The Ombudsman's final decision
Summary: Miss X complains about the Council’s handling following the issue of a Parking Charge Notice (PCN) and ignoring her vulnerability. The Council did not ignore Miss X’s vulnerability. The Council appointed Enforcement Agent did not follow procedures which was fault and caused distress to Miss X. The Council and Enforcement Agent’s apologies and refunds of the entire PCN fine and charges sufficiently remedy the injustice caused.
The complaint
Miss X complains about the Council’s handling following its issue of a Parking Charge Notice (PCN) to her on 26 October 2019. She says the Council ignored her requests to deal with recovery of the PCN fine internally when she told it she was vulnerable due to a disability. Miss X suffered significant distress when Debt Recovery Agents attended her property and inappropriately immobilised her motability vehicle. Miss X wants the Council to accept it did not follow the correct procedure when it transferred the debt to Recovery Agents and to acknowledge the distress it has caused.
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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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) 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 spoken with Miss X and considered the information she has provided in support of her complaint.
I have considered the information the Council has provided in response to my enquiries.
Miss X 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
Relevant guidance Penalty charge notices Where a council believes a moving traffic contravention has occurred, it may serve a Penalty Charge Notice (PCN) on the registered keeper of the vehicle.
The vehicle owner can appeal to the Council and if unsuccessful, to the Traffic Enforcement Centre (TEC).
The vehicle owner must appeal to the TEC within 28 days of receiving the Council’s decision but can ask for more time under certain circumstances. These include where the owner claims they were contacted about a PCN they did not know about. These are called ‘out of time’ challenges and they must be made to the TEC.
Councils will often use an enforcement agent to recover debt. Enforcement agents can charge fees for each stage of the enforcement process.
Taking control of goods and enforcement fees A council or enforcement agent must give a person notice of the warrant before a bailiff obtains goods. (Paragraph 7(1) of schedule 12 of Tribunals Courts and Enforcement Act 2007).
Notice of enforcement must be given to the debtor not less than seven days before the enforcement agent takes control of the debtor’s goods. Notice of enforcement must be given in writing. (Taking Control of Goods Regulations 2013 r.6 & 7) Enforcement agents may charge fees when carrying out enforcement action. To charge the compliance stage fee of £75 an enforcement agent must send a notice of enforcement seven days before trying to take control of goods. An enforcement agent may charge £235 at the enforcement stage, this stage starts once an agent has made a first visit to recover a debt. (Taking Control of Goods (Fees) Regulations 2014) Enforcement agents may recover fees from the debtor. Where the debtor is a vulnerable person, the fee due for the enforcement stage is not recoverable unless the agent has given the debtor an adequate opportunity to get assistance and advice in relation to the exercise of the enforcement power.
Vulnerable debtors The law does not define what a vulnerable person is. The Ministry of Justice has issued ‘Taking Control of Goods: National Standards’ (“the Standards”) which set out the responsibilities of creditors and agents.
The Standards say creditors should remember that agents act on their behalf and they are accountable for the agent’s actions. They must consider if the debtor is vulnerable and if so, agree clear protocols governing the approach the agent should take.
The Standards provide a list of examples of where a person may be vulnerable. This list is not exhaustive, and care should be taken to assess each situation on a case-by-case basis. The list includes: people with a disability the seriously ill unemployed people If an agent identifies a vulnerable debtor, they should alert the creditor and ensure they act in accordance with all relevant legislation. Agents should be aware that vulnerability may not be immediately obvious.
What happened This is a chronology of key events and does not include everything that happened.
On 26 October 2019, the Council issued a Penalty Charge Notice (PCN) for a parking offence to Miss X as the registered keeper of the vehicle. The PCN contained information about how to pay or challenge the PCN.
Miss X and her husband submitted challenges to the Council against the PCN In November 2019 and January 2020. Miss X’s challenge to the Council included a letter from the NHS (dated 2016) which confirmed her diagnosis of epilepsy. The Council rejected Miss X’s challenge at the end of January 2020 and invited her to either pay the PCN charge or appeal to the TEC. The Council issued a Charge Certificate to Miss X in mid-March 2020 because it had not received notification of a TEC appeal or payment of the PCN charge. The Council then issued an Order of Recovery to Miss X as it had still not received payment. It passed the outstanding PCN debt over to an Enforcement Agent (Company Z) in June 2020.
