Team effort – Unlawful "Head H" bailiff fees for the attention of MoJ

[outlawla]

Breaking through the 15,000 barrier:

 

Stockton on Tees Council (Bristow & Sutor/Jacobs)

Figure submitted:

4,109

| Goods removed: 10

 

 

Hastings Borough Council (Rossendales)

238

| 0

The figure stands at 15,524 for goods removed 31 times.

[outlawla]

A high fee to goods removed ratio here:

 

Scarborough Borough Council (Bristow & Sutor; Dukes; Jacobs; Newlyn; Rossendales)

Figure submitted:

2,951

| Goods removed: 0

 

The figure stands at 18,575 for goods removed 31 times.

 

 

Thurrock Borough Council along with Lincoln City and Brighton & Hove have said they don't apply the H fee.

 

Havant Borough Council use Equita and Ross and Roberts but have stated where Equita do not levy costs under sch 5 (H), Ross and Roberts do, but are unable to split these out from other costs and fees (unless they can be persuaded).

[tomtubby]

Oulawla

 

In your excellent research have you been able to ascertain which bailiff companies are commonly continuing to charge Head H fees?

 

From my own experience, it appears to be Equita, Ross & Roberts and Bristow & Sutor.

[Mark1960]

Also I read previously that Brighton & Hove are "in-house".Does the same apply to Thurrock Borough and Lincon City?

 

Any info/figures on councils not applying the H/H fee would be extremely helpful.Thanks in advance.

[outlawla]

Oulawla

 

In your excellent research have you been able to ascertain which bailiff companies are commonly continuing to charge Head H fees?

 

From my own experience, it appears to be Equita, Ross & Roberts and Bristow & Sutor.

 

From the FoI responses I've found, Bristow & Sutor appeared several times with Ross & Roberts only once so far, but Havant Borough Council have been unable to disclose the number (as yet).

 

Although three local authorities have said they don't levy the fee, Havant Council have stated Equita do not levy the head H fee, so assume this is Equita's policy for all CTAX enforcement.

 

At some point I'll put all the data onto a spreadsheet so comparisons can more easily be made. However, where councils use more than one bailiff firm, it seems they don't necessarily separate the figures for the respective contractors and are often lumped together.

[tomtubby]

Mark

 

Brighton & Hove do have "in house" bailiffs but they also two outside bailiff companies as well.

[Mark1960]

Thanks TT

[outlawla]

Also I read previously that Brighton & Hove are "in-house".Does the same apply to Thurrock Borough and Lincon City?

 

Any info/figures on councils not applying the H/H fee would be extremely helpful.Thanks in advance.

 

 

These are the bailiff firms listed on CIPFA stats for Thurrock Borough Council:

 

• Jacobs; MA Julious & Co; Marston Group; Newlyn; Phoenix; Whyte & Co
  

 

Lincoln City Council (data on link) have stated they only use Rossendales.

"

We only use Rossendales bailiff and have an agreement not to apply the Header H fee...

 

Although Brighton & Hove have in-house bailiffs, like most authorities having their own team, they also seem to have contractor(s). CIPFA stats list these as external bailiff firms for Brighton & Hove:

 

• Chandlers; Confero; Excel; Rossendales
  

[Mark1960]

That's great info-Thankyou.

 

In a world where it is all too easy to criticise councils (& I'm a massive critic),credit is due to these three councils who are protecting their residents from incorrect H/H charges.

 

IMO,however the wording is interpreted,it is impossible to be left in any doubt about the meaning in the last line of Reg 45(4) as set out by Ploddertom at the top of page 2 in this thread.

[outlawla]

That's great info-Thankyou.

 

In a world where it is all too easy to criticise councils (& I'm a massive critic),credit is due to these three councils who are protecting their residents from incorrect H/H charges.

 

IMO,however the wording is interpreted,it is impossible to be left in any doubt about the meaning in the last line of Reg 45(4) as set out by Ploddertom at the top of page 2 in this thread.

 

Milton Keynes should be added, not for "not applying the fee", but for applying it in accordance with the law. As it detailed in this FoI response.

[Mark1960]

For some reason,it appears this little snippet from the LGO Report (Nov 2012) has been overlooked (page 5):

 

One particular area of dispute is the fee charged under ‘Head H’ of the council tax costs schedule, where

 

goods are removed but not sold. Bailiffs often charge this when they take walking possession but do not

 

remove goods, calling it a redemption fee. The Ombudsman’s view is that bailiffs should not charge this fee

 

when the debtor makes an arrangement and no goods are actually taken.

[Mark1960]

I would add that this report came after the CIVEA's claim that it was perfectly "reasonable" to add this charge,regardless of whether goods are removed.

[ploddertom]

For some reason,it appears this little snippet from the LGO Report (Nov 2012) has been overlooked (page 5):

 

One particular area of dispute is the fee charged under ‘Head H’ of the council tax costs schedule, where

 

goods are removed but not sold. Bailiffs often charge this when they take walking possession but do not

 

remove goods, calling it a redemption fee. The Ombudsman’s view is that bailiffs should not charge this fee

 

when the debtor makes an arrangement and no goods are actually taken.

 

I would add that this report came after the CIVEA's claim that it was perfectly "reasonable" to add this charge,regardless of whether goods are removed.

 

It is like a lot of things whereby they only see waht they want and ignore everything else. To make your own mind up you have to read the relevant Regulation and interpret it.

 

Header H Fee states:

Where no sale takes place by reason of payment or tender in the circumstances referred to in Regulation 45(4);

Regulation 45 (4) then states:

(4) Where an authority has seized goods of the debtor in pursuance of the distress, but before sale of those goods the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount, the sale shall not be proceeded with and the goods shall be made available for collection by the debtor.

 

What this means:

The Bailiff seizes your goods and as you fail to pay the monies outstanding he reattends and removes the said goods and a sale is arranged for them. In the meantime you then pay the outstanding monies including all fees. The sale then has to be cancelled and you are then free to collect the goods. Please note that as it says collection then this must surely mean the goods were removed.

[brassnecked]

I would agree with PT on this, the fee should not apply where there is a walking possession and goods were never removed. One thing to bear in mind is where the bailiff clears out a house and takes even exempt items the cost of collection might not be affordable to a debtor who may well not have the funds to hire a large vehicle for their collection.

[tomtubby]

I do not want to go "off the subject" but a number of bailiff companies are charging a similar "Head H fee" of £5 when enforcing a PCN. They call the fee a "closing fee". As I understand it the LGO have been made aware of this......

[outlawla]

I would add that this report came after the CIVEA's claim that it was perfectly "reasonable" to add this charge,regardless of whether goods are removed.

 

 

Don't you think bailiff firms have interpreted CIVEA's statement incorrectly by claiming the fee can by charged where a levy has taken place, regardless of removal or costs involved in advertising.

"

This legal opinion unequivocally stated that the Fee under Head H of Schedule 5, 'where no sale takes place by reason of payment or tender' in accordance with section 45 (4) of the regulations, is perfectly legitimate and in accordance with the regulations. Furthermore, the fixed fee, currently £24.50, is recoverable regardless of the actual costs incurred.

 

It clearly states above "in accordance with section 45 (4) of the regulations" so you just have to read that in conjunction with ploddertom's post. It does not state the charge can be made when goods have not been removed.

"

Furthermore, the fixed fee, currently £24.50, is recoverable regardless of the actual costs incurred.

This must mean the fee can be charged only if goods have been levied and removed and some costs have actually been incurred with respect to advertising, for example when only £15 was incurred (it can charge £24.50).

Edited May 22, 2013 by outlawla

[Mark1960]

I had a look at the CIVEA website last night & I believe theres a lot of stuff on there that is interpreted incorrectly-They have a right go at the LGO Report for instance (presumably over Head H)

As PT rightly states,schedule 5 refers to regulation 45 [4] which clearly states the goods shall be made available for collection.

 

Your excellent research has discovered 3 councils who have acted on the LGO Report (I am assuming their no H/H policy came into effect after the report came out).The fact that the majority of councils are prepared to turn a blind eye on this tells you all you need to know about their attitudes to residents.

 

With regards the CIVEA statement,I believe they've asked a solicitor to draft a positive statement regarding the fee-Theres a similar statement about our favourite topic the "notice" on there now.

[outlawla]

No figures available for 2009-10, however, numbers are not insignificant:

 

Bradford City Council (Jacobs; Phoenix)

Figure submitted:

1,341

| Goods removed: 0

 

 

 

Update:

 

Havant haven't yet been persuaded

 

Havant Borough Council are following North East Lincs example by playing the "excessive costs" card, but on a much smaller scale. Whilst Ross & Roberts estimate a cost of £1,557 to supply data (Equita doesn't apply the fee), it makes North East Lincolnshire's £39,775 estimate look like a drop in the ocean.

 

The figure stands at 19,916 for goods removed 31 times.

[tomtubby]

The matter of the Head H fee has been ongoing for a very long time and I remember in 2006 being provided with a copy of Counsels opinion that had been commissioned by CIVEA ( or as it was then...the Certificated Bailiffs Association) which outlined that particular Barristers opinion as to why the charge can be added.

 

The relevant local authority also provided me with a copy of Counsels opinion that THEY had obtained and this one made it CLEAR as day that a local authority CANNOT and MUST NOT charge a Head H fee.

 

For at least 2 years I argued with that particular council as the bailiff company continued to charge the Head H fee and I was informed that the bailiff company had provided an undertaking to the council that they would repay any disputed Head H fees charged. Frankly...a bloody disgrace.

 

PS: I remember sending copies of both Barristers opinions to John Kruse in around 2006/7 and it is fair to say that JK was not at all complimentary with the Counsels opinion that was being relied upon by the bailiff industry !!!

 

Have you asked any local authorities whether they have obtained independent legal advice as to the legality of charging the Head H fee or whether they were relying upon advice given by the bailiff industry?

[outlawla]

.....Have you asked any local authorities whether they have obtained independent legal advice as to the legality of charging the Head H fee or whether they were relying upon advice given by the bailiff industry?

 

 

I found this reply from Milton Keynes in connection with some enquiries about the fee:

 

 

Dear Mr X,

 

(23 November 2011)

 

I have provided you with the legislation and advised that it appears to be open to opinion as to how the provision works.

 

In your email to me of 28th October 2011 you quote the opinion which states that the H Fee of 24.50 can be charged whether or not the goods are "physically removed"

"

Following criticisms regarding the charging of fees under Head H to Schedule 5 of the Council Tax (Administration and Enforcement) Regulations 1992 this association sought legal opinion as to the legality of such charges.

 

This legal opinion unequivocally stated that the Fee under Head H of Schedule 5, 'where no sale takes place by reason of payment or tender' in accordance with section 45 (4) of the regulations, is perfectly legitimate and in accordance with the regulations. Furthermore, the fixed fee, currently £24.50, is recoverable regardless of the actual costs incurred.

 

ACEA fully endorses the right of its member companies to charge such a fee and strongly encourages the use of such incontestable statutory fees, where appropriate

.

I can only direct you to the law. As I have said before; that from June of this financial year Milton Keynes Council does not allow our contractors to charge the fee H unless actual physical removal has taken place.

 

However I cannot say how other Councils' will treat "actual physical removal".

 

You may have to get your own opinion. It does not appear to have been tested in the Courts.

 

I am sorry Mr X but I do not think I can answer your FOI request any better that I have already.

 

Regards

 

Recovery Manager

Revenues and Benefits Service

Mouchel

 

 

 

The email referred to in the above (28 October 2011) I've posted below.

 

Dear Recovery Manager

 

 

I appreciate you have directed me to the legislation in your email of October 26, however, by you own admission this legislation is ambiguous.

 

Despite sending thousands of cases to bailiffs each year for alleged non-payment of council tax, Milton Keynes Council, have enforcement fee policies based purely on opinion.

 

Regulation 14(4) of the Council Tax (Administration and Enforcement) Regulations 1992 states:

 

"

Where an authority has seized goods of the debtor in pursuance of the distress, but before sale of those goods the appropriate amount (including charges arising up to the time of the payment or tender) is paid or tendered to the authority, the authority shall accept the amount, the sale shall not be proceeded with and the goods shall be made available for collection by the debtor."

The Regulation only implies that circumstances dictate that goods need to be physically removed before the "head H" fee can be charged to the alleged debtor.

 

Further confusion may have arisen from a statement by the Civil Enforcement Association where they have said on "FEES CHARGED UNDER HEAD H - COUNCIL TAX" (1st June 2011)

"

Following criticisms regarding the charging of fees under Head H to Schedule 5 of the Council Tax (Administration and Enforcement) Regulations 1992 this association sought legal opinion as to the legality of such charges.

 

This legal opinion unequivocally stated that the Fee under Head H of Schedule 5, 'where no sale takes place by reason of payment or tender' in accordance with section 45 (4) of the regulations, is perfectly legitimate and in accordance with the regulations. Furthermore, the fixed fee, currently £24.50, is recoverable regardless of the actual costs incurred.

 

ACEA fully endorses the right of its member companies to charge such a fee and strongly encourages the use of such incontestable statutory fees, where appropriate".

No doubt enforcement agencies and councils assume they've been given the green light to charge this "head H fee" in all circumstances where goods have been levied, whether or not they have been physically removed.

 

However, nowhere in the statement does it say that the fee could be charged in circumstances where goods have not physically been removed.

 

I appreciate that your department do not charge this fee in circumstances where goods have not been removed, however, this has not always been the case. As Recovery Manager of Milton Keynes Council and responsible for thousands of accounts being passed to bailiffs each year, I would expect that you would want to go to whatever lengths necessary, not only to find out the requested information to satisfy the FOI request, but also for your own information.

 

Yours sincerely,

 

FoI Ref: ....

Edited May 23, 2013 by outlawla

[tomtubby]

I would suggest that you ask whether they obtained their OWN legal opinion or whether they had relied upon legal opinion from CIVEA?

[tomtubby]

Outlawla

 

Have you by any chance made a request to Cheshire East County Council to ask whether they allow their bailiffs to charge a Head Fee fee.

[outlawla]

Outlawla

 

Have you by any chance made a request to Cheshire East County Council to ask whether they allow their bailiffs to charge a Head Fee fee.

 

Just looked and haven't seen one on "whatdotheyknow"

 

Only this one Bailiff fees – How are they paid? might be of interest where it veers into Regulation 52(4) a sum recovered less than the aggregate....etc.

 

Looks like the answer here might be worth a read.

[tomtubby]

Thank you for the link. Very interesting !!!

 

I spoke with a lady this afternoon and she had a visit early this morning regarding council arrears of just £32. She was charged the Head H fee and disgracefully, a "van charge" of £240 !!!

[brassnecked]

Most interesting outlawla, looks bad on councils. Tomtubby, your case today is disturbing but entirely within the parameters of muppetry exposed by outlawla at NELC, so it is likely correct to assume Liability Orders are obtained for trifles, certainly £32 is a pitiful amount to pursue and turn into a £300 ish debt. wonder if there have been LO's obtained on arrears of a penny?