London Borough of Ealing (20 003 103)

Category : Transport and highways > Parking and other penalties

Decision : Upheld

Decision date : 03 Oct 2021

The Ombudsman's final decision:

Summary: Mr X complained a bailiff acting for the Council tried to remove his car from his parents’ property despite the warrant not being for this address. Mr X also complained the bailiff refused to the show the warrant to his parents and was dishonest on the paperwork. Mr X says the situation caused his family distress and caused him time and inconvenience in complaining to both the enforcement agent and Council. The Ombudsman did not find fault with the enforcement agent chasing the debt at Mr X’s parents’ address. The Ombudsman did find fault with the actions taken by the bailiff on the day of the visit to Mr X’s parents’ address. The Ombudsman also found fault with delays in the Council’s handling of Mr X’s complaint. The Council agreed with the Ombudsman recommendation to provide Mr X with a total payment of £335 to refund the enforcement fee and to address delays in handling Mr X’s complaint.

The complaint

  1. Mr X complained a bailiff acting for the Council attended his parents’ property and tried to remove his car despite the warrant being for his home address.
  2. Mr X says the bailiff did not show the warrant to either his parents or his sister claiming he did not need to.
  3. Mr X says the bailiff was dishonest on the paperwork claiming the car was on a public highway when it was on a private driveway.
  4. Mr X says the actions of the bailiff caused his family distress and payment for the debt under duress. Mr X says this matter caused him significant time and inconvenience in complaining to both the enforcement agent and the Council.

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What I have investigated

  1. I have investigated Mr X’s complaint about the enforcement activity by the Council. This includes any actions by the Council and the enforcement agent acting on its behalf.
  2. I have not investigated the validity of the Penalty Charges Notices issued by the Council which caused the debt and resulting enforcement action. I have explained my reasons for this within the section titled “Parts of the complaint that I did not investigate”.

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The Ombudsman’s role and powers

  1. 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)
  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. 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 all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
  2. Mr X and the Council provided comments on my draft decision. I considered their comments before making my final decision.

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What I found

Warrants and enforcement agents (bailiffs)

  1. Councils will often use bailiffs to recover debt. Before instructing a bailiff, a Council will have a warrant for the specific debt from the Traffic Enforcement Centre for parking and road traffic debts.
  2. A council or enforcement agent must give a person notice of the warrant before a bailiff obtains goods. (Paragraph 7(1) of schedule 12 of Tribunals Courts and Enforcement Act 2007).
  3. Bailiffs have the power to enter and re-enter a specific premises if a court has granted a warrant for that premises. Granting a warrant for a specific premises allows for entry to a premises even when this is not a place someone usually lives or works from. (Paragraph 15 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007)
  4. Bailiffs have power to enter and re-enter any premises even when a warrant does not specifically name that premises. However, a bailiff can only do this when they reasonably believe the debtor usually lives at, or carries on a business or trade from, the premises. This also covers were there are potentially different relevant premises that a person may live at. (Paragraph 14 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007).
  5. Bailiffs must show, on request, a debtor and any other person who appears to them both their identity and their authority to enter the premises. (Paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007).
  6. The Taking Control of Goods (Fees) Regulations 2014 outline the fees an enforcement agent may charge when carrying out enforcement action. To charge the compliance stage fee of £75 an enforcement agent must send a notice of enforcement seven days before trying to take control of goods. A bailiff may charge £235 at the enforcement stage, this stage starts once a bailiff has made a first visit to recover a debt.
  7. The fees outlined in the Taking Control of Goods (Fees) Regulations 2014 apply when an enforcement agent has followed the procedure set out in Schedule 12 of the Tribunals Courts and Enforcement Act 2007.

Complaint process

Enforcement agent’s complaint process

  1. The enforcement agent has a three-stage complaint process.
  2. At Stage 1 the enforcement agency will acknowledge the complaint within two working days and aim to provide a full response within 10 working days.
  3. A person can progress to Stage 2 of the complaint process if they are unhappy with the Stage 1 response. The enforcement agent aims to provide a Stage 2 response within 10 working days.
  4. If a person is then unhappy with the Stage 2 response they can ask for a review from the Independent Advisory Group (IAG) or relevant Ombudsman. If a person asks for a review from the IAG, the IAG should provide a response within 20 working days.

Council complaint process

  1. The Council also has a three-stage complaints process.
  2. The Council aims to provide a response to a person’s complaint at Stage 1 within 10 working days.
  3. A person can progress to Stage 2 of the complaint process if they are unhappy with the Stage 1 response. The Council aims to provide a Stage 2 response within 20 working days.
  4. If a person is unhappy with a Stage 2 complaint response a person can request to progress to Stage 3. The Council aims to provide a Stage 3 response within 20 working days.

What happened before the enforcement visit

  1. The Council issued Mr X with four Penalty Charge Notices between 25 May 2018 and 27 June 2018 (PCN 1 through 4).
  2. Mr X did not pay the PCNs. The Council applied to the Traffic Enforcement Centre for a warrant to recover the sums owed for all four PCNs. The Traffic Enforcement Centre granted warrants for all four PCNs on 2 April 2019.
  3. The Council passed all four warrants to an enforcement agent on 9 April 2019. The enforcement agent sent a Notice of Enforcement letter to Mr X’s address for each PCN on 12 April 2019. Each Notice of Enforcement detailed a £203 charge for the PCN and a £75 compliance stage fee. The enforcement agent asked Mr X to pay the charges by the end of 25 April 2019.
  4. Mr X did not pay the enforcement agent and moved out of his property in May 2019.
  5. The enforcement agent discovered Mr X had moved out of his property and completed a credit trace to find Mr X’s new address. The credit trace found Mr X’s parents address as the most likely address for Mr X’s residence.
  6. The enforcement agent applied to the Traffic Enforcement Centre to reissue the warrants for Mr X’s parents’ address. The Traffic Enforcement Centre reissued all four warrants on 28 November 2019.
  7. The enforcement agent updated Mr X’s address to his parents’ address on 29 November 2019. The enforcement agent sent a Notice of Enforcement letter to Mr X’s parents’ address for each PCN on this date. These Notice of Enforcement letters detailed the same charges as those on 12 April 2019 and asked for payment by 12 December 2019.

What happened from the enforcement visit

  1. A bailiff from the enforcement agent attended Mr X’s parents’ property on 6 January 2020. Mr X had parked his car at his parents’ property and it was on their driveway when the bailiff attended. Mr X was not at the property during the visit.
  2. The bailiff told Mr X’s parents he had a warrant to seize Mr X’s car. The bailiff did not show Mr X’s family the warrant on request. Mr X’s family paid the bailiff for all four PCN charges (at £203 per PCN), all four compliance stage fees (at £75 per PCN) and an enforcement fee of £235.
  3. Mr X contacted the enforcement agent on 6 January 2020 about the visit. Mr X said:
    • He was disputing the PCNs with the Council.
    • The bailiff should have shown his family the warrant on request.
    • He had parked his car at his parents’ property and not his so wanted evidence of the warrant for his parents’ property.
    • The Bailiff had recorded the car as being on a public highway when he had parked it on his parents’ driveway.
  4. The enforcement agent sent Mr X copies of the warrants from the Council from April 2019 using his previous address on 13 January 2020.
  5. Mr X complained to the enforcement agent on 17 January 2020. Mr X complained about:
    • The bailiff failing to show a copy of the warrant on request.
    • The bailiff stating on the paperwork that he found the car parked on a public highway when Mr X had parked it on the driveway.
    • The warrants being for his previous address and not his parents’ address.
    • The bailiff forced his family to pay for the charges when he did not hold a valid warrant.
  6. The enforcement agent provided its Stage 1 response to Mr X on 4 April 2020. It said:
    • It discovered Mr X no longer lived at his previous address and completed a credit trace. The credit trace showed his parents’ address as Mr X’s most likely residence. Therefore, it could carry out enforcement at this address.
    • The bailiff did not advise the warrant was for Mr X’s parents’ address but for Mr X. The warrant is against a person and not a property.
    • The bailiff failed to show Mr X’s family the warrant on request and upheld this complaint.
    • The bailiff made an administrative error about where Mr X parked the car and apologised for this.
  7. Mr X disputed the enforcement agent’s Stage 1 response.
  8. The enforcement agent provided its Stage 2 complaint response on 17 April 2020. It upheld its position from the Stage 1 response but offered £100 as a gesture of goodwill for the failure of the bailiff to show the warrant on request.
  9. Mr X disputed the enforcement agent’s Stage 2 response and said the £100 offer from the enforcement agent was not enough.
  10. The enforcement agent passed Mr X’s complaint to an Independent Advisory Group (IAG) for the Stage 3 response. The IAG provided its response on 9 June 2020. The IAG upheld the enforcement agent’s complaint responses.
  11. Mr X complained to the Local Government and Social Care Ombudsman (the Ombudsman) on 2 July 2020. The Ombudsman liaised with the Council who advised it had not had opportunity to address Mr X’s complaint. The Ombudsman asked the Council to address Mr X’s complaint on 28 October 2020.
  12. Mr X chased the Council for a complaint response in December 2020, January 2021, February 2021 and March 2021.
  13. The Council provided Mr X with a Stage 1 complaint response on 25 March 2021. The Council said:
    • It apologised for the delayed response to Mr X’s complaint.
    • The warrant was against Mr X and not against his parents’ address so could immobilise Mr X’s car but not any others at the property.
    • The bailiff should have shown the warrant on request but not showing it did not prevent the bailiff from immobilising Mr X’s car.
    • The enforcement agent found that Mr X no longer lived at his previous address and traced Mr X to his parents’ address. Since the enforcement agent found Mr X’s car at this address it could take enforcement action.
    • The bailiff had mistakenly filled out the paperwork saying the car was on a public highway but considered this an administrative error and not a dishonest misrepresentation.
    • The bailiff immobilised Mr X’s car for valid PCNs and a properly issued warrant.
    • It upheld the enforcement agents offer of £100.
  14. Mr X appealed the Council Stage 1 response on 1 April 2021. Mr X maintained his dispute that his parents’ address was not his home or place of work so bailiff had entered property without proper warrant for this address. Mr X also disputed the bailiff saying the car as on a public highway was an administrative error. Mr X sought repayment of the fine and payment for his time handling the complaint totalling £1,811.
  15. The Council provided its Stage 2 complaint response on 15 April 2021. The Council said:
    • A bailiff may enter a premises which is not a person’s home or place of work if they have reasonable belief a debtor usually lives at that address.
    • It asked the enforcement agent to provide justification of its belief that Mr X’s parents’ address was Mr X’s usual place of residence. The enforcement agent confirmed it complete a credit trace locating this address.
    • The Traffic Enforcement Centre granted new warrants for Mr X’s parents’ address on 28 November 2019.
    • It did not dispute Mr X’s car was on a private driveway and the bailiff would gain nothing by saying the car was on a public highway.
    • It upheld its stance the bailiff should have shown the warrant to Mr X’s family on request.
  16. Mr X appealed the Council’s Stage 2 response on 23 April 2021. Mr X reiterated his concerns about the bailiff failing to show the warrant and the warrant being for his parents’ address.
  17. The Council provided its Stage 3 complaint response on 21 May 2021. The Council upheld its position from the Stage 2 response, upheld the offer of £100 from the enforcement agent and directed Mr X to the Ombudsman.
  18. The Ombudsman logged Mr X’s complaint on 22 May 2021.

Analysis

Carrying out enforcement at parents’ address

  1. Mr X complained a bailiff acting for the Council attended his parents’ property and tried to remove his car despite the warrant being for his previous home address.
  2. The Council obtained a warrant for the four separate PCNs from the Traffic Enforcement Centre before passing the debt to an enforcement agent. The Council took the correct action in April 2019 in getting the warrant and there is no fault in passing the debt to an enforcement agent.
  3. Even though the Council passed the debt to an enforcement agent, it is still responsible for the actions of an enforcement acting on its behalf.
  4. The enforcement agent discovered Mr X no longer lived at his previous address. An enforcement agent can try to trace a debtor if the address they hold is no longer applicable. The enforcement agent found Mr X’s parents’ address by using a credit trace on Mr X.
  5. The Council has provided evidence of the Traffic Enforcement Centre reissuing warrants for Mr X’s four PCNs in November 2019. This evidence shows the enforcement agent used Mr X’s parents address when applying for these warrants. The Traffic Enforcement Centre granted warrants for Mr X’s debt at his parents’ address. This meant the enforcement agent could chase Mr X for the debt at his parent’s address.
  6. The credit trace also gave the enforcement agent reason to believe Mr X lived at this address. The enforcement agent has shown that Mr X’s parents’ address still shows strong links to Mr X to date. I do not find fault with the enforcement agent for deciding that Mr X’s parents’ address could be Mr X’s new residence when it found Mr X’s car parked at this property.
  7. The enforcement agents sent Notice of Enforcement letters to Mr X’s parents’ address in November 2019 and gave seven days’ notice before attending the property. The enforcement agent followed the legislation and I do not find fault.
  8. Since the enforcement agent had sent the Notice of Enforcement letters and it had reasonable belief Mr X’s parents’ address was a place Mr X usually lived, and had obtained updated warrants for this address, the bailiff was entitled to enter the premises. I do not find fault with the enforcement agent for arranging an enforcement visit to Mr X’s parents’ property.

Bailiff actions on 6 January 2020

  1. Mr X complained the bailiff was dishonest on the paperwork claiming the car was on a public highway when it was on a private driveway. Mr X also complained the bailiff did not show the warrant to either his parents or his sister claiming he did not need to.
  2. As noted in paragraphs 55 to 59, the bailiff could enter Mr X’s parents’ property with the sole purpose of claiming Mr X’s car or chasing the debt from Mr X. The bailiff made no attempt to immobilise any other vehicle than Mr X’s. The bailiff was entitled to take this action under Schedule 12 of the Tribunals Courts and Enforcement Act 2007, I do not find fault.
  3. While the bailiff mistakenly filled out the paperwork stating the car was on a public highway, this did not present an injustice to Mr X. This is because the bailiff was entitled to immobilise the car on the driveway. Putting incorrect information on the paperwork did not have any impact.
  4. I have also seen nothing to show that putting the wrong location of the car on the paperwork was anything more than an administrative error. While this is fault, this does not present an injustice to Mr X.
  5. Neither the Council nor the enforcement agent disputes the bailiff failed to show a copy of the warrant to Mr X’s parents. According to Paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007, a bailiff “must on request show the debtor and any person who appears to him to be in charge of the premises evidence of (a) his identity, and (b) his authority to enter the premises”.
  6. While Mr X was not at the property, Mr X’s parents owned the property and were present. The bailiff failed to show Mr X’s parents the warrant which would have demonstrated his authority to enter the premises. This is fault.

PCN and enforcement fees

  1. As explained in paragraphs 84 to 86 the Ombudsman is not investigating the validity of the PCNs. The Council, or enforcement agent, is entitled to charge £812 for the PCNs.
  2. An enforcement agent can apply fees to a debt at both the compliance and enforcement stage. An enforcement agent must follow the procedure set out in Schedule 12 of the Tribunals Courts and Enforcement Act 2007 to apply these fees.
  3. The enforcement agent sent the correct Notice of Enforcement Letters for all four PCNs in April 2019 while Mr X still lived at his previous property. The enforcement agent made Mr X aware of the PCNs and warrant.
  4. The enforcement agent sent four further correct Notice of Enforcement letters in November 2019 to Mr X’s parents’ address. Again, the enforcement agent made Mr X aware of the PCNs and warrant and advised it could take enforcement action at this address.
  5. The enforcement agent took the proper action at the compliance stage to justify charging the £75 compliance fees for each PCN. I do not find fault with application of the compliance stage fees.
  6. As noted in paragraphs 64 and 65 the bailiff was at fault for failing to show the warrant on request from Mr X’s family. This means the bailiff has not followed the procedure in Schedule 12 at the enforcement stage.
  7. The enforcement agent offered £100 for this fault but did not cancel the £235 enforcement fee.
  8. The Council has argued Schedule 12 does not present a timescale for showing the warrant and the enforcement agent provided this to Mr X on 13 January 2020 following his request. The Council says this justifies application of the £235 enforcement fee.
  9. While Schedule 12 does not include a timescale, use of the term “on request” in Paragraph 26 (1) implies and enforcement agent should show evidence of “his identity, and his authority to enter the premises” immediately on request and not a week later. Paragraph 26 (2) also says a person must request to see a bailiff’s identity and authority to enter the premises either “before the enforcement agent enters the premises or while he is there”. Inclusion of a timing for a person asking to see this evidence would also provide an expectation that this timing is similarly applied for provision of the evidence in response.
  10. I do not agree with the Council’s statement that provision of the warrant on 13 January 2020 satisfies Paragraph 26 of Schedule 12 of the Tribunals Courts and Enforcement Act 2007. I consider the fault identified in failing to disclose the warrant justifies removal of the £235 enforcement fee.

Complaint handling

  1. Mr X says this matter caused him significant time and inconvenience in complaining to both the enforcement agent and the Council.
  2. Mr X complained to the enforcement agent on 17 January 2020. The enforcement agent’s complaint process says it will respond to a Stage 1 complaint within 10 working days. The enforcement agent took until 4 April 2020 to provide its Stage 1 complaint response. This is a delay of 9 weeks beyond the promised 10 working day response timescale. This delay is fault.
  3. The enforcement agent met the timescales for responses to Mr X’s Stage 2 and Stage 3 escalation requests.
  4. The Ombudsman complained to the Council, on Mr X’s behalf, on 28 October 2020. The Council’s complaint process says the Council will respond to a Stage 1 complaint within 10 working days. The Council took until 25 March 2021 to provide its Stage 1 complaint response. This is a delay of 20 weeks beyond the promised 10 working day response timescale. This delay is fault.
  5. The Council met the timescales for responses to Mr X’s Stage 2 and Stage 3 escalation requests.
  6. Between the enforcement agent and the Council, it has delayed for 29 weeks (nearly seven months) in handling Mr X’s complaint beyond complaint timescales. This delay caused Mr X an injustice through both frustration and inconvenience.

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Agreed action

  1. Within one month of the Ombudsman’s final decision the Council should:
    • Refund Mr X £235 for the enforcement fee charged for the visit on 6 January 2020 because of the bailiff’s fault in failing to follow the procedure set out in Schedule 12 of the Tribunals Courts and Enforcement Act 2007.
    • Pay Mr X £100 and provide him with an apology for the frustration and inconvenience caused through the combined 29-week delay, outside complaint timescales, by the Council and enforcement agent in handling his complaints.

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Final decision

  1. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. I did not investigate the validity of the Penalty Charge Notices. This is because the Council issued the Penalty Charge Notices in June 2018 and Mr X only raised his complaint with the Ombudsman in August 2020.
  2. The Ombudsman cannot investigate a complaint which is about events known to Mr X for more than 12 months without good reason.
  3. Had Mr X wished to dispute the validity of the Penalty Charges Notices he had opportunity to do so within 12 months and I see no good reason to investigate this aspect of the complaint.

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Investigator's decision on behalf of the Ombudsman

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