Summary: Mr X complains about the Council’s handling of his concerns following receipt of a Moving Traffic Penalty Notice. The Enforcement Agent acting on behalf of the Council was at fault for not following guidance when Mr X told it he was vulnerable due to a disability. The Agent was also at fault for failing to properly consider Mr X’s request to pay off the debt in instalments. The Council has agreed to apologise and make a payment to Mr X in recognition of the distress caused by the Agent’s actions. It will also ensure the Enforcement Agent is reminded of its legal duties to vulnerable debtors and makes more detailed notes of its interaction with debtors.

The complaint

1. Mr X complains about the Council’s handling of his concerns following receipt of a Moving Traffic Penalty Notice. Mr X says his car was being used by someone else at the time the penalty took place and this person was taking unfair advantage of Mr X, who is vulnerable and has mental health conditions. Mr X is unhappy the Council has ignored his requests to consider his exceptional circumstances before transferring the penalty charge debt to a recovery agent. Mr X says his interaction with the recovery agent caused him significant distress. He would like the Council to reconsider its decision to pursue the penalty charge against him.
2. Mr X’s representative, Ms Y, has made this complaint to us on his behalf.

Back to top

The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. 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)
6. 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)
7. If we are satisfied with an organisation’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)

Back to top

How I considered this complaint

8. I have spoken to Ms Y and considered the information provided in support of Mr X’s complaint.
9. I have considered the information the Council has provided in response to my enquiries. This includes records from the Debt Recovery Agents (Company Z).
10. Mr X, Ms Y and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant guidance

Penalty charge notices

11. Where a council believes a moving traffic contravention has occurred, it may serve a Penalty Charge Notice (PCN) on the registered keeper of the vehicle. Councils often use cameras to detect contraventions, so the PCN will usually be served by post.
12. The vehicle owner can appeal to the Council and if unsuccessful, to the Traffic Enforcement Centre (TEC).
13. The vehicle owner must appeal to the TEC within 28 days of receiving the Council’s decision but can ask for more time under certain circumstances. These include where the owner claims they were contacted about a PCN they did not know about. These are called ‘out of time’ challenges and they must be made to the TEC.
14. Councils will often use an enforcement agent to recover debt. Enforcement agents can charge fees for each stage of the enforcement process.

Taking control of goods and enforcement fees

15. 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).
16. Notice of enforcement must be given to the debtor not less than seven days before the enforcement agent takes control of the debtor’s goods. Notice of enforcement must be given in writing. (Taking Control of Goods Regulations 2013 r.6 & 7)
17. Enforcement agents may charge fees 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. An enforcement agent may charge £235 at the enforcement stage, this stage starts once an agent has made a first visit to recover a debt. (Taking Control of Goods (Fees) Regulations 2014)
18. Enforcement agents may recover fees from the debtor. Where the debtor is a vulnerable person, the fee due for the enforcement stage is not recoverable unless the agent has given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.
19. The law does not define what a vulnerable person is. The Ministry of Justice has issued ‘Taking Control of Goods: National Standards’ (“the Standards”) which set out the responsibilities of creditors and agents.
20. The Standards say creditors should remember that agents act on their behalf and they are accountable for the agent’s actions. They must consider if the debtor is vulnerable and if so, agree clear protocols governing the approach the agent should take.
21. The Standards provide a list of examples of where a person may be vulnerable. This list is not exhaustive, and care should be taken to assess each situation on a case-by-case basis. The list includes:

• people with a disability
• the seriously ill
• unemployed people

22. If an agent identifies a vulnerable debtor, they should alert the creditor and ensure they act in accordance with all relevant legislation. Agents should be aware that vulnerability may not be immediately obvious.

What happened

23. A vehicle registered to Mr X was driven into a restricted area on 9 March 2021. The Council issued a Penalty Charge Notice (PCN) for the offence to Mr X as the registered keeper of the vehicle on 15 March 2021. The PCN contained information about how to pay or challenge the PCN. It also explained the recipient had 14 days in which to pay half the PCN fee (£65).
24. The Council issued a charge certificate to Mr X on 12 May 2021 because it had not received payment or any representations challenging the PCN by this date. The fees for the PCN had risen to £195.
25. The Council issued an order of recovery to Mr X on 16 June 2021 because it received no response to the charge certificate. The order of recovery included a form to enable Mr X to challenge the PCN with the TEC and explained that fees had risen to £203.
26. The Council transferred the outstanding debt to Enforcement Agents (Company Z) on 22 July 2021. Company Z issued a notice of enforcement to Mr X on 26 July 2021. This explained the fees had risen to £278 and asked Mr X to make contact to pay the fees by 23:59 on 8 August 2021. The notice also said that Company Z may consider a payment plan to enable Mr X to pay off the fees in instalments if he called them to discuss this.
27. A Company Z Agent attended Mr X’s home on 17 August 2021. Mr X says the Agent behaved in a threatening manner when they attended. The Agent left a letter with Mr X, which explained their visit had added further fees to the outstanding debt. The total amount Mr X owed was £513.
28. Mr X and his friend, Mr B, called Company Z on 18 August 2021. Company Z’s notes state Mr X told the Agent he was in receipt of benefits and had Asperger’s Syndrome. Mr X offered to pay the Agent £50 that day and to pay the remaining debt back in monthly instalments. The Agent told Mr X the matter had progressed too far for Company Z to agree to a payment arrangement. The Agent told Mr X he had to pay the debt off in full.
29. Mr X made several attempts to pay the debt off online and by telephone on 20 and 24 August 2021, without success. Mr X eventually made a successful payment online for the entire debt amount on 26 August 2021.
30. A Wellbeing Officer supporting Mr X contacted the Council about the PCN on 24 December 2021. They explained that Mr X was vulnerable due to his diagnosis of Asperger’s Syndrome and other mental health conditions. The Officer said Mr B had taken unfair advantage of Mr X by using his vehicle to drive to the Council’s area. Mr B had then told Mr X he was dealing with the PCN, when this was not the case. Mr X had reported the matter to the police, but it had been unable to investigate further because Mr B passed away at the end of August 2021. The Officer asked the Council to consider refunding the fees Mr X had paid given his exceptional circumstances and because he had felt threated by the Agent from Company Z.
31. The Council responded to the Officer’s correspondence on 10 January 2022. It explained the lack of response following issue of the PCN led to Company Z becoming involved. The Council said it had not found the Agent’s behaviour threatening and had not received any information from Mr X to demonstrate he was vulnerable. The Council confirmed it was satisfied with Company Z’s handling of the debt, but invited Mr X to provide a copy of the police report he had made about Mr B. The Council said it would reconsider its position if Mr X provided evidence to show his vehicle had been taken without his consent at the time the traffic offence was committed.
32. Ms Y brought Mr X’s concerns to us following the Council’s response because he remained dissatisfied with its handling.

Was there fault causing injustice?

33. The Council was not at fault for the action it took in issuing and seeking payment of the PCN fine and associated fees from Mr X. It appears to have followed the regulatory guidance and added charges appropriately at each stage. While I sympathise with Mr X’s situation, the Council is not to blame for Mr B taking unfair advantage of and misleading Mr X.
34. However, Company Z’s case records clearly show Mr X did inform the Agent of his Asperger’s Syndrome diagnosis. This should have triggered the Agent dealing with Mr X as a vulnerable debtor who receives benefits. Company Z was at fault for not alerting the Council to Mr X’s vulnerability or seeking further evidence from Mr X if it needed this. The Council was also at fault when it inaccurately informed Mr X’s Wellbeing Officer that vulnerability and disability were not mentioned to the Agent.
35. Company Z was also at fault as it did not consider Mr X’s request to repay the debt in instalments. Other than to state it was too late for a payment plan, the Agent has failed to provide any clear rationale for refusing Mr X’s offer. It is unclear why Company Z’s notice of enforcement to Mr X stated it may consider payment plans but then dismissed his request outright.
36. I am also concerned by the lack of any detailed records of what happened when the Agent visited Mr X on 17 August 2021. While I appreciate Company Z’s retention policy means any body worn camera footage will have been deleted by now, I would have expected the Agent to have made more detailed notes of their visit and any discussions they had with Mr X. The absence of such records means I cannot now make a finding on Mr X’s complaint about the Agent’s behaviour during the visit.
37. While the Council was not at fault for issuing and pursuing the PCN, Company Z’s handling of the debt was not in accordance with regulatory guidance. This caused Mr X avoidable distress and meant he missed the opportunity to pay off the PCN and fees in instalments. My recommendations below therefore seek to address this.

Back to top

Agreed action

38. 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 I found fault with the actions of the Enforcement Agent, I have made recommendations to the Council.
39. Within one month of the final decision, the Council agrees to:

• apologise to Mr X for the avoidable distress and missed opportunity created by the faults described in paragraphs 33 to 36 above; and,
• make a payment of £150 to Mr X in recognition of the distress caused.

40. Within three months, the Council should make the following service improvements:

• issue a reminder to ensure all relevant staff (working for the Council and Company Z) make detailed notes of their interactions with debtors. This should include the clear and detailed recording of rationale behind agreeing or refusing a request to repay by instalments; and,
• ensure the Council and Company Z have systems in place to record and respond appropriately when a debtor informs them that they are vulnerable.

41. The Council should provide us with evidence to show it has completed the above recommendations.

Back to top

Final decision

42. I have completed my investigation and uphold Mr X’s complaint. Mr X has been caused an injustice by the actions of the Agent commissioned by the Council. The Council has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman