24 September 2014

Glossing over the Bailiffs

Mr Mustard had a meeting with the Chief Operating Officer in December 13. It covered a number of topics raised by both sides. Time was short and so Mr Mustard agreed to send in his thoughts afterwards about where the council were going wrong on their use of bailiffs. He did so on 2 January 2014. The COO has not replied.

Mr Mustard also carefully copied his thoughts to the Parking Process Manager as Mr Mustard was aware of the upcoming Parking Improvement Project (supposedly to improve the public's perception of parking which is dire) so that if there was the germ of a useful idea in any of them they would be studied and possibly incorporated into Parking Policy.

It looks like Mr Mustard doesn't know a thing as this is what the Council's proposed policy says about Bailiffs

Why Mr Mustard thinks that is a little thin as the following were his thoughts:

The use of bailiffs for the collection of Penalty Charge Notices for parking & bus lane contraventions in the London Borough of Barnet.

Executive summary:

•    Council not properly overseeing or auditing bailiff use.
•    Use of bailiffs should be better targeted.
•    Policy for vulnerable individuals should be published.
•    Bailiffs should be instructed regularly and in a timely manner.
•    Success rates should be monitored.
•    Witness statement handling should be speeded up & a decision policy tree written.
•    Conflicts of interest should be removed.
•    Seized goods should be properly looked after.


In most legal proceedings it is necessary to show that the defendant has been properly served with the relevant paperwork. In the case of PCN the default position is that if a motorist does not take any part in the process then they become liable for the penalty by default. This is an advantage, doubtless put into the legislation on the grounds that local authorities can be trusted to use their powers wisely, which should be balanced by judicious and careful consideration before a bailiff is instructed.

If a motorist does owe a penalty then there is a duty on the council to try and collect it but at the same time motorists who are actually innocent of any wrongdoing should not suffer


When the council employ a bailiff they incur no costs which is why the service is so attractive. Bailiffs recover their fees from the motorist. The council still have a duty of care as it is the council’s warrant that is being enforced. The fees that are charged to debtors make the original PCN value increase up to 9 times the original value. A charge of £992 is a disproportionate penalty for having parked where you shouldn’t for a few minutes.

Under their duty of care the council should have oversight of the charges that are being levied by bailiffs and should be verifying that overcharging is not taking place. Any overcharge by the bailiff will have a negative effect on the council’s reputation as it is the council’s warrant that is being enforced. I do not think that any oversight of bailiff actions is currently taking place.

Common problem

I noticed on two cases that the motorists were unaware of the PCNs in question until the day they were wheel clamped.

The council’s records will have shown that there was no engagement in the process by the motorist. These are the cases which I think should be reviewed by a manager before the warrant is sent to a bailiff. Prior to a bailiff being instructed a junior officer could attempt to make contact with the motorist by telephone and, if that fails, by recorded delivery letter. I don’t know what other council records you can legally cross refer to but it would be sensible to check council tax records which may show that the motorist has left the address in question. A DVLA check to ensure that the motorist still owns the car would be useful so that a new vehicle owner does not find himself clamped due to a PCN incurred by the previous owner.

I note from the Notice Audit Details that Pre Debt Checks are made but I don’t know what they entail (and would like to).

How does the council know that the notices which are said to have been posted, actually have been by NSL / RR Donnelley?

Vulnerable individuals

My cases have included a heavily pregnant lady, a disabled pensioner in receipt of higher rate mobility element of DLA and thus eligible for a Motability car, and a 93 year old man. The council should have a policy as to how their instructed bailiffs deal with vulnerable individuals. I have recently asked Redacted for a copy of the policy but am not yet convinced that one exists as absolutely no quarter was given to those individuals by the bailiffs. It is the sort of document that should be on the council website.

As a Motability car cannot be clamped or seized (Redacted made proper amends for the one that was and thus avoided a formal complaint) then those cases should perhaps be screened out of those being sent to bailiffs in order to avoid the problem of erroneous clamping.

Erratic use

As part of the public Audit arrangements I asked about bailiffs. I was told that no monies were recovered by bailiffs in the year to 31 March 13. Apart from the fact that I don’t think it is the case, it is an odd state of affairs. If PCN are being issued every month then cases should be sent to bailiffs every month so that the debts are fresh as otherwise they die of old age. In any event, under the London Councils Code of Practice (not law but the council profess to follow it) there should not be a delay of more than 6 months at any stage of enforcement so if bailiffs haven’t been instructed on that timetable the PCN should be written off. It would be useful to see a table of the number of PCN sent to bailiffs each month for the last 3 council years and the amounts of money recovered from them.

How does the council know, with reasonable certainty, that all PCN income collected by their bailiffs has been properly accounted for and that improper fees have not been applied or improper practices have not been used?

Recovery rates

The percentage of PCN actually recovered by bailiffs is quite low. I don’t have statistics for Barnet that I can rely on but in Enfield the recovery rate is a mere 17% which means that 5 times of out 6 work is being wasted by the council, NSL and bailiffs. I would question whether the light is worth the candle and also look at how recovery rates could be improved, perhaps by a detailed analysis of the factors that led to recovery or non-recovery. Maybe the council should focus on motorists who have more than one unpaid PCN in a 6 month window and simply write off the rest?

Witness statements

A safeguard in the system is that a person who didn’t receive a Notice to Owner or whose formal representations weren’t responded to or who appealed to PATAS and didn’t get a hearing (basically covering lost in the post situations) can apply to wind the process back to the start. There is a time limit for doing this and often people are, through no fault of their own, out of time. If they are out of time they submit their TE9 application along with form TE7 explaining why the application is late. In the two cases I dealt with this was because the documents were not received. NSL simply relied on having sent the documents and didn’t properly consider whether the motorist might have been telling the truth. It would be interesting to know what percentage of TE7 cases are allowed (I suspect 100% are opposed which cannot fit with the legal requirement on a council to be fair) and to compare the stats for the final calendar quarter of 2011 with those for 2013 to see how differently, or not, NSL act compared to how the council itself used to.

I did catch NSL not telling the whole truth in a witness statement by omitting to mention that a document had been returned by the Royal Mail and thus that PCN should not have been with the bailiff at all.

The other problem with dealing with forms TE7 is that the council move very slowly. Approximately a month is allowed for the council to decide whether to accept a TE7 out of time and during that time an innocent motorist is deprived of their transport and I think the council should aim to deal with them in 48 hours. The motorist will have enough delay if the TE7 is rejected whilst they wait 2 or 3 months for a County Court hearing date for which they will also have to pay £80.

Given that granting an application to wind the process back to the start merely allows the motorist to engage in the appeal process I think the default setting should be for the council to allow them all unless the TE9/TE7 application is a misuse of the procedure.

Conflicts of interest & complaints

NSL own the bailiff called Task and they are retained on half of Barnet’s cases. They should not be. This is a clear conflict of interest. In one of my cases the car was removed by Task and then NSL took the decision as to whether or not to accept an out of time witness statement (TE7/TE9 procedure) and allowing it would have meant that an NSL subsidiary would have incurred costs that they definitely couldn’t recover and so the decision was made to reject the application. The decision should be made by someone who doesn’t have a significant financial interest in the outcome (the council have a minor interest as the PCN value is a fraction of the total costs charged to the motorist at this stage).

Similarly bailiffs are usually left to investigate and respond to their own complaints. If NSL were to respond they are less likely to find wrongdoing on a Task case than a Newlyn (the other bailiff) one. At the minimum, all complaints should be investigated by and responded to by a council employee. Having seen the unsympathetic, inadequately researched and inaccurate response sent by the parking client side to the lady who was 6 months pregnant I would suggest that parking really needs an independent person to consider complaints.

Duty of care

Cars are seized and then forgotten about. A car was seized in July and the Court ordered in November that an appeal be allowed. During that time the car was left outside and was returned in a filthy condition, with flat tyres and a completely discharged battery (a claim may follow as a mechanic had to be employed to get the car going again). As a bailiff has a duty of care then a car should properly be stored indoors and possible under a cover or given a monthly wash, the tyre pressures should be checked monthly and the motorist should be asked for the keys so that a trickle charger can be connected to the battery. That way, the car can be driven away if it has to be returned and its value is preserved if it does go off to auction. The benefits of providing the keys should be explained in writing to the motorist.

The motorist who was deprived of his car for 5 months was initially expected to collect his car despite it by then being uninsured, declared off the road and not in a fit state to drive. Redacted made an exception for me in this case but I think that as a matter of policy that any car removed by a bailiff should be returned to where it was taken from free of charge if the PCN is subsequently allowed to be appealed as the motorist is innocent at that point.

Since January 14 Mr Mustard has been consulted on other bailiff cases, three in the last month alone, and they involve cheating, lying, bullying and a complete failure by the council to control activities or charges. One case is now being investigated by the parking manager as it does appear that the PCN has been chased in error. Enquiries continue.

Mr Mustard will put the main points form the Executive Summary into his draft parking policy which he hopes to publish soon.

Yours frugally

Mr Mustard

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