Councils (Ross&Roberts LTD) opinion as to why the Hedder H fee can be charged

[hallowitch]

Well Mr Jones the councillor and I went to see the council yesterday about the Hedder H fee and the Attendance to remove fee being charged the same day as the levy

 

we agreed that the Hedder H fee was a controversial fee and there were different opinions they stated the south Ribble case and agreed that there were several LGO reports saying it couldn't be charged

 

 

I said it was an advertising fee introduced in 1993 and can only be charged if goods are removed

 

Council said No its not just for advertising its for other expense's couldn't tell us what other expense's or why some bailiffs charge it and some don't but its something to do with the Walking possession agreement

 

I argued my case and said the levy fee covers their expense's I mentioned Regulation 10 of The distress for rent rules 1988 and was told that does apply to council tax only rent

 

I asked if they had taken legal advice and spoke to there solicitors and they said NO they will however consult them now and get back to us

 

there was further conversation about it but that was the jist of it

they ask what we wanted and I said if im correct return the money and remove the fee

 

They gave me some paperwork with the information they are relying on to charge the fee (outlawla will you please post it on this thread please)

 

I told them that I still think they are wrong and I wont be going away

 

I then got on to the Van attendance fee being charged the same day as the levy They didn't think they were discussing that today well they thought wrong

 

I asked why Rossendales bailiffs had charged the fee 197 times from 209 and why neither Jacobs or excel had provide the information MR Jones the councillor then commented about the lack of information and why the council cant provide the info asked for information before the next audit committee

 

I was told that as they hadn't planed to discuss it they would have to check legislation on that

 

I stated that there would be no argument with this fee as I know im right and had they read the FOI they would have noticed the comment from Excel who hadn't actually checked there records but state the answer would be none as an ATR fee cant be charged the same day as a levy

 

I went on to say how many bailiffs is this 5/10 more than 10 is it the same few bailiffs Systematically defrauding us because make no mistake that's what it is and it must be looked into and if its the same bailiffs all the time then at the very least I would expect a form 5 to be sent to there certificating court however it is fraud and the police should be involved

 

Council told me I was getting ahead of myself said I wasn't because I am correct there is no contravention as to when this fee can be charged

[brassnecked]

Excellent work Hallow. If your councillor can persuade the other elected members that their officers are condoning fraud and unlawful actions, I forsee a rough ride for the CEO of Wrexham Council.

[renegadeimp]

Wrexham council have always been scummy as that. Thats why the entire borough is one of the most poverty stricken areas in north wales.

[outlawla]

.....They gave me some paperwork with the information they are relying on to charge the fee (outlawla will you please post it on this thread please)....

 

Here it is....

[brassnecked]

Well it is only opinion, and there is evidence against that viewpoint.

[outlawla]

If Ross & Roberts are relying on that "opinion" to charge the fee then they're being very optimistic.

 

It's a weak argument for many reasons; even the punch line at paragraph 27 makes no real point other than goods need not necessarily be removed for them to be seized (such as where the debtor has entered into a close or walking possession agreement), which is not what the dispute is about.

 

27. In my view therefore the WILSON decision would not compel a Court to hold that the word "seized" in regulation 45(4) of the Regulations means "removed". Thus although the conclusion arrived at by Mr Russell in his aforementioned Opinion is certainly arguable, on the balance I disagree with it.

 

The aforementioned Opinion:

"

Charge under head H to the table to Schedule 5 to the (1992) Regulations are only lawful where goods have been physically removed from the debtor's premises, whether to a vehicle or to another place. Ipso facto, such charges may not lawfully be imposed where a removal has not taken place

.

Edited November 7, 2013 by outlawla

[lamma]

11 pages. That tells you all you need.

That it took him eleven pages to develop the (rather weak) argument that he was paid to give.

One wonders what fee he charged.

[brassnecked]

11 pages. That tells you all you need.

That it took him eleven pages to develop the (rather weak) argument that he was paid to give.

One wonders what fee he charged.

He knew he had to waffle on to obfuscate and justify the unjustifiable!

[hallowitch]

Thanks for posting the paperwork and Wilson v south Kesteven outlawla very much appreciated

 

Our council don't use Ross & Roberts so I can only assume that they used them in 205 when this was written I was only handed it after the meeting

 

when they mentioned they had a report from a bailiff firm I said ohh is that one of the CIVEA reports I believe there were2 but they only rely on the one in favour of charging the fee (no wonder they looked at me daft )

 

They said we don't get many complaints about the bailiff fees I said really I know of 3 because I wrote the letters I did say they were dealt with within days in the debtor favour

 

I would say it was a good meeting as to the Hedder H fee they didn't dismiss the fact that I could be right and they are going to seek legal opinion so we will see what that brings

but I expect there will be a round 2 I will be better prepared the next time

 

can anyone give me Mcleod v Butterwick , Willison v South ,and the South Ribble Case please I would be most grateful

 

can anyone confirm If Regulation 10 of The Distress for rent rules is only for rent and not council tax

 

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.

 

 

Does appendix 1 apply to council tax

 

The Van fee charges that Rossendale's provided I don't see how they can argue the toss on that one but I wont hold my breath waiting on the council involving the police but if not I will be asking why not after all as I said at the meeting a bailiff knows when to charge this fee and its not the day he levies goods

[lookinforinfo]

I have got McLeod Butterworth here-http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1998/471.html&query=mcleod+and+v+and+butterwick&method=boolean

 

It has been interspersed with khazanchi V faircharm though the case seems more to do with the legality of bailiffs breaking in rather than anything to do With head fees.

[outlawla]

The following is taken from CIPFA's "Case Law Digest". Like other references in the Ross & Roberts document (Wilson for example), it differs to the judgments found, so check it's the correct case.

 

Evans v South Ribble Borough Council [1991]

Levy of Distress for Community Charge

 

Introduction

 

This case concerns an appeal by way of Case Stated from a decision of Magistrates sitting at Lancastergate, Leyland on the 26th March 1991. The appeal is in respect of a complaint made by the chargepayer, against the charging authority, concerning an attempt to levy distress under regulation 39 of the Community Charge (Administration and Enforcement) Regulations 1989, SI 438.

 

An appeal to the Magistrates Court, under regulation 40 of SI 438, was rejected and the Justices upheld the action taken by bailiffs on behalf of South Ribble Borough Council. Costs of £1500 were awarded against the chargepayer.

 

The appeal to the High Court was to seek their opinion as to whether lawful distress may be made of goods within a dwelling house by posting through the letterbox in a sealed envelope a Notice of Distress in the form shown below.

 

Case Summary

 

The facts prior to the appeal to the Magistrates are undisputed in that the Ms Evans was liable to a community charge of £329.94 in respect of 1990/1991 which was unpaid and the authority obtained a liability order on the 21st November 1990 in the sum of £340.94. The council instructed bailiffs under regulation 39 to execute a Distress Warrant in respect of the sum due.

 

The bailiff called at Ms Evans house on the 21st February 1991 but there was no one at home. The bailiff therefore, called at the neighbours and telephoned Ms Evans at work and explained that he was calling about the community charge and said that he would put the necessary documents through her letterbox in an envelope marked 'private and confidential'. He asked her to read the documents and do something about them urgently. The envelope that was put through her door contained the following:

• a Notice of Distress and, on the reverse side, a draft Walking Possession Agreement signed by the bailiff,
  
  
• a form 'Request for Payment by Instalments',
  
  
• a note headed 'Instructions' purporting to explain the process of enforcing the liability order and incorporating copies of regulation 39 of, and schedule 5 to, S I 1989/438,
  
  
• a note 'Optional Method of Payment (1990)'.
  
  

Ms Evans took no action regarding the documents, did not sign the walking possession agreement or make any proposals as to payment of the debt.

 

The Notice of Distress gave the appellants name and address and read: "Take notice that by virtue of an authority given to me by the Leyland Magistrates' Court in a liability order dated the 21st November 1990 I have this day seized, distrained and impounded upon the premises goods specified in the inventory below for the sum of £340.94 being Community Charge and costs owing to South Ribble Council as stated in the said liability order.

 

And further take notice that unless the said sum be paid, together with the expenses of this distress, or the goods be Replevied, within 5 days from the date hereof, they will be sold according to law.

 

The Inventory

 

All goods on the premises unless exempt or specially exempt by statute."

The notice was signed by the bailiff and dated the 21st February 1991.

 

The High Court considered section 22(3) of, and paragraph 7(1) to schedule 4 to, the Local Government Finance Act 1988 and regulation 39 of, and schedule 5 to, SI 1989/438. The history of distress was also looked at and found to be:

• a common law remedy to recover arrears of rent, whereby
  
  
• the landlord had to remove goods and hold them in a pound. However,
  
  
• under a statute of 1689 the landlord could sell the goods after five days if the arrears had not been paid, and
  
  
• under a statute of 1737 the landlord did not have to impound the goods,
  
  

Whilst these all referred to rent the Court considered that, although there are differences in each type of distress, the effective levying of distress must receive the same answer regardless of the particular statute.

 

 

The basic principles under present law are:

• the three stages of distress;
  
  

• entry into the premises,
  
  
• seizure there of goods, and
  
  
• securing (impounding) of goods,
  
  

• entry can only be lawful, there is no right to forcible entry,
  
  
• seizure may be actual or constructive,
  
  
• impounding places the goods in the custody of the law and can be;
  
  

• on the premises, or
  
  
• removed to a pound,
  
  

• once impounded the distress is complete, unless it is abandoned.
  
  

At this stage, according to Volume 13 of Halsburys Laws, the goods are "in the custody of the Law".

 

In this case the bailiff had failed to gain entry to the premises and could not, therefore, seize any goods only being able to refer to the general contents of the property in the Notice of Distress. The only act of 'impounding' was to claim in the posted documents that the goods would be sold after five days. However, the threat to sell the goods cannot be upheld unless the appellant, at some time, allows lawful entry to the premises.

 

Turning to the Seizure of Goods, the Court stated that seizure can be either actual or constructive. Either form of seizure would appear to require entry to the premises. However, actual seizure involves identifying the goods distrained together with a declaration that they are being taken for distress.

 

Constructive seizure is unclear in law but the following cases were cited at the High Court hearing:

 

Cramer v Mott, (1870) LR 5 QB 357.

 

The tenant occupied a room in the landlords house. He owed rent and hire charges on a piano. When a third party tried to remove the piano the landlords wife stood outside the tenants room, in his presence and said 'The piano shall not be taken away till our rent is paid'.

 

This was considered to constitute effective distress.

 

Werth v London & Manchester Loan Co., (1889) 5 TLR 320.

 

This case said that it was immaterial if the goods were subsequently removed by another person. The distress by the landlord remained good.

 

Swann v Earl of Falmouth (1828) 8 B & C 456.

 

If a bailiff after intimating his intention to distrain walks round the premises and without touching anything gives written notice that he has distrained that will amount to a seizure.

 

Abingdon RDC v O'Gorman (1968) 2 QB 811.

 

Russell, L.J. was firmly of the view that walking possession did amount to an impounding on the premises even though a stranger ignorant of that impounding would not be guilty of poundbreach.

 

Lloyds & Scottish Finance Ltd. v Modern Cars and Caravans (Kingston) Ltd (1966) 1 QB 764.

 

Having gained access to the caravan the sheriff read out the warrant of execution and told the debtor that the caravan must not be moved. That was held to be an effective and continuing seizure of the caravan and its contents notwithstanding the debtor's refusal to sign a walking possession agreement and notwithstanding that the officer left the caravan.

 

The Judgement

 

The appeal against the levy of distress succeeded and the costs of £1500, awarded against the appellant by the Magistrates Court, were removed. The Court stated that except in exceptional circumstances e.g. Cramer v Mott and Werth v London etc., there must, first, be an entry onto the premises. Once on the property little is required in order to distrain and prevent the debtor from selling the goods, even without a signed walking possession agreement.

 

Reference was made to regulation 39, paragraphs (3) and (4), of the Community Charges (Administration and Enforcement) Regulations 1989 which specifically refers to seizure and that the wording of that regulation presupposes prior entry.

 

Sub-paragraph (5) of regulation 39 requires that the person carrying out the distress is to carry an authorisation from the authority to show to the debtor and schedule 5 to the regulations defines and provides for close and walking possession. These provisions indicate that the person carrying out the distress needs to meet with the debtor.

 

The Judge, whilst accepting that 'constructive distraint' is, in many cases, the only alternative said:

"

...

it is my clear conclusion that external inspection and posting through the letterbox is a course of action insufficient to bring about any of the legal consequences of distress.

 

If Parliament wishes to provide for distraint of goods merely by posting documents in this fashion (and if that, why not merely sending them registered delivery?) then it will do so by further legislation - although perhaps, following the Law Commission report, it is more likely that distress will instead be abolished entirely

.

Reference:

Queens Bench Division, CO/1179/91

12th July 1991

Mr Justice Simon Brown

Edited November 8, 2013 by outlawla

[hallowitch]

Thanks guys all info gratefully received to be honest I've read the report a few times now but im not taking it in at the moment (Major family situation causing lack of sleep ) so im very grateful for the help that's being given to picking the report apart

[outlawla]

This is what we pay our Council Tax for.

 

Police forces', in this case Blunderside Police, for supporting local mafias in their theft from the public and ensuring it goes unchallenged.

 

From: Wood, Michael 1202

To: outlawla

Sent: Saturday, November 09, 2013 12:01 PM

Subject: RE: North East Lincolnshire council / Rossendales (RESTRICTED - MANAGEMENT)

 

I have considered your submission regarding allegations of criminal conspiracy between North East Lincolnshire Council and Rossendales Bailiffs.

 

To prove that a fraud offence has taken place, we need to demonstrate, beyond reasonable doubt, that a dishonest act has occurred. The definition of dishonesty used in criminal prosecutions has been laid out as per the case of R v Ghosh. I cannot see that your allegation meets those requirements.

 

With regard to the Schedule 5 charges connected with distress - it appears that the bailiffs do not have to physically remove the goods (Evans v South Ribble Borough Council 1992.)

 

I do not take the view that NELC are co-conspirators. Should they report any criminal wrongdoing by bailiffs we will consider the case on its merits.

 

Before undertaking a Fraud investigation, the Police must have good grounds to believe that a criminal offence has been committed (HO Circular 47/2004). I do not consider that to be the case in this instance.

 

For these reasons, Humberside Police will not be pursuing an investigation into this matter.

 

My position is that this is more of a question of interpretation of the regulations as set out in the Statutory Instruments that cover Council Tax Administration and Enforcement, and that your dispute should be referred to the appropriate regulatory body.

 

Regards

Mike Wood

Detective Sergeant 1202 - Economic Crime Unit

Major Crime Unit - Tackling Serious & Organised Crime : Supporting Investigations

 

EDIT:

 

No prizes for guessing the next response (if there is one).

 

"

Thank you for your response.

 

You have cited case law (Evans v South Ribble Borough Council 1992) in support of your decision no to investigate, presumably in regards the head H fee.

 

In what way, as you quote: "it appears that the bailiffs do not have to physically remove the goods" would this support any decision not to investigate? I assume you have the relevant part of the judgment that influenced your decision. May I ask if your point is that goods do not physically have to be removed for the goods to be "seized"? If so that is a different issue to imposing head H charges where goods have not physically been removed.

Edited November 9, 2013 by outlawla

[lamma]

I disagree with Michael Wood "To prove that a fraud offence has taken place, we need to demonstrate, beyond reasonable doubt, that a dishonest act has occurred."

I agree with

http://www.petersandpeters.com/sites/default/files/publications/AnewkindofCriminalLaw-editedversion30108_4_.pdf

from which I now quote with due acknowledgement of its author.

 

The Fraud Act repealed the old deception offences under the Theft Acts 1968 and 1978,

replacing them with a broader offence of fraud. Section 2 of the Act creates an offence of ‘fraud by false representation’. A person “is in breach of this section if he dishonestly makes a false representation, and intends, by making the representation, to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss”.

“A representation is false if it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading”. Whereas under the deception offences, it was necessary to prove that the victim had been deceived, the s.2 offence focuses entirely on the representation made by the defendant. Whether anybody or anything (s2 (5)) acts on the representation is now immaterial. The Fraud Act also created a new offence of making or supplying articles for use in frauds. This offence provides that “a person is guilty of an offence if he makes, adapts, supplies or offers to supply any article knowing that it is designed or adapted for use in the course of or in connection with fraud, or intending it to be used to commit, or assist in the commission of, fraud”(s 7(1) Fraud Act 2006).

[outlawla]

That's a useful link lamma,

 

This police force is not going to investigate anything it doesn't want to investigate and therefore bury the evidence and as I would guess its next move will be to stonewall any further communications on the matter.

 

The response by Wood, is a complete embarrassment. The redemption fees represent just a fraction of the concerns I've raised in regards North East Lincs Council. After finding one excuse after another, he's had the front in his final response vaguely to reference one aspect, ignoring most of the evidence brought before him.

[brassnecked]

Obviously NELC and the dutti babylon are involved with funny handshakes etc etc, something stinks up there worse than a rotting barrel of mackrel.

[outlawla]

Obviously NELC and the dutti babylon are involved with funny handshakes etc etc, something stinks up there worse than a rotting barrel of mackrel.

 

You must be familiar with Grimsby's history to know it has links with the fishing industry.

 

With the advent of the police response I expect to be having to "go to town" on the Ross and Robert's document produced in support of charging the redemption fee where no goods are removed.

 

Therefore I've reproduced the document with editable text for ease of selecting key passages etc. Where the previous uploaded copy was hard on the eye, this one may be read much easier.

[outlawla]

......Council said No its not just for advertising its for other expense's couldn't tell us what other expense's or why some bailiffs charge it and some don't but its something to do with the Walking possession agreement

 

I argued my case and said the levy fee covers their expense's I mentioned Regulation 10 of The distress for rent rules 1988 and was told that does apply to council tax only rent.....

 

I think you hit the nail on the head....they will have already imposed charges in respect of levying distress and likely to have charged for taking walking possession.

 

I've had a look at the Opinion produced for Ross and Roberts (used by the council in supporting the charge). The following are one or two thoughts I had for possibly arguing against it.

 

The opinion to which the council rely has its argument weighted on the matter "of whether a walking possession agreement which leaves the goods on the debtor's premises constitutes a seizure within the terms of regulations 45(4)". The analysis of several judgments where distress has been contested has possibly been largely unnecessary in arriving at the intended purpose of the redemption fee described at head H of Schedule 5.

 

Whether within that regulation, the term "seizure" may relate to goods left on the premises, has less significance when compared with the advertising aspect, which when introduced to the Council Tax Regulations was described as: "Reasonable costs and fees incurred in respect of advertising" (ref: SI 1993/773)

 

If we assume it was intended that pursuant to head H, a person levying distress may recover the cost of advertising in respect of goods kept on the debtor's premises, it could then be focussed more on the circumstances under which it would be lawful. In getting the overall picture, other components making up the array of charges connected with distress should be looked at in respect of what work they compensate, in particular levying distress (head B) and taking possession of goods (head E). It should also be questioned in what way the charges in respect of advertising, described under head G, differ from the redemption charges (head H).

 

The redemption fee was an addition to Schedule 5 (charges connected with distress), amended by the Council Tax (Administration and Enforcement) (Amendment) (No. 2) Regulations 1993. Presumably it replaced the then head G provision for recovering "Reasonable costs and fees incurred" which were described under that head as "other expenses incurred in connection with a proposed sale where there is no buyer in relation to it". Incidentally the provision for a payable fee for one attendance with a vehicle etc., was similarly an addition to the fee Schedule amended by the 1993 Regulations.

 

The constant undergoing no change, other than the head under which it appears, is currently head G (auctioneer and advertising costs):

"G For other expenses of, and commission on, a sale by auction—

(i) where the sale is held on the auctioneer’s premises:

The auctioneer’s commission fee and out-of-pocket expenses (but not exceeding in aggregate 15 per cent. of the sum realised), together with reasonable costs and fees incurred in respect of advertising."

(ii) where the sale is held on the debtor’s premises

The auctioneer’s commission fee (but not exceeding 7½ per cent. of the sum realised), together with the auctioneer’s out-of-pocket expenses and reasonable costs and fees incurred in respect of advertising."

It can be deduced from the descriptions (and percentages) that three distinct elements can make up the payable charges under head G. In respect of where the sale is held on the auctioneer’s premises, there is provision for all three elements, i.e., advertising costs, the auctioneer’s commission fee and (presumably attributable to having to store goods and room hire to conduct the auction), the auctioneer’s out-of-pocket expenses.

 

This can be contrasted with where a sale is held on the debtor’s premises. Here only two elements can make up the payable charges: the advertising costs, and because the prescribed maximum can not exceed 7½ per cent (15 per cent in respect of the auctioneer’s premises), only the auctioneer’s commission fee (NOT an element of the auctioneer’s out-of-pocket expenses).

 

At paragraph 14 of the Ross and Roberts document, the commentary deals with the charges which may be payable in respect of an auction either at a debtor's or auctioneer's premises and would, in respect of the first two sentences at least, be difficult to argue with.

"Thus it is clear that following the levy (and thus the completion) of the distress the goods can either be removed elsewhere or left on the debtor's premises pursuant to a walking possession agreement or closed possession. Further the sale by auction can take place either at the auctioneer's premises or at the debtor's premises...."

However, there may be grey areas in the suppositions which follow:

".....It is clear from paragraph 1 of the Schedule that the charges under head H can be recovered in addition to those levied under the other heads. There is thus no reason it seems to me why charges under head H should not be levied if the goods are left on the debtor's premises pursuant to a walking possession agreement with the intention that they should eventually be sold by auction at those premises."

The author has stated here that charges under head H can be recovered in addition to those levied under the other heads, but does not define the charges (those which can be charged under head H). This is significant, especially in the case of Wrexham Council which has stated that the charge is not just in respect of advertising but covers other expenses (perhaps in connection with the Walking possession agreement).

 

Going back to paragraph 13 of the R&R document where the charges connected with distress were summarised, the charge is described in the following terms:

"(viii) expenses following seizure where no sale takes place (head H)."

Whether intended or inadvertently causing ambiguity, the above raises a question as to whether, in addition to advertising costs, there may be other costs for which the person levying distress is entitled to recover under the head H fee.

 

Even if it was not clearly stated under head H that the charges were in respect of advertising costs, the person involved in recovery would have already imposed charges for levying distress and most likely for taking walking possession.

 

If you were to compare a scenario where goods were sold at the debtor's premises under Head G with another where no sale took place by reason of payment under Head H where goods are left at the debtor's premises under a walking possession agreement, further insight could be gained into what expenditure the fees covered. Carefully looking at the two actions reveals no expenditure in respect of handing back control of goods could be incurred additional to the advertising costs and auctioneer’s commission which is the only recoverable costs under head G. It would therefore be difficult to argue that additional expenditure in respect of "the actual costs incurred" as described under head H could refer to anything other than costs in connection with a proposed sale. Certainly there would be no justification to add further to fees already incurred by the debtor such as levying goods, taking walking possession etc. etc.

 

However, in practice it would be unlikely many cases, where goods are left at the debtor's premises under a WPA, the person levying distress actually incurs costs in connection with a sale that does not go ahead by reason of payment. In respect of such cases (found to be disproportionately high), if costs had in fact been incurred, it should be possible that the person levying distress would be able to produce invoices as verification.

 

Although up to now it has been assumed a person levying distress may recover costs payable under head H in respect of goods kept on the debtor's premises, some arguments put forward in the R&R Opinion don't appear to stack up and are worth highlighting in relation to the description under head H:

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

Regulation 45(4) states the following:

"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."

In paragraph 15 of the Opinion the author has put emphasis on the meaning of the word "seized" used by the draftsman.

 

It appears that "the circumstances" referred to in head H may not refer to all of the circumstances described in the paragraph 4 to Regulation 45. Certainly the reference to goods "made available for collection by the debtor" (acknowledged in the "Opinion" – paragraph 17) could not apply in circumstances where goods have been left at the debtor's premises under a WPA. If one anomaly exists, it may be argued that the reference to seized goods may have been used in the sense of removing goods for the purpose of charges payable under head H.

 

In paragraph 16 it states:

"Further whilst using the word "seized" in regulation 45(3) and (4), where the draftsman clearly intends to refer to removal of the goods from the premises he uses other words. In head C and D of Schedule 5 there is clear reference to "removal" of the goods. It seems to me to be a powerful argument that, had Parliament intended in regulation 45(4) to limit that situation to that where goods had physically been removed from the premises, it would have said so and not have used the particular word “seized”. "

The author's point can be argued on three basic grounds. Firstly, paragraph 4 to Regulation 45 gives secondary importance to the charges payable under head H and deals primarily with payment of the appropriate amount (including charges arising up to the time of the payment) with respect to halting recovery. Secondly, there could have been little option other than the draftsman using the term "removal" in relation to head C and D as goods will have ordinarily been seized in separate action carried out previous to the removal or view to the removal, whichever the case may be. Thirdly, in regards the assertion made that if Parliament intended to limit that situation to that where goods had been removed, it would not have used the word “seized”; for similar reasons made in the first point, regulation 45(4) deals primarily with another matter and to have used the word “removed” to clarify the description under head H would have rendered regulation 45(4) flawed for its primary purpose.

 

TBC.........

Edited November 12, 2013 by outlawla

[hallowitch]

outlawla I cant thank you enough for your help its invaluable I have been reading the posts should be able to reply properly by the end of week if tomorrow goes ok

[stu007]

Hi hallowitch

 

It may have been mentioned but have you thought of asking the council for a copy of there Service Level Agreement (SLA) with the Bailiffs or even better get the Councillor to ask for a copy.

[brassnecked]

@ outlawla Whether intended or inadvertently causing ambiguity, the above raises a question as to whether, in addition to advertising costs, there may be other costs for which the person levying distress is entitled to recover under the head H fee.

 

Even if it was not clearly stated under head H that the charges were in respect of advertising costs, the person involved in recovery would have already imposed charges for levying distress and most likely for taking walking possession.

 

If you were to compare a scenario where goods were sold at the debtor's premises under Head G with another where no sale took place by reason of payment under Head H where goods are left at the debtor's premises under a walking possession agreement, further insight could be gained into what expenditure the fees covered. Carefully looking at the two actions reveals no expenditure in respect of handing back control of goods could be incurred additional to the advertising costs and auctioneer’s commission which is the only recoverable costs under head G. It would therefore be difficult to argue that additional expenditure in respect of "the actual costs incurred" as described under head H could refer to anything other than costs in connection with a proposed sale. Certainly there would be no justification to add further to fees already incurred by the debtor such as levying goods, talking walking possession etc. etc. "

 

You have illustrated precisely where the opinion tries to justify double and ad-hoc even ficticious charges under head h imho. The opinion is fatally flawed as a justification.

 

Excellent work Hallow and outlawla.

[outlawla]

....for similar reasons made in the first point, regulation 45(4) deals primarily with another matter and to have used the word “removed” to clarify the description under head H would have rendered regulation 45(4) flawed for its primary purpose.

 

TBC.........

 

To Conclude.......

 

The "Opinion" on which the council relies in support of imposing this charge, makes no compelling argument for applying it where the bailiff has in his possession no goods belonging the debtor for him to make available for collection. However, there can be little doubt from the extensive arguments put forward that the term "seized goods" can refer to goods, either which have been removed or which are held on the debtor's premises pursuant to a walking possession agreement for example, but that I would think has never been disputed.

 

It wasn't made so black and white that the term "seized goods" appearing in regulation 45(4), when referenced by head H, can take on the meaning of goods held on the debtor's premises.

 

If it was wished merely to distinguish between costs incurred in respect of an actual sale and those for which no sale takes place, the draftsman of Schedule 5 would need simply to have formulated head H similarly to that of head G but with a clause providing for "where no sale takes place". That it now refers to circumstances described in regulation 45(4), suggests the government intended providing a mechanism to recoup the costs of arranging for the collection of goods (possible only where goods are removed).

 

To support this view, the circumstances of regulation 45(4) are described specifically so that before goods are made available for collection, the appropriate amount must be paid. The appropriate amount includes charges arising up to the time of the payment. You would therefore expect the payment to include charges in respect of out-of pocket expenses for a proposed sale. In practice then, there would potentially only be a sum outstanding equal to an amount for which the person levying distress is out-of pocket in respect of making available goods for collection. This is why before applying head H charges it is a requirement that goods have been removed.

 

To reiterate, paragraph 4 to Regulation 45 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."

There is next the ambiguity as to whether the fee under head H is raised solely in respect of advertising or perhaps other expenditure as well.

 

This arises from;

 

i) it expressly stating in the second 1993 amendment:

"Reasonable costs and fees incurred in respect of advertising", and

ii) in the 1998 amendment, it stating, so far as relevant:

"(b)....

 

© in relation to head H (prior payment etc.), for “Reasonable costs” to the end of the Table there is substituted—

“Either—

(i) [£24.50], or

 

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

whichever is the greater.”

This is likely down to a lack of attention to detail in the Regulation's drafting, which incidentally, would not be the only area surrounding council tax and Business rates where sloppily written laws leave them open to abuse by local authorities. It seems the Department for Communities and Local Government is quite happy for them to continue being abused, even when rigorously persuaded they are not paying attention.

 

The then Government Department responsible for local Authorities (Department of the Environment Transport and the Regions) provided in its fourteenth council tax information letter (See further), compelling evidence to support an argument that the fee under head H is solely raised in respect of advertising and where goods have been removed, hence the phrase: "...and the goods have been returned to the debtor".

 

The relevant part of the information letter, Item 6 of ANNEX B

"......

6

.

Review of Fees

....

viii) the introduction of a fee maximum of 5% of the amount of the liability order for advertising costs where a sale does not take place because the debt has been paid and the goods have been returned to the debtor

.

 

A fee maximum was accepted in principle, but it was pointed out that for small debts this would not cover the costs of advertising. Therefore, we intend to amend secondary legislation with effect from 1 April 1998 setting a fee of £20 or actual costs incurred up to a maximum of 5% of the liability order, whichever is the greater."

Perhaps the most importance thing to note is, that under whatever circumstances the Government intended the head H fee to be raised, at the very least, steps must have been taken to engage in the sale of seized goods and incurred costs for doing so. To reiterate what was said earlier, it would in practice be unlikely many cases, where goods are left at the debtor's premises (as are in at least 99% of cases), that the person levying distress would incur costs in connection with a sale that does not go ahead. However, if that assertion were wrong, there would, in respect of those cases, surely not be a problem providing proof.

Edited November 14, 2013 by outlawla

[hallowitch]

well guys ive a reply from the council there legal opinion is that a hedder H fee can be charged at the time of the levy

 

They also Claim its Legal to charge an attendance to remove fee on the same day as they levy goods

 

im not sure if I can make this public so if you want to read it ask and I will send you it by PM

[outlawla]

Why did South Gloucestershire Council state that there were no van fees charged on the same visit as a levy.

 

A point to argue I think....they probably have an opinion which wasn't biased toward the bailiff firm and council.

 

See a) and b) on the above link:

 

 

b) where no prior levy was in place Zero No Van fee unless a levy is already in place

 

c) same visit of a levy Zero, as above, No Van unless a levy is in place.

Edited November 18, 2013 by outlawla

[hallowitch]

Why did South Gloucestershire Council state that there were no van fees charged on the same visit as a levy.

 

A point to argue I think....they probably have an opinion which wasn't biased toward the bailiff firm and council.

 

See a) and b) on the above link:

 

I cant believe they are using this point to justify the Hedder C fee being charged the same day as the levy I think I should start a new thread on the Hedder C fee

The wording does not say‘where following the levy visit the goods are not removed’ so ithas always been the councils position that no additional visit is requiredbefore the Header C fee can be applied and the bailiffs are not actingillegally in this respect.