Summary: Mr X complained the bailiffs acting on behalf of the Council had unlawfully clamped his leased vehicle in a private garage. He said despite his contact and complaints, the clamps were not removed until five months later. We find the Council was at fault. This caused significant distress to Mr X. The Council has agreed to several recommendations to address the injustice caused by fault.

The complaint

1. The complainant, Mr X, complains the bailiffs acting on behalf of the Council had unlawfully clamped his leased vehicle in a private garage. He said despite his contact and complaints, the clamps were not removed until five months later.
2. Mr X said this has caused him significant stress.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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

6. I spoke with Mr X about his complaint. I considered all the information provided by Mr X and the Council.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Law and guidance

8. The Council can serve a penalty charge notice (PCN) for a variety of traffic violations. The PCN is served by post. If it is not paid, the Council can register the PCN at the county court and can then enforce the court order. It can be appealed on limited grounds and within a time limit. A person can also submit a declaration to appeal a PCN after the deadline has passed. The Council can then consider your reasons for not paying the PCN and enforcement action is stopped until the Council decides what to do.
9. The Council can enforce an unpaid PCN by instructing enforcement agents (known as bailiffs). The bailiff is acting on the Council’s behalf and so the bailiff’s actions are within the Ombudsman’s remit. The Government issued Taking ‘Control of Goods: National Standards 2014’, and the Ombudsman would expect the Council and bailiffs acting on its behalf, to have regard to these standards. The standards say the creditor [council] has a responsibility to tell the debtor that if payment is not made within a specified period of time, action may be taken to enforce payment.

The Tribunals, Courts and Enforcement Act 2007

10. Schedule 12 of the Act states an enforcement agent may take control of goods only if they are the goods of the debtor.
11. Controlled goods means goods taken control of that;
• have not been sold or abandoned;
• if they have been removed, have not been returned to the debtor (unless subject to a controlled goods agreement); and
• if they are goods of another person, have not been returned to that person.
12. Co-owner in relation to the goods of the debtor means a person other than the debtor who has an interest in the goods, but only if the enforcement agent:
• knows that the person has an interest in the particular goods; or
• would know, if they have made reasonable enquires.
13. The Act also states an enforcement agent may not take control of goods unless the debtor has been given notice. Regulations must state:
• the minimum period of notice;
• the form of the notice;
• what it must contain;
• how it must be given; and
• who must give it.

Bailiff agencies complaints policy

14. The policy states it aims to resolve complaints at stage one and two of its process within 10 working days. If it is unable to do this, an officer will contact to explain why and let people know when they can expect to receive a full response.

Summary of the key events

15. The Council issued a penalty charge notice (PCN) to Mr X in November 2021 for failing to comply with a restriction on vehicles entering a pedestrian zone.
16. Mr X sent in his representation. The Council considered this but said it would not cancel the PCN. This was because it said it was the driver’s responsibility to be aware of signs and road markings and obey them. It said Mr X could:
• pay the discounted charge of £65 within 14 days, pay £130 if he missed the discounted period; or
• appeal to the parking adjudicator.
17. It was noted that if Mr X did not act after 28 days, the Council may send a charge certificate increasing the charge to £195. If Mr X did not pay that amount within 14 days, the Council may apply to the County Court to recover the money.
18. A charge certificate was sent to Mr X in February 2022 with an increased charge of £195. It stated if it didn’t receive the amount within 14 days, the Council may apply to the county court to register the charge certificate. It also said if a county court so orders, recover the amount due as if it were payable under a county court order. If the charges remained unpaid, a warrant may be issued to bailiffs to recover the debt.
19. In May 2022, an order for recovery of unpaid penalty charge letter was sent to Mr X. It stated that within 21 days Mr X must either pay the total amount or file a statutory declaration and send it to the traffic enforcement centre.
20. A pre-debt reminder letter was also sent to Mr X.
21. The bailiff’s team sent Mr X a notice of enforcement letter in July 2022. It stated Mr X was to pay the amount or arrange a payment plan. The letter also detailed fees that can be added if a bailiff was to visit.
22. The bailiffs team sent a further letter to Mr X in July 2022. It said if Mr X did not pay the amount or contact the team, a bailiff would visit him, and more fees would be applied. It stated the bill should be paid by August 2022.
23. Mr X contacted the team in January 2023. He said his vehicle had been clamped. But said he could not get hold of the bailiff. Mr X was told they could not contact the enforcement service until the following day. He agreed to call back.
24. In March 2023 the notes stated Mr X had refused to make a payment. It was also noted his vehicle could no longer be found and they were unable to gain access to his property. The notes state the bailiff had removed themselves from the case.
25. Mr X spoke with the team in the same month. He said his vehicle was on private property and wanted to know why it had been clamped. He said he wanted it removed. He also confirmed the vehicle was still at the property.
26. The bailiff was reassigned to the case. Mr X was advised the clamps would be removed once they received payment.
27. Mr X complained in March 2023. He said:
• his vehicle had been unlawfully clamped in a private property garage without him being informed on 26 January 2023;
• the bailiffs have gone back to the company and said they have tried to make numerous attempts to contact him for payment; and
• the bailiffs have claimed the vehicle is no longer there. But said he had proof it is still there.
28. Mr X chased a response to his complaint the following month. He received a response on 1 June 2023. It:
• apologised for the delay;
• said when it receives an instruction to enforce a warrant, it is required to start enquiries at the address;
• when agents attend, they are required to collect payment in full or to take control of goods that belong to the customer. This is to cover the outstanding balance; and
• understands the clamps had now been removed.
29. On the 2 June 2023 the notes stated Mr X’s vehicle had been released. It was noted that ‘the clamps were damaged as the customer had attempted to remove them’.
30. Mr X said the clamps had not been removed. But the enforcement team confirmed what the notes suggested. Mr X was also told there was still an outstanding balance of £514 that remained unpaid.
31. Mr X requested his complaint to be escalated in August. He said his issue was with how the bailiff had dealt with the situation. He said he wanted to know why the clamps were on his vehicle for five months, to then have them removed without warning.
32. The enforcement team asked Mr X to provide any evidence he had. But Mr X questioned this and asked what evidence the team had that evidenced he removed the clamps.
33. In response the enforcement team said:
• it has a set time to enforce a case. But when this time has passed, the case is returned to the issuing authority;
• the agent who clamped his vehicle was currently unreachable, so it was unable to conclude the full timeline of events;
• in recognition of this, it offered Mr X a payment of £150 which Mr X did not accept.

Analysis- was there fault by the Council causing injustice?

34. From the evidence seen, Mr X was sent various letters detailing how much money was owed. In July 2022 he was sent a notice of enforcement letter. This stated Mr X was to pay the total amount by 2 August 2022. It said if not, an enforcement agent would visit and may seize his belongings. Therefore, the correct initial process has been followed correctly.
35. The bailiffs clamped Mr X’s leased vehicle on 26 January 2023. In law the ownership of goods being brought on hire purchase (HP), which include leasing schemes, does not pass to the purchaser until all payments have been made. Such goods do not solely belong to the debtor as the leasing company will own them. The debtor may or may not have a ‘beneficial interest’ along with that of the leasing company and so the debtor and leasing firm may be co-owners. This is detailed in paragraph 12.
36. The notes refer to details of Mr X’s vehicle on 26 January 2023 as part of a HP investigation. They refer to the vehicle being on finance. As stated in paragraph 10, enforcement agents may take control of goods only if they are the goods of the debtor. I have seen no evidence to suggest the bailiffs took this and the details in paragraph 35 into consideration when clamping Mr X’s vehicle. This is fault. This caused significant distress to Mr X. It would have been for the enforcement agent to consider whether a beneficial interest had accrued.
37. The clamps were not removed until five months later. But the notes state on 1 March 2023 ‘vehicle no longer found, unable to gain access to property, no contact made’. The bailiff was unassigned from the case. Mr X called up on 20 March 2023 asking why there was a clamp on his vehicle.
38. The case notes also stated ‘The bailiff did reattend, but the vehicle was not present and the clamps had been removed/cut. As far as the bailiff was concerned it was no longer clamped as they had been de-clamped’. Mr X disputes this and said the vehicle remained clamped throughout. It was removed by bailiffs in June 2023.
39. The bailiffs made no attempt to contact Mr X after they said his vehicle was no longer there. There was also no picture evidence provided to support this. Also, if the vehicle had been de-clamped, its unlikely Mr X would have had the clamp put back on. But even if the vehicle had been removed in March, once Mr X made contact in the same month, it still took a further three months for the clamps to be removed. The Council told us the clamps were removed because the warrant had expired.
40. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. On the balance of probabilities, it is more likely than not that the vehicle remained present at Mr X’s property throughout.
41. There are inconsistencies in the enforcement team’s responses. On the 1 June 2023 it stated the clamps had been removed. But later said the notes suggested the clamps were removed on 2 June 2023. This is fault and caused uncertainty to Mr X. The enforcement team said this was an administrative error. They said they have since implemented improvements to their investigation through enhanced coaching and mentoring and an improved quality assurance process to minimise a recurrence.
42. There is evidence of further fault. The complaints policy states the agency will respond at stage one and two of its process within 10 working days. Mr X’s initial complaint was in March 2023, and he received a response in June 2023. This meant Mr X spent unnecessary time and trouble in contacting the agents for a response.

Back to top

Agreed action

43. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mr X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation; and
• pay Mr X £500 to acknowledge the distress caused to him by the faults identified in this statement.
44. Within two months:
• remind relevant officers of the recovery agencies complaints policy;
• remind relevant officers of Schedule 12 of the Tribunals, Courts and Enforcement Act that states an enforcement agent may take control of goods only if they are the goods of the debtor.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman