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

[mikeymack2002]

yep lol even the other site could follow it

[lamma]

Simplified Guide to....

[tomtubby]

Lamma......EXCELLENT ....

 

Simplified Guide it is !!!!!!

[wonkeydonkey]

Janet & John Book1 guide to .................

[brassnecked]

Janet & John Book1 guide to .................

Or The Ladybird Book Of The Bailiff

 

Practical Guide, but on balance I like lamma's title.

[mikeymack2002]

The basic guide to the Bailiff reform

[Marincor]

I don't know why we're waiting to see the effects this horrendous piece of legislation will have - we all know the horrors that will occur!

 

I believe we need to have this act repealed. By we I mean CAGicon, MSE, TPUC, PePiPoo members all need to unit and organise to repeal this abusive piece of legislation.

 

Cameron states he only wants a 100,000 signatures to look at a law. Lets give him a million signatures with as much social network pressure as we can mount to force the corporate controlled press to take up the issue.

 

I was thinking the heads of these organsiations pool together their members to start a campaign to have it either repealed or drastically re-worded as surely it is clear that those that will be most affected are those on benefits and the working poor?!

 

What do you CAG members think?

[tomtubby]

With council tax debts in particular it is very important to find out the precise amount of fees already charged by the enforcement agent. If the fees are MORE that £42.50 it would indicate that 'a levy' had been made on goods of (almost always a vehicle). If so, then the bailiff must continue charging the fees that were in force BEFORE 6th April. This is VITALLY important.

 

Since Monday we have come across 6 cases where the enforcement company have attempted to charge the NEW fee of £235 in cases where they have previously levied. They KNOW that they should not be doing this and it is VERY worrying indeed. It is almost certainly the case that I will need to start a new thread on this subject.

[SWLABR9]

Very worrying and entirely predictable.

[brassnecked]

Well what did we expect, MOJ are very naive to think the Enforcement Agents would not find new ways to fleece, and mixing and matching the old and new in spite of the clear transitional arrangements was entirely predictable.

 

On the new thread TT it might be worth collating how many cases of this nature are being reported so that they can be used to feed back to MOJ and MP's

[tomtubby]

 

Read this on another forums can anyone give the real explanation please

 

Paragraph 58(1) of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 says when the debtor pays the debt in full then enforcement action must cease forthwith and no further enforcement steps can be taken. It also stops further fees being charged.

 

When you have paid the creditor, you must notify the bailiff by a durable means under paragraph 59(2) of the Act.

 

 

 

MM.

 

The new regulations took effect on 6th April and two day later you made the above post. It was generally considered that the person providing the 'advice' would make the necessary changes once they had properly read and most importantly.....understood the new regulations. This was important given that it was only on April Fools Day that the site in question finally acknowledged that the new regulations did after all apply to council tax debts and unpaid parking charge notices !!!

 

Sadly, the website in question have not amended their advice and therefore, given the importance of this subject it would be better if I started a new thread so that members of the public (and all the helpers and moderators on here) are aware of the correct position regarding payments made direct to the creditor (local authority/magistrates court etc)

[tomtubby]

Thankfully if I had not of completed a Simplified Guide to the new regs as it would have had to be changed so often to take effect of the ERRORS that are coming forward by the enforcement companies. The biggest by far concerns the charging of VAT.

 

Because of the extreme seriousness of this subject I will be starting a brand new thread tomorrow. In short, it would seem that MANY local authorities are insisting that that enforcement agents must charge VAT of 20% on their fees from 6th April and we have now seen evidence that this is now being charged to debtors !!!

 

The CORRECT position (and one that many people......myself included) fought so hard for is that VAT in NOT chargeable to the debtor on enforcement agent fees for either road traffic debts, council tax debts or non domestic rates. The only exception being where the account had commenced enforcement action before 6th April and where a 'levy' had also been in place before that date.

 

It is therefore imperative that everyone checks to see whether VAT had been added.

[HCEOs]

The HMRC guidance is as follows:

 

Specific issues: services provided with the recovery of debts in England and Wales from 6th April 2014

 

High Court Judgments and County Court Judgments transferred to the High Court for enforcement

County Court judgments

Non High Court judgments

 

High Court Judgments and County Court Judgments transferred to the High Court for enforcement.

 

(a) The offices involved

 

When a creditor:

• gets judgment in the High Court against a debtor; or

• where County Court judgments are referred to the High Court for enforcement

the enforcement process is directed to a High Court Enforcement Officer.

 

The High Court Enforcement Officer, although also an enforcement agent, may use other enforcement agents to assist him to collect the money owing to the creditor together with enforcement costs. High Court Enforcement Officers are authorised by the Lord Chancellor to execute High Court writs.

 

The High Court Enforcement Officer is seen as accepting their office in the course or furtherance of a trade, profession or vocation. Their services are taxable and liable to VAT.

 

The other people involved in High Court debt recovery work, for example locksmiths, auctioneers or storage are also regarded as making taxable supplies in the course of their businesses.

 

(b) Nature and value of supply

 

The total fees and allowable expenses payable in respect of services provided by the High Court Enforcement Officers and their enforcement agents are set out in the Taking Control of Goods (Fees) Regulations of the Tribunals, Courts and Enforcement Act 2007. Allowable expenses are costs the enforcement agent incurs for storing goods, hiring a locksmith and auctioneer costs. The value for VAT purposes is the amount each enforcement agent gets as their share of the statutory fee and any expenses charged. The full amount charged, including any irrecoverable VAT if applicable, is recoverable from the debtor.

 

The services of High Court Enforcement Officer and their enforcement agents in the enforcement of High Court judgment debts and County Court judgment debts referred to the High Court for enforcement are regarded as supplies to the judgment creditors. Services of other people in connection with the enforcement of the judgment debts are supplies to the High Court Enforcement Officers and their enforcement agents where appropriate.

 

Therefore, where:

• the judgment creditors are registered for VAT; and

• the debt relates to their taxable business activities

the VAT on the High Court Enforcement Officers services may be recovered by the judgment creditors.

 

High Court Enforcement Officers are aware that, although judgment debtors pay the cost of enforcement fees, allowable expenses and irrecoverable VAT, the supplies are always to the creditors. VAT invoices for the services must be addressed and sent to the creditors. Any documents issued to debtors should make it clear that they are not VAT invoices.

 

County Court judgments

 

When a warrant is issued by a County Court for the recovery of a debt the recovery action is carried out by an enforcement agent who is a civil servant. VAT is not chargeable on the cost of their services because these enforcement agents are employees.

 

Where necessary the Court will appoint independent businesses such as storage, locksmiths or auctioneers to carry out specific duties. These businesses provide standard-rated services to the Court. The costs of enforcement, including irrecoverable VAT, are recoverable from the debtor.

 

Non High Court Judgments

 

Court warrants/fines

 

Magistrates Courts hear many cases of minor misdemeanors and often impose fines as a result. HM Courts and Tribunals Service contract out this work and it is carried out by enforcement agents who are not employees. They are separate persons for VAT purposes. Therefore services provided by these enforcement agents to enforce the Court fines are liable to VAT.

These services are supplied to HM Courts and Tribunals Service and the tax on them is recoverable under section 41(3) of the VAT Act 1994 by the Ministry of Justice, under whose control the Courts fall.

 

Local Authority debt

 

The recovery action in respect of road traffic, Council tax and business rates debts for local authorities can be carried out by employees of local authorities or contracted out to enforcement agents who are not employees. Where the recovery action is carried out by local authority employees VAT is not chargeable on the cost of their services.

 

Where recovery is carried out by enforcement agents who are not employees, their services are taxable and liable to VAT. The services of enforcement agents in these circumstances are supplied to the creditor. The creditor is the local authority which instructs them, and these services are supplied to the Local Authority. Guidance on recovery of VAT by local authorities is contained in the HMRC manual on VAT for Government and Public Bodies (VAT GPB) and VAT Notice 749.

The services of auctioneers, storage and locksmiths engaged by the enforcement agent are supplied to the enforcement agent. However, if a local authority employs its own bailiffs the services of auctioneers and tradesmen are supplied to the local authority.

 

Child Support

 

Child Support deal with recovery of maintenance from non- resident parents. They contract out the recovery of sums and it is carried out by enforcement agents who are not employees. They are separate persons for VAT purposes and their services provided are taxable and liable to VAT.

 

These services are supplied to Child Support and the tax on them is recoverable under section 41(3) VAT Act 1994 by the Department for Work and Pensions, under whose control Child Support fall.

 

Tax Debt

 

When enforcement action is taken by HMRC for the recovery of a debt the recovery action is carried out by an enforcement agent who is a civil servant. VAT is not chargeable on the cost of their services because these enforcement agents are employees.

Where necessary, HMRC will appoint independent businesses such as storage, locksmiths or auctioneers to carry out specific duties. These businesses provide standard-rated services to HMRC. The costs of enforcement including irrecoverable VAT are recoverable from the debtor.

 

Value of supply

 

The value of the enforcement agents’ services is the total amount of fees and expenses recovered under Taking Control of Goods (Fees) Regulations of the Tribunals, Courts and Enforcement Act 2007. The full amount charged, including any irrecoverable VAT if applicable, is recoverable from the debtor.

 

Invoicing, accounting and input tax

 

To support their entitlement to input tax deduction an enforcement agent has to have tax invoices from the auctioneer, storage firm or other tradesmen. The MoJ, HMRC and DWP need a tax invoice from the enforcement agent to support their claim under section 41(3) VAT Act 1994. A local authority and Transport for London need tax invoices from the enforcement agent to support its claim under section 33(1) of the VAT Act 1994.

An enforcement agent can issue an invoice for the statutory fees and expenses.

 

An enforcement agent may submit periodic invoices to a local authority or Transport for London for the total services supplied within the period. Where they do so, these invoices can show the individual charges as a single comprehensive total. However, the invoice must be cross-referenced to the documents relating to the individual fees included on the invoice. Copies of these subsidiary documents must be available for inspection at both the agents and the local authority’s premises.

 

Documents supplied to debtors by enforcement agents must be endorsed “this is not a tax invoice” so that they cannot be taken for tax invoices.

 

VAT incurred by enforcement agents and other registered persons on their own overhead expenses may be treated as input tax and deducted in accordance with the normal rules.

[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).

[unclebulgaria67]

We know that some councils appear to have cut down on staff that deal with CT collection and they may therefore start to use enforcement earlier than other councils. Are there any official regulations that state exactly when councils are allowed to engage an enforcement agent ?

 

Surely there must be some standard rules that all councils have to follow. e.g council tax has to be say 3 months in arrears, with x number of reminders issued, before they are able to engage an enforcement agent. It cannot be left up to councils to decide their own collection process. A cynic would think that a large company who provide admin services to councils and owns bailiff companies, would be quicker to send around an enforcement agent.

[mikeymack2002]

Taking control of goods national standards

 

 

Hi guys I have been busy with this and have edited the PDF attached with many questions and simple answers. Also whilst doing so, I have read about what we have been discussing, the collection of fees once the debt is extinguished, for this read the attachment and pay attention to part 31 as I think this is very important.

 

With the following statement I believe that if the EA attempt's to take control of a vehicle that is in the name of another person not named on the "warrant" then the EA should not take control/remove

 

Also part 67

 

Enforcement agents should not take control or remove goods clearly belonging solely to a third party not responsible for the debt. Where a claim is made, the third party should be given clear instructions on the process required to recover their goods.

 

 

I ask this as vehicles are a prime target but if the debtor produces the V5 this can clearly show the debtor is not the rk/ro?

 

 

The pdf has yellow highlighted sections with the questions/observations next to it, please click on the highlighted text to list the comments

 

 

The MOJ have been very sneaky by using the words SHOULD NOT instead of MUST NOT, I believe this is going to allow EA's to interpret in their own way, but as stated debtors that produce a valid V5 will be a saving grace for the debtor and save on interpleader costs, as this is CLEARLY IN WRITING and states the owner is NOT the debtor, is this a get out of jail clause if interpreted this way? but the wording from the MOJ states that the EA SHOULD NOT take control of goods belonging to a 3rd party?

 

 

With the V5 issue the EA can not argue with this claiming that this is not correct, because not having the V5 with the correct is an offence in its own right, so therefore the V5 is a binding document, if the EA disputes this then the RO/RK can be prosecuted for failure to declare a new ownership, but if the EA gets this wrong surely defamation of character and the such comes in to play, this will make the EA and their company liable in Court?

 

 

The EA has no legal right to query the ownership of any vehicle that has a V5, can you follow my train of thought s here?

 

 

MM

 

 

Your input is gratefully received

 

 

MM

[lamma]

The V5 has (is) no proof of ownership.

[mikeymack2002]

I know this but it IS proof it does not belong to the debtor which IS the point I am trying to make here, without sounding to aggressive in my wording.

 

 

They should NOT do anything that can be PROVED that it belongs to a 3rd party and a V5 does this

[lamma]

The V5 has (is) no proof of ownership.

I know this but it IS proof it does not belong to the debtor

It is clearly impossible for both to be true.

As the V5 contains no facts regarding ownership it cant prove who does or does not own the vehicle.

It is this that bailiffs depend on when taking vehicles - often any nearby vehicle.

How many people keep a copy of the Bill of Sale in the glove box ?

[HCEOs]

Where ownership is not clear the EA should take control of the vehicle and seek a signed CGA. The TP claimant can then make a TP claim following the procedures laid out in CPR 85.4 as below:

 

Third Party Claim to Controlled Goods CPR Part 85

[mikeymack2002]

Where ownership is not clear the EA should take control of the vehicle and seek a signed CGA. The TP claimant can then make a TP claim following the procedures laid out in CPR 85.4 as below:

 

Third Party Claim to Controlled Goods CPR Part 85

 

 

This is totally incorrect, as the guidelines state YOU SHOULD NOT I am so looking forward to seeing the first case were the arrogant EA takes control and seizes the vehicle, because but because they are greedy they WILL if you as an EA go against the guidelines then please reap the reward for doing so.

 

 

If I was to say to you should not put your head in the oven then, you WOULD not would you? NO so why therefore do something equally as wrong?, the reason because you will NOT check BEFORE you do so, that one call or check could save a debtor a lot of cash.

 

 

As for you stating that it is the responsibility of the debtor WHERE does it say so IN LAW or statute? it doesn't does it, this is very clear to anyone reading that the EA WILL do as he pleases when he PLEASES.

 

 

HCEOs I assume you are an EA? if this was to happen to you what would you do or say please? this is of course a hypothetical situation you was in.! just think of this question if YOU was just a member of the PUBLIC like most of us here.

 

 

This section by me is not meant to offend or cause any sort of upset to anyone, I am just asking a very simple question that is all

 

 

MM

Edited May 3, 2014 by citizenB
restored quote box

[mikeymack2002]

Further to my post above, correct me if I am wrong....

 

 

1. All goods MUST belong to the debtor

2. You should not take control/remove goods CLEARLY owned by a 3rd party

3. part 31 of the guidelines is a point that I am trying to get answered, why then do the EA's carry on using the "order" to try to reclaim their fees if due, this becomes very complicated and I think actually NEEDS answering in detail

4. In a Court of LAW you are presumed innocent until proven guilty, it is the JOB of the EA to PROVE the goods do belong to the debtor not the other way around, where again may I ask does it show that ANY goods "MAY" belong to any debtor, then please show the case law/statute/ where it says ALL goods MUST belong to the debtor if at or close to a property.

 

 

Unfortunately I cannot post up the actual question I am waiting to ask, until all arguments have been answered in full, once this is done and all points have been collated then the final question will be asked, but I do ask for your time in allowing the points to be asked in this way please.

 

 

Has the following document been repealed/replaced? please see 3.4 in the attachment or if there is any further clarification on this matter!

 

 

MM

[HCEOs]

Firstly, calm down and read through the Regulations and CPR. Guidelines are guidelines and not law.

 

So, the real issue is the proving of who owns the goods. Unfortunately not everybody is truthful when it comes to this. On many occasions we find that goods have miraculously been sold to somebody else as recently as the day before. Now you know and I know that this is only done to prevent taking control.

 

Further, it is for the person whose goods are taken into control to prove ownership. Of course a sensible EA will not list something that obviously belongs to somebody else but at the end of the day it is proof of ownership that counts.

 

Therefore the correct process is for the TP to make a claim to the goods (as detailed in the CPR) and the creditor can admit or deny it. If denied then the TP can pay the £155 fee plus the value of the goods into court and a Judge will decide.

 

Is that fair, in all honesty no, but that's what the law states. If it happened to me would I be p1ssed off, of course.

 

Oh and one more thing, DVLA checks only prove the registered keeper not the owner and take a minimum of a few days to get an answer.

[mikeymack2002]

LOL I am calm I wish I was mad but fortunately I am very calm, just asking valid questions ok

 

 

The guidelines clearly state that if the goods belong to a 3rd party they should not be removed or taken control of.

 

 

I have also added a further document that has this point on it from the House of Commons Library, it is attached above.

 

 

Again it clearly states in point 3.4 that an EA CANNOT do anything to goods that belong to someone else apart from the NAMED debtor, a V5 is a document that clearly shows who the RK is if this is not the debtor then the EA cannot do anything with it, even the House of Commons has said so, this MUST be correct as it is the place where things happen.

 

 

I am happy to continue this discussion as is, trust me I am not angry or upset just looking for the EXACT LEGAL stand point on this matter, again I ask where is it that shows a EA can seize ANY goods NOT belonging to the DEBTOR please

 

 

As per your statement above quoted below

 

 

Oh and one more thing, DVLA checks only prove the registered keeper not the owner and take a minimum of a few days to get an answer.

 

 

It is therefore imperative this is cleared up, if the EA is unsure then they MUST not take control/REMOVE, this is a point that that really needs to be clarified properly, there are rules in place that need to be followed properly, before the EA takes control, can we agree on that please?

 

 

A reason for this train of thought is because if the EA takes something they shouldn't then they should pay the cost of their actions if they were wrong in the first place.

 

 

My point after all is that the EA MUST not do this.

 

 

Here is another very interesting point for discussion.

 

 

An EA sells a vehicle get the money, but the debt is not extinguished, and an amount of money is outstanding, the new owner of the said vehicle gets a tug from a POLICE ANPR stop, with EA team in attendance, the team again take control of the goods even though it has already been seized previously and sold what happens then?

 

 

As far as I am concerned these are all valid points and just very curious on how the EA's deal with it

 

 

MM

 

 

Thank you for your input on this point

 

 

MM