Bailiff enforcement and vulnerability...Local Government Ombudsman (LGO) decisions

[Bailiff Advice]

There has been much debate on the forum regarding the important subject of 'vulnerability' when a debt (usually council tax arrears) is being enforced by a bailiff.

 

Many posters have different opinions as to whether or not, when vulnerability is identified, the account should be returned to the local authority and bailiff fees removed, or managed by the enforcement companies in house Welfare Dept etc etc.

 

Whilst opinions will no doubt vary on this very important subject, it may be of interest to know what the Local Government Ombudsman's view is of this subject.

 

If a debtor wishes to have a complaint considered by the Local Government Ombudsman, they must first take their complaint to the relevant local authority and exhaust the first stage and second stage complaints procedure. The complaint may then be considered by the LGO.

 

All Local Government Ombudsman's decisions are reported on-line. These reports are made public 3 months after the final decision. The local authorities name is revealed but the complainants details are not.

[Bailiff Advice]

Local Authority: Newcastle-under-Lyme-District Council.

 

 

Analysis:

 

The debtor in this case (Ms X) had a representative assisting her. She had two Liability Orders (2011/2012 and 2013/2014), In the case of the 2013/4 Liability Order, the council made an attachment of earning order to recover this debt. The AOE failed in August 2014 as Ms x moved jobs. She failed to advise the council of her new employer. The account was therefore referred to bailiffs.

 

Although the debtor was employed, she nonetheless had a history of mental health problems and a letter was obtained from her GP confirming that she suffered with stress, anxiety and depression and that this could be triggered by financial concerns. The representative complained to the Ombudsman because the local authority would not agree to recall the debt from the bailiffs.

 

Paragraph 12:

 

The council would only agree to recall the 2013/2014 debt from the bailiffs provided that Ms X brought the current council tax year up to date. Ms X’s representative felt this was not achievable.

 

Ms x was hospitalised with a suspected heart attack in February 2015. The bailiff placed a hold on the account for 28 days. After 28 days and having received evidence of Ms B’s hospitalisation at the end of February, the bailiff discussed the case with the Council.

 

Paragraph 13:

 

On 30 March the bailiff agreed to reduce the instalments they had requested in line with Ms B’s request. The bailiff records indicate that some, but not all payments were made. This prompted further enforcement contacts. The Council confirmed that Ms X was now paying bailiffs £5 per week for the 2013/14 debt. The bailiff records indicate this arrangement began in July 2015

 

Paragraph 26:

 

The bailiff records indicate that it took account of Ms X’s health and the information provided. Although I recognise that Ms X and her representative wanted the Council to recall Ms X’s account from bailiffs, this was a decision for the Council. I do not consider the Council was at fault when it decided the account should not be recalled. I note the Council, via the bailiffs agreed a payment plan.

 

http://www.lgo.org.uk/decisions/bene...tax/14-017-488

[Bailiff Advice]

The following is a vitally important recent decision from the LGO. Given it's importance, instead of posting extracts, I am posting the full decision.

 

 

Local Authority: Trafford Council

 

 

 

 

5. Ms B has arrears of council tax for a property she used to live in. The arrears are just over £460. She does not dispute the arrears.

 

6. When the debt first arose the Council agreed a payment arrangement with Ms B. The payments were not made so the arrangement was cancelled.

 

7. Ms B lives with her partner and they have a young child. Ms B says her and her partner have separate finances. The debt arose before she was living with her partner. Ms B has no income and receives no benefits other than child benefit. Her partner pays for all household expenses. Ms B has other debts. She suffers from severe anxiety and post natal depression.

 

8. The Council has asked Ms B for details of the household income including her partner’s income and expenditure. Ms B says she cannot provide it as she does not know it. As she has no income this would mean that effectively her partner would be paying her debt from a time before they were together.

The issues

 

The repayment arrangement

 

9. It is not for me to say how much Ms B should repay. I am considering whether there is any administrative fault in how the Council has considered the matter.

 

10. The Council considered it could take into account Ms B’s partner’s income because the only reason she does not have any other income (including benefits) is because he is supporting her. The Council has referred to how entitlement to benefit is assessed which will take into account household income. If Ms B received benefits (other than child benefit) the Council could apply for a deduction from her benefits.

 

11. I do not consider there was fault in the Council asking for Ms B to provide details of the household income. However once it became clear that Ms B did not have details of his income I consider it was wrong for the Council to continue to press Ms B to provide the information.

 

12. The Council proposed that a suitable payment arrangement with Ms B to clear the debt would be £40 a month which would mean it was cleared in a year. Ms B’s only known income is £20 a week child benefit. As the Council has no reason to believe that Ms B has more income available to her I do not consider the Council’s proposed payment arrangement is flawed and cannot be justified.

 

13. The Council has now asked Ms B for proof of her income.

 

Vulnerability

 

14. Ms B considered the Council should recall the debt from the bailiffs. The Council accepts that Ms B is vulnerable.

 

15. The Council’s position is that where a debtor is vulnerable it will put a hold on the action with its enforcement agents and carry out a financial assessment. Once an arrangement has been agreed the Council would liaise with its agents and instruct them to add this to their records.

 

16. The Council comments that it has taken control of this case in accordance with the relevant provisions of the guidance. The Council further states the guidance and regulations do not provide that vulnerability ends enforcement. Nor does a declaration by a debtor that they have no goods cease enforcement as this can only be confirmed by an enforcement agent visit. It is the duty of the enforcement agent to search for goods on behalf of the creditor. It is not the case that because a debtor is vulnerable then the creditor may not take control of goods provided the correct process is followed.

 

17. I do not consider there was administrative fault by the Council on this point. The matter was put on hold with the bailiffs and that has continued during my investigation.

 

 

 

http://www.lgo.org.uk/decisions/benefits-and-tax/council-tax/15-005-395

[Coughdrop]

Many posters have different opinions as to whether or not, when vulnerability is identified, the account should be returned to the local authority and bailiff fees removed, or managed by the enforcement companies in house Welfare Dept etc etc.

 

Whilst opinions will no doubt vary on this very important subject, it may be of interest to know what the Local Government Ombudsman's view is of this subject.

 

If a debtor wishes to have a complaint considered by the Local Government Ombudsman, they must first take their complaint to the relevant local authority and exhaust the first stage and second stage complaints procedure. The complaint may then be considered by the LGO.

 

All Local Government Ombudsman's decisions are reported on-line. These reports are made public 3 months after the final decision. The local authorities name is revealed but the complainants details are not.

 

Does the LGO actually specify a view on vulnerability, or does it just publish the outcomes of cases, a couple of which are cited above? These would, of course, show the view in those cases only, hence me asking if, as you state, they do actually have a specific published view purely on vulnerability, as each case will be unique.

 

I will not contribute to this thread further if I can avoid it, due to recent 'issues,' but there is much more to be said on the subject which has been discussed extensively in many other places. It is not a black and white issue, and we should not give that picture to readers on here.

[Peterbard]

There are a number of interesting parts of the decision which should be examined. The LGO in arriving at decisions merely enforcing the available legislation and guidence, if he is interpreting these correctly, they will apply in the same way to other cases. I see no errors, in fact it clarifies much of it.

 

This one of the interesting bits.

 

16. The Council comments that it has taken control of this case in accordance with the relevant provisions of the guidance. The Council further states the guidance and regulations do not provide that vulnerability ends enforcement

 

This is true, and agrees with what has been said by some of us recently about fees in particular, in that they are still due because the enforcment as not ended, the authority can also merely takes over the running of the account, enforcment remaining with with the bailiff.

 

I dont know if BA wants to keep this thread for information only or if it will be a discussion thread, but if the former perhaps a seperarte thread as there is much on here which would merit it

[Bailiff Advice]

 

I dont know if BA wants to keep this thread for information only or if it will be a discussion thread, but if the former perhaps a seperarte thread as there is much on here which would merit it

 

It is not for me to decide but my preference, is that these LGO decisions are extremely valuable and should if possible, remain on 'Information Threads' as opposed to 'discussion threads'.

 

I did suggest yesterday (on another LGO 'Information Thread' that a separate 'discussion' thread should have been started). Perhaps you or CD could start one?

[Peterbard]

I think perhaps a closed sticky section on LGO decisions would be the best overall remedy. They do after all contain important info for those who seek it.

[unclebulgaria67]

If people are suffering issues of vulnerability and struggling to pay Council Tax, they should be in contact with their councils in writing, so they are aware of the situation. Most Councils have email addresses on their websites, so no need to write or post letters.

 

If Councils are aware of vulnerability and inability to pay the tax due, then it less likely it would be sent out for enforcement, as the Council should have processes in place to try to help. If a Council failed to deal with the issues notified to them, then I suspect the LGO would be more helpful to taxpayers in their decisions.

[Coughdrop]

It is not for me to decide but my preference, is that these LGO decisions are extremely valuable and should if possible, remain on 'Information Threads' as opposed to 'discussion threads'.

 

I did suggest yesterday (on another LGO 'Information Thread' that a separate 'discussion' thread should have been started). Perhaps you or CD could start one?

 

I agree there is much valuable information, and the areas of disagreement are actually minimal, especially on these cases, due to the way in which the LGO works.

 

I did wonder whether there should be a generic thread started asking whether the view of CAG is to challenge bailiff fees in the same way fees for debts, parking fines, bank charges and pretty much all other areas are encouraged to be challenged on CAG, or whether they are somehow different to all other areas. That may be one you or Dodgeball would like to start, or I might start a new thread on the issue at some later date.

 

I think having a list of decisions regarding vulnerability and other situations from the LGO has legs, and these could perhaps be kept separate and either put as a sticky, or put in the library. It would, of course, be important to ensure there were a wide range of decisions, rather than hand-picked ones, which I'm sure would be the case.

Edited June 7, 2016 by honeybee13
Possibly provocative remarks removed.

[honeybee13]

Bearing in mind what happened to the last vulnerability thread, would posters please keep their posts factual and refrain from taking sideswipes at perceived unfairness.

 

In an effort to keep this thread on topic, anything that is likely to be disruptive will be edited.

 

HB

[Peterbard]

Certainly given that much advice given to vulnerable debtors is that the enforcment wilt be ended, it needs to made aware that this is just not true, necessarily, this was also my point on the other thread(fees may not disappear in these cases.).

 

This is very good piece of verification as it will support the genuinely vulnerable and discourage people who just want to try it on. It is a shame the procedure was not made clearer in the act and regulations.

[Coughdrop]

Bearing in mind what happened to the last vulnerability thread, would posters please keep their posts factual and refrain from taking sideswipes at perceived unfairness.

 

In an effort to keep this thread on topic, anything that is likely to be disruptive will be edited.

 

HB

 

For 'will be' read 'has been!'

 

The content edited out was actually in a direct reply to BA to explain WHY I wouldn't start a thread as per her suggestion to me yesterday, and on this thread in post 6. I'll leave the reasons unmentioned now, but simply respond by stating I'll let someone else start such a post if they want to.

 

I welcome harsh, zero tolerance editing of sideswipe comments - thank you!

[honeybee13]

That will include you, CD.

 

Please can you guys play nicely.

[fletch70]

With the best will in the world it is hard to establish a persons vulnerability from a LGO decision. At the risk of sounding like some sort of facist there are people who will play the vulnerability card and often it is those that are playing the card that have the resources to shout loudest.

 

While I agree that councils should be informed of vulnerability as soon as possible, often the most vulnerable do not have the skills or attitude to to this. As an example, about a month before my ex wife death , I found a stack of letters unopened in the bathroom, these included arrears letters and default notices as well as DCA letters. If I had not insisted that we opened them together and then got on the phone these WOULD have progressed to CCJs and who knows what else

[Coughdrop]

That will include you, CD.

 

Please can you guys play nicely.

 

I would expect no less. I am truly grateful and genuinely welcome a zero tolernce approach, my thanks was genuine.

[honeybee13]

Thank you.

 

HB

[Bailiff Advice]

Local Authority: Newcastle-under-Lyme-District Council.

 

 

Analysis:

 

The debtor in this case (Ms X) had a representative assisting her. She had two Liability Orders (2011/2012 and 2013/2014), In the case of the 2013/4 Liability Order, the council made an attachment of earning order to recover this debt. The AOE failed in August 2014 as Ms x moved jobs. She failed to advise the council of her new employer. The account was therefore referred to bailiffs.

 

Although the debtor was employed, she nonetheless had a history of mental health problems and a letter was obtained from her GP confirming that she suffered with stress, anxiety and depression and that this could be triggered by financial concerns. The representative complained to the Ombudsman because the local authority would not agree to recall the debt from the bailiffs.

 

Paragraph 12:

 

The council would only agree to recall the 2013/2014 debt from the bailiffs provided that Ms X brought the current council tax year up to date. Ms X’s representative felt this was not achievable.

 

Ms x was hospitalised with a suspected heart attack in February 2015. The bailiff placed a hold on the account for 28 days. After 28 days and having received evidence of Ms B’s hospitalisation at the end of February, the bailiff discussed the case with the Council.

 

Paragraph 13:

 

On 30 March the bailiff agreed to reduce the instalments they had requested in line with Ms B’s request. The bailiff records indicate that some, but not all payments were made. This prompted further enforcement contacts. The Council confirmed that Ms X was now paying bailiffs £5 per week for the 2013/14 debt. The bailiff records indicate this arrangement began in July 2015

 

Paragraph 26:

 

The bailiff records indicate that it took account of Ms X’s health and the information provided. Although I recognise that Ms X and her representative wanted the Council to recall Ms X’s account from bailiffs, this was a decision for the Council. I do not consider the Council was at fault when it decided the account should not be recalled. I note the Council, via the bailiffs agreed a payment plan.

 

http://www.lgo.org.uk/decisions/bene...tax/14-017-488

 

In an enforcement industry publication released yesterday, the Local Government Ombudsman gave an interview about bailiffs and vulnerability. Coincidentally, for his article, he singled out the two LGO decisions that I have written about in this thread!!

 

Of particular note, the LGO stated that it is not their view that enforcement action should cease if anyone is vulnerable.

 

He also stated that in both of the cases highlighted on this thread, the complainants felt that the council should recall the debts from the bailiffs because of their vulnerability. The LGO did not agree with this position.

 

The LGO's position is that the bailiff company should take the individuals circumstances into account......agree that they are vulnerable......check their financial status...... and make appropriate arrangements for payment of the debts. As long as they take these steps, the LGO will not find fault.

 

He stressed that if someone has health problems and is in on low income, the bailiff company should treat the debtors sympathetically but firm and that if they do so, the LGO is unlikely to criticise them.

[ploddertom]

I wonder if some of the thinking behind this might be all because of those on Social Media suggesting they are considered vulnerable for the least little thing.

[mikeymack2002]

BA you stated: at post #17: 'The LGO's position is that the bailiff company should take the individuals circumstances into account......agree that they are vulnerable......check their financial status...... and make appropriate arrangements for payment of the debts. As long as they take these steps, the LGO will not find fault. '

 

 

What would help things along BA is you can provide the links and written papers that you rely on that an EA is FULLY QUALIFIED in the mental health and general health fields and has the AUTHORITY to determine vulnerability (sub note) a warrant of control is not authorising the EA to determine vulnerability is it? Its just to collect a debt))

 

 

If you have this information then please post up these links and papers you rely on. Something from the Supreme/High/Appeals Court would suffice or case law!! I ask this because I was forced to supply information on a thread so since, this was permitted then I request the same. If you fail to do so I will assume the information is not available... All I ask is for you to provide proof....

 

 

Until this is provided I will not add further to this thread as vulnerability issues have been battered to death here, please provide asap I/we would like to see these!!!

[daverules]

BA you stated: at post #17: 'The LGO's position is that the bailiff company should take the individuals circumstances into account......agree that they are vulnerable......check their financial status...... and make appropriate arrangements for payment of the debts. As long as they take these steps, the LGO will not find fault. '

 

 

What would help things along BA is you can provide the links and written papers that you rely on that an EA is FULLY QUALIFIED in the mental health and general health fields and has the AUTHORITY to determine vulnerability (sub note) a warrant of control is not authorising the EA to determine vulnerability is it? Its just to collect a debt))

 

 

If you have this information then please post up these links and papers you rely on. Something from the Supreme/High/Appeals Court would suffice or case law!! I ask this because I was forced to supply information on a thread so since, this was permitted then I request the same. If you fail to do so I will assume the information is not available... All I ask is for you to provide proof....

 

 

Until this is provided I will not add further to this thread as vulnerability issues have been battered to death here, please provide asap I/we would like to see these!!!

 

Hello

yes indeed i also would welcome and answer to the above as I am helping a neighbour who has mental and physical problems

with dealing with CT arrears.

 

Regards

[ploddertom]

A question best directed to the LGO.