Summary: Mr B complained the Council, in trying to recover a debt it said he owed for an unpaid penalty charge notice did not properly consider whether he was vulnerable. The Council was at fault for not following the National Standards or properly considering Mr B’s vulnerability which caused him distress. The Council has agreed to remedy the injustice caused.

The complaint

1. Mr B complains the Council failed to:

• take his vulnerability into account and demanded payment when he called for help and advice regarding an unpaid penalty charge notice (PCN);
• give him correct information; and
• failed to follow guidance or its own procedures and deadlines.

2. He says this caused him distress, affected his mental and physical health, and put him to the time and trouble of complaining.

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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. 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)
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 have read information provided by Mr B. I made enquiries to the Council and have considered the information it has supplied.
7. I have considered the law in this area – namely The Taking Control of Goods Regulations 2013 and The Taking Control of Goods (Fees) Regulations 2014. I have also considered ‘Taking Control of Goods – National Standards’, published by the Ministry of Justice in 2014.
8. Mr B and the Council have been sent a draft of this decision and I have considered the comments I have received before making a final decision.

Legislation and Guidance

9. There is no set definition of what a vulnerable person is but, in the Ministry of Justice ‘Taking Control of Goods National Standards 2014’ (the Standards), it includes those for reason of age, health or disability are unable to safeguard their personal welfare or the personal welfare of other members of the household. (paragraph 74)
10. Disability, and disabled person, is defined in s1 of the Disability Discrimination Act 1995 as a person who has a ‘physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities’.
11. The Standards state agents and creditors must recognise they each have a role in ensuring the vulnerable and socially excluded are protected and the recovery process includes procedures agreed about how situations that arise should be dealt with. The agent has a duty to contact the creditor and report the circumstances where there is evidence of a potential cause for concern. (paragraph 70)
12. Agents should be aware that vulnerability may not be immediately obvious. (paragraph 76)
13. Where a debtor is vulnerable, the enforcement fee is not recoverable until the bailiff has, before taking control of goods, allowed him or her to have an adequate opportunity to get help and advice. (paragraph 12 Taking Control of Goods (Fees) Regulations 2014)
14. The Council has a two stage complaints process. In stage one it aims to respond in 15 working days. In stage two it aims to respond within 20 working days.

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What I found

15. This summary provides key events in this case and does not cover everything that happened.
16. Mr B received a penalty charge notice (PCN) in October 2019. He contested this and made an out of time application to the Traffic Enforcement Centre (TEC) in October 2020. Following the ruling to refuse his application for leave to file a statutory declaration/witness statement he made an application to review the decision which was listed at the County Court in December 2020.
17. Mr B complains he contacted the enforcement agency acting as recovery agents for the Council in September 2020. He corresponded with an agent using its online chat facility regarding the unpaid PCN.
18. During the online chat, Mr B told the agent he suffered from a severe mental health condition. The agent told Mr B that as a warrant of control had been obtained it ‘had gone past the point of dispute’ and requested payment to prevent enforcement agents attending his property and incurring further costs.
19. Mr B challenged the agent’s comment, explaining this was not correct and that his vulnerability had been ignored. He told the agent he would make a formal complaint to the Council.
20. The agent told Mr B there was no record of Mr B’s mental health issues and that this was the first time the matter had been discussed. The agent again requested payment and gave details of how this could be done securely. The agent reiterated that if Mr B did not make a payment, recovery agents would attend Mr B’s address incurring further costs. Mr B said he expected his health issues to be noted and said that the agent should be aware of the procedures and code of conduct regarding vulnerability issues.
21. Mr B complained to the Council and requested a copy of the online chat. He told the Council he was dissatisfied with the agent’s response when discussing his vulnerability issues. Mr B said he did not agree with any proposal of a payment arrangement.
22. The Council replied under stage one of its complaints procedure in October 2020. The Council said the agent had ‘flagged’ Mr B’s vulnerability but had not told him. It accepted that the agent had continued to ask Mr B for payment on several occasions without considering his vulnerability. The Council assured Mr B that the enforcement agency was aware of the request to have his vulnerability considered and he had not been contacted due to the case being on hold due to the County Court application.
23. The Council apologised for the distress and inconvenience caused during the enforcement agent’s handling of Mr B’s request. The Council said it had provided feedback and additional training about dealing with vulnerable people.
24. Dissatisfied with the Council’s response Mr B asked that his complaint be escalated to stage two. Mr B said he felt his concerns had been dismissed.
25. In December 2020, following consideration of the complaint at stage two, the Council:

• recognised the online chat was not up to the required standard;
• reiterated the agent did not take Mr B’s vulnerability into account when requesting payment and noted there had been a three minute gap before a further request for payment was made;
• noted the enforcement agents were aware of the vulnerability declaration and had requested further information;
• said it had seen no evidence Mr B had made arrangements to pay the debt;
• recognised the agent had made a note of Mr B’s health issues but had not told the welfare team according to the enforcement agent’s procedure;
• apologised to Mr B for the enforcement agent’s handling of the online chat, for the distress caused in demanding payment and for not following the correct procedure when considering vulnerable clients; and
• said that it had bought the issue to the attention of the enforcement agents to ensure all agents had correct training when dealing with vulnerable clients.

26. Mr B remained dissatisfied with the Council’s response and complained to the Ombudsman in December 2020.

Analysis

27. My role is to decide whether the Council was at fault in its consideration of Mr B’s vulnerability. Where I find fault, I then need to consider if it has caused an injustice. I must consider what the Council should do to address that injustice and whether any remedy offered is proportionate.
28. The Council accepts it failed to follow the standards, properly consider Mr B’s vulnerability, and refer Mr B to the welfare team.
29. The failure to consider Mr B’s vulnerability led to him being told he may be visited by an enforcement agent if he did not pay the fine. The threat of a visit by recovery agents is a significant event and even more troubling for a vulnerable person. I find the failings caused Mr B avoidable significant distress.
30. In responding to Mr B’s complaint under its complaints procedure the Council upheld his complaint and apologised. Although it missed its deadline for a response at stage two of its procedure by a few days I find this short delay did not cause a significant injustice.
31. In addition to its apology the Council says it undertook training for officers in how to properly consider the needs of vulnerable people. However, this does not fully address the significant impact of the failure on Mr B.
32. In our ‘Guidance on Remedies’ we explain we try to place people in the position they would have been but for any faults. Where that is not possible, we will usually recommend a symbolic payment in recognition of injustice caused. Applying our guidance, the Council has agreed to a payment recognising the distress caused to Mr B and for him being put to the time and trouble of making a complaint.
33. 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. So, although we found fault with the actions or service of the organisation, in this case the enforcement agency, we have made recommendations to the Council.

Agreed action

34. By 7 September 2021 the Council will:

• apologise to Mr B in writing;
• pay Mr B £200 for the distress caused and putting him to the time and trouble of complaining; and
• share the final decision with the enforcement agency to reflect the importance of referring potentially vulnerable debtors to the Council.

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Final decision

35. I find the Council were at fault for failing to follow the National Standards when considering Mr B’s vulnerability which caused him an injustice. The Council has agreed to remedy this.

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Investigator's decision on behalf of the Ombudsman