Please Help - Unlawful Fees?

[monkeyman14]

I had a council tax debt. No goods were ever removed but a levy occured on two cars. The cars were never taken away. Nothing was ever removed. I have been chared £74 for the levy, £24.50 Head H fee and £180 van/abortive removal fee. The levy occurred in April 2011. In September 2011 the bailiff company took out an attachment of earnings which I have nearly finished paying. However, I am sure the bailiff fees are unlawful. No goods were removed so there should be no Head H fee, no walking possesion was signed so there should be no van fee. I have written to the CEO of the council and they will not back down and my next move is a regulation 46 complaint. But please just give me your thoughts on the above. These fees ARE unlawful are they not?

[ploddertom]

Is it possible you can start at the very beginning - when, how much, did you get a breakdown of fees etc?

 

PT

[monkeyman14]

The council tax plus court costs were £1810. The notice of seizure of goods left on 17/02/2011 lists a levy fee of £74 and a Head H fee of £24.50. The inventory of goods seized lists two cars (which we own) that were parked outside.

 

I asked for the bailiff for a statement and it shows the fees above but also on 08/07/2011 they have added another £180 for van/abortive removal fees. Now the bailiff did return and I spoke to him around that time, but nothing was taken.

 

After that, probably in August the bailiff company (Bristow & Stutor) obtained an attachment of earning order for the full amount (including all the fees listed above). Obvioulsy there was nothing I could do to stop this attachment of earnings, I rang the bailiff countless times, have emails from them saying their fees are valid, have complained to the council (CEO/Finance) and even threatened a regulation 46 complaint but they accept no involvement and say the fees are between me and the bailiff.

 

Now I have got to the point where I need to do the regulation 46 complaint, but before hand (and considering the complaint will cost me £200) I need someone to check that I have a case. If u need more info please ask.

[monkeyman14]

Oh I forgot to mention that NO walking possesion agreement was ever signed and no bailiff ever entered my home, so this is why I think the £180 van fee is unlawful.

[ploddertom]

The 2 cars on the Notice of Seizure - how old, taxed & MOT'd, value?

 

The Council can do an Attachment of Earnings not the Bailiffs.

 

At all times the Council are 100% responsible for the fees and actions of the Bailiffs.

 

After the initial levy, was an arrangement made to pay in instalments? Was this kept up with or did you break it - if so when? Were you ever charged 1st or 2nd Visit Fee?

 

PT

[ploddertom]

Oh I forgot to mention that NO walking possesion agreement was ever signed and no bailiff ever entered my home, so this is why I think the £180 van fee is unlawful.

 

Not relevant

 

PT

[monkeyman14]

OK the cars - one 1997 Peugeot 2nd hand price approx £200, the other probably £800. Both taxed, mot'd. Both privately owned. The AOE is to the bailiffs not to the council. I don't know why the council didnt do it themselves they have never answered this question. The letters that I sent to the council outline the fact that they are 100% responsible for the bailiffs fees but the reply I got a few days ago from their heah finance director guy was that the fees are between me and the bailiff and nothing to do with them. There was never any payment plan in place or agreed. I was never charged a first or second visit fee, they are not on the statement I have from the bailiff. Here is a transcript of the letter I got from the council a few days ago:

 

Dear Mr xxxxx

 

Thank you for your recent letter to the Chief Executive which he has passed to me to respond to you directly.

 

I have looked into the circumstances surrounding your account and the response that Mr xxx has sent you. You mention you are unhappy that our reply included detail that was provided by the bailiff company. I apologise if you feel that this was not useful, but Mr xxxx felt it gave further clarity around the fees that the bailiffs have charged you.

 

You also mention that you feel these fees are unlawful and that xxxx Borough Council are acting unlawfully and improperly by condoning the actions of our contractors. I would like to assure you that this is not the case. xxxx Borough Council contracts bailiff companies to recover outstanding council tax debts where it feels that this is appropriate. This is a perfectly legal arrangement that occurs in most local authorities. The fees incurred are between you and the bailiff company and have only arisen because you have failed to pay your council tax on time or make a satisfactory arrangement to repay the monies outstanding.'

 

.....................

 

Thanks for your help so far.

[ploddertom]

If there was no arrangement made to pay by instalments after the levy was made when was the next time the Bailiff attended?

 

PT

[monkeyman14]

The email I got from the bailiff company states that the bailiff revisited on 08/07/2011 and this is the date that the van fee was added.

[ploddertom]

Thank you, in my view you should be able to have a party.

 

When goods are levied the Bailiff must keep in close contact with them. He may get you to sign a Walking Possession Order whereby you can still have use of the goods whilst you pay the debt. If he believes you may get rid of the goods then he may remove them immediately and sell them at auction.

 

In my view the Bailiff has levied on your 2 cars - whether that levy is good enough in view of the value of the cars is another argument for another day - this was done as you say on 17 February 2011, his next involvement was 8 July 2011 - some 5 months later. You need to put it to B&S that the Bailiff abandoned his levy and the levy fee and all other associated charges must be removed and replaced with a 1st Visit Fee if applicable. Of course it will be very interesting to see their reasons why this should not happen.

 

Therefore the following fees must in my view be removed:

Levy Fee - £74

Header H Fee - £24-50

Van Fee - £180

 

PT

[monkeyman14]

In my first letter to the council that was met with a reply from the bailliff via the council, the bailiff says (and this letter is dated 28/3/2012):

 

"The levy has never been abandoned, we have continued to actively pursue it. We do not have to have a Walking Possesion Agreement in place or remove the seized items for the levy to still be active. We would respectfully refer you to the case of Susan Evans vs South Ribble Borough Council (1991), in which, the then Mr Justice Simon Brown, rejected the suggestion that 'the only effective impounding of goods, absent a close or walking possesion agreement, is by removing them from the premises'. He went on to say he envisaged goods remaining impounded 'even without any continuing act of possesion at all'. He considered that the leaving of seized goods without entering into a walking possesion order does not amount to abandonment."

 

Later in the letter the bailliffs say 'We hope you understand the levy is still valid and the fees are all legally due'.

 

So that was their response when I said that the levy had been abandoned.

[dx100uk]

and stop paying the bailiff if you can

 

this AOE sounds very suspect to me

 

i PERS would be contacting your employer tomorrow and getting it stopped.

as far as i know, bailiffs have NO authority tto do these

 

it just leaves you WIDE open to be used as a cash cow

 

 

pay the council direct via your internet banking site

[monkeyman14]

As far as I am aware the employer is breaking the law if they stop paying the AOE order.

 

Besides I have been arguing it so long that it is nearly all paid,

the original debt is paid in full by the AOE and I only have another £120 to pay in total

which means including the unlawful bailliff fees

I have already paid too much.

 

I have no control over the bailiff being paid these unlawful fees.

 

That is why I need to take it to court.

 

The regulation 46 complaint costs me £200,

I will obviously be seeking this back with the unlawful fees and damages.

 

I have spent the last 5 months paying this, researching this is arguing this. It has caused so much stress.

[dx100uk]

i'll admit i'm not upto speed on AOE's

 

but i take it the bailiff went to the court to get this?

 

just never heard of a bailiff co doing this before hence i question its possible [legally]

 

dx

[tomtubby]

PLEASE....do NOT consider a Regulation 46 complaint. There are a number of reasons. Most local authorities have little knowledge of this procedure and furthermore, there is a fee of around £200.

 

What SHOULD be happening is that the local authority should have given you the opportunity to take your complaint to the Stage 2 process. Has this happended?

 

From what you have written you seem to have made a formal complaint and this was correctly addressed to the Chief Executive. It is for this reason that you can now refer your complaint to the Local Government Ombudsman. This is the CORRECT procedure and there is NO fee to pay.

 

The local authority are WRONG. They are wholly responsible for the levy and fees charged by their AGENTS and if you require confirmation of this you will ned to refer to a Newsletter that I wrote for CAG last year which is entitled: Who is responsible for the actions of the bailiff. Hopefully, somebody on here will direct you to the Library section for a copy.

 

The "Head H" fee of £24.50 is a subject that I am PASSIONATE about. Only yesterday I was talking with one particular local authority on this very subject and I was pleased to see that this particular LA had CORRECTLY interpreted the legal basis of this fee. The LA was Milton Keynes

 

The fee is supposed to cover THE COST OF ADVERTISING and was set at £24.50 and should ONLY be applied to an account in the event that goods have ACTUALLY been removed for sale. I have provided the LGO will all of the relevant papers on this.

 

If you require copies of either document, please send me a PM.

[outlawla]

...You also mention that you feel these fees are unlawful and that xxxx Borough Council are acting unlawfully and improperly by condoning the actions of our contractors. I would like to assure you that this is not the case. xxxx Borough Council contracts bailiff companies to recover outstanding council tax debts where it feels that this is appropriate. This is a perfectly legal arrangement that occurs in most local authorities. The fees incurred are between you and the bailiff company and have only arisen because you have failed to pay your council tax on time or make a satisfactory arrangement to repay the monies outstanding.'....

 

This is a typical council response and one which will originate from some generic script handed out from central government to all local authorities. A script which is always referred to when they want to fob you off and put the responsibility on to you for the council's negligence and abetting its contracted bailiff firm to commit fraud.

 

I should think this kind of response is like a red rag to a bull and no doubt makes the aggrieved resident more determined to see the council gets what's coming to them.

[outlawla]

...The "Head H" fee of £24.50 is a subject that I am PASSIONATE about. Only yesterday I was talking with one particular local authority on this very subject and I was pleased to see that this particular LA had CORRECTLY interpreted the legal basis of this fee. The LA was Milton Keynes

 

The fee is supposed to cover THE COST OF ADVERTISING and was set at £24.50 and should ONLY be applied to an account in the event that goods have ACTUALLY been removed for sale. I have provided the LGO will all of the relevant papers on this....

 

 

Something I find interesting about the "Head H Fee" is the way councils and bailiff firms have interpreted the legislation from the various amendments.

 

SI 1993/773

SCHEDULE 5 CHARGES CONNECTED WITH DISTRESS

 

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

Reasonable costs and fees incurred in respect of advertising

 

 

Through these amendments and in particular SI 1998/295 which introduced an alternative enforcement fee of either a fixed minimum or actual costs, this is how the charge should be interpreted under schedule 5 of the regulations:

 

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

For fees incurred in respect of advertising

Either:

(i) £24.50, or

(ii) the actual costs incurred, to a maximum of 5% of the amount in respect of which the liability order was made.

whichever is the greater.

 

 

However, it seems all councils and bailiff firms have somehow managed to lose the reference to "advertising" and typically present the fee like this:

 

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

Either:

(i) £24.50, or

(ii) the actual costs incurred, to a maximum of 5% of the amount in respect of which the liability order was made.

whichever is the greater.

 

No doubt this inaccurate interpretation of the regulations is the work of bailiff firms so they can cloud the issue surrounding what the charge is actually for. Evidently they have successfully been able to influence councils that this is how the legislation should read.

Edited April 18, 2012 by outlawla

[ploddertom]

I

 

"The levy has never been abandoned, we have continued to actively pursue it. We do not have to have a Walking Possesion Agreement in place or remove the seized items for the levy to still be active. We would respectfully refer you to the case of Susan Evans vs South Ribble Borough Council (1991), in which, the then Mr Justice Simon Brown, rejected the suggestion that 'the only effective impounding of goods, absent a close or walking possesion agreement, is by removing them from the premises'. He went on to say he envisaged goods remaining impounded 'even without any continuing act of possesion at all'. He considered that the leaving of seized goods without entering into a walking possesion order does not amount to abandonment."

 

Of course they are just cherry picking at this and only looking at the bits they want to. If they want to rely on this then this means that they can return up to 6 years later and still claim their levy is valid - I think not. Abandonment has occurred because the Bailiff has failed to remain adequately in charge of the goods seized - your 2 cars - and delayed his return for 5 months. According to them if they are using the case listed why are these forums not full of such ideas.

 

A Regulation 46 Complaint is only for use where you are aggrieved by the levy - they have seized a hairbrush for a £1000 debt for example. In your case I believe the initial levy was carried out correctly and any action otherwise would fail. You need to press ahead with the Abandonement route and follow TT's advice by elevating it to the LGO.

 

PT

[tomtubby]

I love the way that bailiff companies continually use ONE particular legal case to suit their own purpose but IGNORE ones that dont !!!

 

OUTLAWLA.......good post as always ...

[brassnecked]

Great post outlawla, yes i agree with TT that they interpret only that which will inflate their fees, whether lawful or not

[monkeyman14]

Hi. The council has never said anything anout me taking my complaint to a stage 2 process. I didn't know there was a process. I thought it was for a judge to decide now and that was my only option (any one I cannot afford as I don't have £200 at the moment). I will write a letter and enclose all previous letters and send to the ombudsman then I guess. Will also try to dig out those articles TT suggested.

[ploddertom]

When you write to the CEO at the Council are marking both letter & envelope "Formal Complaint"?

 

PT

[wonkeydonkey]

You cannot go to the ombudsman unless you have followed the complaints procedure. Help is available on here from many knowledgeable caggers to take you right through all of that ...just ask and they will be there for you.

 

WD

[outlawla]

....The AOE is to the bailiffs not to the council. I don't know why the council didnt do it themselves they have never answered this question.....

 

I'll take the liberty of answering for your council.

 

Your kind an caring local authority could have just as easily collected your outstanding council tax through an AOE, as Bristow & Stutor have done. The reason they didn't is because this incurs more in administration costs. They consider bailiffs come at nil cost because they get paid from fees added to the debtors account. Consequently they take the easier and more reckless option of appointing bailiffs, even though this should be their last resort.

 

 

Council Tax Collection Good Practice

8.3.3. Bailiff recovery rate is as low as 30%, and bailiff action is not usually the most effective in individual cases. Where possible, the council should start with another form of recovery, such as an AEO. However, as one authority had over 63,000 liability orders in one year (CIPFA statistics) they must use bailiffs extensively as the volume is too high to look at each case in enough detail and take other, more time consuming or expensive actions for all these cases. Council staff have also suggested using AEOs would be better if they were allowed access to Inland Revenue (IR) records (see section 3.5.3.3).

Can you say who your council is to determine how many stages are involved in their formal complaints procedure?

[monkeyman14]

It is Dacorum Borough Council. Today I phoned ombudsman and emailed them all my letters and the replies from the council. The woman I spoke to saidI had to follow the councils complaints procedure and asked if any of the letters told me how to escalate the complaint. Double checking the letters before I sent them to her, NONE of the letters mention any form of complaints procedure at all. Now I will wait to see what the ombudsman comes back with.