Taking Control of Goods Regulations 2013 and the legal position regarding "clamping" of a vehicle.

[tomtubby]

On 6th April 2014 significant changes were made to 'bailiff enforcement' and it is important for anyone viewing this forum to understand how the new regulations affect the 'clamping (or immobilisation) of a motor vehicles and the implications on debtors (or others) if a wheel clamp is removed. The following is a brief summary:

 

'Clamping' (Immobilsing) of a motor vehicle:

 

The regulations clearly provide that an enforcement agent may immobilise a vehicle by fitting a wheel clamp. For those interested, the relevant legisation can be found under Section 1© of Regulation 16 of the Taking Control of Goods Regulations 2013 entitled: Securing Goods of the Debtor on Premises where found.

 

 

Location where a vehicle may be clamped (immobilised)

 

The regulation clearly provide that a vehicle may be clamped at:

 

The debtor's home

 

The debtor's place of business or:

 

On the 'Highway'.

 

NB: CIVEA and I differ on the interpretation of 'Highway' and I will write more on the 'definition' at a later stage.

 

However, for the avoidance of doubt, an enforcment agent may NOT take control of a vehicle in either a public or a private car park (which includes supermarkets, large shopping outlets etc), unadopted roads or other land that is owned by private individuals (such as a neighbours or relatives driveway).

 

 

Does Section 54 of Chapter 2 of the Protection of Freedoms Act apply?

 

NO!!!

 

Section 54 is ONLY in relation to unathorised parking on private land (such as supermarket car parks, large shopping centre etc). It does not apply to private driveways given that the new regulations allow for goods to be 'taken into control' at "the debtors home".

 

Clamping of a car belonging to wife/husband

 

One area of the new regulations that I confess to being uncomfortable with is that of 'joint-ownership'. In this respect, goods in which a 'co-owner' has an 'interest' may be taken into control. The enforcement agent would need to either 'know' that the person has an 'interest' (in the goods0 or that he would know if he made 'reasonable' enquiries.

[tomtubby]

What is the procedure if an enforcement agent immobilises a vehicle that does not belong to the debtor?

 

Under the new regulations, there is a simple procedure (and one that I have used successfully quite a few times since 6th April). Under Part 6 of the Taking Control of Goods Regulations 2013 specific provision is outlined regarding the steps that must be undertaken if there is a dispute regarding goods(including a vehicle) that have been seized.

 

This procedure applies to both the 'third party goods and also to any goods which the debtor considers should be 'exempt' (for instance for 'business use' or even when the value of the goods is questioned).

 

 

Can I use an 'angle grinder' to cut off a wheel clamp?

 

No!!!

 

Under the new regulations it is now a criminal offence to 'intentionally obstruct a person acting lawfully as an enforcement agent'. The relevant legislation is to be found under Section 68.1 of Schedule 12 of the Tribunals Courts & Enforcement Act.

 

Can I issue court proceedings instead?

 

Given that the regulations provide specific procedures that should be taken regarding disputes about goods 'taken into control' (which would include that of clamping of a vehicle that does not 'belong' to the debtor) it is expected that court claims made without following the regulations will be disputed.

[unclebulgaria67]

However the EA is not acting lawfully in attempting to seize the property of a third party and therefore the third party in cutting off the clamp would not have committed a criminal offence. ( This would be my argument ).

 

The reason for my argument is that there in no 'intent' to obstruct an EA in their lawful duties. It is simply a case of the third party having the right to use their vehicle without any loss being incurred, as they have no debt owing that would be in the lawful remit of the EA.

 

In my opinion the laws appear designed to deal with a debtor removing a clamp or a third party helping them remove a clamp. There is also law covering third party property clamped in error, but why should an innocent third party be criminalised in removing a clamp that should never have been applied. I am not sure when this law was drafted, there was any intention to apply a criminal offence to a third party removing a clamp on their vehicle for an attempted levy, for a debt they had nothing to do with.

[brassnecked]

I would tend to agree with UB, especially if the proof is provided to the EA and creditor, that the vehicle is clearly third party as in say a driveway rental, similar to that other thread, which differs as a non resident family member uses it in the day. However I feel that the police would arrest and prosecute the innocent third party for Criminal Damage, and it would need an appeal to a higher court to rule on this. It is a can of worms and could blow up badly on an EA company and MOJ.

[tomtubby]

What is clear with the new regulations is that there is a much greater obligation on the enforcement agent to make enquiries into the ownership.

 

For instance; with a parking charge notice the vehicle registration number of the car that was driven on the day on the contravention appears on the warrant of control. Accordingly, if a vehicle with the same VRM is parked at the 'debtor's home' an enforcement officer would not be reprimanded if he applied a vehicle clamp. The difference comes with council tax as the enforcement agent would not be able to make an enquiry with DVLA.

[tomtubby]

What I have tried to do with this thread is to outline the legal position (according to the regulations) and to outline also the CORRECT procedure according to the regulations if the enforcement agent has acted incorrectly when 'taking control of goods' (in particular when applying an immobilisation device to a motor vehicle) or if a debtor considers that goods of his should not have been seized for whatever reason.

 

As can be seen above, bypassing Part 6 of the Regulations and issuing legal proceedings instead is wrong and will very likely lead to any claim being rejected.

[unclebulgaria67]

What is clear with the new regulations is that there is a much greater obligation on the enforcement agent to make enquiries into the ownership.

 

For instance; with a parking charge notice the vehicle registration number of the car that was driven on the day on the contravention appears on the warrant of control. Accordingly, if a vehicle with the same VRM is parked at the 'debtor's home' an enforcement officer would not be reprimanded if he applied a vehicle clamp. The difference comes with council tax as the enforcement agent would not be able to make an enquiry with DVLA.

 

If EA's were aware that they could use this possible criminal offence in relation to the removal of clamps, for outstanding council tax, they would clamp 'any' vehicle near a debtors house. They would then use this potential criminal offence to extort payment. I could imagine some EA's asking a third party to make payment or there would be a delay in getting the clamp removed.

 

I don't think these new regulations are allowing EA's to just clamp 'any' vehicle for council tax, just in case it might belong to the debtor. It is not the problem of a third party, that an EA cannot check with DVLA to see who the registered keeper is. The EA could ask the council to check with DVLA, as councils are allowed to check DVLA records.

 

Why do governments continue to pass legislation that is not clear enough and leave it up to the Police/CPS and courts to try to intepret ?

[Coughdrop]

We always said this legislation really needed another 6 months of refining before being enacted; equally we knew that sadly that was never going to be the case. We now pick up the pieces of poorly worded legislation.

[tomtubby]

The problem that we now have is that whilst 'advice agencies' , solicitors , respected forums etc, etc are fast becoming familiar with the new regs the actual bailiff 'on the street' is continuing to enforce the debt is much the same way as he always used to.

 

The government could not possibly have put off the regulations until October so whilst it was the preferred option the reality was that it could not possibly of been agreed.

[lookinforinfo]

What is the procedure if an enforcement agent immobilises a vehicle that does not belong to the debtor?

 

Under the new regulations, there is a simple procedure (and one that I have used successfully quite a few times since 6th April). Under Part 6 of the Taking Control of Goods Regulations 2013 specific provision is outlined regarding the steps that must be undertaken if there is a dispute regarding goods(including a vehicle) that have been seized.

 

This procedure applies to both the 'third party goods and also to any goods which the debtor considers should be 'exempt' (for instance for 'business use' or even when the value of the goods is questioned).

 

 

Can I use an 'angle grinder' to cut off a wheel clamp?

 

No!!!

 

Under the new regulations it is now a criminal offence to 'intentionally obstruct a person acting lawfully as an enforcement agent'. The relevant legislation is to be found under Section 68.1 of Schedule 12 of the Tribunals Courts & Enforcement Act.

 

Can I issue court proceedings instead?

 

Given that the regulations provide specific procedures that should be taken regarding disputes about goods 'taken into control' (which would include that of clamping of a vehicle that does not 'belong' to the debtor) it is expected that court claims made without following the regulations will be disputed.

 

I think it was Old Bill who suggested that the clamping of an innocent motorists's car was a breach of ECHR and one could try that as opposed to going through the stupid

rigmarole that is currently available especially if one does not have the financial wherewithal to come up with say £15000 for your clamped car. I am aware that the idea may

have been to prevent situations where a motorist knows the bailiffs are after him so sells/transfers his car to a friend or relative and that transfer would probably not stand up to the scrutiny of a Court enquiry. However there will be in the coming years many instances of entirely innocent motorists caught up in this mess who will want redress pretty

quickly and if bailiffs know that the ECHR route circumnavigates the stupid regulation in force at the moment it may well curb their enthusiasm for random clamping especially

if they over use it and the Courts become flooded with cases. Judges will suss it is an abuse of the Law pretty quickly.

[brassnecked]

UncleBulgaria,:

 

"If EA's were aware that they could use this possible criminal offence in relation to the removal of clamps, for outstanding council tax, they would clamp 'any' vehicle near a debtors house. They would then use this potential criminal offence to extort payment. I could imagine some EA's asking a third party to make payment or there would be a delay in getting the clamp removed.

 

I don't think these new regulations are allowing EA's to just clamp 'any' vehicle for council tax, just in case it might belong to the debtor. It is not the problem of a third party, that an EA cannot check with DVLA to see who the registered keeper is. The EA could ask the council to check with DVLA, as councils are allowed to check DVLA records."

 

Therein is the elephant, in a driveway rental, or a block witth shared parking there is a risk that a third party car will be clamped or seized as before, the DVLA check not being permitted for council tax, will let the bailiff use the old chestnut in Observer V Gordon, well it was near the debtors property, so we can assume and clamp. Then if the third party removes the clamp, there could well be a messy police and court process for the innocent as the EA invokes the offence of removing the unlawfully applied clamp, and the innocent appeals due to EA not considering the evidence of ownership provided. Jacobs know the consequences of an unlawful seizure and sale of a third party VW Camper

 

I agree UB that the government often make it worse when trying to make it bettter, but then in this case the Enforcers probably had biggest shout at the table lobbying when the new regs were drafted

 

and Lookedinforinfo,:

 

" I think it was Old Bill who suggested that the clamping of an innocent motorists's car was a breach of ECHR and one could try that as opposed to going through the stupid

rigmarole that is currently available especially if one does not have the financial wherewithal to come up with say £15000 for your clamped car. I am aware that the idea may

have been to prevent situations where a motorist knows the bailiffs are after him so sells/transfers his car to a friend or relative and that transfer would probably not stand up to the scrutiny of a Court enquiry"

 

There could well be breaches of Articles 6, 12, and 17 by the very nature of a random clamp and siezure, but the defence will probably be that there is n assumption under Article 18 that permits them to clamp anything they like as it is collecting State Debt, so is therefore a reasonable action to take. Just a few thoughts, but there may well be a way of using this, and a good pro bono lawyer might cause a few problems for councils and their tame enforcers before too long.

 

In general I can see the same problems rearing their ugly heads soon as you both do,

[tomtubby]

 

as opposed to going through the stupid rigmarole that is currently available especially if one does not have the financial wherewithal to come up with say £15000 for your clamped car.

.

 

The reference to the figure of £15,000 is I assume based upon the provision whereby a debtor may be required to pay a sum of money into court if the dispute actually ended up with an Interpleader trial. I have written extensively about the 'Interpleader' on another thread and I will probably update that one later on with further details.

 

The bottom line is that when the Government announced late last year that disputes about 'third party goods' would require a court hearing and....possibly a payment into court there was absolute mayhem.....even the enforcement industry did not want this provision.

 

Following this announcement 'behind the scenes' some individuals/organisations etc made representation to the Ministry of Justice seeking changes to the 'Interpleader'. Many on here will know that at the same time I also raised concerns in the CCR Public Sector publication (which is read by all government departments). My representation to MOJ was to seek a PRELIMINARY stage to an Interpleader along the lines of what was provided under the High Court regulations. I also raised this point in the CCR article (which is posted on the forum). The Ministry of Justice took on board the representations and accordingly; by 6th April the regulations provide for a PRELIMINARY stage.

 

All that is now required under the 'preliminary stage' is for the debtor to WRITE (or better still to email ) the enforcement company a 'Third Party Claim' (or claim to exempt goods etc). This procedure is comonplace for debts enforced by High Court Enforcement Officers and on a personal level, I have assisted with hundreds of these over the years and so far....not a single one has been rejected. In most cases the response to 'release the levy' with be made within just a day or so.

[brassnecked]

So under Prelimnary stage, if a third party for example that Banker with the Porsche that is cl;amped on the debtor's driveway as he has rented the space, provides V5 etc it should be sorted at that stage. Fair enough but if it takes a couple of days would there be a right of claim by the third party for consequentiial losses during the period of clamping or removal?

 

Either way this is most welcome, as an EA who pushes for interpleader without due diligence or in the face of evidence is cream crackered.

[dementedfeline]

QUOTE

All that is now required under the 'preliminary stage' is for the debtor to WRITE (or better still to email ) the enforcement company a 'Third Party Claim' (or claim to exempt goods etc). This procedure is comonplace for debts enforced by High Court Enforcement Officers and on a personal level, I have assisted with hundreds of these over the years and so far....not a single one has been rejected. In most cases the response to 'release the levy' with be made within just a day or so.

 

 

Tomtubby, is there a standard format for this? John in the case over on pepipoo has provided sale receipt/copy of logbook etc to Marstons and STILL doesn't have his car back.

[tomtubby]

QUOTE

 

Tomtubby, is there a standard format for this? John in the case over on pepipoo has provided sale receipt/copy of logbook etc to Marstons and STILL doesn't have his car back.

 

We managed (with some difficulty) to get Marston's to RETURN the car back to 'John' at the beginning of this week. Over on Pepipoo it was stated that the car had been displaying a Blue Badge and that was the reason why I had intervened (given that under the new regs a vehicle displaying a Blue Badge is deemed 'exempt')

 

Unfortunately, 'John' did not feel comfortable providing a copy of the 'Blue Badge' and this led to a long delay in the release of the car. As long as supporting evidence is provided vehicles are returned very quickly.

[dipobrazil]

We managed (with some difficulty) to get Marston's to RETURN the car back to 'John' at the beginning of this week. Over on Pepipoo it was stated that the car had been displaying a Blue Badge and that was the reason why I had intervened (given that under the new regs a vehicle displaying a Blue Badge is deemed 'exempt')

 

 

 

Unfortunately, 'John' did not feel comfortable providing a copy of the 'Blue Badge' and this led to a long delay in the release of the car. As long as supporting evidence is provided vehicles are returned very quickly.

 

 

 

What about a situation where a vehicle has been clamped...by an EA for pcn and then debtor files an N244.....what happens? does the bailiff still have the right to still have the car clamped....can the car owner remove the clamp if the bailiff does not remove the clamp...especially if the hearing for the N244 takes months to happen.

[tomtubby]

On the matter of the N244 I share your view 100% and you are now getting into an area that I have serious concerns with...and that is the Traffic Enforcement Centre....OOT's and N244's. As far as I am concerned there should be NO reason to continue clamping the car whilst an N244 is being pursued and instead, the vehicle should be subject to a Controlled Agreement.

 

The regulations regarding TEC are to be overhauled but this will not take place until at least the Autumn. Because of the delays in N244's I tend to always suggest that an application be made WITHOUT a hearing. It would be better to ask further questions on your own thread so as to ensure that this one does get too long.

[unclebulgaria67]

On the matter of the N244 I share your view 100% and you are now getting into an area that I have serious concerns with...and that is the Traffic Enforcement Centre....OOT's and N244's. As far as I am concerned there should be NO reason to continue clamping the car whilst an N244 is being pursued and instead, the vehicle should be subject to a Controlled Agreement.

 

The regulations regarding TEC are to be overhauled but this will not take place until at least the Autumn. Because of the delays in N244's I tend to always suggest that an application be made WITHOUT a hearing. It would be better to ask further questions on your own thread so as to ensure that this one does get too long.

 

A case you commented about the other day, when a husband cut off a clamp on his Wifes Mercedes, which the bailiff applied due to husbands outstanding court fine, led to the Police thinking of a criminal damage charge.

 

But the bit I was alarmed of is that the Police said that the husband had interest in his wifes car, because he was noted as a named driver on the wifes Insurance. This to me is a total load of bollards. How can you have direct financial interest due to being a named driver on Insurance ?

 

I don't think the CPS will allow a criminal damage case to go ahead over a £40 cut off padlock/chain to a clamp. This is because it would be open to a lot of reasonable arguments to be made that it was not criminal damage. The clamp was not applied to property owned by the debtor.

[brassnecked]

I think UB is correct insofar as property not belonging to the debtor should not be touched, but the police will regardm a marital couples property to be joint, as would the bailiff, rightly or wrongly, but being a named driver on insurance is no indication of financial interest.

 

Let us take the hypothetical example of say old Ednea she has a car, but is too ill to drive it, she puts Bill her next door neighbour as a named driver along with her son who is only home four days a week, so Bill can taske Edna shopping when the son is away., he has no other interest in it. Bailiff calls on Bill for a debt, clamps Ednas car. as it is parked on a shared drive between the houses. Would the police if called do Edna's son another named driver if he cut off the clamp, and say the bailiff is OK to clamp the car as Bill is a named driver? If so something would be seriously bent.

[unclebulgaria67]

I think UB is correct insofar as property not belonging to the debtor should not be touched, but the police will regardm a marital couples property to be joint, as would the bailiff, rightly or wrongly, but being a named driver on insurance is no indication of financial interest take the example of say old Edne, she has a car, but is too ill to drive it, she puts Bill her next door neighbour as a named driver along with her son who is only home four days a week, so Bill can taske Edna shopping when the son is away., he has no other interest in it. Bailiff calls on Bill for a debt, clamps Ednas car. as it is parked on a shared drive between the houses. Would the police if called do Edna's son another named driver if he cut off the clamp, and say the bailiff is OK to clamp the car as Bill is a named driver? If so something would be seriously bent.

 

You can't presume that because people are married that all property is joint. Otherwise it would make divorce and debt situations a complete nightmare. For example a wife may own a business worth millions and her toyboy husband enjoys spending her money. He gets into a lot of trouble with thousands in unpaid fines and debts. Is anyone going to argue that the wifes assets in her name have anything to do with her husband ? It cannot be argued that a car is a joint asset between husband and wife, unless there is proof of this. I would say that if the V5 and insurance is in her name, then it is her car.

 

What evidence do you have about how the Police view marital property ? Is their any law, legislation or case precedents ?

[brassnecked]

You can't presume that because people are married that all property is joint. Otherwise it would make divorce and debt situations a complete nightmare. For example a wife may own a business worth millions and her toyboy husband enjoys spending her money. He gets into a lot of trouble with thousands in unpaid fines and debts. Is anyone going to argue that the wifes assets in her name have anything to do with her husband ? It cannot be argued that a car is a joint asset between husband and wife, unless there is proof of this. I would say that if the V5 and insurance is in her name, then it is her car.

 

What evidence do you have about how the Police view marital property ? Is their any law, legislation or case precedents ?

 

I don't know of any off the cuff t but there iseems to be an increasing tendency for cohabitees goods to be regarded as joint by enforcement agencies and the police. Wrongly imho.

 

My scenario is to illustrate how silly and wrong any presumption of an interest financially in a vehicle is because someone is a named driver, it is a matter of convenience so someone doesn;t fall foul of having no insurance if they have to drive their car, are stopped and told that the insurance on THEIR car doesn't cover the one they are driving so plod have it away.

[caledfwlch]

Wouldn't the ea and Police need to have cctv or a witness to prove the debtor is who cut the clamp or do the new regs mean a missing clamp WILL be blamed on the debtor and the debtor arrested and charged even with a total lack of evidence?

 

 

I don't know of any off the cuff t but there iseems to be an increasing tendency for cohabitees goods to be regarded as joint by enforcement agencies and the police. Wrongly imho.

 

My scenario is to illustrate how silly and wrong any presumption of an interest financially in a vehicle is because someone is a named driver, it is a matter of convenience so someone doesn;t fall foul of having no insurance if they have to drive their car, are stopped and told that the insurance on THEIR car doesn't cover the one they are driving so plod have it away.

[old bill]

Wouldn't the ea and Police need to have cctv or a witness to prove the debtor is who cut the clamp or do the new regs mean a missing clamp WILL be blamed on the debtor and the debtor arrested and charged even with a total lack of evidence?

If a person alleges someone has committed a criminal offence, they must have the evidence to substantiate their allegation. There is no presumption of guilt under English Law or ECHR, only that of innocence until proven guilty before a court of law or other legally-convened tribunal.

 

Any EA who makes an allegation against a debtor to the effect that the debtor has removed a wheelclamp, damaging it in the process, and has no evidence to substantiate that allegation is, at best, asking to have the imprint of a Size 11 police boot on their buttocks. The worst they can expect is arrest, prosecution and prison.

 

Making a false allegation against another person can amount to harassment under the Protection from Harassment Act 1997. However, if the allegation is that the person has committed a crime and such allegation is made to the police, thereby resulting in the person's arrest, that is a lot more serious. If it progresses to a file being submitted to the CPS or to court, then it becomes very serious.

 

An EA who thinks they can make an unsubstantiated or false allegation against a debtor to the police and get away with it really does need to wake up and smell the coffee. The two offences they commit by making a false allegation are Wasteful Employment of Police and Perverting the Course of Justice, the latter being an Indictable Offence carrying a maximum penalty of up to life imprisonment. Civil enforcement companies who allow their EAs to make such allegations and this results in the debtor being arrested and detained at a police station can expect to be pursued for civil damages for Wrongful Arrest, Unlawful Detention and False Imprisonment, damages for which are rarely modest. An hour in custody could, potentially, cost a civil enforcement company around £25,000. If it were to progress to court, then they could be looking at £40,000 +. The figures quoted do not include legal and court costs which are additional.

[old bill]

I don't know of any off the cuff t but there seems to be an increasing tendency for cohabitees goods to be regarded as joint by enforcement agencies and the police. Wrongly imho.

 

My scenario is to illustrate how silly and wrong any presumption of an interest financially in a vehicle is because someone is a named driver, it is a matter of convenience so someone doesn;t fall foul of having no insurance if they have to drive their car, are stopped and told that the insurance on THEIR car doesn't cover the one they are driving so plod have it away.

 

The car seizing and crushing orgies police forces and DVLA have been on could backfire on them in a big way. Seizures are all too often made on the basis of allegations sourced from motor insurance companies and DVLA which, as we all know, are more often than not inaccurate, or out-of-date or due to sheer incompetence or carelessness. The seizures are arbitrary and follow an automatic presumption of guilt, which is unlawful under ECHR and HRA. The motor insurance industry frequently crow about the number of vehicles that have been destroyed, but I have a feeling it is the Lloyds' names and syndicates and not police forces who are going to take the hit financially for legislation they lobbied for and which is incompatible with ECHR. As for the seizures on behalf of DVLA, the two contractors are known to have wrongfully seized and destroyed vehicles and, in some cases, refused to return or release vehicles even when it is blindingly obvious they have clamped/removed vehicles unlawfully. Although DVLA should, technically, take the hit financially, it is funded by the taxpayer and the taxpayer should not, in any way, be expected to indemnify private sector companies who behave as if they are beyond the law.

[caledfwlch]

I thought as much OB (long time no see dude!)

 

Removing a clamp was always a criminal offence, in a theoretical situation where a debtor is arrested do they get charged or rather without evidence interviewed under suspicion of two offences, criminal damage and obstructing a bailiff?

 

Obstructing a bailiff in his duty has also always been an offence what's changed is it greater penalties?

 

Also, when did the law change allowing Enforcement Officers to wear highly visible clothing that states who they are? The HCEO's on can't pay wear armoured vests with ENFORCEMENT OFFICER extremely visible on them when enforcing, or is this allowed only for HCEO's acting on a high court writ?