• The complaint
• What I have investigated
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision
• Parts of the complaint that I did not investigate

The Ombudsman's final decision:

Summary: Mr B complains about the actions of enforcement agents acting on behalf of the Council in recovering a debt. The Ombudsman finds no fault in the substantive matters investigated. There was however fault in the how the complaint about this was dealt with. An apology is recommended, together with service improvements.

The complaint

1. The complainant, whom I shall call Mr B, complains that enforcement agents acting on behalf of the Council duped him into paying charges in respect of two penalty charge notices (PCNs) issued in February and November 2017.

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What I have investigated

2. I have investigated how the PCN issued in November 2017 was dealt with.

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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. 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)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I considered all the information provided to me by Mr B about his complaint. I made written enquiries of the Council and considered the information and evidence it provided in response.
9. I provided Mr B and the Council with a draft of this decision and gave them an opportunity to comment on it.

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What I found

Background

10. In November 2017 a civil enforcement officer (CEO) acting for the Council issued a PCN to a vehicle registered to Mr B for parking without displaying the valid residential permit required.

Summary of the enforcement process before bailiffs are instructed

11. There is a procedure that councils must follow when pursuing a PCN and handling appeals against them. A PCN is a document issued to a motorist who has committed a traffic offence.
12. If the council issues a PCN and the motorist does not pay, the council must send a Notice to Owner (NtO). An NtO confirms how the motorist can pay the PCN or challenge it. The motorist must then either pay the charge or make formal representations against it within 28 days. The council must consider any representations and either cancel the PCN or send the owner a notice rejecting the representations.
13. If the motorist does not pay or make representations, the council can take further action to recover the debt. To take further action, the council must issue a Charge Certificate, which increases the amount payable by 50%.
14. If the charge is unpaid 14 days later, the council can register it as a debt with the Traffic Enforcement Centre (TEC) at the County Court and add further costs. It must then send an order telling the motorist that he or she must either pay the amount outstanding or appeal to the TEC.
15. If the debt remains unpaid and the motorist either does not appeal to the TEC or the TEC turns the appeal down, the council can apply for a Warrant of Execution which it can pass to an enforcement agency (‘bailiff’) to recover the amount owing.

The bailiff process

16. In summary, the process for bailiffs in seeking to recover road traffic debts is as follows:

• a court grants an order to the council which allows the bailiff to take action;
• the bailiff may try to contact the debtor by letter to get payment of the debt in full or by instalments; and
• if this is unsuccessful, the bailiff will visit intending to seize goods to sell in order to meet the debt and associated costs.

17. Before taking control of goods (in other words visiting to take goods) a bailiff must issue a notice of enforcement on the debtor seven clear days before the bailiff takes control of goods. If the bailiff intends to seize a vehicle, they will place a document called a notice of enforcement on the vehicle, inviting the complainant to contact the bailiff to arrange payment of a debt.
18. A bailiff may be directly employed by a council or work for a private firm which the council has contracted to provide services for debt recovery. Either way, the bailiff is acting for the council and so the matter is within the Ombudsman’s jurisdiction.

What happened in this case

19. The Council followed the process set out above, issuing a charge certificate followed by an order for recovery. No payment was received and in July 2018 the warrant for recovery was passed to the bailiff firm used by the Council to enforce the debt.
20. The bailiff then issued a statutory notice of enforcement to the address given in the warrant, which is Mr B’s mother’s home address and his ‘care-of’ address. As Mr B did not contact the bailiff firm within the 14-day compliance period, the matter progressed to the enforcement stage.
21. On 10 September the bailiffs visited the warrant address. They did not speak to anyone there but carried out a check on vehicles at the property and established that one was registered to the address with Mr B as the registered keeper. Having made these checks, the bailiff could have clamped the vehicle during the enforcement process as a means of ‘taking control of goods’.
22. On 25 September the bailiffs returned to the address. Mr B was working away from home. This is the point at which Mr B complains the bailiffs “conned and tricked him into giving his [payment] card details over the phone…using trickery and deceit”.
23. The bailiffs records state that on attending the property they spoke to Mr B on the telephone, and that full payment was made. It noted Mr B said he had sold the vehicle three days previously, and that he asked for an email address for the bailiffs. The notes say the Area Divisional Manager who was with the bailiff then telephoned Mr B and explained the next steps, then Mr B had asked for the bailiffs’ details which were given and then he paid. The notes say: “He then claimed we had clamped the vehicle illegally at which point we explained we had not reached that step…Customer accused us of scamming him and hung up”. The notes refer to Mr B being aggressive and threatening when making payment over the telephone and that he had said that if he was there he would assault the bailiffs.
24. Mr B says that his request for an email confirming the bailiff’s identity at the time of the visit was refused. The bailiff says Mr B had requested an e-mail address when asked to provide the proof of sale of the vehicle, cancellation of insurance and the V5 form via WhatsApp. It is not clear why an email address was not provided at this time as requested, but it was done the following day. In any event, Mr B did not then provide proof of sale of the vehicle and the officers executing the warrant were certificated bailiffs legitimately recovering the debt.
25. Mr B also says that the bailiff told him his vehicle had been clamped before he made the payment, but after he paid he was told the vehicle was never clamped. The bailiff could have legitimately clamped the vehicle having ascertained that Mr B was the registered keeper, to take control by immobilising it. Mr B has claimed the vehicle was damaged by attempts to clamp it: such a matter could be pursued through the Council’s insurer and ultimately through the courts.