Miss X contacted the Council again in late August 2021. She told it she had not received a response to her appeal in January 2020 or any further reminders from the Council. Miss X also informed the Council she had moved address in November 2020 and would not have received any correspondence from the Council sent to her old address after this. She also mentioned her disability to the Council and asked it not to send recovery agents to her address due to her vulnerability. The Council confirmed it had updated Miss X’s address details and highlighted her vulnerability to the Enforcement Agent.
In October 2021, Miss X’s appeal to TEC was rejected and she asked the Council several times if she could deal directly with it rather than the Enforcement Agent as she was struggling financially and could not afford the extra charges that had been added to the PCN fine. The Council explained that the Enforcement Agent’s Welfare Team were available to assist Miss X if she was struggling to pay the outstanding PCN fine and added charges.
At the end of October 2021, a Bailiff working for the Enforcement Agent attended Miss X’s property while she was out. They sought to immobilise her vehicle by placing a warning sticker and wheel clamp. When the Bailiff realised Miss X’s car was a motability vehicle, they removed the clamp and left a letter for her about the outstanding debt.
Miss X complained to the Council about the Bailiff’s actions. She explained the sticker on her window had been extremely difficult to remove and had prevented use of her vehicle for a hospital appointment. Miss X also made a further appeal to TEC, which was rejected in May 2022. She made a full payment of the outstanding debt to the Enforcement Agent a few days after the appeal had failed.
The Council responded to Miss X’s stage one complaint on 17 May 2022. It explained that it considered it had followed the correct procedures in pursuing the PCN and advised Miss X to complain about the Bailiff’s action to the Enforcement Agent directly. Miss X remained dissatisfied with the Council’s response and asked to escalate this to stage two of its process.
The Enforcement Agent responded to Miss X’s complaint to it about the Bailiff at the end of May 2022. The Enforcement Agent agreed the Bailiff should not have stickered Miss X’s motability vehicle and offered to refund all of its fees (£310) attached to the PCN fine. The Enforcement Agent apologised to Miss X and said it would be providing feedback to the Bailiff involved.
The Council sent its stage two complaint response to Miss X on 18 July 2022. It apologised for the delay in responding. It noted the Enforcement Agent’s refund of charges to Miss X. While the Council considered it had acted correctly when issuing and transferring the outstanding debt to the Enforcement Agent, the Council offered to reimburse the charges it had attached to the original PCN fine of £110. The Council then ended up refunding the entirety of the remaining fine and charges (£173) to Miss X in August 2022.
Analysis Miss X’s complaint to us is about the Council ignoring her requests to transfer the debt back under its control due to her vulnerability. The Council was not at fault as it did respond to Miss X’s requests about this throughout October 2021. The Council’s decision not to transfer the debt back to its control was one it was entitled to make. The Council has explained to us that it felt the Enforcement Agent’s dedicated Welfare Team was better placed than the Council to assist Miss X if she was struggling to pay the outstanding debt. There are no grounds for me to criticise the Council’s professional judgement or decision in this respect as it was made without fault.
Miss X was no doubt distressed to find the Bailiff had placed a sticker on her vehicle which was difficult to remove and prevented her from using the vehicle temporarily. The Enforcement Agent and the Council have however since sought to remedy the distress this caused by fully reimbursing the PCN fine and associated charges to Miss X. Both the Council and the Enforcement Agent have also apologised to Miss X.
While it is disappointing to note the Council did not initially respond to Miss X’s complaint when it was made in early November 2021, I consider the steps it had since taken to apologise and fully refund the PCN fine and charges is an appropriate remedy for the injustice Miss X experienced.
Final decision
I have completed my investigation and uphold Miss X’s complaint. There was fault by the Council which caused injustice to Miss X. I am satisfied the Council has already taken appropriate action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman