Summary: Mr X complained that enforcement agents acting on behalf of Transport for London failed to follow correct procedures when visiting his home to enforce a warrant for an unpaid penalty charge notice causing him and his family distress and inconvenience. We found there was some fault in the way the enforcement agents handled the matter. Transport for London has agreed to apologise to Mr X for the distress caused.

The complaint

1. Mr X complains that enforcement agents acting on behalf of Transport for London failed to follow correct procedures when visiting his home to enforce a warrant for an unpaid penalty charge notice causing him and his family distress and inconvenience. Mr X also says Transport for London and its agents failed to properly respond to his complaints.

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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 significant injustice, or that could cause injustice to others in the future 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, sections 24A(1)(A) and 25(7), as amended).
4. 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)

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How I considered this complaint

5. I have considered all the information provided by Mr X, made enquiries of Transport for London and considered its comments and the documents it provided. I have also considered the body worn video footage of the enforcement agent’s visit in September 2023 and Mr X’s video of the agent’s visits in January 2024.
6. Mr X and Transport for London had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

The Congestion Charge scheme

7. The Congestion Charge scheme in London requires vehicles which enter or are on the public highway in the charging zone during hours when it is in operation to purchase a licence. Failure to do so will lead to the issue of a penalty charge notice (PCN). The scheme is administered by Transport for London (TfL).
8. If the recipient of the PCN fails to pay, TfL may apply to the Traffic Enforcement Centre (TEC) to register the debt with the court. If the keeper of the vehicle believes TfL has failed to follow the proper process in pursuing payment for the PCN, they can make a statutory declaration to the TEC. If the keeper fails to make their declaration in time, they may ask the TEC to consider a late application.
9. If the debt remains unpaid and no statutory declaration has been made, TfL may apply to the TEC for a warrant of execution which it may pass to enforcement agents to recover the amount owing. The enforcement agents may recover their own costs, as laid down in the Regulations.

Enforcement agents

10. The main legislation governing enforcement agents is the Tribunals, Courts and Enforcement Act 2007 (‘the Act’) and The Taking Control of Goods Regulations 2013 (‘the Regulations’).
11. In 2014 the Government issued guidance for enforcement agents and creditors entitled Taking Control of Goods: National Standards (‘the guidance’).
12. The guidance says that, where enforcement agents have identified vulnerable debtors or situations, they should alert the creditor and ensure they act in accordance with all relevant legislation.
13. The guidance states that a debtor may be considered vulnerable if, by reason of age, health or disability, they are unable to safeguard their personal welfare or the personal welfare of other members of the household. It lists groups of people who might fall into this category but states that this list is not exhaustive and care should be taken to assess each situation on a case-by-case basis. The list includes:
• the elderly;
• people with a disability;
• people who are seriously ill;
• single-parent families;
• unemployed people;
• people whose first language is not English.
14. The Enforcement Conduct Board has also issued guidance for enforcement agents.

Key facts

15. In April 2023 TfL issued Mr X with a PCN for travelling into the congestion charge zone. The TEC issued an order for recovery in July 2023 and TfL then issued a warrant to its enforcement agents, Company Y, to recover the debt.
16. An enforcement agent visited Mr X on 13 September to recover the debt. He offered Mr X the opportunity to pay the PCN and fees in full otherwise his car would be removed. Mr X declined saying he had appealed. The agent clamped Mr X’s car and contacted his office to check the value of the vehicle. He also contacted the recovery truck. Mr X refused to pay until the recovery truck arrived. However, the agent was unable to get the vehicle recovered because Mr X could not provide documents relating to the car as they were in another of his vehicles which was being repaired. The agent removed the clamp before leaving the premises.
17. After the agent’s visit, Mr X telephoned Company Y saying he was not happy dealing with the agent and wanted to speak to a manager. When the manager returned his call, Mr X said he wanted an arrangement to pay by instalments. The manager advised that the time to pay by instalments had passed and payment in full was required. Mr X said he would seek legal advice.
18. Mr X also telephoned TfL explaining he had submitted representations via their website. The officer informed Mr X that no representations had been received and advised him to speak to the enforcement agent or contact the TEC to see if there were grounds for him to make a statutory declaration.
19. Mr X submitted an out of time statutory declaration to the TEC. TfL placed the case on hold pending the court’s decision.
20. On 19 September Mr X sent text messages to the agent saying, “Please treat me as a vulnerable person, I have mental health problems… Letters and visits will make both my own and my wife’s mental health worse. My wife also suffers with severe anxiety”. He asked the agent to let him know whether evidence was required and he would obtain it from his doctor.
21. The same day Mr X telephoned Company Y again. He said he had made an application to the TEC. He said he suffered with his mental health and had received a text message which he found alarming. He said he wanted the agent to respond to his messages. The call handler explained that the agent was no longer dealing with the case.
22. The TEC rejected Mr X’s statutory declaration on 27 November. He had 14 days to request a review of this decision. So, enforcement action remained on hold to be reviewed in 28 days.
23. On 29 December TfL decided to proceed with enforcement action. Company Y sent a text message to Mr X advising that his case was no longer on hold and it had been instructed to continue enforcement action. The text asked Mr X to make immediate payment in full or telephone to discuss.
24. Mr X responded asking Company Y to hold enforcement action. Company Y explained it could not do so unless TfL advised it to.
25. On 23 January 2024 another enforcement agent sent a text message to Mr X explaining that his statutory declaration had been refused so he needed to pay the debt in full or enforcement action would take place.
26. On 26 January the agent visited Mr X’s property and clamped Mr X’s vehicle. Mr X explained he had appealed the TEC’s decision.
27. Mr X then telephoned Company Y saying he had an ongoing appeal with the TEC. The call handler advised him to discuss the matter with the enforcement agent.
28. A few days later Mr X telephoned Company Y again saying he had appealed the TEC’s decision but it had not yet considered it. The call handler advised that Company Y could not place enforcement action on hold until the TEC notified TfL. Mr X said he was vulnerable but this had not been taken into account.
29. On 31 January Mr X telephoned Company Y to arrange to pay the debt. The enforcement agent visited Mr X’s property and Mr X paid £499. He agreed to pay the remaining £90 the following day. The agent refused to remove the clamp until the debt was paid in full.
30. The agent visited Mr X again the following day. Mr X paid the balance due and the agent removed the clamp from his vehicle.
31. Mr X complained to Company Y about the conduct of both enforcement agents.
32. Company Y investigated Mr X’s complaint. It did not uphold Mr X’s complaints. However, it found that the first enforcement agent had muttered inappropriate words and sworn when leaving Mr X’s property in his car. It offered to refund the enforcement fee and pay Mr X a further £200 by way of apology.
33. Mr X also complained to TfL. It responded saying it had reviewed Company Y’s response. It accepted the conduct of the first agent was not of the standard it would expect from its contractors, but it was satisfied Company Y had adequately addressed the points raised by Mr X and had offered a suitable remedy.

Analysis

Visit in September 2023

34. Mr X says the value of the car seized by the enforcement agent was not in proportion to the value of the debt. He owed £589 including enforcement fees, but his car was worth over £6,000. Mr X says he informed the agent of this and made him aware of other items he owned which were more proportionate to the value of the debt, but the agent proceeded to clamp the vehicle.
35. Company Y has explained that, when a vehicle is removed, it is taken to safe storage to await sale by public auction and will incur storage fees which are deducted from the proceeds of sale. It says the vehicle was eligible to be taken into control and removed as future storage costs must be taken into account.
36. Section 12 (2) of the Act says an enforcement agent may take goods of higher value than the debt if there are not enough goods of lower value within reasonable distance. However, the enforcement agent was entitled to take account of future storage and auction costs in determining whether to seize the vehicle. So, there are no grounds to criticise this. In any event, I do not consider any injustice was caused because the agent removed the clamp before leaving the property.
37. Mr X says the enforcement agent also acted incorrectly by telling him the recovery truck was on its way before the required two hours had elapsed. He says this was an attempt to pressurise him to make the payment.
38. The Regulations state that if, as in this case, an enforcement agent clamps a vehicle on the highway they must give the debtor, or place on the vehicle, a warning not to remove the vehicle. The vehicle must remain immobilised for at least two hours. The agent may then remove the vehicle to storage.
39. The agent may call the recovery truck at any time within this period. The only requirement is that the vehicle must not be removed within the two-hour period. So, there are no grounds to criticise the agent for informing Mr X that he had called the recovery truck.
40. Company Y accepted that the enforcement agent muttered inappropriate words and offered to refund the £235 enforcement fee and pay Mr X a further £200 by way of apology. I consider this represents a satisfactory remedy for the injustice caused.

Visit in January 2024

41. Mr X says that, when the second agent visited in January 2024, he acted unprofessionally and abused his powers.
42. Company Y has not been able to provide body worn video evidence of the January visits. It says the recording equipment was not switched on. However, Mr X says the camera was on. A video of the visits recorded by his wife shows that a blue light was on which suggests the camera was working. However, no recording has been provided.
43. The Enforcement Conduct Board’s guidance states that agents must wear a fully functioning body worn video when undertaking an enforcement visit and should record all their interactions with anyone present so far as it is necessary and proportionate to do so. Company Y’s failure to retain a recording of the visits is fault. However, I have seen Mrs X’s recordings of the visits.
44. Mr X says the agent clamped his car even though it was worth over £6,000 and was not in proportion to the value of the debt.
45. As explained above, the enforcement agent was entitled to take account of future storage and auction costs in determining whether to seize the vehicle. I therefore find no grounds to criticise this.
46. Mr X says the agent acted incorrectly by continuing to enforce the warrant even though he had provided evidence that he had appealed against the TEC’s decision. I would not expect the agent to stop enforcement action in response to this evidence. It would be for TfL to reach a decision on whether to pause enforcement action pending the outcome of the appeal. Company Y sent a text message to Mr X prior to the visit advising that his case was no longer on hold and it had been instructed to continue enforcement action. Mr X responded asking Company Y to hold enforcement action but Company Y explained it could not do so unless TfL advised it to.
47. Mr X says he intended to pay the debt in full at the visit and borrowed money from a relative to do so but, because of an error, the payment was £90 short. He says he asked the agent to remove the clamp from his car saying he would pay the remaining £90 the following day. But the agent refused to do so even though the vehicle was worth far more than £90.
48. The agent had taken the vehicle into control and was entitled not to release it until the debt had been paid in full. So, there are no grounds to criticise this.
49. Mr X says the agent intentionally parked outside his neighbours’ property when other parking spaces were available and used a neighbour’s bin to count money on despite him offering the use of his van or bin. He says these actions were designed to cause him embarrassment. I find no grounds to criticise the agent. There is no evidence to suggest these actions were designed to cause Mr X embarrassment.