Mr B makes a complaint

26. On the same day he made the payment, Mr B made a complaint. He complained that the bailiffs had lied and been deceitful to get the money from him, and had not provided identification or information; that he had been misinformed that the vehicle had been clamped; that the vehicle did not belong to him and that the bailiffs refused to allow him to send relevant proof; and that the bailiffs had refused to stay on site when Mr B had said he was calling the police. Mr B asked for a copy of the BWV footage and a transcript of the telephone calls made. He wanted the money he had paid to be refunded. The bailiff firm issued an interim response the following day and then its substantive response at the first stage of its procedure on 3 October. It said that the customer resolution officer had obtained a statement from the bailiff and viewed their body-worn video (BWV) footage, which it said showed that the bailiff had asked to see proof of sale which could be sent via WhatsApp as he was not sure if he could disclose an e-mail address. It said there was no evidence to substantiate claims made against the bailiffs.
27. The response letter did not address Mr B’s request for the BWV footage or transcript of the telephone calls and said: “No further investigation will take place in relation to this matter”. That was incorrect and was fault.
28. Mr B continued to pursue the matter as a complaint and on 12 November the bailiff firm issued a further response in which it set out what was evidenced by the recordings made. It was satisfied that the evidence demonstrated that no false information had been provided to Mr B by the bailiffs. It said if he remained dissatisfied he could contact CIVEA, the civil enforcement trade association. It did not set out whether this was intended to be a Stage 2 response to the complaint or how the matter could be escalated, other than by reference to CIVEA. That was not clear and was fault.
29. Mr B continued to complain, and the bailiff firm issued a further response on 27 December. It described this as a Stage 2 response and said that its position remained unchanged based on a further review of the evidence. It explained that Mr B could refer the matter to CIVEA or to the Independent Advisory Group (IAG). which is described in the firm’s published complaint procedure as an independent panel which can consider complaints at the third and final stage of the process.
30. In February 2019 Mr B made a follow-up complaint. He asked for the evidence of all internal investigations conducted in connection with his complaint and he asked again for the BWV footage. Action was then taken to progress this as a Subject Access Request (SAR) under date protection legalisation.
31. Further correspondence was then exchanged between Mr B and the bailiff firm, principally concerning how his requests for video footage and telephone transcripts had been dealt with but also referring to alleged damage to the vehicle by the bailiffs. Mr B had also been in correspondence with the Council over several months about what were essentially the same matters, and then about his dissatisfaction with the responses the bailiff firm had provided to his complaint. The bailiff firm and the Council provided final responses to Mr B in July 2019.

Analysis

32. The matters relating to the subject access request and how this was dealt with were for the Information Commissioner. I have not therefore commented on the issues relating to the BWV footage or telephone call recordings. Mr B did make a complaint to the Information Commissioner, which was dealt with.
33. Insofar as the use and retention policy for BWV footage, and the service level agreement between the Council and the bailiff firm are concerned I have reviewed these, and I am satisfied there was no administrative fault in how these were applied.
34. I find no fault by the Council or its agents in the substantive issues with which this complaint is concerned, which is the action of the bailiff in securing payment of the debt deeming owing. There were though some failings in the complaint handling in this case. The bailiff firm has a published complaints procedure which sets out a clear three stage process, with timescales for each stage. The evidence shows that there were some delays, plus some incomplete information and a lack of clarity provided to Mr B about the process being followed and what he could expect in terms of a service. Mr B’s ongoing communications with various officers at the bailiff firm and at the Council were a contributing factor to some of this, because the volume and nature of the correspondence meant that it was not always clear who was dealing with the various queries raised, or what stage the complaint was at. Nonetheless, Mr B was entitled to a clear complaints process.

Agreed action

35. To remedy any injustice to Mr B caused by the failings noted above in respect of the complaint process, I recommended that within four weeks of the date of the decision on this complaint the Council issues him with a formal written apology.
36. I further recommended that within three months of the date of the decision on this complaint, the Council liaises with the bailiff firm to reflect on lessons learned from this complaint and to ensure that all relevant staff are reminded about the importance of following the published complaints process and providing clarity about that process to complainants.
37. The Council has agreed to my recommendations.

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Final decision

38. I have completed my investigation on the basis set out above.

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Parts of the complaint that I did not investigate

39. For the reasons set out in paragraph 5 I did not investigate the validity of the PCN. Mr B had a right to challenge that by applying to the County Court to file a witness statement. It would have been reasonable for him to have done so and there are no good grounds for me to exercise discretion to look at that now.
40. For the reasons set out in paragraph 6 I did not investigate how the PCN issued in February 2017 was dealt with. Mr B could have complained sooner to the Ombudsman about that matter. It would have been reasonable for him to have done so and there are no good grounds for me to exercise discretion to look at that now.

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Investigator's decision on behalf of the Ombudsman

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