Transforming bailiff action. Ombudsman Services response to Ministry of Justice s consultation on Transforming bailiff action

Transcription

1 Transforming bailiff action Ombudsman Services response to Ministry of Justice s consultation on Transforming bailiff action

2 Consultation response to Transforming bailiff action: How we will provide more protection against aggressive bailiffs and encourage more flexibility in bailiff collections Author Mark Glover Status Final Date last revised (and reason) 14/05/12 Version number 0.3 Distribution Purpose of the document Consultation response to MoJ Related documents 1. Summary Established in 2002, Ombudsman Services now has over 8,500 participating companies and last year sent out over 20,300 complaint forms. The company employs over 170 people and has a turnover in the region of 6.4 million. Our service is free to consumers and paid for by the participating companies under our jurisdiction by a combination of subscription and case fee. While we consult with the sector participants on our annual budget and business plan, the participating companies do not and should not exercise financial control over the company. Our governance ensures that we are entirely independent from the companies that fall under our jurisdiction. Ombudsman Services welcomes the opportunity to comment on the Ministry of Justice consultation on Transforming bailiff action: How we will provide more protection against aggressive bailiffs and encourage more flexibility in bailiff collections. Ombudsman Services agrees that the enforcement agent should have the opportunity to resolve any complaint in the first instance thereby providing the opportunity for as quick and cost-effective resolution [of a complaint] as possible. It is only when this step 2

3 has been unsuccessful that the complaint should be considered by an independent third party. Ombudsman Services is of the view that any proposed alternative dispute resolution strategy should be in accordance with the Cabinet Offices guidelines and adopt the British and Irish Ombudsman Association s principles of good governance which are independence, effective, open and transparent, accountable, operate with integrity and clarity of purpose. Below is our response to the consultation which is most directly related to our experience of operating ombudsman schemes. 2. Introduction 2.1 The Ombudsman Service Ltd is a company limited by guarantee (not-for-profit) that provides ombudsman services for the energy, telecommunications and property sectors, by appointment or approval from the relevant regulators. We provide dispute resolution and redress to domestic consumers and micro businesses. 2.2 Established in 2002, Ombudsman Services now has over 8,500 participating companies and last year sent out over 20,300 complaint forms. The company employs over 170 people and has a turnover in the region of 6.4 million. 2.3 Ombudsman Services is appointed by Ofcom and Ofgem to be the redress scheme for the communications and energy sectors. In the energy sector we have recently taken on the responsibility for complaints about feed-in tariffs, in addition to our existing role providing the alternative dispute resolution scheme for both energy suppliers and networks. The redress service we provide in property developed from appointment by the Royal Institution of Chartered Surveyors, followed by approval from the UK Office of Fair Trading to provide alternative dispute resolution services for estate agents. 2.4 The most recent sector the service provides alternative dispute resolution for is copyright licensing and with our sustainable funding model, independence and considerable experience we have the capacity to undertake further work. 3

4 2.5 To help level the playing field between consumers and companies, we have a contact centre which provides information and helps those who have difficulty in making a complaint. We achieve proportionality by providing alternative dispute resolution through different processes, from informal resolution to in-depth formal investigation. Our decisions are enforceable through the courts. 2.6 Our service is free to consumers and paid for by the participating companies under our jurisdiction by a combination of subscription and case fee. While we consult with the sector participants on our annual budget and business plan, the participating companies do not and should not exercise financial control over the company. Our governance ensures that we are entirely independent from the companies that fall under our jurisdiction. 2.7 Ombudsman Services welcomes the opportunity to comment on the Ministry of Justice consultation on Transforming bailiff action: How we will provide more protection against aggressive bailiffs and encourage more flexibility in bailiff collections. 2.8 Below is our response to the consultation which is most directly related to our experience of operating ombudsman schemes. Q2 Do you consider the existing law and the revised National Standards for Enforcement agents is sufficient to address the problems we have identified or do you consider there is still a need for further Government intervention as set out in the remainder of paper? There appears to be no reference in the National Standards in respect of redress. We consider that there should be reference made to a redress scheme and how consumers can complain if they feel they have a problem. Q3 Do you consider there are any gaps in the range of information available on DirectGov? If so, please supply proposals for inclusion. Although covered on the Directgov website, the complaints section is rather weak. It says little if anything about the codes that bailiffs should adhere to and would be used 4

5 to consider the merit or otherwise of a complaint. The site could be strengthened so it is more helpful to the consumer. Q28 Do you consider there is a need to define vulnerability in the regulations? If so, please provide a workable definition with supporting argument. It would be helpful if the term vulnerability is defined in the regulations so that when considering potential complaints there is a common understanding of what is and is meant by the term. Q51 Do you consider that mandatory training is necessary to ensure an enforcement agent is fit and proper to hold a certificate? If not, please provide alternative proposals. Although there will be wider issues than just redress, Ombudsman Services does consider that there should be mandatory training of enforcement agents on what ever redress scheme is adopted. Q52 Do you consider an enforcement agent should undertake any further training or development after the granting of the certificate? If so, please provide proposals. There should be post certificate training to ensure that the skills of enforcement agents are kept up to date the training would include redress. Q53 Do you agree with our proposals on the complaints handling strategy? If not, please provide alternatives with supporting argument. Ombudsman Services agrees that the enforcement agent should have the opportunity to resolve any complaint in the first instance thereby providing the opportunity for as quick and cost-effective resolution [of a complaint] as possible. It is only when this step has been unsuccessful that the complaint should be considered by an independent third party. 5

6 Ombudsman Services is of the view that any proposed alternative dispute resolution strategy should be in accordance with the Cabinet Offices guidelines and adopt the British and Irish Ombudsman Association s principles of good governance: Independence Effective Open and transparent Accountable Operate with integrity Clarity of purpose Impartiality Governance and operational structures need to separate those under jurisdiction and who fund the service, from the operation of the alternative dispute resolution provider and the adjudications it makes. The independence of the scheme should also be supported by the appointment and periodic review and re-approval by the sector s regulator; in this case it might be the Bailiffs and Enforcement Agents Council. Impartiality is not just about independence from the bodies under jurisdiction. An ombudsman does not take sides and must also be able to demonstrate their impartiality and independence from complainants. In the case of the Ombudsman Services, this is achieved through rigorous processes, evidence-based and clearly reasoned conclusions, consistency of recommendations and a governance structure that is headed by an independent Board. Accessibility Consumers who are subject to action by bailiffs should to be advised of their right to take their complaint to Alternative Dispute Resolution by service providers, this could include: Information on their invoices or bills In correspondence on complaints In the terms and conditions and on their websites 6

7 By the issuing of a deadlock letter when the company accepts that they are unable to resolve the matter and refers the complainant to the ombudsman. In the case of Ombudsman services, the industry regulators, Ofgem and Ofcom require our participating companies to inform complainants when eight weeks have elapsed since their initial complaint and give our contact details to them. Consumer advocacy and advice organisations, as well as the regulators, continue to have an important role to play in signposting our service to potential complainants. Awareness must be coupled with accessibility. Any complaints process should be free to the consumer, make provision for those who have language difficulties or have specific needs, have a range of ways by which the complainant can interact with the scheme and use plain, jargon-free language in information and reports. In the case of Ombudsman Services for example; (a) Technology has a key role to play in raising the awareness of consumers, making it easier for them to engage with the ombudsman and making the process more time and cost-efficient and transparent. In April this year, Ombudsman Services launched a revised website through which complaints can be made. This will be further developed to allow complainants and companies to track complaints and view progress. It is noted that para 181 of the consultation document does envisage more use of online technology. (b) The website also gives details of what we can and cannot do, information on how to complain, details of our process and timescales and what action we might take to put things right. (c) For those who do not use the internet, we supply leaflets about our scheme. These are written in plain English and are available in other languages and formats on request. Our enquiry officers are trained in collecting all the information necessary by telephone to capture the key elements of a complaint. 7

8 (d) We provide translation services and support for those who are sight or hearing impaired. The process We suggest that the government supports the use of an Alternative Dispute Resolution process which includes a wide range of channels (telephone, , on-line, letter, fax) for customers to submit complaints, help in completing the forms and articulating their problem and help to navigate the process. On receipt of this signed form Ombudsman Services then contacts the service provider to request the relevant case-file of information held about the complaint. In the first instance, we make every attempt to resolve a complaint informally to the satisfaction of both parties. Only where this cannot be achieved or the case is complex, then it is referred on for further investigation. Each party can consider the report and the recommendations and decide whether to request a review on the basis that either, there is an error in the report or its recommendations or new evidence has become available. If both parties accept at the first or second stages, then that becomes the final decision, which must be implemented within 28 days. If the complainant declines the Ombudsman s third stage final decision, or fails to respond, then the decision lapses and is not binding. Redress Any award that is made should be proportionate and place the complainant in a position as if nothing had gone wrong. The government may also wish to consider an element of the award that covers the time, trouble and inconvenience the complainant has suffered. To continue to operate effectively, arrangements should remain which allow the operator of the scheme to be able to pursue every provider within the scheme and through the energy company, make appropriate recommendations for redress. Such decisions when accepted by the complainant would then need to be able to be enforced through the courts, although we would expect the companies that were 8

9 members of the scheme to accept that the Ombudsman s decision was binding this is the case with all our participating companies. The Alternative Dispute Resolution provider is also able to report on systemic failures of the codes to the council and suggest potential solutions. Additional comments and observations Paras. 163/4 refer to the role of the Bailiffs and Enforcement Agents Council (BEAC). The consultation paper suggests that the council as has jurisdiction over the setting of standards and the performance of agents in the industry as well as their education and training and allegations of misconduct. The section also refers to the BEAC as having a role in investigating complaints. Ombudsman Services considers the role of the BEAC is more of a regulatory body than one that considers complaints; it is our view that in the interest of transparancey and independence from the companies with in its jurisdiction, the role of complaints investigation should be conducted by an ombudsman or similar type of independent adjudicator. 2.9 Ombudsman Services has considerable experience in the field of dispute resolution. We would be happy to provide clarification on any point in this evidence or if there is any other way we can help, please contact me. Lewis Shand Smith Chief Ombudsman 14 May

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