Summary: Mrs F complained the Council failed to take into account her mental health condition when pursuing her for an unpaid parking fine. We have found fault as the Council does not have a specific policy on dealing with vulnerable debtors and in complaint handling which caused time and trouble to Mrs F. The Council has agreed to apologise for this and develop a policy. We have found no fault in the way the Council pursued the debt. Mrs F should make an arrangement with the enforcement agent to pay the debt.

The complaint

1. Mrs F complained the Council failed to take into account her mental health condition when pursuing her for an unpaid parking fine. She says the pressure has caused her to feel overwhelmed and fearing a relapse of her mental health.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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)

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How I considered this complaint

5. I considered the Council’s response to my enquiries, including recordings of calls between Mrs F and the enforcement agent, and:
• Statutory guidance for local authorities on the civil enforcement of parking contraventions
• ‘Taking Control of Goods – National Standards’, published by the Ministry of Justice in 2014 (“the Standards”)
6. Mrs F and the Council 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

Enforcement of penalty charge notices

7. The procedure for issuing and enforcing a penalty charge notice (PCN) is set out in Regulations and the Traffic Management Act 2004.
8. On receipt of a PCN motorists can pay a reduced penalty if they pay within 14 days. If the person does not agree with the PCN they can make an informal challenge within 28 days of the PCN’s issue. If the challenge is successful, the council will cancel the PCN. If the council rejects the challenge, it should give the person a further opportunity to pay at the reduced price and may issue a Notice to Owner (NtO) if it is not paid. The NtO gives the vehicle owner the right to make formal representations to the council. Formal representations must be received within 28 days of the date of the NtO.
9. If the council rejects the formal representations then it should tell the person they have a right of appeal to a parking adjudicator - the Traffic Penalty Tribunal - which can cancel the PCN if one of the statutory grounds are met. Where a contravention has taken place but the Tribunal considers that the council should have used its discretion to cancel the PCN, it may refer the case back for the council to reconsider.
10. If there is no appeal to the Tribunal, a council may serve the owner with a charge certificate. Where the owner fails to respond to the charge certificate, the debt is registered with the Traffic Enforcement Centre (TEC) at Northampton County Court and a notice of registration is served. The owner can either pay, send a witness statement to the court asking to revoke the registration, or not respond. The grounds on which the owner can make a witness statement to the TEC are:
• They did not receive the Notice to Owner/PCN;
• They made representations about the penalty charge to the enforcing authority within 28 days, but did not receive a response;
• They appealed against the council’s decision to reject their representation within 28 days but did not receive a response to their appeal; or
• They have paid the penalty charge in full.
11. The county court will authorise the council to draw up an order for recovery. If the owner fails to respond to the order within 21 days, a council can ask the court for a warrant of control instructing an enforcement agent (bailiff) to recover the debt. Enforcement agents add their own fees to the penalty charge as laid down in the 2014 Fees Regulations.
12. Councils have a discretionary power to cancel a PCN at any point throughout the process. They can do this even when a contravention has occurred. Councils have a duty to act fairly and proportionately and are encouraged to exercise discretion sensibly and reasonably and with due regard to the public interest.

Vulnerable debtors

13. There is no set definition of what a vulnerable debtor is but the Standards say it includes those who, for reason of age, health or disability, are unable to safeguard their personal welfare or the personal welfare of other members of the household. Disability is defined in the Disability Discrimination Act 1995 as a person who has a ‘physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities’.
14. The Standards say agents and councils must recognise they each have a role in ensuring the vulnerable and socially excluded are protected and the recovery process includes agreed procedures about how situations that arise should be dealt with. If necessary, councils should be prepared to take control of the case at any time.
15. The agent has a duty to contact the council and report the circumstances where there is evidence of a potential cause for concern.
16. An agent may not take control of goods if the debtor is a vulnerable person and they are the only person present.
17. The Fees Regulations say bailiffs may recover fees from the debtor. Where a debtor is vulnerable, the enforcement fee is not recoverable until the bailiff has, before taking control of goods, allowed him or her to have an adequate opportunity to get help and advice. (paragraph 12 Taking Control of Goods (Fees) Regulations 2014)
18. In Redbridge, the enforcement agent’s vulnerable persons policy says if vulnerability is identified it will put the case on hold and seek evidence to determine if the debtor is long or short term vulnerable or is not evidenced as vulnerable. If no evidence is received, and the Council does not consider the debtor is vulnerable, the agent will continue with enforcement action.

Complaints

19. The Council has a two-stage corporate complaints process. Its complaints policy does not exclude consideration of complaints about PCNs although it cannot consider issues which are appealable.

What happened

20. Mrs F has a mental health condition. The Council issued a PCN to Mrs F in October 2020 for parking without payment. Mrs F’s support worker from a local charity (Ms X) made an informal challenge on 15 October. Ms X said that Mrs F could not pay for parking as the ticket machine was broken and she had been unable to use her mobile phone. She attached a photograph showing that the machine was out of order.
21. The Council rejected this challenge on 6 November. It said if the machine was not working, an alternative method of payment must be used such as via an app on a mobile phone. It said Mrs F could pay the PCN or appeal after she had received the Notice to Owner. Mrs F did not pay, so the Council sent the Notice to Owner on 1 December 2020.
22. Ms X wrote again to the Council on 23 December. She said she was making formal representations about the PCN that it was not reasonable for Mrs F to have paid for parking as the machine was broken and she was unable to use her mobile phone. Ms X asked the Council to take these circumstances into account as they were not one of the statutory reasons available to the Tribunal to cancel a PCN. I have seen evidence that the Council did not receive this letter until 7 January 2021, after the 28-day deadline. It therefore did not issue a rejection notice.
23. As there had been no appeal to the Tribunal, the Council issued a charge certificate in January 2021 confirming the charge had increased to £90. The Council then replied to Ms X on 24 January. It agreed to reduce the charge to £30 as a gesture of goodwill. Ms X and Mrs F did not reply.
24. The Council issued a reminder giving 21 days to pay £90. On 17 February 2021 it issued a final reminder which said that if the amount was not paid the Council would register the debt at the court. There is evidence from Ms X that the Council agreed to extend the deadline to pay £30 until 27 February though I have not seen that correspondence. The Council also says it gave Mrs F the opportunity to set up a payment plan and pay £5 a week to clear the debt of £30 but it has not sent evidence of this.
25. Mrs F did not pay either £90 or £30, so the Council applied to the TEC to register the debt. The court made an order for recovery and the Council advised Mrs F of this on 21 April 2021. It said she had 21 days to pay or make a witness statement.
26. When it had no reply from Mrs F, the Council applied to the TEC for a warrant of control. This enabled the Council to take recovery action using enforcement agents. It sent the account to its enforcement agent.
27. The enforcement agent added a compliance fee of £75 and sent a Notice of Enforcement to Mrs F on 8 May 2021. This explained the fee that the agent had added and warned about other potential fees.
28. Mrs F contacted the agent on 24 May. The notes taken by the agent show it advised Mrs F that it could not put enforcement on hold unless instructed to do so by the TEC. I have listened to this call and consider there is some confusion between Mrs F and the agent about whether she has appealed or will appeal to the TEC. Ms X tried to speak to the agent, but it had no authorisation from Mrs F to deal with her. It advised Mrs F to speak to the agent, as the case had been allocated for an enforcement visit. An agent then visited Mrs F on 6 July and enforcement fees of £235 were added.
29. Ms X contacted the agent but was again unable to discuss the case with them. She then emailed on 15 July asking for enforcement to be put on hold due to Mrs F’s vulnerability and mental health condition.
30. Mrs F called the agent on 16 July. She said she was appealing the PCN, but the agent said it had no information about this. Mrs F gave the agent verbal authority to liaise with Ms X on her behalf. A few days later Mrs F called again. She said the agent had told Ms X it had put enforcement on hold for 30 days and that they were appealing to the Council about the PCN. The agent said it had not put the case on hold, did not deal with appeals and that Mrs F needed to speak to the Council.
31. Ms X wrote to the Council on 22 July. She asked the Council to again reduce the charge. She said Mrs F’s mental health had relapsed and she had been unable to deal with the PCN. The letter said that medical evidence of this was attached but in response to my enquiries the Council said it did not have the attachment. I have seen no evidence the Council queried the lack of attachment with Ms X, considered whether Mrs F was vulnerable or advised the enforcement agent that Mrs F was vulnerable.
32. On 26 July the agent actioned Ms X’s earlier email. It found the written authorisation had not been attached, so asked Ms X for this. Once received, it put the enforcement on hold for 28 days (i.e. until 27 August). It replied to Ms X but does not keep copies of these letters, so I have been unable to review it.
33. The Council wrote to Mrs F saying she had to liaise with the agent. In response, Ms X replied that the agent had advised they needed to contact the Council. The agent sent a final notice on 27 August and a letter on 6 September advising an agent would visit.
34. On 16 September Ms X asked the agent for a copy of its 26 July reply. The agent’s records are unclear here. The case notes contain a reply saying it had previously informed Ms X that it had put the enforcement on hold to allow time for Ms X to work with Mrs F regarding her debt issues and vulnerability and that it had requested the following:
• “Doctor’s / Hospital letter detailing the symptoms/condition of person affected
• Income and expenditure information
• Documents supporting recent event
• Plus any other communication which may support extenuating circumstances.

In order for us to take into consideration any offer put forward, please fill in the attached income and expenditure form.

To enable the further information to be received by us we have temporarily suspended all action on your client’s account until 14th October 2021. Should you fail to support your claim then we will have no alternative but to proceed with our collection action.”

35. However, the copy of the 16 September letter to Mrs F asks only about the income and expenditure form. I have seen no evidence that Ms X or Mrs F sent any further information to the agent.
36. Mrs F complained to the Council on 13 October. She said she now had a blue badge but the Council had failed to take her vulnerability into account. Mrs F’s MP also wrote to the Council.
37. The Council replied on 18 October. It said it could not review the complaint as it had been dealt with “by two local councillors on two separate occasions and advised that you must deal direct with the enforcement agents to pay the outstanding balance.” I have seen no evidence of any involvement in the case by councillors or of any earlier complaint correspondence. Mrs F came to the Ombudsman.
38. Mrs F’s MP wrote the agent on 1 November. On 23 November the agent asked Mrs F to send evidence of her mental health condition.

My findings

39. The Council says it does not have a specific policy on recovering debt from vulnerable people. It said it deals with each case individually and looks at the evidence supplied and the circumstances. The Standards say councils should agree procedures about how situations relating to vulnerable debtors should be dealt with. I therefore find it is fault for the Council not to have a policy and procedure.
40. However, I do not consider this fault has caused any significant injustice to Mrs F as the enforcement agent had a vulnerable person’s policy to follow.
41. Mrs F complains the Council did not take into account her mental health condition.
42. Although there is a brief reference to Mrs F’s health in Ms X’s December 2020 letter, I have seen no evidence that the Council was aware of Mrs F’s mental health condition until Ms X’s letter of 22 July 2021. It is unclear whether the supporting evidence referred to in the letter was not attached or was lost by the Council. Either way, at this point the Council should have considered whether Mrs F was vulnerable (seeking further evidence as necessary) and alerted the enforcement agent. It could also have decided to take the debt back from the agent. I have seen no evidence it took these steps and I find this was fault.
43. However, I do not consider this caused injustice to Mrs F as Ms X had also written to the agent about Mrs F’s vulnerability, so it was aware and it then followed its own procedures.
44. There is some confusion as to whether the agent had supporting evidence from Mrs F about her mental health condition and whether this had been requested. Nonetheless, the agent held recovery action for 28 days as soon as it became aware of Mrs F’s potential vulnerability on 26 July 2021.
45. Mrs F’s mental health condition did not mean the agent could cancel the PCN or debt. The law says the agent is required only to give Mrs F time to seek advice. It did so before it took control of goods, which is in line with the Fees Regulations. I therefore do not find fault. The enforcement fee is therefore recoverable.
46. In response to my enquiries the Council said it had given Mrs F two opportunities to pay the reduced £30 charge within six weeks. It has only sent evidence of this being offered once in January 2021 and I have seen from Ms X that it extended the deadline to 27 February 2021.
47. Whilst I have found fault by the Council in not determining whether Mrs F was vulnerable in July 2021, I have found no fault in the process the Council or agent followed to recover the debt. Mrs F should now make an arrangement with the agent to clear the debt.
48. I consider the Council’s complaint response of 18 October 2021 to be poor. Whilst there is an appeal process to challenge PCNs, Mrs F’s complaint was about how the Council had considered her vulnerability and the Council could have considered whether to use its discretion to cancel the PCN. I have seen no evidence that Mrs F had received any previous responses from the Council about this complaint and I find it was fault for the complaint not to be dealt with. This caused time and trouble to Mrs F as she had to come to the Ombudsman to pursue her complaint.
49. Mrs F says she only stayed at the car park for five minutes, which was within a free period allowed. I have not investigated any complaint Mrs F may have about the issuing of the PCN. This is because the Traffic Penalty Tribunal considers parking and moving traffic offence appeals for all areas of England outside London. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal, unless we consider it would have been unreasonable to expect the person to appeal. As Mrs F asked Ms X to make formal representations, I consider it would have been reasonable for her to appeal to the Tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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Agreed action

50. Within a month of my final decision, the Council has agreed to apologise to Mrs F for the time and trouble caused by fault in complaint handling.
51. Within three months, the Council will review its debt recovery procedures to develop a policy for vulnerable debtors. It will report back to the Ombudsman with the outcome.

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Final decision

52. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman