London Borough of Hammersmith & Fulham (18 017 352)

Category : Transport and highways > Parking and other penalties

Decision : Not upheld

Decision date : 23 Aug 2019

The Ombudsman's final decision:

Summary: Ms X complains about the enforcement charges added to a penalty charge notice. There is no fault in the way the Council and the bailiffs pursued the debt. However, as a goodwill gesture, the bailiffs have offered to refund the enforcement fee.

The complaint

  1. Ms X complains about the enforcement charges added to a penalty charge notice. She says the Council and the bailiffs failed to properly consider exercising their discretion to remove the fees given her difficult personal circumstances at the time. She would like the enforcement fees refunded.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered the information supplied by Ms X. I have considered the Council’s response to my enquiries.
  2. I gave Ms X and the Council the opportunity to comment on a draft of this decision.

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What I found

  1. There is a defined procedure, set out in Regulations, to enforce moving traffic offences that occur in London. The process starts with a Penalty Charge Notice (PCN) to the person registered as the keeper at the Driver and Vehicle Licensing Agency (DVLA), advising them of the offence. If the penalty charge is not paid the council will issue an enforcement notice.
  2. If a council does not receive payment for the PCN it can issue a Charge Certificate. If it receives no response to the Certificate, it can register the debt at the Traffic Enforcement Centre (the TEC). This allows the council to draw up an order for recovery. The debtor can dispute the order for recovery by making a statutory declaration.
  3. If the debt remains unpaid, after the order for recovery, a council can apply to the court for a warrant of execution. The council can then pass the debt to the bailiffs to recover. The costs the bailiffs can charge are set out in Regulations.
  4. In November 2017 the Council issued Ms X with a PCN for driving in a bus lane. Ms X submitted representations which the Council rejected. Ms X did not pay and the Council obtained a charge certificate in March 2018.
  5. Ms X contacted the Council and requested further time to pay the debt due to financial difficulties. The Council agreed to place a hold on the debt. It advised Ms X to get independent financial support and a financial statement so that it could assess the suitability of a payment plan. It agreed to place a hold until May 2018, by which time it required full payment or a request for a formal payment plan.
  6. The Council wrote again to Ms X in April 2018. It set out that if the debt was not paid by the agreed date in May 2018, it would register it with the County Court.
  7. In early September the Council obtained a warrant of execution from the County Court which it passed to the bailiffs for recovery. The bailiffs wrote to Ms X. The notice stated she should pay the total or phone to discuss her circumstances by mid-September as the bailiffs might be able to offer a repayment plan. If she did not pay it would visit to ‘take control’ of goods. After 14 days, as Ms X had not contacted the bailiff or made a payment, the bailiff progressed the case to the enforcement stage.
  8. Ms X had a family bereavement in early September 2018 and was away from home. On her return, later that month, she says she did not open her mail. The bailiff visited and required full payment of the debt. In the bailiff’s note of the visit they recorded Ms X ‘claims not aware of this as [a relative] had passed away several weeks ago, defendant admitted she did know about this as did receive a letter from council.’ Ms X paid the bailiff and then rang the bailiffs to complain and to ask for a refund and repayment arrangement. She said she was aware she had a PCN but believed she could not pay the Council in instalments and decided to wait for the bailiff’s letter. She had not had a chance to look at the letter as she was away from home due to the bereavement.
  9. The bailiffs wrote to Ms X in response to her phone call. It offered its condolences but did not agree to Ms X’s request. It said the Council had written to give her the opportunity to pay previously. It had sent a notice of enforcement and not received a response.
  10. Ms X contacted the Council in November 2018 to complain. Ms X provided a copy of her relative’s death certificate. The bailiffs responded to Ms X in December 2018. It said at the time the bailiff visited Ms X provided no evidence regarding the bereavement. It said it was unfortunate the warrant was sent at the same time as her bereavement but it did not uphold the complaint. Ms X says she had evidence available to show the bailiff at the time of the enforcement visit but the bailiff was not interested in seeing it.
  11. Ms X complained again to the Council. It responded in January 2019. It said it had considered the evidence but did not agree it should cancel her liability for the PCN. It had issued all the statutory documents and placed a hold on the case previously. Ms X had made no payment prior to the bailiffs’ action and so it considered the actions were proportionate. As Ms X had paid it had now closed the case.

Findings

  1. The Council followed the correct process in pursuing Ms X for payment of the PCN. It agreed to place recovery action on hold when requested by Ms X but she did not pay the debt.
  2. The Council followed the correct process when it passed the debt to the bailiffs.
  3. The bailiffs and the Council considered Ms X’s circumstances but decided the fees were correctly applied and should not be refunded. We cannot question whether the Council’s or bailiffs’ decision was right or wrong simply because a complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. Based on the evidence available there was no fault in the way the Council and bailiffs reached the decision not to refund the enforcement fees.
  4. Ms X says she had evidence available to show the bailiff at the time of the enforcement visit but the bailiff was not interested in seeing it. I cannot know exactly what was discussed when the bailiff visited Ms X. The body worn video footage, taken at the time by the bailiff, is no longer available. The bailiffs say that if evidence was provided at the time it would have expected the bailiff who visited Ms X to apply a degree of flexibility and either agree a repayment arrangement or refer Ms X to its Welfare Support Team to agree a repayment arrangement.
  5. In the circumstances of this case, as a goodwill gesture, the bailiffs have offered to refund the enforcement fee of £235 to Ms X, along with a bouquet of flowers or if Ms X prefers, a donation to a charity of her choice.

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Final decision

  1. I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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