The Ombudsman's final decision
Summary: Mr X complains the Council’s bailiffs should not have clamped his car for a parking debt, as the car was on a Hire Purchase Agreement. We have not investigated this further, as the question of how a Hire Purchase Agreement affects a bailiff’s ability to clamp a car is a complex legal area better to be determined by the Courts. However we have found fault with the Council for not being more proactive in determining ownership of the vehicle by contacting the finance company. The Council has accepted it was at fault. This fault caused no injustice to Mr X as his car was promptly unclamped and the debt was waived in full.
The complaint
Mr X complained about the Council’s actions after it issued him with a Penalty Charge Notice (PCN). He complained: bailiffs working for the Council illegally clamped his car, which was on a Hire Purchase Agreement at the time; bailiffs did not contact the finance company that leased the vehicle to Mr X to determine ownership of the car; and the bailiffs failed to consider the impact that clamping his car would have on his autism and tried to ‘use his disability against’ him.
Mr X said not having access to his car caused him distress and inconvenience.
What I have investigated I have investigated the following complaints: bailiffs did not contact the finance company that leased the vehicle to Mr X to determine ownership of the car; and the bailiffs failed to consider the impact that clamping his car would have on his autism and tried to ‘use his disability against’ him.
Please see the end of this decision statement for complaints I have not investigated.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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) 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) While we are not prohibited from deciding legal issues altogether, whether a complaint’s legal questions would be better determined by the Courts is a highly relevant consideration. (R (Piffs Elm Limited) v. LGSCO [2022] EWHC 1547 (Admin) (“Piffs Elm”) 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)
How I considered this complaint
I considered the information provided by Mr X, the Council and the bailiffs acting on the Council’s behalf.
I considered comments made by Mr X and the Council on draft decisions before making a final decision.
I considered our Guidance on Remedies .
What I found
Law and guidance Penalty Charge Notices If the Council believes a parking contravention has occurred, it may issue a Penalty Charge Notice (PCN).
If the keeper does not pay the PCN, the Council may send a Notice to Owner (NtO) to the address where the vehicle is registered. The keeper can then either pay the charge or make formal representations against it.
If the keeper does not appeal, or the appeal is unsuccessful, and still does not pay the charge, the Council can issue a charge certificate. If the charge remains unpaid, the Council can register the debt at the Traffic Enforcement Centre (TEC).
The TEC can issue an order of recovery allowing the Council to collect the debt. The keeper can make a witness statement to the TEC if their appeal meets certain criteria, including not receiving the PCN.
Taking Control of Goods Councils will often use enforcement agents (bailiffs) to recover debt. Schedule 12 of The Tribunals, Courts and Enforcement Act 2007 is the foundation legislation on this process. Paragraph 10 of the Schedule says, “An enforcement agent may take control of goods only if they are goods of the debtor.”
The Taking Control of Goods Regulations 2013, made under Schedule 12, provide detailed regulations around the activities of bailiffs concerning taking control of, and then the sale of, goods.
If someone fails to pay a debt after receiving a written warning from the bailiffs (the compliance stage letter), the matter will move to the enforcement stage. This is when a bailiff will visit the property to remove goods or place them under control for removal at a later date.
The legislation outlines goods exemptions surrounding vehicles which include Vehicles displaying a disabled badge Emergency vehicles Vehicles displaying a British Medical Association badge which is used by an on-call doctor.
The law sets out the fees a bailiff can charge when recovering debt. The fees relevant to this complaint are: The Compliance Stage - a bailiff must issue a notice of enforcement seven clear days before they take control of the goods. The fee for this stage is £75.
The Enforcement Stage - this stage starts once a bailiff has made a first visit. At this visit they can take control of goods. Once they have secured goods they must give the debtor a notice. The fee for this stage is £235.
Vehicles on Hire Purchase Agreements The ownership of goods on a Hire Purchase Agreement 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’ alongside that of the leasing company and so the debtor and leasing firm may be co-owners.
There are several legal cases deciding whether such goods can be taken into control by bailiffs. The findings are various and are currently all County Court cases, so none are binding in law.
If bailiffs take control of goods, which they then discover to be on a Hire Purchase Agreement, they may decide to release the goods, which should be done promptly. Or they may decide to make enquiries of the finance company to gain permission to retain possession. If they receive permission, they can remove and sell the goods, splitting the proceeds between the debtor and the lease firm.
If the finance company refuses permission for the bailiffs to sell the goods, these should be released as soon as possible. Delay in making these enquiries, or delay in releasing the goods if the lease firm refused permission, or the bailiffs decided not to proceed would be fault.
Reasonable adjustments The Equality Act 2010 places a duty on bodies that carry out a public function. It aims to ensure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
The duty is to make adjustments by taking steps to remove or prevent obstacles to accessing that service. If adjustments are reasonable, they must be made.
What happened Parking fine In December 2020 the Council issued Mr X a PCN for parking in a space without displaying a valid permit.
