Regulation does not say where following the levy VISIT the goods are not removed

[hallowitch]

I'm actually lost for words (that's a first)

 

Im not sure if I can post the full response to my meeting with my council regarding the Hedder C fee (attendance to remove fee ) and not to get it confused with my thread regarding the hedder H fee I thout I would start a new thread

 

The jist of reply as to why the can be charged is

 

There is no High Court ruling in this particularmatter

 

and it is a matter of interpretation of thewording of the regulations as to whether the Header B fee and Header C fee can be charged during thesame visit.

 

 

There is Counsel Opinion which supports chargingthe Header C fee on the same day as the Header B fee because the application ofthe regulations can be interpreted either

 

‘nothing expresslysuggests that any fees chargeable under Schedule 3(1) ©(Schedule 5 forcouncil tax) must relate to a different visit to any fees charged underSchedule 3(1)(B) (5(1) (B) for Council Tax), indeed, the wording..in my viewclearly suggests to the contrary: the phrase in brackets – “where, following the levy, the goods are notremoved” makes more sense if the visit is the same visit as the one duringwhich the levy is made’.

 

 

 

‘In my view therefore,a separate fee is chargeable for attendance with a vehicle on a visit where alevy takes place in respect to that Liability Order’.

 

 

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.

 

 

 

 

 

[Ian olney]

We discussed this in another topic over the weekend.

 

There is nothing to stop a bailiff levying (Head B) & removing goods on the same visit.

 

In order for the levy to be complete, impounding must take place and one form of impounding is to remove the goods immediately.

 

I would argue whether Head C would be appropriate but I can see no reason in law why a bailiff couldn't charge a Head B & Head D fee for the same visit. In practice, this rarely occurs and councils quite often state in their contracts that debtors must be given an opportunity to pay the debt.

 

Certainly Head C would be open to challenge if listed at the same time as Head B-How could a bailiff justify that he had attended a property "in a vehicle with a view to remove goods" when he had not levied at the time that he set out.

[dementedfeline]

How could a bailiff justify that he had attended a property "in a vehicle with a view to remove goods" when he had not levied at the time that he set out.

 

I'd like an answer to that one - but in relation to road traffic debt bailiff enforcement.

[Ian olney]

I'd like an answer to that one - but in relation to road traffic debt bailiff enforcement.

 

 

As I told you over the weekend-Write to your council with your concerns & come back & tell us what they say. That way you'll have your answer as well.

[dementedfeline]

Ian, complaint is in with council. What I would like to find, as with hallowitch, is some reference, ideally from a judge, that sets out what is and isn't allowed. Councils, as is beginning to become very apparent, all too often say and do just what their bailiffs tell them to.

[Ian olney]

Ian, complaint is in with council. What I would like to find, as with hallowitch, is some reference, ideally from a judge, that sets out what is and isn't allowed. Councils, as is beginning to become very apparent, all too often say and do just what their bailiffs tell them to.

 

Welcome to the real world.

 

You are not going to find what you are looking for.

 

Civil enforcement is a complete shambles with nothing clear & transparent. As many civil enforcement agents work on behalf of Government agencies, I'll leave you to ponder on why this is. If it was as clear as you wished, there would be no need for message boards such as this.

 

Why not fight your case yourself & set a precedent for others? You seem to have researched it quite thoroughly anyway.

 

I'll let you into a little secret on how this all works-Bailiffs & councils interpret the various legislation to suit themselves. They quote the LGO when it suits them and dismiss it's authority when it doesn't. It's up to you to fight them. They employ expensive solicitors, you rely on complete strangers posts on internet forums.

[hallowitch]

do you think I should use the Anthony Culligan detailed assessment I know its for a PCN but it does state

 

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.

[outlawla]

It makes more sense than the opinion the council is relying on.

 

How does the wording for parking offences (assuming there is similar legislation) compare with that for attending to remove in council tax cases?

[dementedfeline]

for PCNs see below

 

Appendix - The Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993 SI 2072 (as amended)

SCHEDULE 1 TABLE OF FEES CHARGES AND EXPENSES (excluding Value Added Tax)

1 For preparing and sending a letter advising the debtor that a warrant is with the bailiff and requesting the total sum due £11.20

Note: The fee under paragraph 1 can only be recovered if the letter is sent before a first visit is made to the debtor’s premises.

2 For levying distress—

(i)Where the sum demanded and due does not exceed £100 £28.00

(ii)Where the sum demanded and exceeds £100 28% on the first £200; due 5.5% on any additional sum over £200

3 For attending to levy distress but where the levy is not made, the reasonable costs and charges for attending to levy. The costs and charges are not to exceed the fees and charges which would have been due under paragraph 2 above if the distress had been levied. The costs and charges are subject to detailed assessment under rule 11.

Note: The aggregate costs and charges payable under paragraphs 2 and 3 are not to exceed the costs and charges allowed for three attendances to levy distress.

4 For taking possession—

(i)Where a person is left in physical possession (close possession) £5.60 each day

(ii)Where walking possession is agreed 55p each day for the first 14 days; 5p each day thereafter.

Notes: The charge for walking possession is payable only if a walking possession agreement has been made using Form 8. A person left in physical possession (close possession) must provide his or her own board in every case. The possession fee is payable in respect of the day on which distress is levied, but a fee for physical possession must not be charged where a walking possession agreement is signed at the time when distress is levied.

5 For appraising (valuing) goods, the reasonable fees, charges, and expenses of the broker. The fees, charges and expenses are subject to detailed assessment under rule 11.

Note: An appraisal (valuation) shall take place only on the written request of the debtor.

6 For removing goods, or attending to remove goods where no goods are removed, reasonable costs and charges. The costs and charges are subject to detailed assessment under rule 11.

7 For sale—

(i)Where the sale is held on the auctioneer’s premises, 15% of the sum realised to cover the auctioneer’s commission and out-of-pocket expenses, plus the reasonable cost of advertising, removal and storage.

(ii)Where the sale is held on the debtor’s premises, 7½% of the sum realised for the auctioneer’s commission, plus out-of-pocket expenses actually and reasonably incurred.

The fees, expenses, charges and costs to be subject to detailed assessment under rule 11.

8 Where distress is withdrawn or where no sale takes place, reasonable fees, charges and expenses, subject to detailed assessment under rule 11.

9 For the purpose of calculating any percentage charges, the fraction of £1 is to be reckoned as £1. Any fraction of a penny is to be disregarded.

10 In addition to any amount authorised by this Table, the amount of value added tax payable may be passed on to the debtor by adding an equivalent amount to the sum due.

[outlawla]

....There is Counsel Opinion which supports charging the Header C fee on the same day as the Header B fee because the application of the regulations can be interpreted either

 

 

‘nothing expressly suggests that any fees chargeable under Schedule 3(1) ©(Schedule 5 forcouncil tax) must relate to a different visit to any fees charged under Schedule 3(1)(B) (5(1) (B) for Council Tax), indeed, the wording..in my view clearly suggests to the contrary: the phrase in brackets – “where, following the levy, the goods are not removed” makes more sense if the visit is the same visit as the one during which the levy is made’.

 

 

‘In my view therefore, a separate fee is chargeable for attendance with a vehicle on a visit where a levy takes place in respect to that Liability Order’....

 

 

This opinion has been based solely on the interpretation of three words: "following the levy". It seems no thought has been given to what may have been meant by the wording whilst viewed in context with provisions under other heads of the fee schedule. There also seemed no consideration given to how the process of identifying goods, levying distress etc., would work in practice.

 

It is ambiguous (read out of context), and the phrase: ‘where following the levy, goods are not removed’, could either relate to a separate visit or to the one in which the levy was made. It would therefore be necessary to consider the aforementioned points in order to make an informed decision as to whether charging an attendance to remove fee on the same visit as a levy would be lawful under the Council Tax (Administration and Enforcement) Regulations 1992.

 

Firstly, from the wording of Schedule 5 (charges connected with distress) it is made expressly clear that under Head A and B, only one fee may be applied in respect of each visit. It is also clear that should the person making the visit succeed in levying on the first or second visit, the fee raised would neither be the prescribed £22.50 nor £16 under head A, rather a head B charge calculated as a percentage of the sum outstanding on the liability order, so no further fee may be raised in respect of these visits. It is noted that all three charges may only lawfully be raised in circumstances where at least two visits to the premises resulted in failure to obtain a levy and any subsequent visit was successful. Conversely if luck (a matter of interpretation) was on the side of the person levying distress, and a levy made on the first visit, only one charge could be lawfully applied – that under head B.

 

The significance is not only in regards each fee described clearly having to be raised on separate visits, but also the similarity of the wording (and differences) under head C to the description of the provision under head A.

 

Head A is worded such that the prescribed fee either £22.50 or £16 (dependent upon it being the first or second visit) is an amount to cover costs of an action, which is merely visiting with a view to carrying out that action:

"

A

For making a visit to premises with a view to levying distress (where no levy is made)—

"

Similarly Head C is worded such that Reasonable costs and fees incurred covers costs of an action, which is merely attending with a view to carrying out that action:

"

C

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

"

Under both head A and C, in order to raise a fee, it's a requirement that no action be carried out, you may also reasonably assume that in both cases a visit to the debtor's premises would be made in a vehicle.

 

Apart from the purpose of the visit, a distinction is also made between the fee, which is prescribed in respect of head A, whilst for head C, reasonable costs and fees incurred, are provided.

 

The fee under head A(i) is £22.50 (and may not deviate), whilst under head C local authorities typically allow their contractors to charge around £130.

 

It implies that for an apparently identical action, the cost difference must be accounted for in some way. This could only realistically be down to the type of vehicle used by the person intending to levy distress (head A) or remove goods (head C). A bailiff having no previous levy would not have identified goods for removal, so arriving in his regular transport with a view to removing goods and raising the associated fee would be dishonestly doing so, given that in identical circumstances, under head A(i), he would be entitled only to the prescribed £22.50.

 

Parliament therefore, in the case of council tax recovery, appear to have intended the phase: "where, following the levy, goods are not removed", not literally to have meant following the action of levying (immediately), but following a levy in circumstances where the bailiff had previously identified what (if any) goods were available to remove.

Edited November 20, 2013 by outlawla

[hallowitch]

It makes more sense than the opinion the council is relying on.

 

How does the wording for parking offences (assuming there is similar legislation) compare with that for attending to remove in council tax cases?

 

I was thinking along the lines of this

 

DJ Avent says at paragraph 50 of his Judgment:-

"Accordingly, in myjudgment the bailiff should not and, as a matter of law cannot take any stepsto remove goods until he has given the debtor a reasonable opportunity to paywhat is due at the time of seizure. This being so I cannot see that Form 7 canor should include any costs of removal.

This FOI information reply must mean all Rossendale's bailiff must all use vans /low loaders all the time because they have no idea what goods if any the debtor has to levy before they get there levy talk about contradicting themselves

 

d) where bailiffattended in regular transport, i.e., without

 

removal van/tow-truck

 

 

Allof the bailiffs have stated that on each case, the bailiff will attend using anappropriate vehicle. Enforcement bailiffs will use a van capable ofeffecting a removal therefore each time a van fee has been incurred, there wasa bailiff in a removal van present.

 

[tomtubby]

Hallowitch,

 

I have so much info on this and in particular, the relevant background papers from DCLG ( as it now is) that were used when introducing the fee scale. I will not be going back to work for another week at least but will get my assistant to download info onto a memory stick and email it to you. Should be a day or so.

 

S.

[outlawla]

The following, from another thread (linked to in the quote) is relevant to this thread:

 

ATR can only very rarely be attempted anyway. For a bailiff to ATR, he must visit in a van, something that they rarely (if ever) do on first vists.

 

In addition, if he did visit with a "view" (intention) he must have had a levy in place beforehand. He cannot visit with a "view" to levy as well as a "view" to remove at the same time.

 

As I said before, what he could possibly do is visit with a "view" to levy, then levy and then remove under Head D. If the council were to have said this, it would have been far more than the drivel that it has come out with.

 

I can't see that the authorities could successfully argue against the above.

 

I could imagine councils trying to argue that the bailiff was not visiting with a "view" to levy as well as a "view" to remove at the same time, rather he had "actually" levied (under head B) at the same time he visited with a "view" to remove.

 

As stated above, this (if contracts permitted) may allow the bailiff to actually remove goods (under head D) on the same visit, however the argument that he had "actually" levied under head B at the same time he visited with a "view" to remove (and raise both fees), would be grasping at straws. The fact that a levy fee is raised under head B does not alter the fact that the visit was made with a view to levy distress.

Edited November 21, 2013 by outlawla

[hallowitch]

Hallowitch,

 

I have so much info on this and in particular, the relevant background papers from DCLG ( as it now is) that were used when introducing the fee scale. I will not be going back to work for another week at least but will get my assistant to download info onto a memory stick and email it to you. Should be a day or so.

 

S.

 

 

Thanks very much tomtubby I would be very grateful for this info

 

Im getting the feeling I opened a very big can of worms with this Hedder C fee and they will fight to the death on this issue

 

I said at the time of meeting that they should be looking to see if its just a few Rossendale's bailiffs charging the fee and as they know it cant be charged at the time of the levy the bailiffs concerned should be reported to police for fraud as this is what it is plain and simple fraud but at the very least I would expect a form 5 to be sent to their issuing court

 

Jacobs didn't supply the info and my councillor has asked for it and excel didn't check there records but claimed the amount of times both Hedder B and Hedder C have been charged on the same day would be Nil as they don't charge both the fees on the same day

 

Once again thanks