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E Munch

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Everything posted by E Munch

  1. It will be good news if they do make it mandatory as at the moment, although almost everyone involved, including most debtors, the advice sector and the enforcement industry themselves want the filming to happen, the ICO has expressed concerns over the widespread use of this intrusive data processing. At the moment the legitimising purpose for such filming from Article 6 of the GDPR is "legitimate interests" and this means there needs to be a balancing exercise between the rights of the data subject and the enforcement agent. It the debtor (or another data subject that is caught on camera) does not want filming, the enforcement agent needs a good reason to ignore their request to stop filming. The simple reason that the council might want to see it in less than 0.1% of cases does not mean the filming of the other 99.9% of visits is not excessive. If it is made a legal requirement, the legitimising reason can be "processing is necessary for compliance with a legal obligation" and filming will be done as the new legislation requires. I do hope they express the legislation clearly and fully after talking to the ICO.
  2. As others have said and the OP understsands there is specific wording to say that an EA can only entrer premises via an unlocked door or other usual means of entry (for instance in a commercial building access may be via a loading bay which is not really a door.) There is no talk in the regulations of gaining accces over a fence to a garden to get to the outer door of the house and no case law which has examined if the usual means of access applies to, for instsance, a small ornamental garden fence that could be stepped over. I think if it wass a 6 foot fence with a locked gate it would be considered wrong to climb over but it would be down to a court to decide. Even if the rules were certain, people don't always follow rules and what about burglars? I think the OP should encourage his mother to keep the back door locked to keep out ne'er do wells of any sort. Apart from her safety, insurers may not be keen to pay out if you leave a door unlocked for thieves to enter and pinch stuff.
  3. Has anyone seen the judgement in Rooftops South West Limited, James Slocombe, Paul Howell and Marcus Davis v. Ash Interiors (UK) Limited, Direct Collection Bailiffs Limited and Claire Sandbrook [2018] EWHC 2798 (QB) ? Could it please be made available here? Apparently the judge commented about Claire Sanbrook (the third defendant in this case) purporting to exercise control over Direct Control Bailiffs Ltd (or their agents) from Florida.
  4. People are confusing two things here. 1. There is the ablilty or otherwise to charge the fees for entering the different stages of the Schedule 12 process and 2. the ability or otherwise to take control of goods if the Notice of Enforcment has not been sent to where you usually live. The two fees involved so far are as below. You can see from the description of the stages in regulation 5 of the Taking Control of Goods (Fees) Regulations 2014 that the stage has a specific start point and from regulation 4(3) that the whole stage fee is due before all the parts of the stage have taken place.:- The £75 Compliance stage fee and that is due as soon as the instruction is received by the enforcment agent. Although the sending of the NoE will normally be part of the compliance stage it is not required to be sent to justify the fee being due. The £235 enforcement stage fee (plus any percentage for larger debts) which is due as soon as the enforcement stage commences which is said to be "from the first attendance at the premises in relation to the instructions..." It does not say the visit has to be for the purpose of taking control of goods. From this you can see the £310 can be due even if a Notice of Enforcement (NoE) has not been sent to where you usually live. From the way the OP describes it, the enforcement agent in this case does seem to have only sent one NoE and that went to an old address so it was not where the debtor usually lived at the time of it was sent. Becuase of this they cannot legally take control of goods. If you are proposing to pay the debt you would be best to point out that they cannot TCoG unless they resend a NoE to where you usually live and allow 7 clear days after it is sent before TCoG. As I said, however, it does not seem legally to invalidate the enforcement stage fee. I would try to appeal to the council to tell the enforcemnt agent to waive the enforcement stage fee as a gesture of good will (you never know!) and accept payment of the council tax debt plus the £75 compliance stage fee. That might be easy if you are going to pay in full immediately but I assume you will be trying to offer a payment arrangement. If you do that they would have time to send a new NoE and make another visit when a new enforcement stage fee would be due even if they'd waived the first one.
  5. I know the report is in the public domain but by giving so much detail of the circumstances of the case this thread is also infringing the privacy of persons concerned.
  6. Oh yes thanks for passing that on. I'd not seen that. For anyone that cares to read it on the Gov.uk website it is at this link. https://www.gov.uk/government/news/approved-enforcement-agency-update
  7. Section 4 just explains at what point in time the binding of the debtor's goods starts. I think you are missing the point of 5(2) which means even after the goods become bound an innocent purchaser can acuire good title notwithstanding the binding provided the purchase is (a) in good faith, (b)for valuable consideration, and © without notice. So even after one of the trigger points menioned in section 4 they can fight off (at least in legal terms) the EA's claim to the vehicle.
  8. There is a statutory scheme for third parties to claim goods that have controll taken of them. It does not involve nor require a statutory declaration nor an offical complaint. See part 85.4 and 85.5 og the Civil Procedure Rules. The wording gives the procedure and the timescales and can be found at this link and are pasted below:- https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-85-claims-on-controlled-goods-and-executed-goods Procedure for making a claim to controlled goods 85.4 (1) Any person making a claim under paragraph 60(1) of Schedule 12 must, as soon as practicable but in any event within 7 days of the goods being removed under the exercise of an enforcement power, give notice in writing of their claim to the enforcement agent who has taken control of the goods ('the notice of claim to controlled goods') and must include in such notice— (a) their full name and address, and confirmation that such address is their address for service; (b) a list of all those goods in respect of which they make such a claim; and © the grounds of their claim in respect of each item. (2) On receipt of a notice of claim to controlled goods which complies with paragraph (1) the enforcement agent must within 3 days give notice of such claim to— (a) the creditor; and (b) any other person making a claim to the controlled goods under paragraph (1) ('any other claimant to the controlled goods'); (3) The creditor, and any other claimant to the controlled goods, must, within 7 days after receiving the notice of claim to controlled goods, give notice in writing to the enforcement agent informing them whether the claim to controlled goods is admitted or disputed in whole or in part. (4) The enforcement agent must notify the claimant to the controlled goods in writing within 3 days of receiving the notice in paragraph (3) whether the claim to controlled goods is admitted or disputed in whole or in part. (5) A creditor who gives notice in accordance with paragraph (3) admitting a claim to controlled goods is not liable to the enforcement agent for any fees and expenses incurred by the enforcement agent after receipt of that notice by the enforcement agent. (6) If an enforcement agent receives a notice from a creditor under paragraph (3) admitting a claim to controlled goods the following applies— (a) the enforcement power ceases to be exercisable in respect of such controlled goods; and (b) as soon as reasonably practicable the enforcement agent must make the goods available for collection by the claimant to controlled goods if they have been removed from where they were found. (7) Where the creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, fails, within the period mentioned in paragraph (3), to give the required notice, the enforcement agent may seek— (a) the directions of the court by way of an application; and (b) an order preventing the bringing of any claim against them for, or in respect of, their having taken control of any of the goods or having failed so to do. Back to top Procedure for making a claim to controlled goods where the claim is disputed 85.5 (1) Where a creditor, or any other claimant to controlled goods to whom a notice of claim to controlled goods was given, gives notice under rule 85.4(3) that the claim to controlled goods, or any part of it, is disputed, and wishes to maintain their claim to the controlled goods, the following procedure will apply. (2) The claimant to controlled goods must make an application which must be supported by— (a) a witness statement— (i) specifying any money; (ii) describing any goods claimed; and (iii) setting out the grounds upon which their claim to the controlled goods is based; and (b) copies of any supporting documents that will assist the court to determine the claim. (3) In the High Court the claimant to controlled goods must serve the application notice and supporting witness statements and exhibits on— (a) the creditor; (b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and © the enforcement agent. (4) In the County Court when the application is made the claimant to controlled goods must provide to the court the addresses for service of— (a) the creditor; (b) any other claimant to controlled goods of whom the claimant to controlled goods is aware; and © the enforcement agent, ('the respondents'), and the court will serve the application notice and any supporting witness statement and exhibits on the respondents. (5) An application under paragraph (2) must be made to the court which issued the writ or warrant conferring power to take control of the controlled goods, or, if the power was conferred under an enactment, to the debtor’s home court. (6) The claimant to controlled goods must make the required payments on issue of the application in accordance with paragraph 60(4)(a) of Schedule 128, unless such claimant seeks a direction from the court that the required payment be a proportion of the value of the goods, in which case they must seek such a direction immediately after issue of the application, on notice to the creditor and to the enforcement agent. (7) The application notice will be referred to a Master or District Judge. (8) On receipt of an application for a claim to controlled goods, the Master or District Judge may— (a) give directions for further evidence from any party; (b) list a hearing to give directions; © list a hearing of the application; (d) determine the amount of the required payments, make directions or list a hearing to determine any issue relating to the amount of the required payments or the value of the controlled goods; (e) stay, or dismiss, the application if the required payments have not been made; (f) make directions for the retention, sale or disposal of the controlled goods; (g) give directions for determination of any issue raised by a claim to controlled goods. Back to top
  9. This seems to be talking about the binding effect of an enforcement ower in accordance with section 5 of Schedule 12 to the TCE Act 2007. If so then there should be no problem. The wording is pasted below and you will note that there is provision in sub-paragraph 2 to protect genuinely innocent purchasers of bound goods so long as they did not know about the binding. If Ethel and Albert are as innocent and ignorant of the binding as you suggest you have the wording to assist them and hopefully you can dial down the anger and angst. Effect of property in goods being bound 5(1) An assignment or transfer of any interest of the debtor's in goods while the property in them is bound for the purposes of an enforcement power—. (a)is subject to that power, and. (b)does not affect the operation of this Schedule in relation to the goods, except as provided by paragraph 61 (application to assignee or transferee). (2) Sub-paragraph (1) does not prejudice the title to any of the debtor's goods that a person acquires— (a) in good faith, (b)for valuable consideration, and © without notice. (3) For the purposes of sub-paragraph (2)(a), a thing is to be treated as done in good faith if it is in fact done honestly (whether it is done negligently or not). (4) In sub-paragraph (2)© “notice” means— (a) where the property in the goods is bound by a writ or warrant, notice that the writ or warrant, or any other writ or warrant by virtue of which the goods of the debtor might be seized or otherwise taken control of, had been received by the person who was under a duty to endorse it and that goods remained bound under it; (b) where the property in the goods is bound by notice under paragraph 7(1), notice that that notice had been given and that goods remained bound under it. (5) In sub-paragraph (4)(a) “endorse” in relation to a warrant to which section 99 of the County Courts Act 1984 (c. 28) or section 125ZA of the Magistrates' Courts Act 1980 (c. 43) applies, means endorse under that section.
  10. Which companies do you mean? Are they ones not showing as in liquidation now? I can only see 8 companies of which he's been a director that have been put into liquidation and those are all Members Voluntary Liquidations which are not connected to lack of money, it is just a method of bringing a company to an end when it has fullfilled its function. A declaration of solvency has to be filed in such liquidations (Insolvency Act 1986 sections 89 and 90.)
  11. The OP is saying when the vehicle was sold the purchaser or someone they sold it to has not re-registered it and is clocking up new penalties in the Bradford area. Answering some points raised by the OP:- 1. There are four methods of taking control of a vehicle [Tribunals, Courts and Enforcement Act 2007 Schedule 12 13(1) (a) to (d)] In this case there are two possibilities. It could be just immobilised using a clamp and if so it must be left for 2 hours before being removed. I know of nothing to say it must be treated differently at night and it sounds like an urban or internet myth. Control can also be taken by removing it to secure it elsewhere [13(1)©] so even if they had clamped it they could remove it within the two hours and rely on the removal to take control rather than the immobilisation. 2. The address does not have to be your current one on the warrant. The original address would have been obtained from the DVLA by the council so maybe the DVLA records were not updated immediately. If another address is found later the council "may" apply to the traffic Enforcment Centre for the warrant to be reissued with the new address but it does not invalidate the warrrant if they do not. 3 & 4. The wording of the exemption for a "work vehicle" is found in regulation 4(1)(a) of the Taking Control of Goods Regulations 2013. There are several elements to the wording and it must fit all of them. The cases of Toseland Building Supplies v Bishop (1993) and Thompson v Bertie (2007) show that judges can be very strict in interpreting the exemption. Just because a car is useful or used to get to places of work (even where they are not in one fixed spot making the use of public transport difficult) does not mean the judge will agree that the exemption will apply. There is not a lot an EA can do if tools are in a locked boot other than allow you to come and collect them. If you did not ask to do that what else could they do? If they refused to let you get them, complain. You could have sent them the keys and documents by post and that would have allowed them to get the tools out and store them until you could collect them and that would have increased the net proceeds of sale by reducing the disburesments mentioned and/or increasing the value of the vehicle. 5. If the penalties being incurred in Bradford are genuinely incurred by someone unconnected with you then keep pushing the point. If Bradford council is getting the warrants on the penalties then complain to them. Parking departments in councils are quite harsh and if you feel unfairly treated you may need to use their complaint procedure that will hopefully be explained on their website. Also although you don't live in the area so you are not a potential vote for them you may get one of their elected councillors to intervene on your behalf. Try contacting the leader of the council to plead your case about the new penalties.
  12. If the debtor was not required to pay the costs of enforcement action against them, who should do so?
  13. Ah yes I'd not seen that thread. I'm glad you noticed the error, too. I gather the ICO has conceded it was their error.
  14. Although I can see a new thread is proposed I'll add this here for now and perhaps BA can add it to her new thread as I'll be away. The LGO in a recent report indicates their agreement that the council should be splitting payments made to them direct in accordance with the fee regulations:- http://www.lgo.org.uk/decisions/benefits-and-tax/other/16-014-707#point1 The LGO's comments are these:- "Mr J was paying the Council directly. The Council was following the law by passing the bailiffs a proportion of these payments to clear the bailiff’s fees. Paying the Council directly does not mean the council tax debt is clear as the Regulations make clear any balance is made up of both the debt and the bailiff fees. "
  15. Yes hello there. I have to confess I'd been logged out of the forum and could not remember or find my password until the other day! I have looked in from time to time but there is very reduced activity these days which hopefully is a good sign.
  16. I apologise if this has already been reported here but I could not see mention of it. I thought it might be of interest. It is a newspaper article about the failure to get out of paying Council Tax by referring back to the Magna Carta. http://www.express.co.uk/news/uk/801648/boxer-jailed-magna-carta-avoid-council-tax-oliver-ringmaster-pinnock
  17. I can't find the post now but I thought someone above suggested the County Court have their own scale of fees. That is news to me so has anyone got some proof please? The government website just links to the CAB website which fives the normal scale for the Schedule 12 process. https://www.gov.uk/your-rights-bailiffs/what-you-can-do-when-a-bailiff-visits
  18. I don't know if any of you recall but the fee structure was created by an independent economist hired by the MoJ to investigate what enforcement cost and to come up with a scale of fees that adequately rewarded the EA for their work. In the economist's report he pointed out that the scale was not to be tinkered with or it would fail in the objectives set. There was not an objection to the scale being used by in-house operations but only if they did the whole job. If the council do the compliance stage and only pass the hard to collect cases onto the private EAs the council get the cream for sending a letter and answering phone calls and the EA gets a reduced income for doing the costly visiting. It is entirely against the point of the scheme yet as BA has said Manchester City Council is asking for bids to do parking warrants starting after the council have done the compliance stage. The relevant parts of the economists report are reproduced below:- 20.3. Other fee issues 20.3.1. Contracting between EACs and creditors If the proposed Fee Structure is to be successful it is important that creditors cannot use contractual arrangements with EACs/ HCEACs in order to circumvent the level of fees. Whilst contracts may specify quality and reporting requirements, they should neither be able to change the level of any of the new Fee Structure fees, nor to challenge the right of the EAC/ HCEAC to collect those fees where they are appropriately charged. If contracts amend or remove any of the proposed Fee Structure fees it would jeopardise the important objective which the new Fee Structure attempts to achieve: to guarantee a fair reward to EACs/ HCEACs by setting fees in relation to costs, and allowing a fair mark‐up on those costs. If creditors are able to use contracts to circumvent the EAC’s/ HCEAC’s right to charge any of the fees, the profit margins earned could be reduced below the target profit margin as a result. Even where fees are charged at appropriate levels in the first instance, creditors may attempt to use contracts to require the EAC/ HCEAC to pass on a proportion of the Enforcement fees. Since this practice would have a similar effect to amending the actual fee levels it should also not be allowed. Similarly any attempts by EACs/ HCEACs themselves to obtain a competitive price advantage by offering to reduce fees below the Fee Structure level should not be allowed, and competitive differentiation should be made on quality of service alone. In conclusion, ensuring that the contracts between EACs/ HCEACs and creditors do not attempt to circumvent the proposed Fee Structure in any way is an important role for legislation and regulation. 20.3.2. “Inhouse” Enforcement Agents The term “In‐house Enforcement Agent” is used to refer to those EAs who are directly employed by a creditor, which seeks to enforce its own debts. “In‐house Enforcement Agents” are employed by:County Courts, which use employed staff (County Court bailiffs) to enforce their debt;HMRC; and some local authorities who employ their own EAs to enforce debts. When “In‐house” EAs are employed, the structure of the relationship between entities in the Enforcement framework is changed: instead of three parties (being creditor, debtor, and Enforcement agent), there are now only two (creditor and debtor). The principal agent relationship no longer exists between the creditor and EA as these now represent a single entity. The Proposed Fee Structure is robust for application to “In‐house Enforcement Agents”, since these EAs must incur essentially the same costs as “third‐party” EAs, and there is no particular reason to assume that the level of these costs should be any different between “In‐house” and “third‐party” Enforcement Agents. Therefore, EAs should charge exactly the same fees whether they are operating on an “in‐house” or “third‐party” basis.
  19. MM it might help the Poole Councillor who's angst started this discussion if you sent him the link to the conference as he might want to attend.
  20. DB Irony? Would I? I don't think it is bust and you don't seem to think so either. It might however be changed by councils adopting what BA is suggesting.
  21. DB. The council will often get one of their staff currently doing another job to get a certificate so no they would not necessarily arrive at the council already holding a certificate. Furthermore the form us used for renewals as well as first applications so every EA will have to fill one out every 2 years. There is a couple of tick boxes right at the start of the form. Someone renewing a certificate will give their works details that apply at the moment they fill out the form. They may at that time be employed by a local authority. As for the scale we seem to agree there is only one scale of fees and it is applicable to all EAs (other than HCEOs) whether or not they are employed by a local authority. There is no need to continue discussing but I will end by saying I thought your comment in post # "So does this meant that the council consider that their own fees scale is applicable when bailiff are in house" meant you believed a council had their won fees scale separate from that in the TCoG(Fees) Regs.
  22. BA Are you able to name and shame the authority? Presumably it'll be in the public domain soon if not already. As you've said the complaints have died down as the government hoped when designing the fee scale to adequately reward EAs but perhaps this was just a temporary amelioration like an interstadial (warm period) in a long term ice age. With this new move we will be back to private EA firms working for skimmed milk whilst the council sit licking the cream from their lips. It could be like the situation where firms that used to run old folks homes go out of the market leaving inadequate provision. Imagine the post apocalyptic world with half starving former EAs in ragged clothes and gaunt expressions begging for alms at the local authority offices whilst piles of liability orders lie rotting and uncollected in the streets! DB Did you see beneath the question ” are you a member of any other type of organisation”? the wording eg Local Authority? As you say it isn't law but it is an indication that others do not agree the council cannot do the work themselves. If you do your FOI to all councils you can find out what changes they have made. As I say there were council employees with County Court Certificates to act as bailiffs under the old regime and by now all of them will have had to renew their certificate which would allow them to act as EAs. As for the regulation 45 talk I was responding to your comment in post #21 which said "Section 45 relates to which fee scale is used. as you know the fee scale is not always utilised alongside the procedure." I did not know what you meant and I'm even less sure now. The new wording for 45 makes no mention of a fee scale so the only fee scale is the one in the schedule to the TCoG (Fees) Regs 2014. Unlike you I cannot see any reason why a council employee cannot recover those fees.
  23. DB I can't easily reply individually to the various points you make as any response I make appears at the end of all the earlier posts so it would be too hard for anyone to follow. Picking a couple of points though you seem to say though that I'm mistaken about the EA application form EAC1. If that is what you are saying look here https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/eac1-0414.pdf at the very top of the third page. Also you FOI should confirm that Brighton Council have employed Bailiffs and now EAs directly for many years. You also mention the Council Tax Administration and Enforcement Regulations reg 45 as if this still has a scale of fees but it does not. Schedule 13 amended only primary legislation and it was left to the Tribunals, Courts and Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014 amended the various SIs including the CTax Admin and Enf regs. If you or others have missed it, it can be found here:-http://www.legislation.gov.uk/uksi/2014/600/contents/made The relevant parts which replace the old Reg 45 detailed wording about distress with an ability to use the Schedule 12 procedure and which deletes the scale of fees that was included in Schedule 5 are pasted below:- ©for regulation 45 (Distress) substitute— 3© “Enforcement by taking control of goods 45. Where a liability order has been made, payment may be enforced by using the Schedule 12 procedure.”; 3 (j)omit Schedule 5 (Charges connected with distress).
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