold. The buyer did not pay and so the car went up for auction again and sold on 29 December;
• It (the bailiffs) did not have to say if a car was damaged, only the price of the sale and if the customer was due a refund;
• The auction house accepted responsibility for the damage and offered her £700 for loss in value.
37. Ms B also complained to the Council. Its response said the court’s order had no effect because the PCN had already been paid and she should not have made the application because she was saying the PCN was unpaid and this was not true.
38. Unhappy with the Council’s response to her complaint, Ms B complained to us.
39. Responding to earlier drafts of this statement, the Council told us:
• The bailiffs had changed their procedure so in future, if a car was sold at auction and not paid for or collected, the auctioneer would check with the bailiffs before placing the car up for auction again.
• It accepted Ms B emailed its contractor on 14 January and had addressed this by putting in place measures to ensure all incoming correspondence received a timely reply.
40. The bailiffs’ told us:
• The regulations are still new and there is little case law about their interpretation. Its processes were in line with the spirit of the regulation in terms of trying to minimise a debtor’s costs and fees
• Where there is more than one warrant on a case, the fees regulations say that cases which can be enforced at the same time should be grouped together so that only one enforcement fee is charged and this is what it did in Ms B’s case. (see paragraph 12 (f))
• It acted in Ms B best interests by minimising the fees payable as she had received a number of PCNs from different councils that had been registered as debts at the TEC and issued as warrants to it
• It takes all complaints seriously and tries to prevent recurrence of any failings identified. Damage to vehicles taken into control is rare. It recognised shortcomings in this case which resulted in Ms B not being told about damage to her car. It had changed its procedures and now tow truck divers complete a ‘vehicle condition report’ and take dated photos of cars when they are removed. Cars are then checked by the pound manager when they arrive to ensure the photos reflect the condition of the car and the pound manager also takes a second set of photos. The enforcement team would tell keepers about any damage since the car was removed. A further vehicle condition report and set of photos is taken when the enforcement team instructs a sale, taking note of any new damage.

Was there fault?

41. Ms B told us she sent representations by post in January 2017, but the Council did not receive them. Ms B also said she did not receive the charge certificate or the order for recovery. There is no way of establishing what happened and there could be fault by the postal service. There is not enough evidence to conclude fault by the Council.
42. Ms B emailed the Council in January asking to appeal against the PCN. She received an auto-reply saying the Council would respond within 14 days. The Council did not respond. This was poor communication and was fault.
43. The records showed the bailiffs sent a notice of enforcement on 8 May and attended on 9 and 10 May. This was less than the seven clear days prescribed in the Taking Control Regulations, so the bailiffs could not have taken control of the car using the Council’s warrant. Control was taken on the other council’s warrants: the bailiffs’ own internal records and the notice of sale it sent to Ms B confirmed this. Purporting to take control of Ms B’s car under the Council’s warrant was therefore fault.
44. The car was by now on third party premises, so the bailiffs could not take control of it without a court order. Alternatively, the bailiffs could have told Ms B she could collect the car and then, once it was on the highway or at her premises, taken control of it again. But they did not.
45. The bailiffs seized the car on warrants from another council. That council asked for their warrants to be returned on 8 August, so authority for any action under those warrants ended, as did any fees and costs incurred under those warrants. There was no evidence at this point the bailiffs took control of the car using the warrant issued by the Council. Yet the bailiffs added fees and costs under the Council’s warrant. This was fault because fees can only be applied to a case where goods have been properly taken into control, in line with the Taking Control Regulations. As we have explained in paragraphs 43 and 44, the car was not taken into control under the Council’s warrant and the other council had told the bailiffs to return their warrants. Although grouping of fees together to minimise costs to a debtor is permissable within the fees regime, the Fees Regulations do not provide the bailiffs with a way of getting round the procedural requirements of the Taking Control Regulations.
46. The bailiffs emailed the auctioneer to tell it to remove the car from sale after Ms B issued a further court application. The auctioneer advised the car had already sold, but later, the buyer did not pay and so the sale fell through. The auctioneer proceeded to sell the car a second time, despite the bailiffs’ instruction to the contrary. Both the bailiffs and the auctioneer were acting on behalf of the Council. The Council was responsible for the auctioneer’s actions as well as those of the bailiffs. Allowing the second sale to go through when it had been asked to remove the car from auction was fault by the auctioneer.
47. We note also that the bailiff should have passed Mr Z’s claim to own the car to the Council within 3 days of receiving it, in line with the requirements of Part 85 of the Civil Procedure Rules and it failed to do so. This was a further fault but we do not conclude this caused Ms B any specific injustice.
48. The auctioneer, when challenged, accepted liability for damage to the car which will have reduced its value. The bailiff was required to ensure the car was kept in a similar state as when it was taken (see paragraph 13(h)). It did not do so and this was a further fault. There is nothing to suggest the damage would have been identified or acknowledged if Ms B had not raised the issue.
49. The bailiffs’ complaint response was inadequate as it did not identify that it had not properly taken control of the car under the Council’s warrants after the other council asked for its warrants to be returned. And the Council’s complaint response was equally poor. The Council missed an opportunity to scrutinise its contractor’s conduct. This was poor complaint handling and was a further fault.

Did the fault cause injustice?

50. The Council failed to respond to Ms B’s email of 17 January asking for an appeal and this was fault. We cannot say on a balance of probability that the Council would have cancelled the PCN had it considered the email at the time. We note Ms B stated she was unwell and needed urgent medical help and so had to park her car illegally so her partner could take over driving. We note also she provided a hospital letter saying she went into hospital on the day she received the PCN. However, the parking attendant noted a person in the car had just come out of a bookmakers’ shop at the time he was issuing the ticket. This casts doubt on Ms B’s claim there was a medical emergency at that moment. Although the Council’s failure to respond to Ms B’s email was fault, we do not conclude this caused her injustice.
51. Ms B told us she would have paid the PCN if the Council had responded to her appeal in January 2017 and rejected it. We are not satisfied on a balance of probabilities that she would have paid the PCN because she later appealed to the TEC.
52. We cannot conclude who owned the car at the time the bailiffs took control of it and we need to be satisfied on a balance of probability that Ms B owned the car because otherwise she did not suffer a financial loss in consequence of the faults we have identified. Ms B gave us different versions of events over time. In particular, she did not mention a sale and refund in her original complaint and this casts doubt on her reliability as a witness. We cannot be satisfied on the basis of the bank statements we have seen that the purported transfers to and from the two bank accounts were for the car or for some other unrelated purpose or that cash deposits Ms B made were Mr Z’s cash, as she claims.
53. We understand why Ms B pursued her appeal rights; she believed she should not have received the PCN and, regardless of who owned the car, she still owed the parking penalty.
54. We consider Ms B suffered avoidable inconvenience and frustration due to the inadequate response to her complaint. She also suffered a financial loss because of damage to the car and because of enforcement costs and fees added that were not due because of the bailiffs’ failure to act in line with the Taking Control Regulations.

Agreed action

55. The bailiffs and the Council have accepted our findings of fault. We note the bailiffs have already made the following changes to their procedures, which we welcome:
• The bailiffs make additional checks and keeping extra records, including dated photos of a vehicle when it is towed, impounded and sold.
• The auctioneer contacts the bailiffs for approval before putting a car back up for sale after a sale has fallen through
• The Council ensures all correspondence received by its contractor receives a timely reply.
56. In a draft of this statement, we asked the Council and the bailiffs to refund Ms B all fees and costs applied after 8 August because after this date, the bailiffs did not act in line with the Taking Control Regulations and so had no authority to apply those fees and costs. We also asked the Council to pay Ms £250 to reflect her avoidable time and trouble complaining. We note the auctioneer has already paid Ms B £1000 to reflect the damage to her car.
57. The bailiffs agreed to pay Ms B more than we suggested. It will pay her £2602. This figure includes a refund of all costs and charges, including the PCN and a time and trouble payment. We consider it is an appropriate remedy to reflect the injustice to Ms B described in paragraph 54. We are not recommending a full refund of the value of the car because we cannot conclude on a balance of probability who owned it. The bailiffs should make the payment within one month of this statement.
58. The bailiffs, acting for the Council will also, within three months:
• Update its complaint guidelines so that all future complaint responses are in line with our findings on the Taking Control regulations.
• Brief its complaints officers to provide clarity and address any questions
• Implement any procedural changes the Council requires in relation to removal of goods under a council warrant.
59. I will require evidence that the Council and the bailiffs have completed the actions agreed within the timescales set out.

Final decision

60. The complaint is about the way a council and bailiffs acting on its behalf dealt with Ms B’s unpaid penalty charge notice. There was fault because the bailiffs did not follow the Taking Control of Goods Regulations and the bailiffs’ appointed auctioneers failed to prevent the sale of the car. This caused Ms B injustice as described in this statement. The Council and bailiffs acting on its behalf have agreed a payment to Ms B and a review of procedures to reduce the risk of recurrence in future cases. This is an appropriate remedy.
61. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman