Summary: Mrs B complained about how the Council dealt with PCNs issued to her. The Council and its agent were not clear in how it would deal with information Mrs B sent it saying that she was vulnerable. The Council did not deal with Mrs B’s complaint to it properly. These shortcomings caused Mrs B distress and uncertainty. The Council has decided not to recover the unpaid balance. I have recommended it takes further action to remedy this complaint.

The complaint

1. Mrs B complains that the Council and its enforcement agents (bailiffs) did not take into account her vulnerability when it attempted to recover unpaid moving traffic fines.
2. Mrs B says that as a result of these shortcomings, she was left to deal with demands for payment that she could not afford, and her mental health deteriorated significantly.

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. 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 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 considered the information provided by Mrs B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered all comments received before issuing this final decision statement.

Back to top

What I found

The law and guidance

Recovery by bailiffs

7. The Council operates clean air zones. The law allows it to issue a Penalty Charge Notice (PCN) demanding the person make a payment. If the PCN remains unpaid, the Council can register the debt with the court. The Council can then ask bailiffs (also known as enforcement agents) to collect debts on their behalf. The bailiffs must take particular care if the person is vulnerable.
8. The law does not define what a vulnerable person is. ‘Taking Control of Goods: National Standards’ (“the Standards”) sets out the responsibilities of creditors and enforcement agents. The Standards say:
• creditors should remember that enforcement agents act on their behalf and they are accountable for the enforcement agent’s actions. They must consider if the debtor is vulnerable and if so, agree clear rules about how the enforcement agents should work. Examples of a vulnerable debtor include someone who is seriously ill or disabled, or a single parent family.
• Where enforcement agents have identified a vulnerable debtor, they should alert the creditor and ensure they act in accordance with the legislation.
9. CIVEA is a Civil Enforcement Association. It requires its members to act in accordance with its Code of Practice. This says that all its members must ensure that staff who engage with debtors have mandatory training in identifying and dealing with vulnerable people. The Code also says that its members must agree standard procedures for dealing with vulnerable people.

The bailiff’s policy on vulnerable people

10. The Council does not have a formal written policy for dealing with vulnerable people that owe unpaid PCNs. It says it follows an unwritten process where it will consider information on a person's vulnerability. It says that in most cases where someone claims to be vulnerable but there is nothing to indicate concern it will give them time to seek advice, or it will set an arrangement with the bailiff based on the person’s offer of payment. Where there is a particular concern about a person, where they have severe mental or physical health problems, staff will refer the case to a senior officer. It may require evidence to recall an account from the bailiff. The Council says staff are trained in this process.
11. It expects the bailiffs who collect PCNs on its behalf to act in accordance with the National Standards, CIVEA’s Code of Practice, the regulations governing bailiff recovery, and the bailiff’s own policy on vulnerable debtors.
12. The bailiff’s policy says:
• A person may be vulnerable if they cannot safeguard their personal welfare of that of their family, due to age, health, disability or severe financial security.
• All its staff must complete relevant training, and its dedicated welfare team have additional training.
• Its bailiffs should refer cases to the welfare team where there is a potential cause for concern and they must not attempt entry.
• It will try to get full payment where possible, but will with full consideration of the person’s circumstances and ability to pay, enter into firm, fair and sustainable payment arrangements.
• It will give vulnerable people time to seek advice.

The Council’s complaint handling process

13. The Council’s complaints procedure has two stages. At the second stage the complaint will then be reviewed by a complaint champion who has not been involved in the original stage one response to ensure independence from the service area. The policy also says it will always provide the complainant with the Ombudsman’s contact details within our response to a stage two complaint.

