I have just spoken to my Council in regards to CTAoE, asking them and the legal DEPT. if a case is returned to the Council are the EA's fees still added.

The answer to this question was NO THEY ARE NOT, so with this in mind I am going to send in a FOI request to get this in writing then we can all see that this is right

I have just spoken to my Council in regards to CTAoE, asking them and the legal DEPT. if a case is returned to the Council are the EA's fees still added.

 

 

The answer to this question was NO THEY ARE NOT, so with this in mind I am going to send in a FOI request to get this in writing then we can all see that this is right

I don't think one is required TBH if they say they don't currently add fees then in all probability currently they do not.

However this does not mean that they do not have the ability to do so, and in my opinion they do.

The legislation is clear.

 

Attachment of Earnings Order are prescribed under Schedule 4 Local Government Finance Act 1992 but when the regs were originally written, there was an error in that there was no allowance for billing authorities to recover any fees raised for AOEO's. This was rectified in 2004, when paragraph 1A was added to Regulation 37.

 

On the April 6th Regulation 1A was revoked by SI2014/600 (para 3) meaning that fees cannot be added to Attachment of Earnings Orders.

 

However, this amendment is completely at odds with a further significant amendment made on 6th April to the Local Government Finance Act 1992 (Item 105 of Schedule 13 of the Tribunal Courts & Enforcement Act 2007).

Some interesting information from yesterday on the subject of the amendment in Schedule 13:

In fact, this 'amendment' was actually introduced into the Draft Tribunal, Courts & Enforcement Bill way back in July 2006 before the Bill was presented to Parliament by the Department for Constititional Affairs.

Clear proof therefore that for the past nine years it has been Parliament's intention that fees are to be added to Attachment of Earnings and Committals.

I think the facility was removed from the amendment because it was introduced into primary legislation by the ammendement to the lgfa. I think the problems if there is one is due to the subsequent regulations not taking this into accoun

,in particular section 17 of the tcogr I suspect there will be some minor modification there

Some interesting information from yesterday on the subject of the amendment in Schedule 13:

 

In fact, this 'amendment' was actually introduced into the Draft Tribunal, Courts & Enforcement Bill way back in July 2006 before the Bill was presented to Parliament by the Department for Constititional Affairs.

 

Clear proof therefore that for the past nine years it has been Parliament's intention that fees are to be added to Attachment of Earnings and Committals.

It would have been clear when the TCE was drafted and the ability to levy goods was passed form the authority to the EA that there would have to be some provision to allow the authority to recover fees when the account was passed back. This modification was placed in schedule 13 for that purpose.

It is really irrelevant to the current position what amendments were made to the council tax enforcment regs before the final consequential amendments, because up until this time they were dealing with the old legislation and schedule 5, the old fee scale.

The error was that when defining the amount due as section 50.

Section 17 says that the fees cease when the account is passed back, so the fees under section 50 would be zero, this is where the regulations need amending IMO.

If you read fee regulation 17 it does not say the fees cease when the case in passed back or even when the enforcement power has ceased to be exercisable. It has widely been reported as Dodgeball says and that is probably because of the of title above the regulation. The actual words of the regulation are, however, as follows with emphasis added to help see the meaning more clearly.

17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.

The fees that cannot be recovered are fees for stages that happened after the enforcement power had ceased. It does not say that the fees for earlier stages cannot be recovered after the enforcement power has ceased.

If you read fee regulation 17 it does not say the fees cease when the case in passed back or even when the enforcement power has ceased to be exercisable. It has widely been reported as Dodgeball says and that is probably because of the of title above the regulation. The actual words of the regulation are, however, as follows with emphasis added to help see the meaning more clearly.

 

 

17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.

 

 

The fees that cannot be recovered are fees for stages that happened after the enforcement power had ceased. It does not say that the fees for earlier stages cannot be recovered after the enforcement power has ceased.

Yes that was my initial interpretation, however I was wrong, the section means that all stages undertaken, after all if at the enforcment stage, then the previous compliance stage would have been undertaken at the time the account was withdrawn, I have this from an excellent source(otherwise I would not have changed my view).

Beware of messages that 'scream' rather than educate. Subtle as a flying brick.

The actual words of the regulation are, however, as follows with emphasis added to help see the meaning more clearly.

 

17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.

 

 

The fees that cannot be recovered are fees for stages that happened after the enforcement power had ceased. It does not say that the fees for earlier stages cannot be recovered after the enforcement power has ceased.

Very interesting.....I will respond in the morning.

If you read fee regulation 17 it does not say the fees cease when the case in passed back or even when the enforcement power has ceased to be exercisable. It has widely been reported as Dodgeball says and that is probably because of the of title above the regulation. The actual words of the regulation are, however, as follows with emphasis added to help see the meaning more clearly.

 

 

17.—(1) The enforcement agent may not recover fees or disbursements from the debtor in relation to any stage of enforcement undertaken at a time when the relevant enforcement power has ceased to be exercisable.

 

 

The fees that cannot be recovered are fees for stages that happened after the enforcement power had ceased. It does not say that the fees for earlier stages cannot be recovered after the enforcement power has ceased.

I think that this needs to be re examined

I think that this needs to be re examined

I value E Munch's response which tends to indicate that if a warrant is returned back to the creditor that any outstanding bailiff fees incurred up to the stage when the warrant is returned are recoverable. However, this is not my understanding of the regs.

Instead of confusing matters by posting on this thread I think it would be far better if I start a new thread regarding 'when does a warrant 'cease to have affect'.

What is however clear is that Schedule 13 regarding Attachment of Earnings has 'muddied the water' and I am sure this and many other anomalies will be addressed under the one year review (which is still in progress).

A few important points to consider:

Firstly, bailiff fees may only be charged by a bailiff and belong to the bailiff.

The POWER to enforce a court fine or Liability Order comes from the wording on the warrant/Liability Order.

Whilst the warrant is still in the CONTROL of the enforcement company the POWER to enforce it remains.

The way in which the warrant can be ENFORCED may only be in strict compliance with the PROCEDURES outlined under Schedule 12 of TCE 2007 and the supporting regulations.

Most importantly, a bailiff is only able to recover his fees using the Schedule 12 procedure and crucially, the regulations are clear in that recovery of his fees may ONLY be from PROCEEDS. This will be from payment made or from proceeds of sale of goods.

If the bailiff is unable to 'take control of goods'(including money) then the decision can be made to return the warrant back to the creditor as an unsatisfied warrant. His fees must die and the warrant then 'ceases to have affect'. The fees cannot be recovered by the creditor as it is only a bailiff who has the POWER to enforce the warrant.

Once the warrant is returned it could of course then be passed by the creditor to another enforcement agent and the PROCEDURE can start again.

PS: As I have said above, if the EA return the warrant as un-executed any bailiff fees die. I will start a new thread on this subject in a day or so.

Yes a new thread would be good, as said I have held both opinions and I think it could make a constructive debate.

Just to put the other side, whilst I fully understand that the warrant and therefore the powers to exercise any schedule 12 procedures end when the warrant is returned(powers cease).

The question is, does this mean that any fees which were produced whilst the power was in force also die.

Section 17.1 could indicate the point where these fees could be recovered.

 

 

The question is, does this mean that any fees which were produced whilst the power was in force also die.

 

That is my understanding and it would make sense as otherwise the warrant could be returned with bailiff fees and then referred to the 2nd choice bailiff firm by the creditor and the amount would just keep rising.

It should be an interesting thread and one that we hope will not be ruined by 'some' posters.

....It should be an interesting thread and one that we hope will not be ruined by 'some' posters.

This sounds like an invite.

That is my understanding and it would make sense as otherwise the warrant could be returned with bailiff fees and then referred to the 2nd choice bailiff firm by the creditor and the amount would just keep rising.

 

It should be an interesting thread and one that we hope will not be ruined by 'some' posters.

You realize I am destined to play devils advocate here. But why should this not be the case ?

Anyway for a new thread, perhaps copy the last few posts including e munches ?

This sounds like an invite.

What would happen if the invitee disagreed with the "official" line? Debate has been welcomed and encouraged elsewhere, let's hope the same applies here.

What would happen if the invitee disagreed with the "official" line? Debate has been welcomed and encouraged elsewhere, let's hope the same applies here.

No "official line " here, just trying to improve our knowledge. You are welcome to participate as a member of tnis forum, I think I am correct in saying. As long as we just stick to the issue in question and leave personalities out of it we should be fine.

Then I shall look forward to it.

Returning to the original topic, I received a reply form my FOI request earlier this week, I had seen it but only read the first paragraph where he says the request is not covered etc., I had not realized that he had gone on to give an account of the legislation, this was the reply.

https://www.whatdotheyknow.com/request/240747/response/617541/attach/3/FOI%203463.pdf

It appears that the question you raise is not a request for information that the Council holds; rather

it is a request for our comments on legislation. As such, it falls outside the Freedom of Information

Act 2000. So far as the legislation itself is concerned, this is reasonably accessible to you outside

of the Act and therefore exempt under section 21 of the Act. The legislation can be seen free of

charge at: http://www.legislation.gov.uk/ukpga/2007/15/contents.

However, in an effort to assist under section 16 of the 2000 Act, it seems to me that paragraph 107

of Schedule 13 of the Tribunals, Courts and Enforcement Act 2007 amends schedule 4 of the

Local Government Finance Act 1992. This schedule empowers the Secretary of State to make and

amend regulations under the 1992 Act. The current regulations are the Council Tax Administration

and Enforcement Regulations 1992 (SI 1992/613), as amended. The Tribunals, Courts and

Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014 (SI

2014/600) revoked the provisions in paragraph 37(1A)(b) of the 1992 Regulations that previously

allowed for distress fees to be added to the amount secured by an attachment of earnings order.

The 2007 Act does not, it seems to me, give him power to reinstate this provision. It does

empower him to include a provision adding to the amount secured by an attachment of earnings

order the amount of costs where a warrant of commitment has been applied for; however no such

amendments have yet been made to the 1992 Regulations.

I have now closed the FOI and responeded with this note

Dear Freedom Of Information Requests,

Attention of Mr Clarke

Many thanks for the reply and for going "above and beyond" what was

required under the FOI and explaining the legislation.

I have couple of comments, please do not regard these as a further

request, and there is no need to respond although of course I would

welcome any comments you may have.

It seems that there is indeed no current facility to add fees to

AOEs after failed enforcement actions, however the consequential

amendments did remove this facility so it is plain that before the

implementation of the TCE there was.

I understand the reasons for this is that previously the collection

and enforcment was a matter for the authority whereas since April

last the enforcment, when passed to an EA is a matter for them, as

assigned under section 62 of the act and using schedule 12.

The reason being that once an enforcement power ends, so does the

ability to charge fees, and the authority has no such ability, for

the above reason.

It seems to me that this was very much an "unintended consequence"

of the implementation, and that the inclusion of the section within

the LGFA via section 107 of the TCE (sched 13) shows that it is the

intention to provide the facility to include these charges, your

comment, that the council tax regulations have yet to be amended

perhaps hints at this.

I am sure that all will become clear after the annual review in

April, when I understand a comprehensive notice will be produced by

the MOJ which addresses many of the consequences and problems which

have occurred as a result of the new regime.

Many thanks again for taking the time to comment

So fees are not added to an Attachment of Earnings Order?

Well not at Tameside anyway

Strange questions from a "new poster" - or more likely a previous reincarnation that wants to be moderated.

Oh I see. Which councils do add them?

NO idea without sending out thousands of FOI not really any way of finding out either I would think.

One thing for sure is that if there is no facility to add fees, it is a consequence of the introduction of the TCE, it was not intended and as the provision in schedule 13 shows is readily capable of remedy if needed.

Strange questions from a "new poster" - or more likely a previous reincarnation that wants to be moderated.

Yes I think so, and it would not help the debate much even if I could say yes, lesser tithering in the marsh adds them, really would it.

So fees are not added to an Attachment of Earnings Order?

"Not yet in Tameside" would be another answer. It might reflect more accurately the position as it is likely to pan out in the longer term.

For the time being, let's be glad for debtors that, should this path be taken, fees cannot be added. That is good, and long may it stay that way.

It does seem clear that this was another unintended consequence of the Act though, so my suspicion is it is likely to be amended at some stage.