Summary: Mr B says the Council wrongly referred a penalty charge notice debt to enforcement agents when he was still challenging the charge, failed to properly investigate his complaint about the bailiff’s actions during a visit and delayed putting enforcement action on hold. There is no fault by the Council.

The complaint

1. The complainant, Mr B, complained the Council:
• referred his case to bailiff when the Council was investigating and it should have been on hold;
• failed to properly investigate his complaint about the actions of the bailiff; and
• delayed putting enforcement action on hold when he put in a complaint.
2. Mr B says the Council’s actions have caused him distress and anxiety.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. The Council’s process for penalty charge notices involves:
• The civil enforcement officer issues a penalty charge notice;
• if a challenge is received and refused and payment is not received or there is no appeal within 28 days the Council issues a charge certificate which increases the penalty charge by 50%;
• if payment is not received an order for recovery is issued allowing recovery through an enforcement agent (bailiff);
• the debtor can then file a witness statement. If the witness statement is not accepted or there is no payment a warrant is issued and enforcement agents are instructed to recover the debt.
8. Under the Government’s Breathing Space (Debt Respite Scheme) a person can get temporary protection from creditors. That involves temporary protection for up to 60 days. During that time enforcement action cannot be taken.

What happened

9. In July 2022 the Council issued Mr B with a penalty charge notice. The notice said the penalty charge notice was £130 but if paid within 14 days the reduced charge of £65 applied. The letter explained Mr B could make representations within 28 days.
10. Mr B made representations. In August 2022 the Council issued a notice of rejection of representations. The letter told Mr B he could pay the £130 within 28 days or appeal. The letter explained if complainant did not take any action the Council could send him a charge certificate which would increase the cost to £195. The letter said if that was not paid within 14 days the Council could apply to the traffic enforcement centre (TEC) to recover the money plus court costs. The accompanying document explained if Mr B did not appeal he would have no further opportunity to challenge the penalty charge.
11. In September 2022 the Council issued a charge certificate. That charge certificate said the cost had now increased to £195. The certificate said if Mr B did not pay within 14 days the Council could apply to the County Court to register the charge, following which the Council could recover the amount due. It said that would result in an additional charge of £9 and ultimately, if the charges remained unpaid, a warrant could be issued to enforcement agents to recover the debt. It explained that would result in additional costs.
12. Mr B made two lots of further representations to the Council in October. The Council responded to both letters and in its final correspondence on 10 November the Council told Mr B again that it would not withdraw the penalty charge notice. The Council said although Mr B had £195 to pay the Council would accept £130 if paid within 14 days. When the Council did not receive payment it referred the case to the TEC for an order to recover a penalty charge. The TEC granted that order.
13. The TEC then sent Mr B an order for the recovery of unpaid penalty charge. That order said Mr B needed to pay £204, which included the court registration fee, by 23 March 2023. The letter explained he must either pay by that date or file a statement if he felt he had grounds for not paying the charge. The letter warned him if he did nothing his possessions could be removed and sold to pay the charge.
14. In June 2023 the TEC authorised the Council to issue a warrant to recover the amount owed. The Council passed the case to the enforcement agent on 21 June.
15. On 11 July a bailiff visited Mr B’s property. Mr B contacted the Council the same day to raise concerns about the Council’s failure to respond to his correspondence. Mr B asked the Council to put the case on hold. The Council told Mr B it had followed the right process and it was too late to challenge the penalty charge notice any further. The Council said it would not put enforcement action on hold. The Council suggested Mr B contact the bailiff to agree a payment plan.
16. Mr B contacted the Council again to ask it to put the recovery on hold. The Council said it would only do that if it received notification the TEC had received an out of time witness statement and only until the TEC decided whether to accept it.
17. Mr B filed an out of time application with the TEC on 9 August. On 1 September the Council told Mr B it had put enforcement action on hold pending the outcome of that application.
18. On 24 October the TEC refused leave to file the statutory declaration. The Council wrote to Mr B on 7 November to tell him bailiff action would continue unless he paid within 14 days.
19. On 14 December the Council placed the case on the breathing space scheme which meant recovery action was on hold for 60 days.
20. On 19 December Mr B put in a complaint about the behaviour of the bailiffs on 11 July. Mr B also raised concerns about not receiving a letter before the bailiff visit which incurred additional costs. Mr B raised concerns about the bailiff clamping his vehicle on a neighbouring property.
21. The Council responded to the complaint on 16 January 2024. The Council said it had viewed the body worn video evidence and considered the account provided by the enforcement manager. The Council said the video evidence did not show the bailiff to be confrontational or aggressive and it did not consider the language the bailiff used offensive. The Council noted the bailiff had stopped using a word Mr B had raised concerns about when he asked it to. The Council explained it had not upheld the complaint.
22. In January 2024 the bailiff also wrote to Mr B following a complaint direct to it. The bailiff removed the enforcement fees as a gesture of goodwill.
23. Mr B asked the Council to take the complaint to stage two as he was not happy with the Council’s response. Mr B asked the Council to put recovery of the debt on hold. The Council agreed to do that on 8 April. The Council then responded to the complaint at stage two on 17 May. The Council did not uphold the complaint.
24. On 25 June the Council wrote to Mr B to explain it had asked for the warrant of control to be returned as it had expired. The Council explained there would be no further action from the enforcement agent and the payments previously made had been accepted and the case was closed. By that point Mr B had paid £124 as part of a payment plan with the bailiffs.

Analysis

25. Mr B says the Council should not have referred his case to the bailiffs when he had raised questions and the matter was under investigation. The evidence I have seen satisfies me the Council followed the right process before it referred the case to the bailiffs. That included letters to Mr B on 23 August, rejecting his representations, the charge certificate issued on 29 September and further letters from the Council on 23 October and 10 November. In all those letters the Council explained it had not changed its view that Mr B should pay the penalty charge notice. Those letters also informed Mr B of the consequences of not making payment as well as telling him about his right of appeal.
26. I am satisfied the Council did not refer the case to the bailiffs until June 2023 as it had still received no payment from Mr B. Given the amount of correspondence between the Council and Mr B and the fact he had not made any payment despite repeatedly being asked to do so I cannot criticise the Council for referring the case to the bailiffs. I am satisfied the Council gave Mr B every opportunity, and more opportunities than the process allows, to pay the penalty charge notice and avoid bailiff action.
27. I appreciate Mr B says he responded to the Council’s letter of 10 November 2022 and asked it further questions. Mr B says because he had not received a response the Council should not have referred the case to the bailiffs. I have seen no evidence of any communication from Mr B to the Council following its letter of 10 November 2022. In that letter the Council explained it had agreed to reduce the costs to £130 if Mr B paid within 14 days.
28. I am satisfied by that point though Mr B had run out of opportunities to challenge the penalty charge notice and had not appealed. There was therefore no further opportunity for Mr B to continue to challenge. I am satisfied the Council had made clear if Mr B did not pay within 14 days of the November 2022 letter it would apply to the County Court to recover the full costs which would then lead to bailiff action. As there is no evidence Mr B paid the Council was not at fault for referring the case to the bailiffs.
29. Mr B says the Council failed to properly investigate his complaint about the actions of the bailiffs. Mr B says the Council failed to consider the audio/video evidence before it reached its decision.
30. The evidence I have seen satisfies me the Council watched the body worn video evidence and considered the account provided by the manager from the bailiff service. After watching the video evidence and considering the manager’s comments and the concerns Mr B raised the Council wrote to Mr B to explain why it did not consider the bailiff’s actions inappropriate. I recognise Mr B strongly disagrees with that view. However, as I am satisfied the Council reached that view after considering the body worn video evidence I have no grounds to criticise it.
31. Mr B says the Council delayed putting enforcement action on hold when he put in a complaint. Mr B says the Council only put the case on hold after the enforcement agent pressurised him into paying some money.
32. The first point to make here is that the Council is not required to put recovery of a debt on hold when it receives a complaint. The Council has discretion to do that but is not required to do so. In this case I am satisfied the complaint Mr B raised concerned the actions of the bailiff on a visit and whether the bailiff followed the right process before attending his property. I do not consider that complaint prevented the Council continuing to seek recovery of the penalty charge notice as that was still outstanding as Mr B had not appealed.
33. I am satisfied though the Council applied the breathing space scheme which meant bailiff action was on hold from 14 December 2023 for a period of 60 days. I am also satisfied the Council put the case on hold at Mr B’s request following his stage two complaint. As I have made clear, the Council is not required to put recovery action on hold pending the outcome of the complaint, particularly when the subject of the complaint is separate to the recovery of the penalty charge notice and costs. In those circumstances I have no grounds to criticise the Council.
34. I understand Mr B is concerned about having to pay the bailiffs £124 when he felt he was still challenging the outstanding charge. However, as I have made clear, Mr B had run out of opportunities to challenge the charge in 2022. Mr B has also paid considerably less than the £204 due because of the length of time the case has taken. Mr B has also not had to pay any of the enforcement costs as the bailiff cancelled those. I am therefore satisfied Mr B has received a significant financial remedy. That financial remedy likely exceeds what I would have recommended had I found fault. As I have made clear though, I have not found any evidence of fault in how the Council handled this case.

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Final decision

35. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman