3 August 2017

Hackney Council approve of a bailiff attendance fee for not attending

the sort of village the bailiff visited
A friend of Mr Mustard's contacted him with a problem. He had received a note from a bailiff but didn't know exactly what the debt was for. His employer, a Limited company, let us call them P J Ltd, had employed a lady on a short term contract and a car was necessary to do the job. It was therefore fiscally prudent to rent a car. The supplier had a special deal on renting brand new cars provided they got them back before 9000 miles was reached. Therefore, each quarter they changed to a fresh car. He recalled the lady saying she had received a PCN and would sort it out but her contract was up and she had also moved so there was no paperwork to hand. Mr Mustard's friend's address was used for the paperwork but he isn't a director of the firm in question. Somewhere along the line the house name fell off Hackney Council's records.

Mr Mustard pieced together what he could. There was a signed rental agreement from July 2014 but the PCN debt was for parking in a suspended bay in January 16. The recollection was that inadequate notice had been given of the suspension.

One of the problems inherent within the parking regulations is that no matter how innocent you may be you can end up with a debt registered against you in the county court if you fail to follow a procedural step on time or are not served with any statutory documents.

In this case Mr Mustard thought that Hackney Council had wrongly transferred liability from the Hire Company to the Limited Company client as he was told that no further paper agreements had been signed after the first one (but they had been although by the driver who probably did not have authority to bind PJ Ltd). The car was simply changed each quarter and the rental amounts paid as the months rolled by. Mr Mustard's problem was in stopping the council before the bailiff found the correct house out of the 30+ with the same postcode. Technically he was out of time but he expected that he could convince Hackney Council that they were acting beyond their powers. He knew it wouldn't be easy and so it proved.

He emailed the legal department at Hackney.

I represent P... J... Ltd ('PJL') as attached authority.

PJL have recently become aware of the existence of a warrant in the hands of Newlyn Plc bailiffs acting on behalf of Hackney Council for the above referenced PCN.

The warrant is invalid for want of a proper address, for the failure to properly serve preceding statutory documents (due to the lack of a full address) and because the requirements for a transfer of liability from a vehicle hire firm were not met there being, to PJL's knowledge, no written & signed hire agreement for vehicle ******* under which liability could legitimately be transferred to PJL.

I write to you in your capacity as Chief Legal Officer who is responsible for ensuring that the council operate within the law.

Please place the bailiff on hold whilst one of your team investigates the matter and confirm that you have done so.

Please provide me with a copy of the PCN, Notice to Owner, Charge Certificate and Order for Recovery.

Please tell me in each case if any of those statutory documents was returned undelivered.

Please tell me the date on which the suspended bay sign was erected and provide evidence of same.

Please tell me the full address which the bailiff visited and the time and date as he is now demanding payment of £512 as if a visit to premises has taken place and given that he does not have the full address a visit cannot have taken place. If the bailiff wears body worn video please provide a copy of the recording showing him making the visit to premises.

Legal tried to duck their responsibility:

Thank you for your e-mail passed to me by my Director, I have contacted the Parking Section requesting they provide details in respect of your enquiry. I must stress that decisions to issue instructions to bailiffs rests with the parking department and legal are not in a position to place any action on hold, however they now have your request and will be considering whether this would be appropriate in this case.

Any investigation will be conducted by the parking department and once they provide details as to the action taken in respect of this matter we can consider them at that time.

You will be contacted once the team have had an opportunity to consider the points you have raised.

But of course Mr Mustard wasn't having any of that:

I approached the monitoring officer as I think the law is not being followed by the parking section.

By all means let parking provide the facts to you but it is the monitoring officer's duty to ensure the council follows the law which I wish to see upheld.

The monitoring officer is not without power in this matter as you suggest.

This led to a quick change of stance:

Thank you for your response, I have noted your comments and am aware of the monitoring officer’s duties and appliance of the law, nothing has been established in respect of this matter and will ask you to bear with me until I am privy to all the facts. Unfortunately, due to staffing issues the information we require from parking will not be obtained immediately, however on speaking to them they have advised they will place the matter on hold for 14 days with the enforcement action to give them time to look into the points you have raised.

As stated you will be contacted once they have had a chance to investigate this matter.

Mr Mustard responded, he had achieved his first aim, stopping money being paid.

Thank you. The 14 day hold is sensible.
Then his second aim was fulfilled, cancellation.

I am pleased to confirm that I have now received a response from the Appeals Team who have considered the points made by you, and have decided to cancel the PCN and recall it from Newlyn bailiffs. I will be asking them for confirmation of when this has been done to ensure no further action is taken in respect of this matter and will contact you once I hear from them.

Mr Mustard likes to go to the end of the journey.

Thank you for letting me know.

I still wish to see all my original questions answered please.

Things went a bit quiet.

A month has passed without me hearing anything.

Could you please prompt your colleagues.

Following the prompt a reply arrived pretty quickly. Mr Mustard has interspersed his further comments in red, the correspondence with Hackney being at an end.

Apologies for the delay in providing you with a response to your questions. It appears that there was a miscommunication between involved parties. (Neither party was Mr Mustard!)

Please find attached documents as per your request and response to each point not already addresses in Council’s previous response.

Please provide me with a copy of the PCN, Notice to Owner, Charge Certificate and Order for Recovery.

Please find attached. All supplied as requested.

Please tell me in each case if any of those statutory documents was returned undelivered.

We have no records of these statutory documents being returned as undelivered.
The Royal Mail have a huge operation in dealing with returned mail but if there wasn't an address on the outside of the envelopes it would have gone in the bin.

Please tell me the date on which the suspended bay sign was erected and provide evidence of same.

Please find attached. An adequate 12 days notice was given.

Please tell me the full address which the bailiff visited and the time and date as he is now demanding payment of £512 as if a visit to premises has taken place and given that he does not have the full address a visit cannot have taken place. If the bailiff wears body worn video please provide a copy of the recording showing him making the visit to premises.

The Enforcement Agent has visited the village and has made enquiries at number of properties to find out the full address of the company. This has however been unsuccessful as nobody was able to tell the Enforcement Agent which property is for the company in question. The bailiff spent 'a good 15 minutes' making enquiries of locals is what an email from the bailiff firm to Hackney Councils says. The bailiff was given a hopeless task. The address should have been verified somewhere along the line before then, the council always had the full address & the bailiff must be given a full address from which to start his enforcement.

The Council often finds cases where the registered keeper does not provide a full address to the DVLA, on some occasions intentionally to avoid paying for Penalty Charge Notices (PCN) the onus is on the registered keeper to ensure that the address is correct. The Enforcement Agent can legally apply the enforcement fee where an attempt* to visit the address was carried out, which means that in this case the enforcement fee has been applied correctly, however the address was not provided by the DVLA but inputted by the Council officer who has on this occasion made an administrative error by missing crucial part of the address. Mr Mustard doesn't get why councils pad their responses out with irrelevant generalisations. This was nothing to do with DVLA which the council do admit in the end. However, what do the regulations about bailiff fees say?:

*Clearly, the enforcement fee, which is fixed at £235 is for attendance at the premises, and popping to the village in which the premises are to be found, if you are smart enough, is not attendance at the premises but in the vicinity of the premises. There is no question but that the attendance fee had not been earned and it is very worrying that Hackney Council do not know this as they are responsible for the actions of their bailiff.

Had the bailiff found the house, knocked on the door, found no-one home & left a note of the visit in the letterbox then the attendance fee would, in other cases of good service, have been properly added to the debt. As it was they charged £75 for the first stage, the compliance stage, which consists of sending a letter to the debtor but they hadn't properly managed that either because they needed the full address so no bailiff fees were properly due.

Looking now through the 74 pages of documents Mr Mustard can see that the driver did challenge the PCN but was rejected so she cannot be faulted as the first Notice to Owner went, quite properly, to the hire company as registered keeper and her involvement was at an end.

The hire company provided the details of the company & driver who hired the car, including the house name. They did provide a copy of the hire agreement which the Notice to Owner asks them to do and which Hackney Council should have checked properly before agreeing to transfer liability as there are strict rules to follow. There were no driver's licence details so transfer was invalid. That was Hackney's first error.

Their second error was to omit the house name when sending the Notice to Owner to PJ Ltd and thus it did not arrive and nor did the Charge Certificate or Order for Recovery.

Mr Mustard asked if there was any body worn video. Hackney asked the bailiff if there were any photographs of the visit which is entirely a different question but he had his answer anyway, the bailiff popped to the village to confirm what anyone could tell without going anywhere, the address was inadequate.

Mr Mustard has just google searched for the company name and location. That brought up a senior executive in the village. He then searched for the executive and the village and got the full address. Total time about 90 seconds. No need to go for a drive, no matter how pleasant it must have been. Hackney Council could have found the address more quickly by looking within their own files.

Neither Hackney Council nor the bailiff come out of this one looking efficient or displaying any common sense. Mr Mustard doesn't like the amount of automated processing that goes on within parking departments. If he were in charge no case would be sent to a bailiff where no response was received subsequent to the Notice to Owner as more likely than not, something has gone wrong. If the registered keeper were to be deliberately ignoring the situation then a 'signed for' letter confirming that their current residence has been verified and that bailiffs are to be instructed would be more effective than sending bailiffs on wild goose chases.

You will note that there has been an apology for the delay in replying to the straightforward questions but there has not been an apology for the fundamental error that Hackney Council made in a simple situation.

There really does need to be an outbreak of good manners in the world of council parking. It isn't enough to cancel your wrongdoings; worry has been caused, illegal demands for money have been made, fees not due are being claimed and people's time has been wasted.

Yours frugally

Mr Mustard

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