The Taking Control of Goods Regulations 2013. A general discussion thread.......

[tomtubby]

Thank you HCEO.

 

As you will know all Stakeholders received the above 'Guidance' from MOJ on 26th March (10 days before the new regs took effect) although most of us knew in advance what the Guidance would be saying. Unfortunately however.....the position became as confusing as anything when HMRC released their OFFICIAL notification. It would be better if I were to start a new thread today as this is an important subject.

[tomtubby]

A poster by the name of sillygirl1 posted a query on another thread earlier today regarding the 'service' of the letter by the enforcement agent. The following is an extract of her post:

 

Originally Posted by sillygirl1

 

May I just add that the enforcement notice was hand posted through my letterbox late on Thursday afternoon (don't know what time as I was at work) and said I had 7 days to make an arrangement, however this was the Thursday afternoon before Easter, so 4 of the 7 days were non-working days and again I believe it was a psychological move on their part - again something to use against them.

 

This whole 7 day thing is something that needs to be re-worded as soon as possible

 

HCEO responded to her question to make the following point:

 

 

 

The 7 days is not working days so it will include the Saturday but not bank holidays(Friday and Monday) or Sundays. If it was delivered Thursday, the first day is Saturday and the second day is Tuesday.

 

In any event it will have the date you have to pay by on page two.

 

It can only be delivered by the Enforcement Agent or his office (not by the council).

[tomtubby]

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Would you mind letting us know which company left this notice?

[tomtubby]

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Is this debt in relation to council tax or for Non Domestic rates?

 

I am really concerned as well that the £110 'sale' fee has been applied.

[tomtubby]

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Are you able to remove personal information and post a copy of the notice on the forum?

[tomtubby]

 

I have found a Local Authority that sends the 7 day Notice itself (from the council's office) and adds the fee to the outstanding debt - in this case a CT LO.

I see this as invalid by virtue of The Taking Control of Goods Regulations 2013 S.8 (2)

"Notice must be given by the enforcement agent or the enforcement agent’s office."

 

Furthermore their text makes it clear that the Enforcement agent has not yet been engaged.[/QUOTE]

 

 

Lamma,

 

Are you able to get a copy (with personal info removed)

[tomtubby]

Avatar 2233

 

Unfortunately I cannot read the attached either. However, the wording is WRONG.

 

The goods news is that the company concerned (and others) have 'realised their mistakes' and such letters will NOT any longer be sent for debts such as council tax or unpaid parking charge notices.......

 

If anyone has received a letter threatening to apply to a Judge for permission to force entry and the debt relates to unpaid council tax or an unpaid parking charge notices, please post back and if possible provide a copy of the notice (with personal info removed). If this is not possible then 'cut and paste' the precise wording.

[tomtubby]

A short while ago I stated that I would be providing a 'Simple Guide' to the new regulations. Unfortunately this is taking a little while longer than hoped as there is a further information that I am waiting for but this 'Guide' should be ready by the end of next week.

 

In the meantime, in relation to the enforcement of unpaid Magistrates Court Fines, unpaid Council Tax and unpaid Parking Charge Notices the following needs to be made clear:

 

 

 

VAT:

 

Under the new regulations, enforcement agents enforcing unpaid magistrate court fines, unpaid council tax or parking charge notices cannot....and must not charge VAT to debtors on enforcement agent fees.

 

 

 

 

HPI and DVLA search fee:

 

Under the previous regulations there was no provision to charge such fees but nonetheless, it has long been 'industry practice' for bailiffs to charge HPI and DVLA search fee ( normally £20 each time) and this has amounted to a substantial amount of money being received.

 

Under the new regulations enforcement agents cannot....and must not charge either an HPI or DVLA search fee to debtors.

 

 

 

'Head H' Fee

 

The charging of a 'Head H fee' (of £24.50) in relation to unpaid council tax had been 'industry practice' for approx 10 years and as a regular poster (outlawla) on here has discovered....the charging of this fee has resulted in significant amounts of additional revenue to bailiff companies.

 

Under the new regulations enforcement agents cannot....and must not charge a 'Head H' fee of£24.50 when enforcing unpaid council tax.

 

 

 

Credit card transaction fee:

 

Under the previous regulations it was again 'industry practice' to charge figures of between 4% and 6% on the overall debt when paying by credit card.

 

Under the new regulations enforcement agents cannot....and must not charge credit card transaction fees when enforcing any debts.

 

 

 

PS: The statutory regulations were released very late indeed and it is to be expected that 'mistakes' will happen. However, enforcement agents should by now be fully aware of what they can and what they cannot charge.

 

The past '24 hours' have been a 'learning curve' for many local authoritiues and enforcement agents !!!

[tomtubby]

 

I believe VAT can be charged on storage and auctioneer costs to the debtor

 

The above query was posed by the LGO yesterday at a Conference and I need to read back on all of my notes.

 

PS: HCEO....your views on this please.

[tomtubby]

Following a Conference yesterday my in box has been a bit busy !!!! Space made available... again.

[tomtubby]

I had two separate enquiries yesterday from debtors who has received a visit by an enforcement agent on SUNDAY. Under the new regulations this is now permitted but whilst the vast majority of the country were basking in the sunshine on Sunday or enjoying a BBQ there were some more ambitious EA's taking the opportunity to enforce unpaid PCN's.

 

No guesses for which company.....

 

Both were from the same company .

[tomtubby]

Marincor,

 

The matter of whether or not the police should be assisting in their "Roadside Operations" is addressed on a thread dedicated to that subject and on there you will see that the Metropolitan Police have recently agreed in an FOI response that they are NOT supposed to provide any assistance to enforcement company seeking to pursue unpaid parking charge notices. Instead, they should only 'assist' if the debt is in relation to a Magistrates Court FINE.

 

You may care to note that there is a LOT of work being done 'behind the scenes' to stop this operations.

[tomtubby]

A few weeks ago I posted the following advice on this thread:

 

Any website that advises a debtor to 'pay and reclaim' is not helping a debtor at all and in fact, is merely trying to direct a debtor towards a 'Gotcha Clause' to get the debtor out of paying.

 

In the main, such sites are almost always associated with the Freeman on the Land movement (although this may not be apparent to visitors) and they will be attempting debtors towards thinking that council tax, parking tickets and in particualr...court fines are not legal debts.

 

Under the new regulations (and also the old ones) the position is this:

 

Imagine if a debtor paid a Liability Order by cheque. The account would be marked as PAID. If the cheque bounced 10 days or 2 weeks later the account (previously marked as paid) would be re-opened and the account referred to an enforcement agent to recommence enforcement proceedings.

 

Exactly the same position arises in cases of 'Pay and Reclaim' and the only difference being that instead of the enforcement company being made aware of the reversed payment by cheque of approx 10 days - 2 weeks, the credit card/debit card's reversal would take a few weeks longer.

 

UPDATE:

 

The new regulations took effect nearly 6 weeks ago and despite trying to keep the public advised of the CORRECT position regarding the new regulations it it sadly the case that debtors will seek out "debt avoidance' websites. The following concerns a debtor who did just that earlier this month after he received a visit at his home from a bailiff seeking payment of an outstanding PCN. The enforcement agent had clamped his car and advised him that he would leave the car clamped for 2 hours (the correct time frame under the new regulations) to allow him to make payment of £512 (PCN £202, Compliance Fee £75 and Enforcement Fee of £235).

 

The debtor paid the sum of £502 using his credit card and then sought information from the internet. He had the misfortune to come across a website and upon reading the information provided on the site's forum he considered that he had grounds to seek a 'chargeback' on his credit card. It would seem that he believed that as he had not been PERSONALLY GIVEN a Notice of Enforcement (the site in question incorrectly refer to it as a "Regulation 6 Notice") that the enforcement was invalid. In his particular case he confirmed that he had indeed received the Notice of Enforcement in the POST but this had not been GIVEN to him PERSONALLY !!!!

 

He paid the website in question a "template' letter fee of £15.

 

His credit card did indeed refund the money to him (although to be fair most are not doing so).

 

At 7.15 last evening the enforcement agent returned to the property and promptly clamped his car. Perfectly legal given that the warrant has not been settled. Naturally the enforcement company would not permit him to make payment a 2nd time by credit card. His wife tried to withdraw cash from their credit card without success (given that he had used the 'refund' payment to purchase a new laptop). Eventually 2 hours later the car was taken by the enforcement agent and an additional fee of £110 was also applied bringing the debt now to an unaffordable £622.

 

To make matters worse, the debtor is due to drive to France tomorrow as his sister is getting married next Saturday in a Chateau.

[tomtubby]

Regarding the above situation, debtors may be interested to know that the website in question confirmed two days ago that are receiving approx £1,500 PER WEEK for selling these Template letters to unsuspecting members of the public.

[tomtubby]

UPDATE:

 

The debtor managed to borrow the sum of £622 from a Pay Day loan company called Quick Quid and picked his car up yesterday afternoon. The amount that he will have to repay at the end of the month will be £802.

 

As stated above, the original debt that he paid by credit card was £512. This debtor has lost nearly £300 by relying upon such irresponsible rotten advice.

[tomtubby]

Marincor.

 

This thread is very likely to be the best one to start with and then if necessary I can ask one of the moderators to allow me to amend the appropriate STICKY.

 

Look forward to reading anything that you find.

[tomtubby]

Yesterday a very important question was asked on another thread about whether a bailiff can continue to enforce a warrant of control in cases where the debtor had paid the amount of the court fines or Liability Order to the court or the local authority. Given the importance of the question a copy of my response is below. If anyone has any questions please post back on this thread.

[tomtubby]

The first point that needs to be made is that the Compliance fee of £75 is chargeable as soon as the account is referred to the enforcement company and the Enforcement fee of £235 is chargeable as soon as the account is referred to an individual bailiff This is completely different from the previous regulations. In the following example I will assume that the debtor has an unpaid Magistrate Court FINE for £575.

 

Magistrate Court fine: £575

 

Notice of Enforcement sent to debtor. Compliance fee of £75 added to debt. Amount due: £650

 

Debtor fails to pay and account referred to enforcement agent to enforce.

 

Enforcement fee of £235 added to account. Amount due: £885

 

Debtor visits court and makes a payment of the amount of the fine of £575

 

From 6th April HMCS forward all payments to enforcement company.

 

Compliance stage fee of £75 deducted at source leaving the balance of £500 to be split on a pro rata basis.

 

The 'pro rata 'spilt' is slightly complicated but for ease of reference is 70% to the creditor and 30% to the enforcement agent.

 

The £500 will be split as to £350 to the creditor (70%) and £150 to the enforcement agent (30%).

 

Using this example you will see that from the £575 payment made to the Magistrate Court....£350 is allocated towards the court fine and £225 (comprising of the Compliance fee of £75 and £150) is allocated towards the enforcement agent fees.

 

The amount outstanding has been reduced to £310. This comprises of the balance of the fine of £225 and £85 enforcement agent fees. At there is still an amount outstanding the warrant of control is still enforceable and it is important for the debtor to be aware that the enforcement agent is not continuing enforcement for his fees.

[tomtubby]

 

We are starting to read of instances whereby people have (on receipt of the Notice of Enforcement) contacted the enforcement company and made a 'sensible' payment proposal only to have it refused, quickly followed by a letter through the door and the enforcement fee of £235 added to their account.

 

If we can gather the 'evidence' of these practices would the moj pay attention when presented with them?

 

WD. Excellent question and a worrying one. What needs to be made clear is that the Enforcement company are working as agents to the local authority (or any creditor) and accordingly; they must take into consideration the terms outlined in their contracts with local authorities regarding the period of time that a payment arrangement should run for.

 

There is no legal obligation on the EA to accept a payment arrangement but I can assure you that the Ministry of Justice would not be happy to find that 'sensible' payment arrangements are being rejected and with it, the debt increasing by £235. That is neither the spirit or the intention of the new regulations.

 

In the next few weeks a large number of Liability Orders are expected to be forwarded to the enforcement companies and we need to be on the look out for cases such as this.

 

Debtors must contact the enforcement company as soon as possible after receiving the Notice of Enforcement to arrange a payment arrangement and from the many conversations that I have had with local authorities it would seem that the vast majority of them are stating that a payment plan over 3-6 months is perfectly acceptable.

 

The debtor should send a complete income and expenditure with his payment proposal. I will look around for a simple I & E so that a copy can be posted on the forum.

[tomtubby]

In post number 210 I stated the following:

 

There is no legal obligation on the EA to accept a payment arrangement but I can assure you that the Ministry of Justice would not be happy to find that 'sensible' payment arrangements are being rejected and with it, the debt increasing by £235. That is neither the spirit or the intention of the new regulations.

 

The new regulations have only been in place for 3 months and it will naturally be the case that the bailiff 'on the street' and the 'in house staff' (in particular those who answer the phone) will take a while to change their behaviour . This has not been helped by the fact that the regulations themselves were released very late indeed (in some cases just a week or two before 6th April). Consequently, enforcement companies AND local authorities are still undergoing training on the new regulations.

 

A second point (and one that is very important) is that the Ministry of Justice have put a team of analyists in place whose role is to look at how the new regulations are working in practice and to see what changes are needed to the regulations to ensure that complaints are reduced etc. MOJ will also be reviewing whether complaints to the court increase or decrease and whether or not 'interpleader' applications are working etc .

 

Thirdly,to assist the Ministry of Justice in establishing whether the new regulations are working they have provided all 'stakeholders' (which naturally include all advice agencies) with a confidential email address for them to send details of cases where the regulations are not being adhered to and suggestions for change. By way of example:

 

On Tuesday I used the email address to send an example of where a bailiff was attempting to charge £1,536 for enforcing 3 PCN's at the same time (£512 each). Under the new regs the bailiff must attempt to enforce all debts on the system at the same time and although he can charge 3 Compliance fees of £75 he may only charge one enforcement fee of £235. This bailiff was attempting to charge the Compliance fee of £235 for EACH PCN. The debtor was being overcharged £470. If examples can be seen on the forum whereby sensible payment proposals are being rejected these too will be copied to the Ministry of Justice.

 

Whether they like it or not.....the enforcement industry is being watched.

[tomtubby]

UB

It is my understanding that at present if a payment is made to the court (either on line to HMCS or by way of the ATM 'drop box') that the court are forwarding the payments to one of the 4 enforcement companies who have the contract to enforce court fines. In this way, the enforcement company are able to deduct their Compliance fee and to do the accounting exercise under the pro rata basis for the balance. The current computer systems in the courts are unable to deal with the accounting.

 

In the next few months there will be significant changes in the magistrates courts regarding court fines and each of the four contracts will also be expiring. As I say...significant changes.

 

There will always some people who are intent on debt avoidance and will try to find 'loopholes' or angles to defeat payment (or worse still....to gets debtors to pay for wrong advice). However, despite boastful claims of hundreds of 'redress' cases being settled by enforcement companies or even the Ministry of Justice, the fact of the matter is that such 'redress' settlements are nowhere to be seen.

[tomtubby]

When responding to the Consultation Paper on Bailiff Reform 2 years ago I suggested that local authority should NOT be allowed to pursue a debt through to a Liability Order unless there was a limit on arrears for council tax of for instance £50. This would mirror the County Court regulations. My point being that the fees scale outlined in the Consultation Paper would otherwise seem disproportionate to the level of the debt.

 

The Ministry of Justice were most supportive of my suggestion but quite correctly, stated to me that such a decision was not in their remit and instead, would need the agreement of the Department for Communities & Local Government (DCLG). I am actually in the process of making representations to them.

 

However, it needs to be remembered that most parking charge notices start out at just £60.

 

Coughdrop is absolutely correct.....debtors need to be educated to engage with enforcement companies at the Compliance Stage. This is not only to keep the enforcement agent fees down but is to also ensure that a payment proposal can be entered into.

[tomtubby]

 

There is still the issue of bailiffs visiting debtors without original signed/stamped paperwork from the courts. It would save them a lot of hassle, if they had the proper paperwork and not what has been commented, as just photocopies of documents which don't appear to have been seen by the courts.

 

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I am interested in your above comment. Can you elaborate.