swift bailiff and CTAX debt has levied on my car

[hallowitch]

http://www.legislation.gov.uk/uksi/1988/2050/article/10/made

 

 

Fees, Charges and Expenses

 

 

10. No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

[reallyinthecrap]

http://www.legislation.gov.uk/uksi/1988/2050/article/10/made

 

 

Fees, Charges and Expenses

 

 

10. No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

 

amazing! that could be the key ive been looking for days!

 

thanks!!!!!!!

[hallowitch]

your bailiff knows 100% legislation does not allow a van fee or a Hedder H fee to be charged on the same day as a levy (if he doesn't then she should not be a certificated bailiff)

 

no wonder bailiffs get away with so much when councils like this just don't give a xxxx you have been overcharged on 2 accounts by nearly £300 do not give up on this if need be go to the ombudsman

 

 

 

 

 

have a read of this i know it about PCN

 

In the Central London County Court - Case No 8CL51015 - Anthony Culligan (Claimant) v 1. Jason Simkin & 2. Marstons (Defendants). Before District Judge Advent 9th & 24th September 2008

2. The Fee Regulations provide for a distinction between the levying of distress and removal of goods. There is a gap between the two stages. The purpose of this "gap" is to allow the debtor to make payment of what is due after the first stage.

 

 

 

for council tax the fee legistation is

C For one attendance with a vehicle with a view to the removal of goods (where, following the levy, goods are not removed

 

 

In the Central London County Court - Case No 8CL51015 - Anthony Culligan (Claimant) v 1. Jason Simkin & 2. Marstons (Defendants). Before District Judge Advent 9th & 24th September 2008

 

Mr Culligan challenged the bailiffs fees & charges imposed by Mr Simkin and Marstons when levying distress and seeking to remove Mr Culligans car for non-payment of a Penalty Charge Notice issued by the London Borough of Camden.

 

The Judgment goes a long way to clarify exactly what a Bailiff can charge for levying distress. Bailiffs have always sought to charge for fixing an immobilisation device by clamping a vehicle, and an attendance to remove. These charges in Anthony Culligan's case were £200 (£100 for the clamp and £100 for attendance to remove). The Bailiffs have argued that the Fee Regulations permit them to make a charge for levying distress (that is 28% on the first £200 demanded, and for removing goods, or attending to remove goods where no goods are removed, reasonable costs and charges). Bailiffs have claimed that the costs of putting on a clamp, etc. are costs to be included in attending to remove where no goods are removed, if payment is made before the vehicle concerned is removed.

 

DJ Avent, after considering Case Law and Statute, has found that the purpose of putting on a clamp is to "impound" the vehicle and is not part of the costs of removal. This is because:-

 

1. The Bailiff's obligation is to secure the vehicle, and the simplest and easiest way to do this is to "immobilise" it so it cannot be driven away. This is effectively the equal of impounding the goods.

 

2. The Fee Regulations provide for a distinction between the levying of distress and removal of goods. There is a gap between the two stages. The purpose of this "gap" is to allow the debtor to make payment of what is due after the first stage.

 

DJ Avent says at paragraph 50 of his Judgment:-

 

"Accordingly, in my judgment the bailiff should not and, as a matter of law cannot take any steps to remove goods until he has given the debtor a reasonable opportunity to pay what is due at the time of seizure. This being so I cannot see that Form 7 can or should include any costs of removal. Mr. Simkin included on the Form 7 he produced for Mr. Culligan the sum of £100 in respect of the immobilisation device. If, as the Defendants now argue, that was part of the removal expenses, it should never have been included in Form 7".

 

The District Judge went on to find that the application of the clamp falls within the act of levying distress and does not form part of the removal process, whatever the Bailiff's Contract with Camden says.

 

The Bailiff also charged Anthony Culligan £100 for the " reasonable costs " of removing the vehicle (although the vehicle was never actually removed) in that a tow truck was called and actually arrived at Anthony Culligan's home. Because the Bailiff produced no evidence as to how the charge had been arrived at he was unable to show that it was reasonable.

 

The District Judge in his conclusion says:

 

"I am also conscious that my findings in this case ... may have wider consequences and may cause problems for bailiffs because they will not be able to charge for immobilising a vehicle as a separate charge but must include it within the cost of levying distress. To do otherwise would, in my judgment, be unlawful... I would also add that if the Defendant or either of them in the light of this judgment now continued to apply such charges in the manner in which they have done up to now and, specifically, charge fees of £100 for applying an immobilisation device then that would amount to conduct which may well then found a legitimate complaint because in my judgment it would be unlawful....".

 

What this means in effect is that Bailiffs who continue to make unlawful charges may be guilty of misconduct and have their Certificates removed.

 

You should know however that Marstons obtained permission to appeal from the District Judge. His reasons for granting the permission were :

 

"The bailiff was following the practice in force for 15 years. No one has challenged the right to charge for wheelclamping before.

My decision that they cannot do so (at least to the extent that they have charged until now) not only affects the London Borough of Camden but also every Borough with de-criminalised parking.

 

Accordingly, it has significant local and possible National implications and that is a compelling reason why an appeal should be heard"

 

Finally, Camden now as a matter of urgency, need to revise their Contract with Bailiffs such as Marston, to take account of the District Judge's Judgment generally, and in particular to remove the authority to charge a fee for an immobilisation device over and above that provided for in the Statutory Fee Regulations.

 

London Motorists Action group

[outlawla]

Re; hallowitch

 

It seems there must be hundreds of thousands of cases where bailiffs, abetted by councils, are applying charges unlawfully for advertising levied goods (Head H) and attending with a view to remove goods (Head C).

 

If the statistics published on Rossendale’s website are anything to go by, it would not be unreasonable to assume the figure could run into hundreds of thousands throughout the country, if not millions for unlawfully charging the head H fee.

 

It states on Rossendale’s website that where goods are actually removed by bailiffs, this nationally only represents 1% of cases. 1.4 million council tax Liability Orders were issued to bailiffs last year, so if all councils allowed their contracted bailiff firms to routinely charge this fee when no goods have been removed, then potentially, a maximum of 1.386 million could have been defrauded with this charge last year.

 

Freedom of Information requests should be put to all our councils to determine just how endemic this systematic fraud is.

Edited May 6, 2012 by outlawla

[reallyinthecrap]

well this tickled me... found a series on youtube by ITV Series called Whistleblowers about Bailiffs

 

It's in 4 parts... it shows the dispicable behaviour of a bailiff working on behalf of Rossendales...

 

BUT, this is the funny bit, i wish he had done the levy on my car, because he doesn't apply the "Attending with a vehicle with a view to remove removing"..

 

Skip through 1min 50 secconds to see where he levies a car..

 

http://www.youtube.com/watch?v=hNvXpiMWW5Q

[seanamarts]

Hallowitch to the rescue, she comes up with the right stuff at the nick of time, saying that I thought I added that link, Got me on a bad day

 

The OP has now the info he needs to pass this to the council to be included in his complaint.

[reallyinthecrap]

http://www.legislation.gov.uk/uksi/1988/2050/article/10/made

 

 

Fees, Charges and Expenses

 

 

10. No person shall be entitled to charge, or recover from, a tenant any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Appendix 1 to these Rules.

 

Im starting to draft my email to the LA.

 

The link above seems to clearly backup what I am trying to defend but my concern is that the "Instrument" is titled "The Distress for Rent Rules 1988"

 

Im concerned about the word "Rent" - can i be sure this is the correct instrument to quote?

 

Thanks

[reallyinthecrap]

just had the following response from the LA regarding my request for the fee schedule.

 

here is their answer...

 

"Further to your e-mail below I made contact with Mr XXXX XXXXXXX today about your request for the fee schedules. His response is set out below:

 

The fee schedule is prescribed in Government Regulations and is not specified by the Council. Swift Credit Services have informed the Council that the reasonable fees they charge that are prescribed in Regulations for the attendance at a property with a view to removing goods is £170.00.

 

The council feels these are reasonable. However if Mr XXXXXX thinks they are not reasonable then he can challenge the fees through an application to the County Court.

 

Mr XXXXXX can view the Regulations relating to fees on the following Government website. The first link is to the original Regulations made in 1992 and the second and third links are amendments to the Regulations whereby the fees were altered/increased.

 

www.legislation.gov.uk/uksi/1992/613/schedule/5/made

www.legislation.gov.uk/uksi/1993/773/schedule/made

www.legislation.gov.uk/wsi/2004/1013/regulation/3/made

 

Any thoughts peeps?

 

Court time?

[Conniff]

"Any thoughts peeps?"

 

Yes, get that online claim going now and reclaim the bit you believe is unfair. My betting is that they will refund the whole lot when they get the summons because if you win that will curtail them from just making up amounts to charge.

[reallyinthecrap]

I still have to go through Stage 3 of the complaint with the LA I believe?

 

The above response was to a request for their fee schedule.....

 

I want to get to the bottom of this not just for me to get a refund but to stop this practice and get everyone who has been hit by these charges refunded going back to the beginning of time.

 

Ignoring that I believe the amount charged is unreasonable, it seems totally incredible that a bailiff can drive around in little van slapping levies on people's vehicles, charging a levy fee AND a "attending with a vehicle with a view to removing" fee on the same visit and then come back in 5 days and charge a further fee for actually removing the levied items.

 

totally incredible....

[outlawla]

...."Further to your e-mail below I made contact with Mr XXXX XXXXXXX today about your request for the fee schedules. His response is set out below:

 

The fee schedule is prescribed in Government Regulations and is not specified by the Council. Swift Credit Services have informed the Council that the reasonable fees they charge that are prescribed in Regulations for the attendance at a property with a view to removing goods is £170.00. The council should specify to Swift Credit Services what reasonable fees they charge, not the other way round. The enforcement fees are in law, the council's.

 

The council feels these are reasonable. However if Mr XXXXXX thinks they are not reasonable then he can challenge the fees through an application to the County Court. It is not for the council to feel that the fees are reasonable, they are the council's fees.

 

Mr XXXXXX can view the Regulations relating to fees on the following Government website. The first link is to the original Regulations made in 1992 and the second and third links are amendments to the Regulations whereby the fees were altered/increased.

 

www.legislation.gov.uk/uksi/1992/613/schedule/5/made

www.legislation.gov.uk/uksi/1993/773/schedule/made

www.legislation.gov.uk/wsi/2004/1013/regulation/3/made

 

Just read through those links (admittedly very quickly) and saw nothing indicating that the reasonable fees they can charge for the attendance at a property with a view to removing goods is £170.00.

 

 

 

Any thoughts peeps?

 

Court time?

 

Lock them up!

[brassnecked]

Keep escalating the complaint ever upward, copied to MP

[ploddertom]

There is a lot of confusion in this thread and I believe we need to get back to basics.

 

The Bailiff has claimed a 1st Visit & 2nd Visit Fee, on his 3rd Visit to you he has claimed a Levy Fee, ATR Fee & a Head H Fee. The question has to be was the car he levied on in evidence on either the 1st or 2nd Visit? If so why did he not levy on it on either of those 2 visits? Or did he do it this way in order to garner more fees?

 

PT

[ploddertom]

Looking at the Header H Fee he has charged, you have to look to the Regulations to see whether this can be charged.

 

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.

 

Remember it clearly states within the above "goods shall be made available for collection by the debtor" so to have a collection there must have been a removal previously. There is also the provision that the fee is to cover the advertising costs to the Bailiff, so it must be worth asking where this was done.

 

PT

[reallyinthecrap]

There is a lot of confusion in this thread and I believe we need to get back to basics.

 

agreed

 

The Bailiff has claimed a 1st Visit & 2nd Visit Fee, on his 3rd Visit to you he has claimed a Levy Fee, ATR Fee & a Head H Fee.

 

correct, if an ATR fee is what they describe as "attending with a vehicle with a view to remove"

 

The question has to be was the car he levied on in evidence on either the 1st or 2nd Visit?

 

I was in when the bailiff attended the 1st time so my car would have been parked outside on the public road.

I was not in when the bailiff attended the 2nd time, found the letter on the floor, i am not sure if I was out in the car or not.

 

If so why did he not levy on it on either of those 2 visits? Or did he do it this way in order to garner more fees?

 

I have no idea why he didn't levy the first time.

[ploddertom]

The purpose of a visit from a Bailiff for the collection of Council Tax is for him to"levy distress" on your goods in order to force you into paying in full or entering a payment arrangement.

SCHEDULE 5 - CHARGES CONNECTED WITH DISTRESS

A. For making a visit to premises with a view to levying distress (whether the levy is made or not):

 

Therefore if the vehicle was available at the time of the 1st Visit he should have seized it then. However if he had done this he would have had to forego his 1st & 2nd Visit charges, total £42-50. It follows that the Bailiff is guilty of garnering his fees to make a financial gain for himself & his Company. In my view he has committed a cardinal sin.

 

PT

[reallyinthecrap]

just been told I cannot take my complaint to Stage 3....

 

any thoughts?

 

Thank you for your e-mail dated 8 May 2012 in which you set out thereasons why you wish to take your complaint to Stage 3. Based on yourresponse it is not appropriate for those matters to be dealt with under Stage 3of the Corporate Complaint Policy or Procedure. I will explain why this is thecase.

 

The Council’s Corporate Complaint Policy and Process includes adefinition of what is regarded as a complaint. It also lists matters whichwould not be considered as a complaint. This includes the following:

 

·Adisagreement with, or refusal to accept a Government regulation which theCouncil is applying (example – application of enforcement regulations)

 

In bullet point 2 of your e-mail dated 8 May 2012 you state "Iconsider that the levy and the "attending with a vehicle with a viewto removing" should not happen on the same visit." I have beenadvised by Mr X XXXXXXX, Revenues Manager, that there is no discretion on thisand that under Schedule 5 of the Council Tax (Administration & Enforcement)Regulations 1992 it specifically states that it should happen.Youdisagree with it - however the Council’s representatives are applying aregulation which by law they have to do.

 

·Decisionsin respect of which the person has a separate formal right of appeal or review(examples – planning appeals, housing benefit and Council Tax reviews)

 

I have already advised you in my e-mail dated 8 May 2012 that ifyour reason for going to Stage 3 related to the level of fees thenthis should be challenged via the County Court. Bullet point 1 ofyour e-mail dated 8 May 2012 refers to the fees for "attending with avehicle with a view to removing" being unreasonable. Therefore thiselement of your complaint needs to referred to the County Court and notvia Stage 3 of the Council's Corporate Complaint Policy and Process.

 

However if you feel aggrieved at this decision you can take up thismatter with the Public Services Ombudsman for Wales, at the address shownbelow:

 

1 Ffordd yr Hen Gae, Pencoed,CF35 5LJ

 

Telephone No. 0845 601 0987

 

E-mail: [email protected]

 

Website: www.ombudsman-wales.org.uk

 

If you have any other reasons for wanting to go to Stage 3 - pleaselet me know. I can consider them and advise whether they could be investigated.

 

Yours sincerely

[outlawla]

.....The Council’s Corporate Complaint Policy and Process includes a definition of what is regarded as a complaint. It also lists matters which would not be considered as a complaint......

 

Unbelievable!!!!

 

The council is dictating to you what you can and cannot be aggrieve by.

 

This is a classic example of how the British public have somehow been indoctrinated to believe that a complaint must conform to some standard for it to be valid and qualify for an organisation’s consideration.

 

This is madness! You can't complain about something you are aggrieved by, you have to complain about something the council allows you to complain about.

 

Remember this is the council's corporate complaint policy, not yours.

 

I notice they haven't made a comment about the head H charge...

 

The unreasonable vehicle fees are the council's which they are responsible for authorising so they're fobbing you off with the county court referral.

 

What about the case law in an earlier post (Anthony Culligan (Claimant) v 1......)? Have you quoted that to them?

 

"

2. The Fee Regulations provide for a distinction between the levying of distress and removal of goods. There is a gap between the two stages. The purpose of this "gap" is to allow the debtor to make payment of what is due after the first stage

."

 

 

EDIT:

 

Remember this:

 

The purpose of a visit from a Bailiff for the collection of Council Tax is for him to"levy distress" on your goods in order to force you into paying in full or entering a payment arrangement.

SCHEDULE 5 - CHARGES CONNECTED WITH DISTRESS

A. For making a visit to premises with a view to levying distress (whether the levy is made or not):

 

Therefore if the vehicle was available at the time of the 1st Visit he should have seized it then. However if he had done this he would have had to forego his 1st & 2nd Visit charges, total £42-50. It follows that the Bailiff is guilty of garnering his fees to make a financial gain for himself & his Company. In my view he has committed a cardinal sin.

 

PT

Edited May 11, 2012 by outlawla

[ploddertom]

Maybe you should make a complaint about not being able to make a complaint about the complaints procedure. Out of interest I wonder if they use the Shercar system.

[seanamarts]

I would take this to the ombudsman, no matter how much you are going to complain to the council, they will find a loop to satisfy them that they are in the right.

 

You need to ask though, why they have not answered about the Head H fee. etc

[reallyinthecrap]

Hello again,

 

I seem to have lost this battle.

 

My concern now is that I may have incurred additional bailiff fees while attempting to fight this.

 

Might I now be liable for an additional £11 a day for every day that I have been disputing this?

 

I am referring to a pararagh on the reverse of the unsigned WPA agreement where it states:

 

"For the possession of goods as described in paragraph 2(2) - (i) for close possession ( the main in possession to provide his own board) £14.00 per day. (ii) for walking possession: £11.00"

 

Thanks in advance

[seanamarts]

£11 is the walking possession fee, this is a one off payment.

 

Are you going to contact the ombudsman?

[reallyinthecrap]

Are you going to contact the ombudsman?

 

I cannot see on what premise I have to take this forward.

 

I cannot find any evidence that a Levy & a "Attending with a vehicle with a view to removing" cannot take place on the same day

[reallyinthecrap]

Images of the unsgned WPA.. not sure if it helps...

 

http://sdrv.ms/Kpox66

 

http://sdrv.ms/Mx0vfK

 

If anyone can see any problems would love to hear from you..

 

T

Edited May 20, 2012 by reallyinthecrap

[seanamarts]

I will try and explain this the best I can;

The point of a WPO is so items are left at the property as a ransom, so basically this gives you time to pay or a payment plan is set up. They cannot charge you for for attending to remove when an agreement has been placed for the items to stay in the property.

There is nothing in sch 5 to allow this fee.

 

http://www.legislation.gov.uk/uksi/1992/613/schedule/5/made

 

If the council are not allowing a stage 3 complaint then you have even more cause to complain to the ombudsman