What happened

14. The Council issued several PCNs to Mrs B because she had entered the clean air zone without paying the charge. Mrs B did not pay all of the PCNs and the Council registered the debt with the court and passed it to enforcement agents to collect on its behalf.
15. At the beginning of September, Mrs B emailed the Council leader to explain that she has mental illnesses as well as a cognitive disorder that means she struggles to organise her affairs. Mrs B added that she is a one-parent household on a low income. She asked the Council to cancel the outstanding PCNs and allow her to pay the clean air zone charge. Mrs B had made a payment arrangement with the bailiffs and had paid £270 towards the balances, but she had missed the August payment because she could not afford it.
16. The Council responded that it could not cancel the PCNs as this was a statutory process, but it could look at a lower payment arrangement via the bailiff. It asked Mrs B how much she could afford. Mrs B did not respond to the Council’s email. She has explained that the stress of her situation was making it hard for her to properly handle her affairs. Mrs B did not pay the September instalment. She paid £100 at the end of September in an attempt to stop the bailiff from visiting her home.
17. Mrs B asked the bailiff if she could pay £50pcm. At the end of October, the bailiff wrote to Mrs B asking her to pay £75 pcm. She could not afford this, but agreed anyway. Mrs B says that during September and October she was struggling significantly with mental illness and this affected her ability to contact the Council or the bailiff to discuss the situation.
18. At the end of October, Mrs B contacted the Council again offering a lower, affordable instalment and again stating that she was vulnerable due to her mental illness. The Council told Mrs B it would consider her offer. Mrs B said she also gave the bailiffs a formal vulnerability notice that she is vulnerable and had provided evidence of her mental illness as well as her limited income.
19. At the beginning of November, the bailiffs added an additional charge. They asked Mrs B to pay £264 to bring her account up to date, and then to continue with payment of £131pcm. Mrs B could not afford this. The bailiffs also sent her a response to her notice of vulnerability. This said that her vulnerability did not fall within the Council’s guidelines to refer the matter back to it, and so bailiff enforcement would continue. However it would suspend action for 14 days to allow Mrs B to seek advice and it gave her a list of agencies that might help.
20. Mrs B asked the Council again to intervene. She told the Council that her mental health had deteriorated. The Council said it had passed the matter to senior staff to consider urgently. However a week later, Mrs B had not heard from the Council and so she made a formal complaint that the Council had taken no action to intervene despite that she is vulnerable.
21. In December, the Council responded it said that it had advised the bailiff to accept £50pcm starting the next month, but it had not upheld her complaint and could not cancel the charges.
22. Mrs B asked the Council to consider her complaint at stage two of its process. She said it had not explained why the Council had not acted on her pleas for help and why it has not followed the National Standards. She asked for a refund of what she had paid because the Council’s failure to act had caused a serious deterioration in her mental health.
23. The same Council officer as dealt with the stage one response replied at stage two. The Council said there was nothing to indicate the regulations had not been followed. It said there was no standard definition of a vulnerable person but it is generally accepted that someone is vulnerable if they are unable to deal with their own affairs. It had agreed Mrs B offer of payment at a rate she had said she could afford, but she had not made the first payment. However, as she had stated she had mental illness, it would reset the arrangement. Mrs B asked the Council if she had exhausted its complaints process. The Council officer said that the service department had nothing to add to their response.
24. In response to my investigation, the Council has asked the bailiff to return the accounts, and it will not pursue payment.

Analysis

25. The Council did not deal with Mrs B’s complaint in accordance with its procedure. In response to my investigation, the Council told me that the second response it sent her was an acknowledgement of her request that the Council review its stage one response, and this is why it came from the same officer. However, there is nothing in the response to suggest that it is an acknowledgement; and even when Mrs B asked for clarification, the Council did not state that a stage two response would be forthcoming. In fact its final response suggests that Mrs B has completed the complaints process. This is fault by the Council. It did not follow the process, and it failed to signpost Mrs B to complain to the Ombudsman if she remained dissatisfied.
26. Overall, the responses from the Council and the bailiff were not always clear or coordinated. I am not persuaded that the Council or the bailiff clearly considered how to deal with the information Mrs B sent it about her vulnerability. The Council says it has no written policy on vulnerable debtors, the bailiff’s own policy does not say when it will refer a case back to the Council. However the bailiff told Mrs B that her circumstances did not fall within the Council’s guidelines to be referred back to it. The bailiff did not tell Mrs B why it reached this conclusion or what he Council’s guidelines are.
27. The Council was aware that Mrs B might be vulnerable from the beginning of September. Mrs B did not always deal with the Council’s correspondence in good time, but she had explained that this was due to her cognitive difficulties and that she is vulnerable.
28. The Council told Mrs B on 1 November that it would respond to her emails about this. But the bailiff had written to Mrs B more than once requiring instalments she could not afford and which did not take account of her mental illness, cognitive disorder, or her financial situation. There is a lack of clarity and coordination between the Council and the bailiff.
29. The bailiff process is inherently stressful for many people, but the Council’s actions and lack of clarity caused Mrs B distress and uncertainty. I note that the Council did eventually lower the instalment, and did consider Mrs B’s vulnerability when it reset the agreement after she failed to pay the lower instalment. The Council has now decided to write off the amount owed, and will not be asking Mrs B for further payment. In this way, I agree that it has treated Mrs B as vulnerable. In terms of financial remedies, there is no basis for me to recommend the Council do more.

Back to top

Agreed action

30. 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 bailiff, I have made recommendations to the Council.
31. The Council will within one month of this decision:
• Apologise to Mrs B for the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Ensure that it shares this decision with relevant staff and remind them of the need to follow the complaints policy, and be clear in its correspondence with complainants about this.
• Ensure that it shares this decision with relevant staff dealing with vulnerable debtors, including those employed by its bailiff contractor. It should remind staff that it needs to consider vulnerability promptly and clearly coordinate action between the Council and the bailiff.
32. The Council has agreed that within three months of the date of this decision, it will put in writing its process for dealing with vulnerable who owe money on unpaid PCNs, including when an account should be returned to it. The Council should ensure it shares the written document with relevant staff.
33. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

34. I have completed my investigation. There was fault by the Council causing Mrs B injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman