Summary: The Council failed to deal effectively with Mr B’s complaints about an enforcement agent collecting on its behalf. As a result, Mr B’s work vehicle was clamped for longer than it should have been, and he was caused distress and frustration. The Council has agreed to apologise to Mr B, review its complaint handling, ensure staff understand the Council is responsible for enforcement agents collecting on its behalf, and pay Mr B in recognition of the injustice he suffered.

The complaint

1. Mr B complains about how the Council and its enforcement agent dealt with the enforcement of an unpaid Penalty Charge Notice (PCN). In particular he says:
• The Council’s enforcement agent unlawfully clamped his work vehicle. The Agent would not discuss the situation with him or his proposal to pay by instalments. The Agent would not accept evidence that the vehicle was used for work and remove the clamp. The Agent entered Mr B’s home without his permission, searched it and started to seize goods belonging to Mr B’s child; and
• The Council itself did not deal with Mr B’s complaint about the Agent’s actions in accordance with its procedure. It failed to help or intervene in any way when the Agent and the company the Council contracts with refused to deal with him.
2. Mr B says that the actions of the Council and its Agent has caused him loss of earnings because he could not use his work vehicle, and put him to significant trouble and expense because he had to make a complaint to the Court about the agent’s actions. Mr B says he and his family were caused distress and frustration by the Agent’s actions and the Council’s failure to properly deal with his complaint.

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What I have investigated

3. I have not looked at the Agent’s actions. This is because Mr B started court action about this. I have set out below why I cannot investigate this.
4. Although I cannot look at the Agent’s actions, I have investigated how the Council and the enforcement company dealt with the situation when Mr B asked it to intervene and when he complained to them. At the heart of Mr B’s complaint is how the Council supervises its contractors and those acting on its behalf.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). The events complained about date back to April 2018. However, I have exercised discretion to investigate this complaint because Mr B was pursuing matters with the Council and the court.

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The Ombudsman’s role and powers

6. 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)
7. If we are satisfied with a council’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)
8. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

9. I considered the information provided by Mr B and discussed the issues with him. I considered the information provided by the Council and the Enforcement Company working on its behalf. I also considered the law and the government guidance referred to below. Both parties had the opportunity to comment on a draft of this statement. Both confirmed that they had no comments to make and accepted the recommended remedy.

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What I found

The law, government guidance and the Council’s policy and procedures

10. The Council uses an Enforcement Company (the Company) to collect certain debts including unpaid PCNs. 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)
11. The law allows an enforcement agent to take control of a debtor’s goods and sell them to pay the debt. The law also makes some goods exempt so the agent cannot take control of these. Exempt goods include tools, equipment and vehicles used personally by the debtor for their employment.
12. The Government has issued guidance called Taking Control of Goods: National Standards. This says ‘Creditors should remember that enforcement agents are acting on their behalf and that ultimately, they are responsible, and accountable, for the enforcement agents acting on their behalf.’
13. The Company and the Council’s complaints procedures both say it aims to resolve complaints within ten working days and if it takes longer, it will contact the debtor with an expected response time.

What happened

14. Mr B stopped in a box junction in April 2017. The Council issued a PCN in May 2017. Mr B challenged this but, following its usual process, the Council rejected the challenge and notified Mr B that he should now pay the PCN.
15. The Council did not hear from Mr B and so it issued a Charge Certificate in July. Mr B wrote to the Council to ask to pay by instalments as he was in receipt of benefits. The Council replied, asking for proof of Mr B’s benefit entitlement. Mr B did not receive this letter. The file shows the letter was properly addressed and Mr B had received other mail the Council had sent to him at this address. There was no reason for the Council to suspect Mr B had not received this letter and so it was not fault for the Council to continue with its enforcement process.
16. It passed the matter to the Enforcement Company to collect the unpaid PCN in March 2018. On 17 April 2018, an Enforcement Agent working on behalf of the Company visited Mr B at home and clamped his works van. Mr B complained to the Agent that he could prove this was his works vehicle and so should be exempt. The Agent would not allow him to submit his evidence. Mr B says the Agent also refused to give him details of his certification and told him to contact the Company with any questions. The Company told him to call the Agent.
17. Mr B complained to the Company on 20 April 2018. Mr B followed that up with calls to the Company.
18. Mr B complained to the Council on 23 April. He asked it to tell the Agent to remove the clamp. The Council should have responded within ten working days, but took over a month. It told Mr B that he should direct his complaint to the Company, but that it appeared the Agent had acted within his remit.
19. In the meantime, the Company had responded to Mr B’s complaint to it. It said it cannot say whether the vehicle is used for his work, but did invite him to submit evidence of this. He did this on the same day, 18 May.
20. Mr B wrote to the Council on 4 June. He told it he had already complained to the Company, but it had not resolved matters. He also pointed out that the Council could not say the Agent acted within his remit if it had not investigated this. I agree that this was fault by the Council and should not have been included in its complaint response.
21. Mr B also told the Council that he had made an application to the court about the Agent’s conduct. He reminded the Council that it was responsible, and accountable for the Agent working on its behalf. Mr B sent the Council proof that the clamped vehicle was a tool of the trade. Mr B told the Council that he could not work without his van, that he was now using his overdraft facility and was being charged, and that he had to go to food banks to feed his family.
22. The Council did not register this letter as a complaint as it should have done, and it filed its response rather than send it to Mr B. This says again that the Council cannot intervene, and he should take this up with the Company.
23. On 8 June, the Agent visited Mr B’s property again. He says the Agent refused to remove the clamp, he forced entry to the house and started to seize his young son’s property. The Police attended and made sure the Agent did not leave with the goods and that the Agent removed the vehicle clamp. Mr B made a partial payment but could not afford the whole amount.
24. On 1 August 2018, the court ordered that the Agent’s certificate be cancelled, and that he surrenders it to the court.
25. Mr B asked the Company to refund the amount he paid. The Company also offered him £100 as a gesture of goodwill. The Council reviewed the situation and asked the Company to consider Mr B’s loss of earnings. The Company has asked Mr B to submit information about this, but he would prefer to deal with the Council as he holds its responsible for what happened.
26. In response to my investigation, the Company has acknowledged that it should have handled Mr B’s complaint to it better. It did not request body camera footage despite this being available and it did not ask the Agent for a full statement of what happened. It also accepts that it did not ask Mr B to submit the evidence he had about event, that it did not address all of his complaint and that it should have upheld parts of this.
27. The Council’s files include a case note entry from an officer, wrongly stating that the Council is not legally responsible for the Agent’s actions. The officer had checked this with a colleague.

