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Bailiff enforcement re Penalty Charge Notices: Local Government Ombudsman (LGO) decisions


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Approx two years ago the Local Government Ombudsman changed the way in which they record decisions. Previously, when a final decision was made, copies would be sent to the relevant local authority and the complainant. The significance of the change was that all decisions are now made public on the LGO website three months after the decision.

 

There have been quite a few recent decisions made to the Local Government Ombudsman concerning successful Out of Time witness statements to the Traffic Enforcement Centre and the position regarding 'bailiff fees'.

 

Up until this decision, most local authorities when notified of a successful Out of Time witness statement will refund some or all of the amount of the PCN...and will then advise the individual that they must contact the bailiff company for a refund.

 

Out of Time witness statements and the Traffic Enforcement Centre are subjects that I am passionate about and this is why I am DELIGHTED to read this very recent decision (made public on 23rd March 2016) from the LGO regarding London Borough of Haringey.

 

The LGO advised LB of Haringey that they should refund Miss X the following amounts:

 

Charge certificate surcharge of £65

 

TEC court fee of £7

 

Bailiff fees of £310.

 

 

 

Analysis:

 

Item 17: As detailed at Paragraph 15, the TEC’s decision to accept Miss X’s late witness statement ordered that recovery action be taken back to the original PCN. While the Council says it has discretion over whether to refund fees in this situation as the TEC’s decision makes no direction on this point, the TEC’s decision clearly directs the revocation of the order for recovery and the cancellation of the charge certificate. These documents form the basis of the Council’s action from December 2013, as well as the further fees added to Miss X’s debt.

 

Item 18. The Ombudsman considers in this situation that as the TEC has withdrawn the basis for the fees, the Council cannot legitimately refuse to refund them. Had the TEC’s decision not intended to result in this action it would be meaningless as it would have no effect. I therefore consider that the Council’s refusal to refund the fees resulting from steps in the process which the TEC has ordered are cancelled, is fault.

 

 

http://www.lgo.org.uk/decisions/transport-...ties/15-000-612

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The link doesn't seem to work.

 

Is it the case that the authority has to return the fees, or the EA I wonder. The bailiff would not be at fault in this as the law stands I would have thought, so would the refund of ther fees have to come out of public funds ?

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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When submitting an Out of Time witness statement/statutory declaration the forms make clear that providing a false statement can lead to court action. It would seem that one local authority have recently issued court proceedings on this very point.

 

The individual filed an Out of Time witness statement and this was accepted by the Traffic Enforcement Centre. The local authority are opposing the decision.

 

The individual stated that they had not received the 'enforcement notice/notice to owner'. It would seem that the local authority consider that this was a false statement and legal proceedings against the individual who submitted the statutory declaration are ongoing. I will read through the documentation and post more information shortly.

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The following recent decision is interesting for a number of reasons. Firstly, although it was considered that the debtor was 'vulnerable' it is nonetheless the case that the LGO considered that the account should remain with the enforcement agency.

 

Secondly, I have mentioned many times on here of the difficulty in getting a local authority to 'recall' an account that is with an enforcement company. The reason for this stems from the wording of Item 11 of the Taking Control of Goods: National Standards 2014 which states as follows.

 

Item 11: Creditors agreeing the suspension of a warrant or making direct payment arrangements with debtors must give appropriate notification to and should pay appropriate fees due to the enforcement agent for the work they have undertaken. 


 

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353396/taking-control-of-goods-national-standards.pdf

 

It would seem from Item 6 of the local authorities response (see below) that they (and the LGO) consider that if the account was to be recalled that the council would be responsible for re-imbursing the enforcement company with any fees incurred.

 

 

The following is a brief outline of the background and decision:

 

 

Royal Borough of Kingston upon Thames

 

1). The complainant, whom I shall refer to as Ms Y, complains that the Council failed to consider her vulnerability when deciding whether to use collection agents in the recovery of a Penalty Charge Notice (PCN). She also complains that collection agents acting on behalf of the Council did not consider her vulnerability and were rude and intimidating to her. Ms Y complains that although the Council has agreed Ms*Y can pay the debt via an instalment plan; the weekly amount is too high.

 

 

4). Over the past few years the Council says that it has written off 163 of Ms Y’s PCNs due to warrants expiring. The Council says that Ms Y currently has 10 PCNs which the Council is pursuing. She has a further four which are currently with collection agents. The complaint is about the recovery action taken in respect of a PCN.

 

 

6). In conducting a review, where appropriate the Council will withdraw a debt or give the Bailiff instruction on how to arrange settlement of the debt with a debtor,
including the Council reducing or waiving the debt due to us or agreeing to cover all or part of the Bailiff's fees so they may be waived.

 

 

12). The Council decided that Ms Y was not a vulnerable debtor because:-

 

it did not have sufficient evidence to show that Ms Y’s mental health issues affected her driving, leading her to commit the parking offences;

 

there was no evidence to show that Ms Y’s mental health issues limited her understanding of parking restrictions and regulations;

 

Ms Y did not mention her medical condition as an issue to the Council or collection agents, until after her car was seized;

 

Ms Y successfully appealed a previous PCN. This is evidence that her ‘vulnerability’ was not such that she was incapable of understanding, defending and/or challenging her PCN;

 

 

http://www.lgo.org.uk/decisions/transport-and-highways/parking-and-other-penalties/15-001-086

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