Mr X did not pay the PCN, so in January 2021 the Council issued Mr X with a NtO and then in February 2021, a charge certificate.
In March 2021 the Council sent Mr X a letter explaining it would register the debt with the TEC if the PCN remained unpaid. The letter explained this could lead to the court issuing a warrant for the debt. The debt remained unpaid, so the TEC issued an order for recovery.
In April 2021 Mr X signed a witness statement stating he did not receive the PCN. Records show the TEC received Mr X’s signed witness statement in early May.
In late May, the Council sent Mr X a new NtO. Mr X did not respond to this NtO or make payment, so in June 2021 it issued Mr X with a new charge certificate.
The debt remained unpaid, so in July 2021 the Council again wrote to Mr X, explaining it would register the debt with the TEC if it remained unpaid.
Enforcement stage The debt remained unpaid and so the Council registered the debt with the TEC and in September 2021 it passed the case to its bailiffs. The bailiffs wrote to Mr X at the compliance stage at the end of September. The letter warned Mr X that agents may visit and take control of his belongings if the debt remained unpaid.
Mr X did not pay the debt or contact the bailiffs. Therefore, in October 2021 bailiffs moved to the enforcement stage and visited Mr X. The bailiffs took control of Mr X’s vehicle by clamping it where it stood on the street. It did not remove the vehicle from this location.
On the same day the bailiffs carried out a search on Mr X’s car. The search showed it was on a Hire Purchase Agreement. The bailiffs did not contact the finance company associated with the Hire Purchase Agreement to seek permission to retain possession.
The vehicle stayed in the bailiffs’ control until 12 November 2021, when Mr X complained to the Council and asked it to unclamp his car, or he would obtain a court order.
Mr X said the bailiffs could not clamp the car as the Council did not have a warrant, but the evidence shows there was a warrant in place. The process for issuing a Magistrates Court Warrant of Control for a local taxation debt is different from the issue of a County Court warrant. Magistrates Court Warrants of Control will have a local authority internal reference and possibly a bailiff internal reference; they will not have a ‘warrant number’.
Mr X also said bailiffs could not clamp the car as it was on a Hire Purchase Agreement. The Council said in its response that it had the right to take control of the vehicle while it was on a Hire Purchase Agreement but not to remove it, which it had not. However the Council still asked the bailiffs to unclamp the car on the same day that it received Mr X’s complaint.
By this stage, the parking fine had increased to £423.00, due to the addition of court and enforcement agency costs. However, the Council decided to waive the fine and the additional fees which meant Mr X did not have to pay anything.
Mr X remained unhappy with the actions of the Council and its enforcement agents and complained to us.
Mr X’s further complaint to us was that the bailiffs failed to consider his disability when it clamped his vehicle. He was also concerned that the Council and bailiffs used ‘his disability against’ him.
In response to our enquiry letter the bailiff firm said they were not aware of Mr X’s disability as the Council did not inform them and when they checked the vehicle with the Driver and Vehicle Licensing Agency (DVLA) the vehicle was not registered as ‘disabled class’.
The Council said Mr X made it aware he had autism, however he did not explain why his disability put him at a disadvantage or explain whether he required any reasonable adjustments in place.
The bailiff firm said it checked the body-worn camera footage taken by the bailiffs who attended Mr X’s address and met Mr X’s relative. This footage showed the relative also did not mention Mr X’s disability.
My findings
Complaint 1b) failure to contact finance company The bailiffs had the right to clamp Mr X’s vehicle as they had a reasonable belief it belonged to him, and so was the goods of the debtor.
However once they became aware that it was on a Hire Purchase Agreement, they should have enquired with the finance company whether they had permission to retain possession.
The evidence shows this did not happen and the Council accepted its bailiffs could have ‘been more proactive’ in engaging with the finance company. This was fault but it did not lead to an injustice for Mr X, as his car was returned to him the same day as he complained.
Complaint 1c) impact of enforcement action on Mr X’s disability With regards to Mr X’s disability, there is no evidence to support Mr X’s claim that his disability was used against him. Mr X did not make the bailiffs aware he had a disability and he only raised it with the Council after bailiffs had clamped his vehicle.
Mr X did not ask for any reasonable adjustments and did not explain why he was at a substantial disadvantage compared with a non-disabled person. We can only look at how the Council considered making reasonable adjustments. As Mr X did not request reasonable adjustments for the Council to consider, I cannot find the Council at fault.
Final decision
I have ended my investigation and found fault not leading to an injustice.
Parts of the complaint that I did not investigate I have not investigated the following complaint: bailiffs working for the Council illegally clamped Mr X’s car, which was on a Hire Purchase Agreement at the time.
We have not investigated whether it was unlawful to clamp a car on a Hire Purchase Agreement, as this issue is better to be determined by the Courts than the Ombudsman, for reasons set out in paragraph 8 of this decision statement.
Investigator's decision on behalf of the Ombudsman