Taking Control of Goods 2013: Calculating '7 clear days' and definition of how Notice of Enforcement may be 'given'.

[tomtubby]

Notice of Enforcement and how to calculate ‘7 clear days’.

 

The first point to make here is that approx 70% of all business mail is managed by postal providers such as TNT Mail. Although an envelope may carry a Royal Mail logo this merely means that Royal Mail manage the actual delivery to your door.

 

Under the previous regulations (before 6th April 2014) when enforcing a Liability Order there was no provision for the enforcement company to send an initial letter prior to a personal visit.

 

With the enforcement of an unpaid parking charge notice there was also no specific provision for the enforcement agent to send an initial letter and instead, the regulations merely provided that the enforcement company may send a letter and that if they chose to do so...they could apply a fee of £11.20 (plus vat).

 

Under the Taking Control of Goods Regulations 2014 the position has changed (as outlined below) but unfortunately there is a great deal of confusion with local authorities and enforcement agents as to how to ‘calculate’ the period of notice. The correct position is outlined below:

 

 

What is the legal position in the Regulations?

 

When a “time period” is given in any regulations it may be referred to as ‘working days’, ‘days’ or ‘clear days’. Each has it own specific interpretation.

 

The Taking Control of Goods Regulations 2013 specifically provide that a Notice of Enforcement “must be given to the debtor not less that 7 clear days before the enforcement agent takes control of the debtor’s goods”.

 

The statutory regulations confirm that in calculating ‘clear days’ you must exclude Sunday’s, bank holidays, Good Friday or Christmas Day’. Of vital importance is that the regulation also stipulate that the period of '7 clear days' is a ‘minimum period of notice’ (more on this further on).

 

Additionally, when calculating ‘clear days’ the 1st and the last day are known as ‘event days’ and are also excluded.

 

Examples are provided below.

[tomtubby]

Before posting example it is prudent to mention the Interpretation Act 1978 and the the Civil Procedure Rules (2.8) regarding 'service' of documents.

 

The Interpretation Act 1978 is problematical given that it states the following:

 

"Where an Act authorises or requires any document to be served by post (whether the expression 'serve' or the expression 'give' or send' or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the 'ordinary course of post"

 

At the time of the Interpretation Act 1978 only 1st class and 2nd class mail was used and accordingly, the phrase 'ordinary course of post' referred to either 1st or 2nd class mail. At mentioned in post number one the position nowadays is that 70% of business mail use '3rd class' mail providers such as TNT mail. These companies have varying times for delivery (3 working days is normal) depending on the individual contract entered into with the business user.

 

Civil Procedure Rules (2.8)

 

Once again this regulation has its own difficulties given that for 'Method of Service' it states "First class post (or other service which provides for delivery on the next business day) and for 'Deemed date of service' it states as follows:

 

'The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not; the next business day after that day'

 

Once again, CPR 2.1 appears to refer to mail being delivered either by 1st or 2nd class mail.

[tomtubby]

How to calculate “7 clear days”.

 

Example one:

 

Posted Friday 23rd May (Event day excluded)

Saturday 24th May (Day 1)

Sunday 25th May (Excluded)

Monday 26th May (Day 2)

Tuesday 27th May (Day 3)

Wednesday 29th May (Day 4)

Thursday 30th May (Day 5)

Friday 1st June (Day 6)

Saturday 2nd June (Day 7 but excluded as ‘event day’)

Sunday 3rd June (excluded)

Monday 4th June (deemed served)

 

 

Example two:

 

Posted: Wednesday 28th May (Excluded as ‘event day’)

Thursday 29th May (Day 1)

Friday 30th May (Day 2)

Saturday 31st May (Day 3)

Sunday 1st June (excluded)

Monday 2nd June (Day 4)

Tuesday 3rd June (Day 5)

Wednesday 4th June (Day 6)

Thursday 5th June (Day 7 but excluded as ‘event day’)

Friday 6th June (deemed served)

[tomtubby]

Bad example

 

Shortly after the regulations came into effect (on 6th April) I was sent a copy of a Notice of Enforcement which was dated 11th April and which stated that payment had to be made by 23.59pm on 18th April (7 days). This particular Notice of Enforcement was not in accordance with the Taking Control of Goods Regulations 2013 as it did not allow for '7 clear days'.

 

In order to avoid an Enforcement Fee of £235 being applied the particular enforcement company should have allowed the debtor to pay by 23.59pm on Wednesday 23rd April (as outlined below):

 

 

Friday 11th April (excluded as ‘event day’)

Saturday 12th April (Day 1)

Sunday 13th April (excluded)

Monday 14th April (Day 2)

Tuesday 15th April (Day 3)

Wednesday 16th April (Day 4)

Thursday 17th April (Day 5)

Friday 18th April (Excluded as Good Friday)

Saturday 19th April Day 6)

Sunday 20th April (Excluded)

Monday 21st April (Excluded as Bank Holiday)

Tuesday 22nd April (Day 7 but excluded as ‘event day)

Wednesday 23rd April (deemed served)

[brassnecked]

Use of third Class as in TNT Post etc, could if challenged cause serious issues around these £75 compliance Stage fees, if it is proved that their use is of serious detriment to a debtor, as they effectively mean the notice period has expired or almost expired on receipt.

[tomtubby]

Given the degree of confusion the position with enforcement agents is that their trade association; CIVEA have advised all of their members that it would be 'prudent to normally allow 14 days to elapse where the notice is given by post'.

 

Of vital importance is that the majority of local authorities are stipulating in their own contracts that the enforcement companies also allow for 14 days (with some even requesting 21 days).

 

The Ministry of Justice have stressed that '7 clear days' is to be interpreted as the 'minimum period of notice'.

 

Enforcement companies should be encouraging debtors to pay at the Compliance stage (when the fee is £75) and should not be engineering postal days and times that allow them the opportunity to apply the Enforcement stage fee of £235.

 

The Taking Control of Goods Regulations specifically provide that the Notice of Enforcement must also stipulate a time ( as well as the date) by which payment is to be made in order to avoid an 'Enforcement fee' of £235 being applied. The vast majority of enforcement companies are stipulating a 'time' of 23.59pm This is perfectly acceptable and allows debtors to make payment on line etc when they return home in the early evening. To my mind, it is not acceptable for any enforcement company to stipulate a 'time' of either 3pm or 5pm ( recent examples have been seen) and if such a 'time' is stipulated I would suggest that a complaint be made to the relevant local authority.

[tomtubby]

The last point that I would like to make on this important point is that in the forthcoming months the Ministry of Justice will be reviewing how the Taking Control of Goods regulations are being managed. In this respect, all Stakeholder groups have been informed that if they have concerns (or even suggestions for change) these should be brought to the attention of MOJ. In this respect, if any of the statutory notices are incorrectly completed or there are concerns at the way in which enforcement companies are wrongly calculating the notice period then please post examples of notices on the forum (with personal information removed).

[tomtubby]

How statutory notices must be GIVEN

 

Statutory regulations have a tendency to be written in a way that is confusing and this may be the reason why some websites are wrongly advising debtors that under the Taking Control of Goods Regulations 2013 it provides that a Notice of Enforcement must be given PERSONALLY to the debtor and that if if this was not the case that "everything that follows is invalid". The websites in question quote Regulation 8.1(e).

 

The correct position is that the regulations have provided a range of ways in which notice may be GIVEN. These are as follows:

 

 

 

Method of giving notice and who must give it

 

8.(1)Notice of enforcement must be given—

 

(a) by post addressed to the debtor at the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(b) by fax or other means of electronic communication;

 

© by delivery by hand through the letter box of the place, or one of the places, where the debtor usually lives or carries on a trade or business;

 

(d) where there is no letterbox, by affixing the notice at or in a place where it is likely to come to the attention of the debtor

 

(e) where the debtor is an individual, to the debtor personally; or

 

(f) where the debtor is not an individual (but is, for example, a company, corporation or partnership), by delivering the notice to—

 

(i) the place, or one of the places, where the debtor carries on a trade or business; or

 

the registered office of the company or partnership.

 

 

Note:

 

The Statutory regulations are clear in that in the case of a debtor, a Statutory notice may be GIVEN by any of the following means:

 

By post

 

By fax or other electronic means

 

By delivery through the letterbox

 

If the debtor does not have a letterbox....by affixing the notice where it is likely to come to the debtors attention

 

or:

 

By handing the notice to the debtor in person (8.1(e)

[tomtubby]

Duplicate post.

[tomtubby]

A lot of business users have contracts with TNT Mail and their "Allsort" postal service is very popular. Looking at the link below you will see on page 4 the delivery times are quoted as follows:

 

 

TNT AllSort National (UK) Service Summary

 

Day 0 Unsorted mail collected from the customer,mail delivered to TNT Post sortation centre

 

Day 1 Mail recorded,sorted and bagged

 

Day 2 Bags of sorted mail delivered to the Royal Mail/3rd party carrier

 

Day 3 Letters,Large Letters and Packets delivered,DSA mail delivered by Royal Mail

 

Day 3-5 Mail delivered by a 3rd Party Carrier for parcels

 

 

http://www.tntpost.co.uk/Portals/0/Documents/CustGuide_AllSortV15.pdf

 

The following link is very useful:

 

http://www.britishpostmarksociety.org.uk/QzlfUFBJcw==.aspx

[tomtubby]

For the avoidance of doubt the Taking Control of Goods Regulations 2013 provide that a Notice of Enforcement may be GIVEN to the debtor by any of the following means:

 

By post

 

By fax or other electronic means

 

By delivery through the letterbox

 

If the debtor does not have a letterbox....by affixing the notice where it is likely to come to the debtors attention

 

or:

 

By handing the notice to the debtor in person (8.1(e)

 

 

The reason for re-iterating this point is that a number of websites with connections to Freeman on the Land are wrongly claiming that a Notice of Enforcement may only be GIVEN in person to the debtor and that if this is not the case that everything that follows is invalid. Not surprisingly, debtors who believe this nonsense will find themselves being diverted to an alternative website where they will be asked to pay a fee (of £15) to "download a template" letter.

 

Strangely, the websites in question also refer to a "Regulation 6 Notice". The statutory regulation do not provide for any such notice. Instead, the regulations clearly refer to a Notice of Enforcement.