Levy and Remove goods immediately – Brum City Council Vs LGO

[outlawla]

In light of Local Government Ombudsman reports, it was surprising to read in Birmingham City Council's "Code of Conduct for Bailiffs" at paragraphs 27 and 29 under the heading 'Distraint' that it permitted the bailiff to [levy] and immediately remove goods on their first visit.

 

27. Unless instructed otherwise by the relevant City Council Department’s staff, bailiffs must not remove goods on their first visit, (subject to point 29 below) but will levy and if possible enter into walking possession giving the debtor time to pay. A payment arrangement should be made to clear the debt (see payment arrangements). If a payment arrangement is agreed, the bailiff need not enter into possession of goods.

 

29. Where the debtor indicates that they will not pay or enter into a payment arrangement or agree to walking possession, then the bailiffs can remove the goods immediately.

 

Which one needs a word in its ear? Birmingham City Council or the LGO?

[zydeco]

Don't forget that Birmingham council is really Capita.

 

http://www.birmingham.gov.uk/servicebirmingham

[sgtbush]

if the goods that have been levied upon are known to be in jepody then the goods can be removed immediatly

 

if a walking possesion is done and the debtor says im going to smash everything up, then because the goods now belong in the custody of the law, the bailiff under the laws of distress, has a duty to the crown to protect the goods

 

just some additional info from the laws of distress that outweigh any code of conduct

[HCEOs]

If the goods are likely to be in jeopardy, i.e. they can be removed or hidden, then the bailiff should remove them to protect them for the creditor. It is the definition of jeopardy that can cause argument. Goods such as vehicles are clearly in jeopardy which is why they are often clamped and then removed.

 

From the enforcement industries point of view part of the problem is the courts and police's reluctance to prosecute those that 'rescue' seized goods. Because of this, bailiffs tend to remove goods of value as per above.

 

Of course all of the above relies on the bailiff making a proper levy in the first place.

[caledfwlch]

What is the typical punishment for hiding levied goods?

 

It must be difficult to prove in a lot of cases and its not particularly in the public interest to prosecute.

 

Does having your goods levied impose a duty of care on the debtor? What if C-Tax Bailiff turns up, has somehow managed to convince both Council and a Magistrate to issue one of the almost rare as hens teeth forced entry warrants, and the goods are not there. Debtor says a friend came in an took them.

[brassnecked]

What is the typical punishment for hiding levied goods?

 

It must be difficult to prove in a lot of cases and its not particularly in the public interest to prosecute.

 

Does having your goods levied impose a duty of care on the debtor? What if C-Tax Bailiff turns up, has somehow managed to convince both Council and a Magistrate to issue one of the almost rare as hens teeth forced entry warrants, and the goods are not there. Debtor says a friend came in an took them.

 

What if Bailiff comes to levy a car at the same time as a logbook loan knuckledragger comes with a towtruck? Which one will be in hospital, and which one will be arrested?

[BazzaS]

In light of Local Government Ombudsman reports, it was surprising to read in Birmingham City Council's "Code of Conduct for Bailiffs" at paragraphs 27 and 29 under the heading 'Distraint' that it permitted the bailiff to [levy] and immediately remove goods on their first visit.

 

 

 

Which one needs a word in its ear? Birmingham City Council or the LGO?

 

Neither. The two are complimentary rather than mutually exclusive.

 

'27' is "usual practice"

'29' is "option for the occasions '27' shouldn't be used".

 

Of course, if the LO and thus levy was never supposed to be valid in the first place, then the bailiff's (and therefore the council's [being vicariously liable]) actions may be unlawful.

Edited February 22, 2013 by BazzaS

[outlawla]

.....just some additional info from the laws of distress that outweigh any code of conduct

 

Local authorities – especially in relation to council tax – pick and choose aspects of distress laws to tailor to their watered down version of bailiff enforcement.

 

I say watered down because councils can't be confident all cases progressed for enforcement are necessary, in that a high percentage will be for insignificant or even 'no' outstanding debt by the time 20,000 or so cases land in the hands of the bailiff firm for that month.

 

The conveyor belt operation and lack of human intervention to monitor the liability order applications is probably why (for council tax enforcement at least), the distress powers have to be curtailed by incorporating terms in the contracts.

 

It seems pretty conclusive from SLAs that local authorities don't generally want bailiffs taking goods, but what bailiffs seem to be exploiting however (and further abetted by local authorities) are "Van" fees which bailiffs have successfully managed to convince local authorities they can charge as an automatic entitlement after securing the statutory 2 max visit fees for attending with the view to levying distress.

 

It may or may not be lawful to levy and remove immediately, but what I'd say is categorically breaking the law is the bailiff charging van costs he has not incurred, i.e., arriving in his regular transport as one of several debtors scheduled for a visit that day.

 

It's important to note also that man hours should not enter into the equation as Council Tax enforcement and the schedule of fees, were never devised for a profit to be made (originally in-house). Some councils specify in their contracts the amount they permit their bailiffs to charge as a Van fee, this just goes to show the level of incompetence of staff heading those departments.

[HCEOs]

What is the typical punishment for hiding levied goods?

 

It must be difficult to prove in a lot of cases and its not particularly in the public interest to prosecute.

 

Does having your goods levied impose a duty of care on the debtor? What if C-Tax Bailiff turns up, has somehow managed to convince both Council and a Magistrate to issue one of the almost rare as hens teeth forced entry warrants, and the goods are not there. Debtor says a friend came in an took them.

 

Remember I'm talking from a judgment creditor stance rather than a Local Authority stance but the same is true nonetheless.

 

Yes, proving it is difficult and the Police are often uninterested but this is the problem. If you encourage people to remove and hide seized goods illegally, which to be fair you do, then it makes sense for a bailiff to remove them on his first visit.

 

Oh, and I know of a debtor that got 4 weeks inside for selling a seized car. This was contempt of court.

[tomtubby]

Outlawla,

 

Possibly this post is going away from the initial question but the matter of an "ATR" fee and in particular...the misunderstanding of this fee is a sibject that I am passionate about !!!

 

With almost all queries regarding fees that can be charged etc it is almost always the case that you would need to go back to the time when the fees were set for a clearer interpretaion. In this case, you would need to back to 15th September 1997 and 19th December 1997

 

 

On 15th September 1997 a Consultation Paper was issued by the LGFP ( I have a copy and will try to post a link to it over the weekend)

 

The Department of the Environment Transport and the Regions published the outcome of the Consultation in the “Fourteen Council TaxLetter” to local authorities. dated 19th December 1997

 

 

On the matter of the fee for "attending to levy" (where no levy was made) the government agreed to raise the fees for a 1st visit from £20.00 to £22.50 and for a 2nd such visit,from £15.00 to £16.50.

The Consultation Paper also suggested that a maximum fee for a “van attendance” should be introduced but sadly, this was not implemented.

 

Both increases for a 1st and 2nd visit were minimal and in the response to theConsultation Paper the government confirmed that the reason for this was because:

 

“The fees payable in respect of the levy of distress are intended to cover the costs incurred by the local authority in making the levy and are due to the local authority”

 

And that:

 

“Whilst many contracts between local authorities and bailiff companies may “assign” the fees to the bailiff company, the fees are not, and were not intended to be, the fees of the bailiff”.

 

They also stated that the local authority cannot profit from enforcement and of utmost importance is the following comment from the 1997 Consultation Paper:

 

“Where an authority does contract out the work to a private sector bailiff company it is important that both sides remember that the bailiff is working on behalf of the authority. Local authorities cannot abdicate responsibility for the actions of their contractor”.

 

“Ultimately, it is the responsibility of the local authority to ensure that the levy is carried out in a lawful manner and that the fees charged are in accordance with the regulations”

 

Furthermore; the Government reiterated that:

“Fees payable in relation to the levy of distress are intended to cover the costs of the local authority and are due to the local authority. Proposals were made to change some fee levels because it was considered that they were no longer meeting the costs of the local authority. However, fees charged to a debtor should only recompense a local authority for the costs arising from that particular debtor. They should not be increased to allow for costs from other debtors which have not been recovered nor to allow for an element of profit”

[caledfwlch]

Remember I'm talking from a judgment creditor stance rather than a Local Authority stance but the same is true nonetheless.

 

Yes, proving it is difficult and the Police are often uninterested but this is the problem. If you encourage people to remove and hide seized goods illegally, which to be fair you do, then it makes sense for a bailiff to remove them on his first visit.

 

Oh, and I know of a debtor that got 4 weeks inside for selling a seized car. This was contempt of court.

 

I generally advise people to hide goods BEFORE they are levied not after. I think I have suggested hiding and replacing with broken versions where the Bailiff has levied, but done a very, very poor basic levy with barely any description and no serial numbers etc.

[outlawla]

tomtubby,

 

Your post, in a way highlights the recklessness of councils which contractually oblige their bailiffs to take on additional administration for free – Attachment of Earnings for example, not to mention the ones demanding a percentage of fees. It hardly needs mentioning the added pressure put on these firms makes them cut corners to turn round a profit. Outsourcing these operations has failed, but nobody seems to be admitting it. Contrary to the belief there's no cost to the council, that is complete rubbish.

 

By the same token, the new fee structure devised by the MoJ and helped along by the likes of Miss Jones, will be implemented with private enforcement firms (and potential to make profits) in mind. This decision should be reversed immediately and enforcement put back in the hands of local authorities, that is of course if they can't come up with a fairer way of collecting local taxes.

[brassnecked]

tomtubby,

 

Your post, in a way highlights the recklessness of councils which contractually oblige their bailiffs to take on additional administration for free – Attachment of Earnings for example, not to mention the ones demanding a percentage of fees. It hardly needs mentioning the added pressure put on these firms makes them cut corners to turn round a profit. Outsourcing these operations has failed, but nobody seems to be admitting it. Contrary to the belief there's no cost to the council, that is complete rubbish.

 

By the same token, the new fee structure devised by the MoJ and helped along by the likes of Miss Jones, will be implemented with private enforcement firms (and potential to make profits) in mind. This decision should be reversed immediately and enforcement put back in the hands of local authorities, that is of course if they can't come up with a fairer way of collecting local taxes.

I would concur with yourself and tomtubby, distress for council tax was never intended to provide a basis for profit for anyone, so using bailiffs on a fee sharing basis as appears to be the rationale of some contracts and service level agreements is flawed.

[josephbloggs]

Just to answer a question asked earlier about what happens if someone removes or hides levied goods, this is actually known as pound breach and taken from a website is an extract of what it says are the possible outcomes :-

If a person (whether or not they are the debtor) knowingly removes or disturbs distrained assets without permission they may be guilty of pound breach and possibly also breach of Walking Possession. This breach can include an insolvency practitioner who disposes of goods, often as part of a sale of the business, where a levy is in place prior to his appointment. The distrainor is entitled to recover the goods or to sue for damages.

[brassnecked]

Just to answer a question asked earlier about what happens if someone removes or hides levied goods, this is actually known as pound breach and taken from a website is an extract of what it says are the possible outcomes :-

If a person (whether or not they are the debtor) knowingly removes or disturbs distrained assets without permission they may be guilty of pound breach and possibly also breach of Walking Possession. This breach can include an insolvency practitioner who disposes of goods, often as part of a sale of the business, where a levy is in place prior to his appointment. The distrainor is entitled to recover the goods or to sue for damages.

What about the third party who actually owns the car, parked outside the debtors house, who not knowing their motor had been seized. as the bailiff assumed it was the debtors without checking, drives it away, and is hounded by the bailiff? I don't think it applies to them, or will they have to rely on replevin, or jump through hoops to shake the moron's off?

[sgtbush]

Just to answer a question asked earlier about what happens if someone removes or hides levied goods, this is actually known as pound breach and taken from a website is an extract of what it says are the possible outcomes :-

If a person (whether or not they are the debtor) knowingly removes or disturbs distrained assets without permission they may be guilty of pound breach and possibly also breach of Walking Possession. This breach can include an insolvency practitioner who disposes of goods, often as part of a sale of the business, where a levy is in place prior to his appointment. The distrainor is entitled to recover the goods or to sue for damages.

 

to expand on this you the person would be arrested under the Torts (Interference with Goods) Act 1977

[brassnecked]

to expand on this you the person would be arrested under the Torts (Interference with Goods) Act 1977

If the goods were a third party car, and the bailiff hadn't checked ownership and subsequently removed it, wouldn't the disgruntled owner be able to use this against the bailiff and council also? I think they would, and could as oldbill alleges report them to police and get them done for Theft Motor vehicle.

 

This scenario is becoming more common with Certificated Bailiffs, and random on street parking, in busy areas

Edited February 22, 2013 by brassnecked