Was there fault by the Council or those acting on its behalf? How did this impact on Mr B?

28. There was fault by the Council and the Company acting on its behalf, in how it dealt with Mr B’s complaints to them both.
29. The Company has accepted that its investigation was inadequate and took too long. If it had accepted Mr B’s evidence, it is likely the clamp could have been removed earlier. In addition, the Company could have intervened when it understood the Agent was refusing to deal with him, without Mr B having to formally complain to it.
30. The Council was right to direct Mr B to the Company in the first instance. That is in line with its normal process. However, it took too long to tell him this, especially as the van was still clamped at that point and so the injustice to Mr B was ongoing.
31. As soon as the Council understood that Mr B was getting no resolution from the Company (ie 4 June), I would have expected the Council to at least check the situation with the Company and take action if necessary. There is no evidence on the file to suggest it did this. By this stage both the Council and the Company had proof that Mr B’s van was a tool of his trade and so should have been exempt. The Council could have intervened directly or instructed the Company to do so.
32. The Council also accepts that it did not respond to Mr B’s initial complaint to it.
33. The Council’s actions, and those of the company acting on its behalf meant that the vehicle clamp was left on longer than it needed to be. This no doubt affected Mr B’s ability to work. The poor responses to his complaints, the Council’s seeming failure to consider that it was responsible for the Agent’s actions and its lack of intervention also caused Mr B frustration and distress.

Agreed action

34. The Council has apologised to Mr B for not responding to one of his complaints and has put in new measures to make sure this does not recur. It has also cancelled the PCN.
35. The Company has reviewed how it handles complaints and has given specific instructions that body camera footage should be used to investigate complaints, and where this is not available the officer should get a full statement from the Agent. The Company has refunded the money paid under the PCN and has also offered a payment of £100.
36. The Council instructed the Company to get evidence of Mr B’s financial losses brought about by his inability to work. Mr B has said he wants the Council to deal with this as it is ultimately the Council’s responsibility.
37. 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 Company, I have made recommendations to the Council. The Council can ask the Company to take this action and to make any payments on its behalf, but it must retain oversight of this and overall responsibility to make sure the actions are completed.
38. In order to remedy the injustice to Mr B, the Council has agreed it will within a month of this decision show the Ombudsman it has:
• Apologised to Mr B for failing to intervene sooner and failing to respond in good time to his complaint.
• Shared this decision with relevant staff.
• Reviewed how it handles complaints about enforcement agents so that it retains overall responsibility. This should include consideration of whether and when the Council should intervene.
• Ensured relevant staff understand that the Council retains responsibility for the actions of the Enforcement Company and the Agents themselves.
• Paid £350 to Mr B (in addition to the payment the Company has already offered him), in recognition of the time and trouble he has been put to and the distress caused to him.
39. The Council has asked the Company to deal with compensation for Mr B’s loss of earnings and other financial losses. This is a reasonable approach provided that the Council retains oversight and ensures the payment is made within six weeks of Mr B submitting the necessary information to the Company.

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Final decision

40. I have completed my investigation. There was fault by the Council and Mr B suffered injustice as a result.

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Parts of the complaint that I did not investigate

41. The law says we cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended). Mr B made a complaint to the court about the Agent’s actions. The court ordered the Agent to surrender his certificate. This means we cannot investigate the Agent’s actions.

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Investigator's decision on behalf of the Ombudsman