Failing to treat Mr X and his family as vulnerable

50. Mr X says the first enforcement agent failed to investigate his claim of vulnerability or return the matter to TfL to investigate vulnerability despite him making it clear at an early stage that he and his family members were vulnerable.
51. Enforcement agents are required to consider whether a debtor is vulnerable.
52. ‘Vulnerable’ is not defined in the Act, Schedule or the Regulations. An agent may not take control of goods if the debtor is a child or the only person on the premises is a child or vulnerable person. If the debtor is vulnerable the enforcement fee is not recoverable until the agent has, before removing goods, allowed the debtor an adequate opportunity to get assistance and advice.
53. I have watched the agent’s body worn video of the first visit in September 2023. Mr X made no mention of vulnerability in relation to himself or his family at that visit. A few days after the visit, Mr X informed Company Y that he and his wife suffered with their mental health but says no action was taken.
54. Company Y has explained that enforcement agents cannot return warrants to the instructing authority when being told midway through the recovery process that a customer is vulnerable. It said its agents receive training and are aware of what is required of them. There are occasions when an agent encounters severe and obvious vulnerability and will mark the warrant to be returned immediately to the instructing authority.
55. Company Y says the first written communication it sends to the debtor provides clear information about the assistance available to vulnerable customers. It says that, if Mr X had contacted its welfare department on receipt of this letter and provided proof of vulnerability, income and expenditure, it may have been able to arrange payment by reasonable instalments.
56. I am satisfied that Mr X did not mention vulnerability at the enforcement agent’s first visit in September 2023. When he later informed Company Y that he suffered with his mental health it had enough evidence to decide how to proceed. If a debtor is vulnerable this does not mean that enforcement stops. It simply means that the enforcement fee is not recoverable until the agent has, before removing goods, allowed the debtor an opportunity to obtain assistance and advice. I am satisfied Mr X was given this opportunity because information about the assistance available to vulnerable customers was included in the initial letter sent to him by Company Y before the visit. I therefore find no fault in this regard.
57. Mr X raised the issue of vulnerability again at the enforcement agent’s visits in January 2024. He says the agent failed to take this into account. He also says he sent many text messages to the agent about his vulnerability but he failed to respond. Company Y, in response to Mr X’s complaint, apologised that it could not provide him with a satisfactory reason why the agent failed to respond to his messages. This was fault and caused Mr X frustration. However, there are no grounds to criticise the agent for failing to consider vulnerability at this stage because, as explained above, Mr X was given the opportunity to seek advice and assistance before recovery commenced.

TfL and Company Y’s response to Mr X’s complaints

58. Mr X says TfL and Company Y failed to properly respond to his complaints.
59. Company Y provided a detailed response to Mr X’s complaint. Although it did not uphold the complaint, it accepted its agent had made “unnecessary and unkind remarks” at the visit in September 2023 and offered Mr X a payment by way of apology.
60. TfL also responded to and reviewed Company Y’s response. It was satisfied that points raised by Mr X had been addressed and considered the proposed resolution to be fair and reasonable.
61. I am satisfied that both Company Y and TfL properly responded to Mr X’s complaint.

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Agreed action

62. When an Authority commissions or arranges for another organisation to provide services we treat actions taken by or on behalf of that organisation as actions taken on behalf of the Authority and in the exercise of the Authority’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the Authority alone. Here we have found fault with the actions of Company Y and made recommendations to TfL.
63. TfL has agreed that, within one month, it will apologise to Mr X for the enforcement agent’s failure to respond to his text messages and for the absence of the body worn video recording.
64. TfL has also agreed that, within the same timeframe, it will issue a reminder to Company Y and any other enforcement companies it uses that enforcement agents must wear a fully functioning body worn video when undertaking an enforcement visit and ensure that it is switched on.
65. TfL should provide us with evidence it has complied with the above actions.

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Final decision

66. I find fault causing injustice.
67. I have completed my investigation on the basis that TfL has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman