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

[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?

[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

[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