Summary: Miss X complains that Council enforcement agents were aggressive towards her when enforcing a penalty notice she was not liable for. The Council failed to investigate her allegations until Miss X came to the Ombudsman. The Council was at fault. While, I do not have evidence the enforcement agents used by the Council were aggressive, the Council should have investigated the allegations and the information provided by Miss X showing she was not liable for the debt. Its approach caused her an injustice as she had to come to the Ombudsman before the Council properly assessed the information she provided. The Council has accepted some fault and refunded the fine. It says it has also refunded any fee Mrs X paid to the enforcement agents. I have also recommended it completes an audit on how it has dealt with other complaints.

The complaint

1. Miss X says enforcement agents, who are agents of the Council, made her feel she had to pay a debt she was not liable for. She also says the enforcement agent who allegedly threatened her did not take account of her vulnerability.

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The Ombudsman’s role and powers

2. 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)
3. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. In this case the Council contract a company, which I will call Company Z to deal with its parking services. This company deal with the issuing of penalty charges and any challenges to fines. If enforcement is necessary, they instruct enforcement agents.
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 reviewed the file and the Council’s response to our enquiries.
7. I researched the relevant law and policy.
8. Both the complainant and the Council were given an opportunity to comment on our draft decision.

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What I found

9. Miss X was the owner of a car up until 31 January 2017. It was involved in a car accident and written-off. A third party collected the car.
10. However, Miss X says that even though she no longer had ownership of Car B, she started to receive penalty notices for the car. One of these notices was from the Council.
11. The Council has produced evidence to show it sent her:

• A notice of contravention on 28 June 2017. This told her she should pay a penalty fine or file a statement setting out why not.
• A notice to owner on 2 August 2017. This told her that if she did not either pay the fine or make representations to the Council explaining why she felt she did not owe the fine, within 28 days, enforcement action might be taken against her.
• A charge certificate on 7 September 2017. This advised her to deal with the matter straight away or a warrant may be issued against her for enforcement.

12. Miss X says the first letter she received was on 16 November 2018. This letter was from the enforcement agents used by the Council.
13. The records show Miss X spoke to members of the enforcement team on 27 November 2018. Her mother, Mrs Y, also spoke to enforcement agents. She said that an agent had been to their house that day and demanded payment. She said Miss X had documentation to prove Car B was not in her possession when the penalty notice was issued. She asked if there was anything she could do. The enforcement agent said agents do not get involved with disputes about the debt. Mrs Y and Miss X were advised to get in contact with the Council. Mrs Y said she could not do that as Council offices were closed. She asked if there was any way the enforcement agents could hold off for a day while she sorted the problem out with the Council. The agent said he was afraid this was not possible.
14. I have listened to three calls received by the enforcement team on that day. There was nothing aggressive in their tone.
15. The next day, another enforcement agent, Mr D, was allocated to deal with the matter. He contacted Miss X. It is this call that Miss X says was particularly aggressive. She said Mr D “…threatened to break into my house and take away my goods.”
16. She added that she found this, “…extremely frustrating because I am young disabled girl, and I live with several medical conditions and I wasn’t in the right state of mind at that time…”
17. The enforcement agents say Mr D has no recollection of Miss X referring to any vulnerabilities. They say that they have an in-house vulnerability policy and claim that Mr D would have abided by that if he had thought Miss X had any vulnerabilities. His record of the conversation was that he reiterated that he could not assist with matters of dispute and said that failing payment, enforcement would continue.
18. There is no recording of this call. The Council says this is because it was done from Mr D’s mobile phone.
19. Miss X says she felt she had to pay. She says her brother advised her to pay and then sort out the issues later as the situation was so concerning for her. She also says Mr D said she could approach the Council to raise her dispute. She made full payment on the same day as the call with Mr D.
20. Miss X says she then tried to contact the Council on numerous occasions but was unable to get through.
21. In September 2019, Miss X wrote to the Council. She provided evidence that Car B was not in her control when the fine was given and asked for a refund. She also asked for action to be taken against Mr D, whom she said had been verbally aggressive to her.
22. The Council says that the information was dealt with by Company Z, who process challenges to penalty notices on the Council’s behalf.
23. Company Z responded, on Council headed notepaper, saying that the complaint had been closed when Mrs X made payment. It also said that if she wished to make a complaint about the enforcement agents, she should take this up with the enforcement company, “as it is a different company”.
24. There is no evidence that an investigation was undertaken into the allegations made about the enforcement agents used until after Ombudsman involvement.

Current position

25. Miss X took her complaint to the Ombudsman. After our involvement, the Council investigated her complaint. It accepted the evidence she produced proving she had not been in control of car B when the fine was given.
26. It also said that the information Miss X had provided had not been handled in the way it should have been. It said that, “Given the circumstances described by you and the evidence you provided, it was incorrect to inform you that your case was closed as payment had been made.”
27. The Council says it refunded Miss X any money she paid to the enforcement agents. It says this represented, in total, the sum of £438.
28. Miss X says she has only received payment of £128, which was the fine for the penalty charge.

Analysis

Council’s instruction of bailiffs

29. When a person receives a penalty notice, they must be given the opportunity to make representations if they do not feel they are liable to pay the fine. The evidence shows that Miss X was sent the required letters, asking her to make representations if she felt she was not liable. She was encouraged to get in contact and warned that enforcement action might follow if she did not.
30. The Council says Miss X did not inform it that she did not have control of Car B until 17 September 2019, which was after the enforcement agents involvement, and after she had paid the fine.
31. Miss X says she first had knowledge of the penalty notice on 16 November 2018 but did not contact the Council at that point. This is understandable as she was worried about enforcement action and so contacted the enforcement company. She also says she contacted the police and the DVLA. She has provided supporting evidence.
32. The call recordings I have listened to show Mrs X’s mother, Mrs Y, was told on 27 November 2018, to call the Council about her dispute. She said the Council offices were closed and asked the enforcement agents to wait while she sorted the situation out with the Council. The agents said there was nothing they could do to intervene in the dispute. It might have been helpful for the enforcement agents to consider waiting until Mrs X had called the Council. But, in any case, Mrs X has confirmed to me that she did not attempt to contact the Council until after she had paid the fine and fees.
33. I have listened to the call recordings on 27 November 2018 and there are no issues with the way call handlers spoke with Mrs Y or with Miss X. There is no fault here.
34. Miss X did not contact the Council the next day either. She was called by an enforcement agent, Mr D. She says he was aggressive and rude to her. She says he ignored the disabilities she informed him about and said he would break into her house if she did not pay. There is no recording of this call and so I do not have evidence to say he behaved inappropriately. Mr D was right to say that his job was to enforce debts, not to look into any disputes about the debt.
35. In any event, the Council says it has refunded any enforcement agent fees.

Council’s failure to investigate Miss X’s claims she was not liable for fine

36. When Miss X set out her situation to the Council, providing supporting evidence, it should have investigated. The Council remains responsible for enforcement agents’ services and for the actions of the contracted Company Z. It should have systems in place to ensure that if complaints are dealt with by contractors, they are dealt with appropriately. It has accepted fault in this regard.
37. It is also concerning that Company Z said it would not investigate because Miss X had paid the debt. She explained she paid the debt because of allegedly aggressive enforcement agent behaviour. Yet she was told her payment meant that that behaviour would not be investigated. This fault caused Miss X an injustice. It must have been frustrating. Miss X should not have had to come to the Ombudsman for her allegations to be addressed by the Council and investigated. I consider the full refund of the fees paid to enforcement agents is a sufficient remedy. Miss X says she has not been paid yet. The Council has checked its records and says payment has been made. I have recommended the Council liaises with Miss X to confirm payment.
38. Company Z’s failure to pass the case up for investigation, either into whether Miss X had been liable for the fine or into the behaviour of enforcement agents it instructed, raises concerns about how it has been approaching similar complaints.

Conclusions

39. The Council has accepted fault. It has shown it has learnt from its failings. It says it has refunded Miss X. Since the draft decision as issued it has checked its records again and confirms payment has been made.
40. I remain concerned that other complaints may have been considered in a similar fashion by Company Z. I have made a recommendation to address this concern.

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Agreed action

41. The Council has agreed that within two weeks of my final decision, it will contact Miss X to check she has received payment of the full £438 it says it has refunded. If there is further dispute, the Council should provide proof of payment to the Ombudsman.
42. Within three months of my final decision, the Council has agreed to:
1. Complete an audit of complaints dealt with by Company Z between January 2019 and December 2019. It should check that other complaints have been dealt with correctly, even if payment has been made. It should also ensure that complaints about enforcement agents’ behaviour have been investigated appropriately, even if payment has already been made. It should provide a report to the Ombudsman setting out the steps it has taken and the results of its audit.
2. If the audit shows there are any examples of poor complaint handling by Company Z it should fully investigate any allegations made and consider how best to address any system failure. It should provide a report to the Ombudsman on any cases found.

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Final decision

43. I have found the Council at fault. It has accepted some my recommendations to remedy any injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman