The Ombudsman's final decision
Summary: Miss B complained about the actions of bailiffs (acting on behalf of the Council) in collecting a parking debt. She said they clamped her car unlawfully, refused to accept payment by instalments or consider her if she was vulnerable. This caused her childcare and financial difficulties, along with significant distress and time and trouble. We found fault with the failure to accept the instalment plan or consider her vulnerabilities. We also found fault with the way the Council handled the complaint. But we consider the offer of £300 in addition to introducing new guidelines on payment plans is a reasonable and proportionate way of putting matters right.
The complaint
Ms B complained that when collecting a parking penalty debt on behalf of the London Borough of Hammersmith and Fulham (the Council), the Bailiffs: failed to make sufficient enquiries to establish if she was vulnerable; clamped her car and refused to remove the clamp even though it was under a finance agreement and not legally her property; refused to accept a payment plan; kept the car clamped for nine days until Ms B paid the debt in full; and communicated with her inappropriately via WhatsApp.
She also complained that the Council: handled her complaint poorly, delayed in dealing with it, did not keep in touch with her, sided with the enforcement agents and did not consider her points; and sent her correspondence for penalty notices from 2019 which the court had already dismissed.
These events caused Ms B significant distress, inconvenience and financial hardship.
The Ombudsman’s role and powers
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) We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended) 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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Bailiffs Bailiffs’ powers to seize goods are set out in the Tribunals, Courts and Enforcement Act 2007 (“the Act”). Schedule 12 of the Act provides a clear procedure for how bailiffs may take control of goods.
A bailiff can only take control of goods belonging to the debtor, which are on the debtor’s premises or on the highway.
The Ministry of Justice has issued ‘Taking Control of Goods: National Standards’ (“the Standards”) which set out the responsibilities of creditors and bailiffs. The Standards say: Bailiffs must act within the law at all times and cannot misrepresent their powers.
A bailiff must not take control or remove goods clearly belonging solely to a third party not responsible for the debt.
Bailiffs should have access to DVLA records if enforcing parking warrants. The DVLA records will show the registered keeper of a vehicle (who may or may not be the actual owner). A HPI check would also show if a vehicle is subject to a hire purchase agreement (a type of finance agreement where a person does not own the goods until they have mad the final payment).
Vulnerability A bailiff may not take control of goods if the debtor is a vulnerable person and they are the only person present.
The law does not define what a vulnerable person is. The Standards say: Creditors should remember that bailiffs act on their behalf and they are accountable for the bailiff’s actions. They must consider if the debtor is vulnerable and if so, agree clear protocols governing the approach the bailiff should take. Examples of a vulnerable debtor include someone who is seriously ill or disabled.
Bailiffs must not: Falsely imply action will be taken when it cannot legally be taken Falsely imply a course of action will ensue before it is possible to know whether such action would be permissible Falsely imply action has been taken when it has not Falsely imply a debtor refusing entry to a property is an offence If a bailiff identifies a vulnerable debtor, they should alert the creditor and ensure they act in accordance with all relevant legislation. Bailiffs should be aware that vulnerability may not be immediately obvious.
What happened Miss B owed money for an unpaid parking debt. The Council had passed the debt to the bailiffs in September 2021. On 1 October 2021 the bailiffs sent Miss B a Notice of Enforcement giving her 14 days to pay the outstanding debt. They did a DVLA check and established that she was the registered owner of the car.
On the 16 October 2021 they sent a second letter saying the case had now been progressed to the enforcement stage and incurred more fees. On 18 October 2021, two bailiffs visited Miss B’s property at 6 am and clamped her car which was parked outside, leaving a notice on the car saying the debt was now £513. They also did a finance check that morning and established the car was on a hire purchase agreement, which was due to finish in approximately six months’ time. The bailiffs said they tried to make contact with Miss B at the house but without success.
Miss B says they did not try to make contact with her and did the finance check after they had clamped the car.
Miss B contacted the bailiffs later that morning. She offered to make a part payment that day, and the balance on 27 October 2021. She said paying any more would cause her financial hardship. The bailiff refused to accept a payment arrangement saying he would only accept payment in full or he would tow the car away. Miss B said the car was on a hire purchase agreement, so the bailiff agreed not to tow it away but refused to remove the clamp until she paid in full.
Miss B complained to the bailiffs’ office. She again offered full payment by 27 October 2021. She said she had only just started a new job after being made redundant in the summer and had not yet received any pay. She said her partner and her mother also used the car to get her child to childcare and to work. She said if the car remained clamped it would affect her earnings as she would have to seek additional childcare and she would be late for work. The office said the bailiff was there to get payment in full, not to make a payment arrangement and it would respond to her complaint.
On 23 October 2021 Miss B again offered to make a payment of £300 with the balance on 27 October 2021. The bailiff refused. Miss B paid the debt in full on 27 October 2021 and the bailiff unclamped the car.
The Bailiffs responded to Miss B’s complaint on 2 November 2021. They did not uphold it, saying the bailiff had acted appropriately and was not obliged to accept a payment arrangement because Miss B had not responded to the initial letter, and she was not considered to be vulnerable. They said the bailiff was entitled to clamp the car even though it was on a hire purchase agreement, because she may have had a beneficial interest in it due to the payments already made.
Miss B remained unhappy and complained further including a complaint that the bailiff had communicated with her inappropriately by WhatsApp. The Bailiffs responded to this and said the bailiff was entitled to communicate via this media but apologised if it had upset Miss B.
Miss B had also complained to the Council about the actions of the bailiffs. The Council said on 12 November 2021 that the bailiffs would be responding. Miss B chased the Council five times during December 2021. On 30 December 2021 the Council said the bailiff’s actions were lawful but the Council had made a number of recommendations regarding accepting payment by instalments. Miss B replied stating that she had missed a morning of work for five consecutive days due to the car being clamped. She incurred further costs making additional childcare arrangements and using public transport to get to work.
On 5 January 2022 the Bailiffs sent a further response. They maintained their view that the bailiff did not act incorrectly in not accepting payment by instalments. But after discussions with the Council, it had introduced new guidelines meaning bailiffs will have to accept payment plans if specific conditions are met.
Miss B remained unhappy with the response and pursued the complaint. The Bailiffs sent a stage two responses upholding their position at stage one.
Miss B complained in February 2022 that the Council had sent her paperwork relating to an unconnected debt which she had successfully appealed against in 2019. The Council said her complaint had been closed in November 2021.
The Council sent a further response on 25 February 2022. It said the Bailiffs had enforced the warrant in accordance with the legal guidelines. It said that while Miss B had offered to make a payment, she then later refused to pay at all. The Council directed her to the Bailiffs’ complaints procedure. It agreed that the WhatsApp communication had been inappropriate and had advised the Bailiffs of this. It partially upheld her complaint due to the Bailiffs failure to consider Miss B’s offer to pay by instalments and the inappropriate WhatsApp communication.
The Bailiffs responded for a third time in early March 2022. It accepted that the bailiff had not taken time to explore Miss B’s potential vulnerability or allow her a short period of time as requested to pay the outstanding debt. The Bailiffs offered her £300 together with a formal apology. They also said that as a result of her complaint they would not consider payment arrangements where appropriate even after the compliance period had expired.
Miss B then complained to us. In response to my enquiries the Council said: ‘The vehicle remained on clamp to ascertain the type of finance on the vehicle and Equity. We also do clamp to ascertain payment. Payment was received on the case on the 27/10/2021 and the clamp was then removed from the vehicle.’
In respect of the payment plan it said the bailiff could have been ‘a bit more open’ to a payment arrangement in this particular case. It had put the following new guidelines in place where a bailiff should accept a payment arrangement: The person has a single warrant against the Council.
They are offering a 50% down-payment on the day.
They have some financial difficulties due to childcare, vulnerability, Covid impact etc.
They would like a payment arrangement on the remaining balance.
The bailiff who had clamped the vehicle and refused to accept the two payment instalments, said: ‘Due to [Miss B’s] attitude I got the impression she would avoid payment or hide the vehicle if I released it without [Payment In Full]’.
Analysis The Council was entitled to refer the debt to the Bailiffs as Miss B had not paid the outstanding charge. The Bailiffs acted correctly in sending Miss B a notice of enforcement, giving her 14 days to get in touch about payment. As Miss B did not respond it correctly moved to the enforcement stage. I have not found fault here.
The Council believes the Bailiffs were entitled to clamp the car even though it was on a hire purchase agreement, due to the question of a possible beneficial interest. We have in the past questioned this practice as the car is not owned by the debtor until the final hire purchase payment is made. However, we recognise that this is an unclear area of law and consider the courts are best placed to decide whether or not it is lawful. So, I have not reached a view on the whether the bailiff should have clamped the car in this case.
I consider the bailiff was at fault for flatly refusing to accept or even consider Miss B’s offer to pay in two instalments. Her offer was reasonable and would have cleared the debt within nine days. There is no evidence to support the bailiff’s view that Miss B would avoid payment or hide the car.
The bailiff made no enquiries as to any financial, childcare or other difficulties Miss B would experience without the car or by paying in full. This was further fault as the bailiff is required to assess any vulnerabilities the debtor may have. I welcome the Council’s introduction of new guidelines to ensure this requirement is considered more thoroughly in the future.
The Council’s approach to the complaint handling was confusing because it had referred Miss B to the Bailiff’s own complaints procedure at the same time as responding to the issues itself. It would have been clearer and perhaps more effective for the Council to direct the customer to the Bailiff’s complaints procedure and only intervene once this has been exhausted.
The Council was also at fault for failing to respond to Miss B at all between mid-November and the end of December 2021 and then saying in February 2022 that the case had been closed in November 2021.
I understand Miss B has experienced distress, frustration and time and trouble in pursuing the matter. I also note she says she is now in debt due to the actions of the Bailiffs. However, I consider the offer of £300 and the improved procedures for the future is an adequate way for resolving the complaint and is in line with our Guidance on Remedies.
There are clearly consequences to not paying outstanding debts which result in additional costs, increasing the debt. While I have found fault with some of the actions of the bailiff, I consider £300 is a reasonable contribution towards the extra costs Miss B incurred during that nine-day period.
Final decision
I have completed my investigation as I consider the Council has taken sufficient action to put right the injustice caused to Miss B.
Investigator's decision on behalf of the Ombudsman