Devon County County (16 017 119)
Decision date: 17th August 2017.
Published on the LGO website: 17th November 2017
Vulnerability and bailiff enforcement is a subject that is of great importance and sadly, it is a subject that is very much misunderstood.
The LGO have made a number of decisions regarding the 'definition' of vulnerability and the following case is another one where the LGO confirm that a 'vulnerable' debtor must provide evidence to demonstrate how their vulnerability affects their ability to deal with the debt.
PS: The following is a shortened copy of the decision. A full copy can be accessed from the link at the foot of the post.
(9) Mr B has received 5 penalty charge notices (PCN) for parking offences since 2014. A parking enforcement officer placed two on the car and Mr B received three through the post. On the telephone, Mr B told me that he did not take account of parking laws as he believes there is a law from the year 1600 that means he can’t be fined and so can park anywhere.
(16) The Council has said that Mr B first used the words’ vulnerable’ about his wife and him both having Blue Badges on 3 December 2015.
(17) The Council said it advised Mr B on 5 July to contact the bailiffs for them to consider his ‘vulnerability’ and for him to provide them with whatever evidence they need to confirm his status as vulnerable. The Council advised Mr B that if the bailiff did deem his to be a vulnerable household the Council would withdraw the warrant and cease activity.
(18) The Council said Mr B did not supply the bailiffs with supporting evidence. It has said the blue badge issued to Mr B, shows they have met the criteria of limited mobility to have a blue badge issued but may not necessarily be vulnerable.
(19) The Council says that Mr B thinks that his vulnerability means that he is exempt from paying these fines. The Council says it disagrees with Mr B’s interpretation. It considers he is still liable to pay these fines, but any vulnerability means the Council has to consider extra discretion over how these fines are paid, e.g. deferring payment periods, accepting lower instalments until debts paid.
(20) The Council has asked Mr B to provide supporting written evidence of his ‘vulnerability’ for it to find out if there are other conditions from which he suffers that may fit his interpretation of vulnerability, e.g. Mental health, depression, post- traumatic stress, at risk of self-harm, inability to understand and engage with the process. The Council says that if Mr B does meet any of these criteria, then it may withdraw the warrants and close the cases. Mr B has not provided supporting evidence.
Analysis from the Local Government Ombudsman:
(23) Mr B complained a business centre issued the warrants rather than a court and so were invalid. The TEC is the court appointed by the Secretary of State and the Department of Transport to deal with registration of debts arising from penalty charge notices. I can find no fault on this point.
(24) Mr B complains the bailiffs did not have the correct warrants. The Council has said the court sends the warrants electronically and so there are no paper copies. For completeness, I will ask the Council to send me its electronic records showing the warrants but I can see no evidence of fault on this point.
(25) Mr B believes that under the Taking Control of Goods National Standards 2010, (updated 2015) as soon as he told the bailiff company finds out he is vulnerable (with no explanation) they have to withdraw. He believes that he does not need to provide details of his details of his vulnerability; it is then the Council’s job to prove he isn’t.
(26) The Taking Control of Goods Regulations 2013, part 2, regulation 10 set out the circumstances in which an enforcement agent may not take control of goods. It says an enforcement agent may not take control of goods of a debtor where a child or vulnerable person is the only person present. The legislation does not give any further guidance about how a vulnerable person is defined.
(27) Mr B told the Council he was a vulnerable person. However, he has not explained why he considers he is vulnerable. He considers that it is the Council’s job to prove he is not.
(28) It cannot be right that a person can say they are vulnerable and all outstanding debts are written off without them giving further information. If this was the case, then there would be no way for the Council to enforce any debt collection as anybody could claim vulnerability without evidence. I do consider it reasonable for Mr B to explain why he considers himself to be vulnerable.
(29) In any case, a vulnerable person still has to pay the fines, but any vulnerability means the Council has to consider extra discretion over how the debtor pays the fines, e.g. deferring payment periods or accepting lower instalments. It should also allow the vulnerable person time to get help and advice.
(30) I have found no fault in the Council’s actions. The Council gave Mr B the opportunity to appeal the PCN’s and to appeal to the court. No further recovery action has been taken once he told the bailiffs and Council he is vulnerable. However, I do consider it reasonable for him to give details of his vulnerability if he wants the Council to consider removing the warrants.